NON-CAPITAL A41 TIGA TION: EFFECTIVE ADVOCACY WIT ...

FEDERAL DEFENDERS OF NEW YORK AND THE SECOND CIRCUIT JUDICIAL COUNCIL PRESENT

NON-CAPITAL A41 TIGA TION: EFFECTIVE ADVOCACY WIT) REAL RESUL TS

Monday, June 18, 2012

The United States Courthouse Southern District of New Yoth

PROGRAM MATERIALS

NONaCAPITAL MIT/GA TION: EFFECTIVE ADVOCACY WIT) REAL RESUL T5

TABLE OF CONTENTS PART 1: A VIEW FROM THE BENCH ... ............ ........................................ 1 Judge Chin On:

The Challenges Judges Face ............................................................ 3 Family Circumstances ...................................................................... 11

Judge Gleeson Mandatory Minimum Sentences ......................... 21 Sentencing Disparities in Fraud Cases .............................................. 43

Judge Baits On Cooperators.................................................................................... 56 Fraudsters...................................................................................... 57 PublicCorruption ............................................................................ 59

PART 2: DEVELOPING MITIGATING INFORMATION............................62 THEFACT PATTERN .................................................................................. 63 THE CRIMINAL JUSTICE ACT ..................................................................... 67 LIST OF FREQUENTLY OBTAINED MITIGATION RECORDS ......................... 78 SAMPLESUBPOENAS ................................................................................ 80

ADMINISTRATION FOR CHILDREN SERVICES ............................. 81 NEW YORK CITY BOARD OF EDUCATION ......................................... 83 SOCIAL SECURITY ADMINISTRATION .............................................. 85

REQUEST FOR APPOINTMENT OF MENTAL HEALTH PROFESSIONAL ........... 87 REQUESTS FOR APPOINTMENT OF PRIVATE INVESTIGATOR ...................... 90 SAMPLE HARLEM HOSPITAL RECORDS ...................................................... 97 INTERNET INVESTIGATIVE RESOURCES .................................................... 107 PART 3: EFFECTIVE COURTROOM STRATEGIES .................................. 127 DEVELOPING A SENTENCING PLAN ........................................................... 129 INSTRUCTIONS FOR WRITING CHARACTER LETTERS ................................ 132 DEVELOPING THE CLIENT'S SENTENCING ALLOCUTION ............................ 135 USING STATISTICS EFFECTIVELY ............................................................. 141 SAMPLE SENTENCING MEMORANDA ......................................................... 173 INTERNET RESOURCES ............................................................................ 215 THEPRESENTERS ................................................................................. 217

NON-CAPITAL A41 TICA TION EFFECTIVE A D VOCA CY WIT) REAL RESUL TS

PART 1: A VIEW FROM THE BENCH

JUDGE CHIN ON:

THE CHALLENGES JUDGES FACE FAMILY CIRCUMSTANCES

Judge Denny Chin of Federal Court Discusses Sentencing - NYlimes.com Page 1 of 8

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October 7. 2011

A Judge's Education, a Sentence at a Time By BENJAMIN WEtS ER

ON Feb. 2, 2004, Mario Kidd awaited sentencing before Judge Denny Chin of Federal District Court in Manhattan. She had pleaded guilty to acting as a lookout for two masked gunmen who had robbed a bank in Yonkers, and under federal sentencing guidelines, she faced a prison term of up to six years.

Her lawyer, though, was asking the judge to sentence her only to home confinement, because she was raising five children who ranged in age from 5 to 13, and also caring for her 14-year-old sister, as their own mother had been a crack-cocaine addict. He had said that sending Ms. Kidd to prison would almost certainly result in her children being placed in foster care, destroying what was left of the family.

His arguments gave Judge Chin pause. Ms. Kidd had provided him with copies of the children's report cards, which showed them receiving B's and B-pluses, even a smattering of A's, and very few absences from school.

"The report cards had an impact on me," Judge Chin recalled in a recent interview. "She was getting them out to school every day, and they were holding their, own. I was impressed by this." Ms. Kidd, who had also apologized for her crime in a letter to the judge, was "a decent mother," he concluded. Moreover, one of his law clerks had shown him a news report on the terrible conditions in foster homes and facilities for children in New Jersey, where the children would most likely be sent.

But the robbery had been violent, with one robber killed in a police shootout. And the judge was seldom persuaded to grant leniency because of family circumstances - it was, after all, the defendants' crimes, not the sentence, that caused hardships for families.

In the end, he decided that Ms. Kidd had to go to prison, but he imposed only a 30-month sentence. "I cared very much about the future of the children," Judge Chin recalled, "but I was willing to take the risk that they would be sent to foster care, even with a shorter

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Judge Denny Chin of Federal Court Discusses Sentencing - NYlimes.com Page 2 of 8

sentence." His decision involved weighing conflicting concerns and interests, he said, "something we have to do all the time."

Judge Chin, 57, who last year was elevated by President Obama to the United States Court of Appeals for the Second Circuit, in New York, after nearly 16 years on the trial bench, is best known for the 150-year sentence he gave Bernard L. Madoff, arguably the most prominent white-collar sentence in the history of American law.

But it has been largely anonymous defendants like Ms. Kidd whose cases have influenced his thinking about how to balance punishment and rehabilitation, deterrence and compassion.

"There’s no doubt that all of these cases shaped me," Judge Chin said, "and shaped the way I think, and the way I respond to things."

He took the bench in 1994 at age 40 with little experience in criminal law. He has since sentenced more than 1,100 defendants, including at least a dozen who received sentences of life or theequivalent, according to court statistics. He quickly learned, he said, that preparation was crucial and that he must not agonize over his decisions. One seasoned judge had advised: "Rule and roll." Be decisive. Don’t second-guess yourself.

In a series of interviews conducted in person and through e-mail over the past year, Judge Chin discussed his most challenging sentencing decisions, cases that became essential parts of his education as a judge. The interviews were unusual; judges rarely agree to discuss cases, even closed ones, like these, outside court. The exchanges provided a revealing look at how one judge approached the task of sentencing, which he called "the hardest thing" about being on the bench.

"It is just not a natural or everyday thing to do," Judge Chin explained, "to pass judgment on people, to send them to prison or not."

"I mean, there is so much at stake," he added, "and there are so many different considerations that come into play."

IN March 1996, Patrick Regan, a former New York City police officer, became the first defendant Judge Chin sentenced who had been convicted in a trial at which he presided.

The case had been bitterly fought: Mr. Regan, then 36, a highly decorated police veteran, was convicted of perjury. Prosecutors said he had lied during a grand-jury investigation of suspected misconduct by an anticrime unit of which he was a member. His lawyer, David S. Greenfield, contended that the government itself had engaged in misconduct, trying to catch the officer in a perjury trap, an argument Judge Chin had rejected before the trial.

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Judge Denny Chin of Federal Court Discusses Sentencing - NYTimes.com Page 3 of 8

The government asked for a sentence within the guideline range of one-and-a-half to two years. But Mr. Greenfield, citing Mr. Regan's valorous record, sought probation. His client had made or assisted in many felony arrests; had been shot in the line of duty; and had been awarded the Police Combat Cross, the department's second most prestigious medal. The conviction and loss of his shield would be punishment enough, Mr. Greenfield argued.

Judge Chin recalled that the sentencing came against the backdrop of several high-profile police tragedies, including the suicide of an off-duty officer and the funeral of an officer killed in a Bronx shootout. "I had already come to appreciate how hard it is to be a police officer," he said.

He noted that sentencing law recognized that individuals with different levels of culpability should be treated differently, and that some crimes were more evil than others. As always, he said, judges must also look at other factors, like a defendant's history, background and motivation.

"Where someone is guilty of lying to protect others, at least he is doing so not out of greed or to help himself," he said. "This motivation doesn't make the lying right, but at least it is understandable to some limited extent."

But he knew that prosecutors felt Mr. Regan had blatantly lied and interfered with a government investigation.

On the sentencing date, Judge Chin's courtroom was packed with police officers, who rose in unison when he asked the defendant to stand. The judge, who recalled feeling a bit nervous because of the spotlight on the case, told Mr. Regan that no matter how much good he had done in the past, he was bound by oath to tell the truth. In the end, the judge departed from the guidelines and imposed a term of one year plus one day (a technicality that allows a defendant to be released slightly early for good behavior).

"What did I learn?" Judge Chin recalled 15 years later. "I learned that this was going to be hard." But he said he had gained confidence, and did not agonize over the decision. "I felt I had done the right thing."

If Judge Chin believed that some defendants deserved leniency because of their otherwise unblemished history, in his eyes others forfeited their right to a break.

Such was the case with Pat V. Stiso, a Bronx lawyer, who had pleaded guilty to narcotics conspiracy and obstructing justice after being accused of, among other things, hiding money

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for the leader of a drug gang. He faced a guideline range of 70 to 87 months, for a possible term of more than seven years.

At the sentencing, in March 1999, Judge Chin cited the many letters he had received depicting Mr. Stiso, then 38, as a loving father and committed defense lawyer who had also been involved in charitable work. But he said, "I cannot be compassionate."

He said Mr. Stiso's supporters had not seen his other side, which had allowed him to accept "tens of thousands of dollars in cash in grocery bags, money that was earned from the sale of heroin." Defense lawyers had to do their jobs, he said, "but this is not a case about the blurring of a line. This case doesn't even come close." He sentenced Mr. Stiso to 87 months,

Looking back, Judge Chin said, the "mitigating factors did warrant leniency, and that's why it was a struggle for me internally."

But he was keenly aware, he said, "of the seriousness of his crime." It was also painful, Judge Chin said, to watch a lawyer he knew, a courthouse regular, "just fail as a human being."

"In a sense, he was like one of our own," he said.

LIKE most judges, Judge Chin faced defendants who promised to reform their ways. Some fulfilled that pledge; others let him down. He tried not to become jaded or cynical, he said, and retained hope that people who had made mistakes could tarn their lives around.

"A good judge has to care," he said. "He has to want to make the world better." He also believed that rehabilitation, along with punishment, deterrence and healing victims, was a legitimate goal of sentencing. As he put it, "I don't like to give up on people."

But two cases showed how difficult that goal was to achieve.

The first, in November 1998, involved Alethea Pierce, 38, a drug addict who had pleaded guilty to participating in a narcotics trafficking ring, and then had seemingly transformed her life. She had cooperated with prosecutors, testified against the ring's leaders, and undergone drug treatment.

At sentencing, she said proudly that she was putting her life back together, reuniting with two of her children, finding housing and taking courses to find a job. "I just like who I am today," she said.

"Sentencing is often very hard," Judge Chin observed, adding that her case would indeed be "an easy one." He gave her time served - she was free to go.

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But a year later she was back before him, after a series of positive drug tests. Still, she made it clear that she wanted another chance. "What none of you all know in this courtroom is the life of the addict," she said.

"I've lived it," she added, "and I like being clean."

"Doing it your way hasn't worked," Judge Chin responded, but he decided to take a chance, agreeing not to send her to prison and ending court supervision of her case. He said he had one request: "I want you to write me a letter in a few months telling me that you're doing great."

He never heard from her again.

Daniel Sangemino was a Queens resident who had used high-pressure telephone tactics to solicit money for sham investments. He had even persuaded a 79-year-old Utah widow to liquidate her savings and take out a loan in order to send him $149,000.

In April 2001, Judge Chin sentenced Mr. Sangemino, 25, to just over three years, including additional time for exploiting a vulnerable victim. Mr. Sangemino served his time but could not stay out of trouble. In February 2004, after arrests for harassment and drug possession, he was back before Judge Chin for violating the terms of his release.

He admitted to a longstanding drug problem. The judge told him he seemed bright and articulate. "If it's the drugs, you really have to kick it," he said.

The judge imposed eight more months, and recommended drug treatment. Again Mr. Sangemino did the time, and again he was arrested after his release, for harassment. Judge Chin imposed an additional 16 months. "I don't know what you are doing with yourself" he said, adding, "This is really your last chance."

Mr. Sangemino, contacted recently, said that he had not returned to court and had worked hard to address his addiction issues. "I have lived a clean and sober life for five years," he said.

Now 36, he said he had held a steady job, obtained an associate's degree and planned to attend Queens College next year. He has also been paying restitution.

"I really don't feel good about what I did in the past," he said. He added that Judge Chin had treated him fairly. "I'll never forget his expression. He wasn't angry. He was, like, 'C'mon.'"

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IN 2004, Judge Chin appeared on a bar association panel to discuss a new book called "The Myth of Moral Justice: Why Our Legal System Fails to Do What's Right." The author, Thane Rosenbaum, a Fordkiam law professor, had known the judge for years.

"One of the interesting concepts in Professor Rosenbaum's book," Judge Chin told the audience, "is that the law lacks a soul. The law lacks tenderness. The law is objective and cold and inhumane. The law abhors emotion. I don't think that's true.

"Every time I sentence a defendant, there is a lot of emotion," he said. "I think there is a lot of humanity in the law."

But in one 2002 sentencing, a lawyer protested that Judge Chin showed too much emotion. The defendant, Steven Chin Leung, facing passport fraud charges, had then tried to fake his own death in the 9/11 attacks.

In court, Judge Chin called Mr. Leung's actions despicable and selfish, and said his ruse had diverted critical law enforcement resources after 9/11 while the bogus claim was investigated. The guidelines called for a sentence of two to two-and-a-half years, but Judge Chin, acknowledging that there was "a lot of emotion involved," went for a higher sentence, imposing four years.

Mr. Leung's lawyer asked Judge Chin to reconsider, saying that the sentence was "extreme" and that the judge had let his emotions weigh "more than they should."

Judge Chin disagreed. "Emotion comes into play in every sentencing decision," he replied. "Obviously, however, you can't let emotion cloud your judgment, and I don't believe I have done that here."

IN discussing his decisions, Judge Chin acknowledged that he often wondered what happened to defendants who had appeared before him - if his ideal was to balance punishment and rehabilitation, how had it worked in the real world? To find out, The New York Times tracked down some of those people.

Mr. Regan, now 52, said in an interview at his lawyer's office that the support he received from fellow officers had never wavered. When the time came for him to surrender to the authorities, he said, a group of officers met him at his house in the Bronx and flew with him, at their expense, to Kentucky, where he served about eight months. Officers also met him at La Guardia Airport when he came back.

Having lost his job and pension, Mr. Regan opened a contracting firm, remodeling apartments in Manhattan. He said he appreciated Judge Chin's rejection of the

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government's harsher sentencing request. He recalled returning to the courthouse one day, perhaps for his appeal, and standing outside with other officers when he saw Judge Chin leaving the building. The judge walked over, shook his hand and wished him luck, Mr. Regan recalled, saying, "He seemed like a guy with a great heart."

Mr. Stiso, the former lawyer, spoke at his mother's home in New Rochelle, N.Y. He recalled being shocked when Judge Chin imposed the top of the recommended range. "My knees buckled," he said.

But today, Mr. Stiso, 50, said he feels lucky. After serving more than five years in prison, he returned to the same house and loyal and loving family, he said. Although he lost his law license and thriving legal practice, he found work selling investments in life insurance policies and also consults with other white-collar defendants about what they will face in prison, he said.

"I have no problem with the sentence I received," Mr. Stiso said. "The entire experience saved me." He said it was not the amount of time that changed him; it was "having to go through" the process.

THEN there is Ms. Kidd. Judge Chin had given her six weeks to surrender to begin her 30-month sentence, but she failed to appear at the appointed time. She was arrested again and given eight additional months by a different judge. Ms. Kidd, 37, said in an interview in June that she had been unable to find an acceptable caretaker for the children. "I could never bring myself to leave my kids," she said.

While she served her sentence, she said, her mother, who had addressed her own drug problem, and other relatives and friends came together to help care for the children. "I had people that stepped in," Ms. Kidd said, including some she did not know well - "in such a great way," she added.

Since her release in 2007, she said, the family has held together. She works in retailing and is studying nursing, she said.

"I feel like I got that second chance that everybody's talking about," she said, adding, "And I'm taking full advantage of that."

Judge Chin was pleased to hear about the progress the defendants had made. He had always felt Ms. Kidd "was doing something right," he said.

But, he added, they were only a small fraction of the defendants he had sentenced over the years; he would never learn what had happened to most.

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"That's why it makes it so hard. You can't predict the future. You don't know what's going to happen," Judge Chin said. "You do what you think is best for the defendant, for society, and

you hope it works out."

This article has been revised to reflect the following correction:

An earlier version of this article erroneously stated that the guideline range for Mr. Leung was two -and-a-half to three years.

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U.S. v. WHITE Cite as 301 F.Supp.2d 289 (S.D.N.Y. 2004)

lectively, "Defendants") for summary range. U.S.S.G. �1 5111.6, 5K2.0(a)(1)(A), judgment is granted and the case is dis- p.s., 18 U.S.CA.App. missed with prejudice. The Clerk of Court is directed to enter judgment on Defendants’ behalf.

The Clerk of Court is directed to close this case.

(aZSJNI)WUIIJ

("0-, N UM B ER SYEM S KEY

UNITED STATES of America V.

Mario WHITE, Defendant. No. Si 02 Cr. 939(DC).

United States District Court, S.D. New York.

Jan. 30, 2004. Background: After defendant pled guilty to bank robbery, she moved for downward sentence departure below Sentencing Guidelines range on basis of extraordinary family circumstances. Holding: The District Court, Chin, J., held that: downward departure from of-fense level 25 to offense level 17, on basis of extraordinary family circumstances, was appropriate. So ordered.

1. Sentencing and Punishment �866 Ordinary family responsibilities are

not proper basis for departure below Sen-tencing Guidelines because Sentencing Commission took usual family ties and re-sponsibilities into account when formulat-ing Guidelines. 1J.S.S.G. � 5111.6, p.s., 18 U.S.C.A.

2. Sentencing and Punishment 866 Where family circumstances are ex-

traordinary, sentencing court has discre-tion to depart below applicable sentencing

3. Sentencing and Punishment �866 District court’s discretion to down-

wardly depart from Sentencing Guidelines for extraordinary family circumstances is not absolute, as disruption of defendant’s life, and concomitant difficulties for those who depend on defendant, are inherent in punishment of incarceration and it is not unusual for convicted defendant’s incarcer-ation to cause some hardship in family. U.S.S.G. �1 5111.6, 5K2.0(a)(1)(A), p.s., 18 U.S.C.AApp.

4. Sentencing and Punishment 850 Motion for downward departure from

Sentencing Guidelines presents sentencing court with following inquiri.... (1) does court have power to depart, (2) if so, should court exercise its discretion to de-part, and (3) if so, to what extent should court depart. U.S.S.G. � 113.1 et seq., 18 U.S.C.A.

5. Sentencing and Punishment o866 Downward departure in sentence,

from offense level 25 to offense level 17, based upon extraordinary family circum-stances of defendant, who pled guilty to bank robbery, was appropriate; defendant was sole caregiver for six children, ages 5 through 14, no other adults in family were able to care for children, such that children would likely be placed in foster care upon defendant’s incarceration, which could de-stroy family as unit, and sentence at lower level would not only further goals of retri-bution and deterrence, but also would give family some hope that they would be able to continue as a family unit upon her re-lease. U.S.S.G. �f 5H1.6, 5K2.0(a)(1)(A), p.s., 18 U.S.C.A.App.

David N. Kelley, United States Attorney for the Southern District of New York by

-

290 301 FEDERAL SUPPLEMENT, Zd SERIES

Laura Grossfield Birger, Esq., Assistant United States Attorney, New York City, for Plaintiff U.S.

Stephens, Baroni, Reilly & Lewis, LLP by Stephen R. Lewis, Esq., White Plains, NY, for Defendant Mario White.

For the reasons that follow, the motion for a downward departure is granted, but only to the extent set forth below. ’White will be sentenced to a term of imprison-ment

STATEMENT OF THE CASE MEMORANDUM DECISION

CHIN, District Judge. In this case, defendant Mario White has

pied guilty to bank robbery. She has ad-mitted acting as a lookout during a violent robbery of a bank in Yonkers. Two men, dressed in black and wearing masks, burst into the bank, pointed guns and screamed at customers and tellers, and made off with thousands of dollars. One of the assailants was killed in a subsequent shootout with the police.

White is before the Court for sentenc-ing. Under the Sentencing Guidelines, she faces a prison term of 57 to 71 months. White has moved; however, for a down-ward departure below the Guidelines range to a term of probation and home confinement because of her family circum-stances�she is the 29�year old mother of five children, ranging in age from 5 to 13 years, and she also has legal custody of her 14�year old sister. Hence, she is re-sponsible for the care of six young chil-dren, and if she is sent to prison the children are likely to be placed in foster care.

Because White’s family circumstances are extraordinary, I have the discretion to downwardly depart from the sentencing range. In attempting to fashion a fair and just sentence, I must consider the impact that a prison term will have not only on White but on her five young children and sister. At the same time, other sentencing considerations�including the seriousness of the crime and the need for deterrence�weigh in favor of the imposition of a sub-stantial term of imprisonment.

A. The Facts The following constitute my findings of

fact, drawn from White’s plea allocution, the materials submitted in connection with the sentencing, including the presentence report (the "PSR"), and the evidence pre-sented at the trial of United States v. Vernon Snype.

1. The Bank Robbery On July 6, 2002, two men robbed the

First Union National Bank in Yonkers. Aimed with guns and wearing black out-fits, including black masks and gloves, they threatened to shoot and kill the employees and customers of the bank and they pushed an elderly woman to the floor. They filled two bags with some $35,000 and then fled, driving away in a car they had stolen earlier that morning at gun-point from a parking lot after handcuffing the parking attendant to a pipe.

A high-speed chase ensued on the Major Deegan Thruway, as the police pursued the two men from Yonkers to the Bronx. The men fired shots at the police officers following them on the highway. The car crashed in the Bronx, and the chase con-tinued on foot as the two men ran, in opposite directions. One of the two�Wil-liam Partlow�was killed in a shootout with the police. The other�Vernon Snype�escaped, only to be arrested sev-eral days later.

During the robbery, White sat outside the bank in a car with her cousin, Marisa Hicks. They were acting as lookouts. With them in the back seat�during the

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U.S. v. WHITE Cite as 301 RSupp.2d 289 (S.D.N.Y. 2004)

robbery�was Hicks’s baby. As made clear by a statement White gave the police after her arrest and by her plea allocution, at a minimum, White knew in advance that she would be assisting Snype in some kind of a robbery. She had been told that she would be paid $250 for doing so. Her task was to help Hicks alert Snype if police officers appeared. At a minimum, White realized, as the robbery was about to be-gin, that Snype and another man were going to rob a bank. In fact, she saw the two men, dressed in black, wearing masks, apparently with a gun, enter the bank. Hicks was on a cell phone with Snype while the robbery unfolded, and she told White that people were screaming in the bank. White did not leave but continued to act as a lookout.

More likely than not, White knew more than she has admitted. The phone records show that she and Hicks spoke to each other twice on July 5, 2002, the day before the robbery. More significantly, the tele-phone records show that between 5:30 a.m. and 6:15 a.m. on July 6th, Snype and White spoke to each other 13 times, with White calling Snype five times and Snype calling White eight times. Hence, White undoubtedly knew in advance that this was going to be a bank robbery. White also spoke with Hicks by telephone 25 times on July 6th.

Also acting as a lookout during the rob-bery was Cornell McCloud, who was sit-ting in his own car nearby.

2. The Aftermath After the robbery, White continued to

play a role. She and Hicks met Snype and remained with Snype as he tried to locate Partlow, unaware that Partlow had been killed. She also was present when Snype met up with McCloud. She participated as Snype and McCloud located Partlow’s car (in which Snype had left his wallet and keys), and she drove McCloud’s car while

McCloud drove away Partiow’s car to hide it from the police.

The next day, when Snype wanted to find a place to hide his own car, White suggested a storage facility in New Jersey. She then assisted Hicks in renting space at the facility and in storing Snype’s car there.

On July 10, 2002, after McCloud and Hicks had been arrested, White contacted the police. She was arrested that night.

On July 11, 2002, Snype was arrested in Far Rockaway, New York, in possession of more than $20,000 of the money stolen from the bank, including bundles of money still wrapped in money bands marked "First Union National Bank." He also pos-sessed two loaded guns, fraudulent identi-fication documents, and papers relating to the storage unit that had been rented by Hicks to hide Snype’s car. White’s name and address are listed in the storage unit documents.

3. White's Personal and Family Cir-cumstances

White is 29 years old. She graduated from high school, completed a business course, and attended one quarter at a com-munity college.

White has five children ranging from 5 to 13 years in age, from three different relationships. One of the children suffers from a behavioral disorder and the young-est is asthmatic. The fathers of the chil-dren are not available to take custody of the children: one is in prison; another is an unemployed drug deafer; and although the third occasionally provides some mon-ey toward the care of his son, he has not had contact with him. Because White’s mother is a crack addict, White also has legal custody of her 14�year old sister.

As a child, White lived with her mother and her mother’s boyfriend; White con-

292 301 FEDERAL SUPPLEMENT, 2d SERIES

tends that her mother’s boyfriend sexually abused her. While growing up, White saw her father only once and was told that he was her godfather. Recently, White has renewed a relationship with her father, a 53�year old truck driver, and her father put his house up as collateral to secure White’s release on bail.

White was the only child of her father and mother. Her father has five other children, but White does not know these half-siblings. White’s mother has three other children, including the 14�year old living in White’s household. The other two half-siblings are only 23 and 21 years old and do not appear to be suitable care-givers for the six children.

White’s five children and her sister live with her in New Jersey, where they attend school. In a letter submitted to the Court recently, White describes the children as doing well in school and maintaining B or B + averages. The PSR describes the home as "an adequately maintained multi-bedroom apartment within a private home." (PSR � 60). White has been em-ployed on a part-time basis, with a retail store since June 2001, first as a cashier and then as a phone operator. She worked as a cashier on and off for some years before that. She receives approxi-mately $630 per month in food stamps and rent subsidies.

White has one prior conviction: when she was 22 years old, she was convicted of credit card fraud and was sentenced to a $225 fine. While employed at a depart-ment store, she rang up a sale for a friend who was using a stolen credit card.

B. Prior Proceedings McCloud and Hicks have pled guilty.

Snype went to trial, and on October 9, 2003, a jury convicted him of conspiracy to commit bank robbery. The jury was un-able to reach a verdict on three other counts, including a count charging the sub-

stantive crime of bank robbery. I de- clared a mistrial as to the three counts.

On September 26, 2003, White pled guilty to the crime of bank robbery. At her plea allocution, White stated that she knew she was going to be a lookout with her cousin, but that she did not know for what. She claimed that once she learned that the robbery was of a bank, she stopped acting as a lookout. (9/26/03 Tr. at 14-17). Upon further questioning, how-ever, she admitted otherwise:

THE COURT: Okay, I am going to ask you again.

You told me that you were going to be a lookout. THE DEFENDANT: Yes. THE COURT: Did you know that you were going to be a lookout for a bank robbery? THE DEFENDANT: Yes. THE COURT: Did you know that be-fore you got there? THE DEFENDANT: No. THE COURT: You knew that when you got there? THE DEFENDANT: Yes. THE COURT: From what Ms. Hicks told you? THE DEFENDANT: Yes; when she was on the phone with him. THE COURT: Once you learned that there was going to be a bank robbery, did you continue to participate as a look-out? THE DEFENDANT: Yes. THE COURT: And was it your inten-tion to assist in the bank robbery by being a lookout? THE DEFENDANT: Yes.

(Id at 18-20). I saw the parties for sentencing on Jan-

uary 16, 2004. The principal issue was White’s motion for a downward departure

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U.S. v. WHITE ME

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for extraordinary family circumstances. White was given the opportunity to speak and she stated as follows:

THE DEFENDANT: ... Your Honor, I understand what I did was wrong. I didn’t know it was going to turn out for me this way. If I could change it, I would.

I’m a single mother of five kids, with custody of my sister. I’m not saying I need your sympathy for that, but if I am to go to jail, my kids have nobody. I don’t want them to come out the way I came out. I don’t want them to be victimized. I don’t want anything wrong to happen to them, but I do understand what I did was ’wrong.

THE COURT: Did you not think about that when you were sitting in that car?

THE DEFENDANT: Your Honor, to be honest, no. I never thought it was going to tuna out to be what it was.

THE COURT: Why didn’t you walk away as soon as you learned that there was a bank robbery? THE DEFENDANT: I ask myself that a thousand times, why didn’t I walk away. But I stayed because my cousin asked me not to leave her. I trusted her. I never thought that I would be put in harm’s way that way. I never thought that actually nobody could commit such a thing and think it was all right.

Like I said, I could have left, but I didn’t. And I do apologize for that. I apologize to my lawyer for not cooperat-ing with him and not speaking to him when I needed to speak to him, because in my own words I just thought of how it was just me and my kids and nobody else. But as I stand here today, I know now that he is the one who is trying to help me be there for my kids, and I just ask you to give me one more chance,

your Honor. I promise I will never make a mistake like that again.

(1/16/04 Tr. at 10-11).

I concluded that ",Vhite’s family circum-stances were extraordinary, but I reserved decision on the issue of whether to depart. Id. at 4, 12).

C. The Guidelines Calculation

White pled guilty pursuant to a plea agreement that stipulated to a Total Of-fense Level of 25 and a Criminal History Category of I for a sentencing range of 57 to 71 months. In the PSR, however, the Probation Department recommended an upward two-level adjustment in the offense level, pursuant to � 2B3.1(4)(B), because Snype and Partlow had handcuffed the parking lot attendant to a pipe when they stole the vehicle the morning of the rob-bery. The Probation Department also rec-ommended not giving White a three-level downward adjustment for acceptance of responsibility pursuant to � 3E1.1 because it believed she had not been forthcoming at her plea allocution or in her presentenc-hag interview. Consequently, the PSR cal-culated the Total Offense Level as 30. With the Criminal History Category of I, the PSR set forth a Guidelines range of 97 to 121 months.

The Government has not requested the two-level enhancement pursuant to � 2133.1(4)(B), nor is it opposing the three-level downward adjustment for acceptance of responsibility. As I noted on January 16, 2004, without expressing a view on the correctness of the Probation Department’s positions, I will accept the parties’ agree-ment. Hence, I conclude that the Total Offense Level is 25, the Criminal History Category is I, and the Guidelines Range is 57 to 71 months.


DISCUSSION A. Family Circumstance Departures

In imposing sentence, a court must con-sider: the circumstances of the crime; the history and characteristics of the defen-dant; the need to promote respect for the law; the traditional goals of retribution, deterrence, protection, and rehabilitation; the range of sentences established by the Sentencing Commission for similar crimes; and the need to avoid unwarranted sen-tencing disparities. 18 U.S.C. � 3553(a); see generally United States v. Brown, 381 U.S. 437, 458, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965) ("Punishment serves several purposes: retributive, rehabilitative, deter-rent�and preventative.").

[1] A defendant’s family circumstances are part of her history and characteristics and hence are relevant to the Court’s deci-sion where to sentence her within the applicable Guidelines range. The Sen-tencing Guidelines provide, however, that a defendant’s "[fjamily ties and responsi-bilities are not ordinarily relevant in de-termining whether a departure may be warranted." U.S.S.G. � 5H1.6 (2003).’ "[O]rdinary family responsibilities" are not a proper basis for a departure because the Sentencing Commission took the usual family ties and responsibilities "into ac-count when formulating the Guidelines." United States v. Johnson, 964 F.2d 124, 128 (2d Cir.1992).

[2] Where family circumstances are extraordinary, the sentencing court has discretion to depart below the applicable sentencing range. Family circumstances are extraordinary when exceptional hard-

1. Although White committed her crime in 2002, I use the 2003 edition of the Guidelines, as did the Probation Department in preparing the PSR, because there are no substantive differences between the two versions with re-spect to the issues before the Court. See U.SS.G. � 5H1.6 (2002) (a defendant’s ’[f]amily ties and responsibilities .. are not

ship to a defendant’s family would result from a sentence within the Guidelines range; such circumstances may constitute a "mitigating circumstance .,. of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commis-sion in formulating the guidelines." U.S.S.G. � 5K2.0(a)(1)(A) (2003). See, e.g., United States v, Galante, 111 F.3d 1029, 1035 (2d Cir.1997) (upholding departure where defendant provided primary support for two children, his wife spoke limited English, his father was critically ill and on life support in a chronic care facility, his mother was a 66-year old factory worker, and incarceration "would probably ... de-stroy[ ]" "the family unit"); Johnson, 964 F.2d at 129-30 (upholding departure where defendant was sole support of four young children); United States v. Alba, 933 F.2d 1117, 1122 (2d Cir.1991) (uphold-ing departure where defendant worked two jobs to support his wife, two children, and grandmother, and his disabled father relied on him to get in and out of wheel-chair).

[31 A district court’s discretion to downwardly depart for extraordinary fami-ly circumstances is not absolute. "Disrup-tion of the defendant’s life, and the con-comitant difficulties for those who depend on the defendant, are inherent in the pun-ishment of incarceration," Johnson, 964 F.2d at 128, and "[i]t is not unusual .. . for a convicted defendant’s incarceration to cause some hardship in the family." Unit-ed States v. Smith, 331 F.3d 292, 294 (2d Cir.2003). Hence, family circumstance de-partures were reversed where: the defen-

ordinarily relevant in determining whether a Sentence should be outside the applicable guideline range").

Under the 2003 edition of the Guidelines, for certain crimes not relevant here, even extraordinary family circumstances are not a basis for departure. See U.S.S.G. � 5H1.6 (2003) (offenses involving minor victims).

S

U.S. V. WHITE Cite as 301 F.Supp.2d 289 (S.D.N.Y. 2004)

dant shared responsibilities for raising his son with his wife, even though her college studies were likely to be postponed as a result of his incarceration, Smith, 331 F.3d at 294; the defendant provided some sup-port for his three children and ill father, and the defendant was likely to be deport-ed following his release from prison in any event, United States v. Carrasco, 313 F.3d 750, 756-57 (2d Cir.2002) ("being the fa-ther of three children is in no sense an exceptional circumstance"); and the defen-dant had six children, but only one of the six was under eighteen and the three older children were available to care for their younger siblings. United States v. Madri-gal, 331 F,3d 258, 260 (2d Cir.2003) (the "’very serious problems’" faced by defen-dant’s children were "the common collater-al damage of imprisonment").

[41 A motion for a downward depar-ture presents the sentencing court ’with three inquiries: (1) Does the Court have the power to depart? (2) If so, should the Court exercise its discretion to depart? (3) If so, to what extent should the Court depart? Compare United States v. Nau-gle, 879 F.Supp. 262, 264 (E.D.N.Y.) ("a sentencing court considering departing on the basis of ’family circumstances’ makes two separate decisions: whether it has the power to depart and, if so, whether it should exercise that power"), a"d, 54 F.3d 765 (2d Cir.1995).

B. Application I consider each of the three areas of

inquiry.

1. Can the Court Depart? [5] I conclude, as I stated at the hear-

ing on January 16, 2004, that I have the power to depart, for White’s family cir-cumstances are extraordinary and her in-carceration will result in exceptional hard-ship to her family.

White is the sole caregiver for six young children, ages 5 through 14. There do not appear to be any adults in the family will-ing or able to take care of the children if White should go to prison. The Govern-ment suggests White’s natural father as a possibility, but he is a 53-year old truck driver with his own family who played no role in raising White, his own daughter. It is unrealistic to expect that he could or would suddenly take in five young grand-children and his ex-wife’s 14-year old daughter, when he has never had a rela-tionship with any of them. Even the Pro-bation Department recognizes that White’s "children will probably be placed in foster care" if she is incarcerated. (PSR at p. 20).

The facts of this case are more extraor-dinary than the facts of Johnson, Alba, and Galante, where family circumstance departures were upheld, and it is hard to imagine family circumstances more com-pelling than those at hand. The loss of six young children to the New Jersey foster care system surely falls outside the heart-land of cases contemplated by the Sen-tencing Commission; the plight of these children surely constitutes a "mitigating circumstance ... of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." IJ.S.S.G. � 5K2.0(a)(1)(A) (2003). Hence, I conclude that I have the power to depart.

2. Should the Court Depart?

The next inquiry is whether I should exercise my discretion to downwardly de-part. As Judge Weinstein has noted,

even the most extenuating family cir-cumstances may be outweighed by other considerations. The defendant’s crime may be serious enough that, for pur-poses of incapacitation or specific or


Guidelines parture, to a sentence of probation with home confinement.

general deterrence, the full sentence must be imposed.

Naugle, 879 F.Supp. at 265. The decision is a most difficult one, for

balanced against White’s "extenuating family circumstances" are the seriousness of the crime and the need for both specific and general deterrence. This was a rio-lent crime that resulted in the death of one of the participants. Bank employees, cus-tomers, numerous police officers, and a panting lot attendant all were put at risk of serious harm or even death. Likewise, the Court has to be concerned that a downward departure would send the wrong message that a defendant can com-mit a crime as serious as bank robbery and yet be permitted to hide behind her chil-dren. See United States v. Stefonek, 179 F.3d 1030, 1038 (7th Cir.1999) ("Imprison-ing the mother of a child for even a short period of time is bound to be a wrenching experience for the child, but the guidelines do not contemplate a discount for parents of children.").

On balance, I conclude that the equities weigh in favor of a departure�to the ex-tent discussed below. The children de-serve consideration, and a sentence within the Guidelines range of 57 to 71 months would almost certainly and irreparably de-stroy the family as a unit. Even with a departure, the needs of justice can be met. See Johnson, 964 F.2d at 125 ("The United States Sentencing Guidelines do not re-quire a judge to leave compassion and common sense at the door to the court-room."). Accordingly, the motion for a downward departure is granted.

3. To What Extent Should the Court Depart?

There remains the issue of the extent to which the Court should depart. White requests the equivalent of a 15�level de-

I will not depart to that extent. Al-though the family circumstances are ex-traordinary, a sentence of probation for bank robbery would send the wrong mes-sage and leave White utterly unpunished. Courts cannot overlook serious criminal offenses merely because they are commit-ted by single parents, particularly when those parents apparently do not become concerned with the well-being of their chil-dren until they are facing imprisonment. Indeed, these parents surely were not thinking of the best interests of their chil-dren when they committed their crimes. In this case, White and Hicks are the mothers of nine children between them,2 and still they participated in the bank rob-bery. In fact, they did so with Hicks’s baby in the backseat of the car.

White argues that her role was minor, she was just a lookout, and she was to be paid only $250. Even so, if White had not been willing to perform the function of a lookout, perhaps her cousin Hicks would have been reluctant to participate as well, and without the two lookouts, perhaps Snype and Fartlow would not have gone forward with the crime. In addition, White continued to participate after the robbery, joining the effort to retrieve Part-low’s car and helping to hide Snype’s car.

White argues that any prison sentence would defeat the purpose of the downward departure, as any significant period of in-carceration could lead to the placement of the children in foster care. That may be so. But to be clear, any hardship that befalls her family is a consequence not of her sentence but of her criminal actions and her failure to act in the best interests of her children.

2. Hicks has four children, ranging in age from 2 to 13.

ALLAWAY v. McGINNIS ME Cite as 301 F.Supp.2d 297 (S.D.N.Y. 2004)

The Court will endeavor to impose a sentence that not only furthers the goals of retribution and deterrence, but that also will give White and her children some hope that they will be able to continue as a family unit upon her release.

The Court will depart eight levels�from Level 25 to Level 17. With the Criminal Biistory category of I, the new range is 24 to 30 months.

CONCLUSION The defendant Mario White will be sen-

tenced to a term of imprisonment within the range of 24 to 30 months. Sentencing will take place on Monday, February 2, 2004, at 4:30 p.m.

SO ORDERED.

Q W E KEY NUMBER SYSHM

Waverly kLLAWAY Petitioner, V.

Michael McGINNIS, Superintendent, Southport Correctional Facility

Respondent. No, 03 CIV.5745.

United States District Court, S.D. New York.

Jan. 30, 2004. Background; State prisoner filed petition for writ of habeas corpus, challenging con-viction of assault in the second degree, affirmed at 293 A.D.2d 347, 742 N.Y.S.2d 198. Holdings: The District Court, Marrero, J., held that: (1) admission of evidence that petitioner

was involved in an altercation unrelat-ed to crimes for which he was charged did not render his trial fundamentally unfair, and

(2) petitioner’s claim that his sentence was excessive was not cognizable on federal habeas review.

Petition denied.

1. Habeas Corpus 5r490(1) A federal habeas court will not inde-

pendently determine the appropriateness of whether evidence should have been ad-mitted under state evidentiary rules; rath-er, the federal court may grant habeas relief only if state trial court’s decision to admit the evidence at issue rendered the petitioner’s trial so fundamentally unfair that it denied him his right to due process of law as guaranteed by the Constitution of the United States. U.S.C.A. Const. Amend. 14.

2. Criminal Law e369.2(1) Under New York law, evidence of un-

charged crimes may be introduced at trial when the evidence is relevant to a perti-nent issue in the case other than a defen-dant’s criminal propensity to commit the crime charged, and if the probative value of the evidence outweighs any prejudice to the defendant.

3. Criminal Law e1144.15 Courts must assume that jurors un-

derstand and follow limiting jury instruc-tions.

4. Constitutional Law e266(4) Criminal Law 673(5)

Evidence that defendant was involved in an altercation unrelated to crimes for which he was charged did not render his trial, which resulted in his conviction of assault in the second degree, so fundamen-tally unfair as to deny him due process of law, in light of trial court’s limiting jury instruction that jury was not to infer that defendant had any tendency or propensity to commit any crime, and relatively mini-mal information that was actually intro-

JUDGE GLEESON ON:

MANDATORY MINIMUM SENTENCES SENTENCING DISPARITIES IN FRAUD CASES

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Only the Westlaw citation is currently available.

United States District Court,

E.D. New York. UNITED STATES of America

V.

Jamel DOSSIE, Defendant. No. 1 1�CR--237 (JG).

March 30, 2012. Background: Defendant was convicted of conspiracy to distribute crack cocaine, and a sentencing hearing was held.

Holding: The District Court, John Gleeson, District Judge, held that five-year statutory mandatory minimum sentence applied.

Ordered accordingly. West Headnotes

Conspiracy 91 €51

91 Conspiracy

Criminal Responsibility 9 111(C) Sentence and Punishment

91 k5 1 k. In general. Most Cited Cases A five-year statutory mandatory minimum

sentence applied to the defendants conviction for conspiracy to distribute crack cocaine,

because the offense involved more than 28 grams of cocaine base. Comprehensive Drag Abuse Prevention and Control Act of 1970, � 401(b)(1)(B), 21 U.S.C.A. � 841(b)(1)(B.

Zainab Abmad, United States Attorneys Office, Brooklyn, NY, for United States of America.

Murray Singer, Murray E. Singer, Esq., Port Washington, NY, for Jamel Dossie.

STATEMENT OF REASONS

JOHN GLEESON, District Judge: *1 This case illustrates how mandatory

minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. In the substantial percentage of cases in which they apply, they produce a sentencing regime that is worse than the one the Sentencing Reform Act of 1984 was enacted to replace. They make opaque what that law was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. �Most importantly, too many nonviolent, low-level, substance-abusing defendants like Jamel Dossie "lose their claim to a future"�to borrow a phrase from Attorney General Eric H. Holder, Jr.�because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.

There is no need for new legislation to

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remedy this state of affairs. The Attorney General himself has it within his power to remedy it. He can do so by

� citing to the ten-year mandatory minimum in an indictment only when the government intends to prove that the defendant occupied a leadership role that warrants a four-level upward adj ustment under U. S. S. G. �S 3B1.1(a’;

� citing to the five-year mandatory minimum only when the government intends to prove a managerial role worthy ofa three- or two-level upward adjustment under � 3B 1.1(b) or (c); and

withdrawing the mandatory minimum provision from the case (or reducing it, as the case may be) if the corresponding aggravated role has not been proven by the government or admitted by the defendant.

I respectfully urge the Attorney General to implement such a policy. It is a modest request. It asks only that the Department of Justice ("DOS") refrain from dictating severe mandatory minimum penalties when it cannot prove by a preponderance of the evidence that the defendant was the kind of drag dealer for whom those penalties were enacted. By ensuring that the harsh, wooden mandatory minimum provisions are employed only in the circumstances to which Congress clearly intended to limit them, the government could reform an aspect of the criminal justice system that is in need of repair. The reform would promote transparency and accountability in

sentencing and return to defendants the due process sentencing rights that are snuffed out in cases like this one. Finally, it would be consistent with the Attorney General’s public statements about how our criminal justice system ought to treat defendants like Dossie.

A. The Mandatory Minimum Sentences in Drug Cases FN’

1. Why They Were Enacted

Already engaged in a fervent war on drugs, Congress was galvanized by the tragic death by overdose of University of Maryland basketball star Len Bias on June 19, 1986, and it promptly enacted the Anti�Drug Abuse Act of 1986 ("ADAA"). The ADAA created mandatory minimum sentences and enhanced maximum sentences that have now become central features of our federal sentencing landscape. Despite the speed with which the ADAA was enacted, there is ample evidence from related congressional reports of the purpose of the new enhanced minimum and maximum penalties. The ADAA’s five-year minimum sentence, with a maximum enlarged from 20 to 40 years (the "5�to-40 sentence enhancement" or the "five-year mandatory minimum"), was specifically intended for the managers of drug enterprises, while the Act’s ten-year minimum sentence with life as the maximum (the "ten-to-life sentence enhancement" or the "ten-year mandatory minimum") was intended for the organizers and leaders. The Sentencing Commission’s recent report to the Congress on Mandatory Minimum Penalties in the Federal Criminal Justice System

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provided the following useful summary of that evidence:

*2 Floor statements delivered by members in support of the [ADAA] and a committee report on a predecessor bill suggest that Congress intended to create a two-tiered penalty structure for discrete categories of drug traffickers. Specifically, Congress intended to link the five-year mandatory minimum penalties to what some called "serious" traffickers and the ten-year mandatory minimum penalties to "major" traffickers. Drug quantity would serve as a proxy for identifying the type of trafficker.

Senator Robert Byrd, then the Senate Minority Leader, summarized the intent behind the legislation:

For the kingpins�the masterminds who are really running these operations�and they can be identified by the amount of drugs with which they are involved�we require a jail term upon conviction. If it is their first conviction, the minimum term is 10 years.... Our proposal would also provide mandatory minimum penalties for the middle-level dealers as well. Those criminals would also have to serve time in jail. The minimum sentences would be slightly less than those for the kingpins, but they nevertheless would have to go to jail�a minimum of 5 years for the first offense.

A report issued by the House Judiciary Subcommittee on Crime following its

consideration of a predecessor bill also provides evidence of Congress’s intent to establish two tiered mandatory minimum penalties for serious and major traffickers. The Subcommittee determined that the five and ten-year mandatory minimum sentencing structure would encourage the Department of Justice to direct its "most intense focus" on "major traffickers" and "serious traffickers." "One of the major goals of this bill is to give greater direction to the DEA and the U.S. Attorneys on how to focus scarce law enforcement resources."

U.S. Senfg Commn, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 24 (2011) [hereinafter Mandatory Minimum Report ] (second alteration in original) (quoting 132 Cong. Rec. 27,193-94 (Sept. 30, 1986); H.R.Rep. No. 99-845. pt. 1, at 11-12 (1986)) (internal footnotes omitted).

2. The Mistake: Using Drug Quantity as a Proxy for Role

Most people would agree that the people who lead or manage drug-trafficking businesses deserve severe punishment. But right from the start Congress made a mistake, which is apparent in the statement of Senator Byrd quoted above: The severe sentences it mandated to punish specified roles in drug-trafficking offenses were triggered not by role but by drug type and quantity instead. If it wanted the statute to serve its explicitly stated purpose, Congress should have said that an offense gets the


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5�to--40 sentence enhancement when the defendant is proved to be a manager of a drug business. Instead, the 5�to--40 sentence enhancement is triggered by offenses involving 28 grams of crack, 100 grams of heroin, or 500 grams of cocaine. 21 U.S.C. � 841(b)(1)(B. And instead of hinging the ten-to-life sentence enhancement on the governments proof of "kingpin" or leadership status, Congress simply used larger drug quantities: 280 grams of crack, 112 1,000 grams of heroin, or 5,000 grams of cocaine. 21 U.S.C. � 841(1)(A). So if an offense happens to involve a drug type and quantity that triggers an enhancement, every defendant involved in that crime, whatever his or her actual role, can be treated as a leader or manager at the option of the United States Attomey.

*3 Drug quantity is a poor proxy for culpability generally and for a defendant’s role in a drug business in particular. Senator Byrd’s statement that the leaders and managers of drug operations "can be identified by the amount of drugs with which they are involved" was incorrect. Compare Defendant A, who organizes a dozen teenagers into a business to distribute cocaine in a New York City housing project and adjacent high school, with Defendant B, an addict who is paid $300 to stand at the entrance to a pier and watch for the police while a boatload of cocaine is offloaded. Defendant A is more culpable, and he is the sort of defendant Congress had in mind when it enacted the ten-to-life sentence enhancement, but he will not face even the 5-to--40 sentence enhancement if the conspiracy is nipped in the bud, before it deals more than half a kilogram of cocaine. Defendant B, on the

other hand, qualifies for kingpin treatment and a ten-year mandatory minimum if the prosecutor so chooses, based solely on the amount of cocaine on the boat.

Congress’s mistake of equating drug quantity with a defendant’s role in the offense need not continue to have the devastating consequences on display in this case. If DOJ invokes the harsh sentence enhancements only in cases in which the defendants have supervisory roles�always fewer than 10% of federal drug cases�such unintended and unjust results can be avoided in the future. However, as discussed below, in deploying the mandatory minimum penalties, DOJ has disregarded their purpose. It has turned a law that sought to impose enhanced penalties on a select few into a sentencing regime that imposes them on a great many, producing unfairly harsh consequences that Congress did not intend.

3. How DOJ Uses the Mandatory Minimum Provisions

DOJ uses mandatory minimum sentences without regard to their purpose. In fiscal year ("FY") 2011, over 74% of crack defendants faced a mandatory minimum, see U.S. Sent’g Comm’n, 2011 Sourcebook of Federal Sentencing Statistics tbl. 44 (2011) [hereinafter 2011 Sourcebook], yet only 5.4% of them occupied an aggravating role of leader or manager of a drug business, see id. tbl. 40J Thus, the overwhelming majority of crack defendants who feel the pain of mandatory prison terms are not the criminals Congress had


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in mind in creating those penalties. The "safety valve" provision that was supposed to save minor defendants from the two-by-four that a mandatory minimum becomes on sentencing day has too many conditions to be effective. Even though more than 94% of crack defendants have no leadership or managerial role, fewer than 10% of such defendants qualify for the safety valve, see id. tbl. 44. B. JamelDossie and His Offense of Conviction

Jamel Dossie is a young, small-time, street-level drug dealers assistant. No one could reasonably characterize him as a leader or manager of anything, let alone of a drug business. Like many young men in our community, he was in the drug business because he is a drug user.

*4 Dossie was born in the Brownsville section of Brooklyn. His fathers illegal drag use caused a split with his mother before Dossie was even born; Dossie saw his father only three times per year before his father died in 2009. Dossie’s mother was (and still is) a bus driver, and she raised Dossie and his two siblings by herself.

By the time Dossie began high school, he was already abusing drugs and alcohol, which got him into trouble regularly. Finally, at age 16, a family court judge ordered him out of his home and into a residential substance abuse treatment program at Phoenix House in the Bronx. Phoenix House reports that Dossie "displayed a poor attitude and unwillingness to engage in treatment" and that he made little academic or clinical progress before his

discharge a year later. He never returned to school.

Dossie has atypical criminal history for a young man with his background. A car stop in 2008 led to a simple possession (of marijuana) conviction, and in 2010 he was convicted of a misdemeanor for possessing heroin and crack. His sentences for those misdemeanors were only seven days in custody and probation, respectively, but each conviction nevertheless earned Dossie a criminal history point, terminating any chance he had for safety-valve relief even without considering the two additional points he got for committing his offense while on probation. See 18 U.S.C. 3553 (t).FN5 Dossie has no history of violence except as a victim; he was hit in the leg by a stray bullet while walking down the street in 2008.

Dossie on four occasions was a go-between in hand-to-hand crack sales. On April 15, 2010, when Dossie was 20 years old, a confidential informant made a recorded phone call to him and asked about buying crack. Later that day, the informant met Dossie in Brooklyn. Dossie called an unidentified supplier, who arrived by Mercedes Benz ten minutes later. The informant gave $440 to Dossie�$420 for the person in the Mercedes and $20 for Dossie. Dossie took the money into the car. When he got out, the car left, and then Dossie handed the informant 9.4 grams of crack. On April 29, 2010, they did the same thing, except this time it was $860 ($820 for the supplier, $40 for Dossie) for 15.6 grams. This was less crack than the informant had asked for;


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Dossie explained that the supplier didn’t have enough crack and returned $120 to the informant.

On June 10,2010, they did it again, except this time the supplier of the crack stayed in a nearby store instead of car, and it was $1,140 ($1,100 for the supplier and $40 for Dossie) for 29.6 grams. Finally, on November 9, 2010, Dossie transferred to the informant 33.5 grams of crack for $1,225. Dossie was arrested three and one-half months later, and he subsequently pled guilty to conspiring to distribute crack.

In sum, Dossie sold a total of 88.1 grams, or 3.1 ounces, of crack. His sole function was to ferry money to the supplier and crack to the informant on four occasions for a total gain to himself of $140.’

*5 Dossies advisory Guidelines range was 57-71 months. That range is too severe for a low-level addict selling drugs on the street. As discussed in Vasquez, the drug-offense Guidelines ranges are excessively severe. In formulating those ranges, the Commission decided to jettison its pre-Guidelines data and instead chose to make the sentencing range in every single drug case proportional to the onerous mandatory sentences meant only for leaders and managers.

Despite the harsh Guidelines range, Dossie would have had access to justice if he had not been charged with the five-year mandatory minimum enacted for drug business managers. But he caught two bad breaks. First, as the

prosecutor pointed out at his sentencing, two of his four crack sales happened to exceed the threshold quantity of 28 grams that can trigger the five-year mandatory minimum. They only barely exceeded it�sales three and four put Dossie in mandatory minimum territory by only 1.6 and 5.5 grams, respectively�but just as baseball is a game of inches, our drug-offense mandatory minimum provisions create a deadly serious game of grams. The conspiracy charge to which Dossie pled guilty also aggregates all 88.1 grams, rendering him eligible for the mandatory minimum on that basis as well.

Dossie’s second bad break occurred when the government chose to cite the mandatory minimum provision in the indictment. If it hadn’t, I would have been permitted, indeed obligated, to consider, among others, the facts that (1) Dossie had a very minor role in the offense; (2) the drugs he helped to sell weren’t his, and he got hardly any money for his involvement; (3) Dossie got off to a very rocky start in life�there’s no surer sign of a dysfunctional childhood than a family court judge ordering a 16�year--old out of his home and into a residential drug treatment program; (4) Dossie’s criminal record and unsuccessful drug treatment suggest strongly that his legal problems all arose from a drug problem he developed as a child; (5) Dossie is from a very supportive family�his family made all of his court appearances�which could very well have provided the support be needs to get and remain drug-free; and (6) Dossie is genuinely remorseful. I would have considered all of these factors in sentencing Dossie, and there is no way


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I would have sentenced him to a prison term within the severe advisory range. I might even have given him the chance to enter our Court s Pretrial Opportunity Program, which would have given Dossie the chance to both conquer his substance abuse problem and avoid prison altogether.

Instead, we had a "sentencing proceeding" that involved no written submissions, no oral advocacy, and no judging. The defense lawyer stated the obvious: The five-year mandatory minimum was more than necessary to properly punish Dossie. The prosecutor agreed that the mandatory minimum of five years should be the sentence. So that was the sentence. The proceeding had all the solemnity of a drivers license renewal and took a small fraction of the time.

C. The Evils ofMandatory Minimum Sentencing

*6 When I observed at Dossies sentencing that the five-year mandatory minimum was being used by the government to overly punish a defendant for whom it was not intended, the prosecutor assured me that there were "other factors" that justified the mandatory five-year penalty. Specifically, the colloquy went as follows:

The Court: He’s not a kingpin or a manager, he’s a street-level dealer, and one would think that if a 60�month sentence were appropriate you’d talk the judge into it rather than bind the judge into it. I think it’s an inappropriate exercise of discretion given the purpose of these laws.

The Prosecutor: Well, I think in terms of the exercise of discretion, I don’t think that the only question from the office’s perspective is what the quantity involved is. I think there are a lot of other factors and information that go into it. And because we’re not relying on any of that at sentencing I wouldn’t necessarily belabor it, but I think there are other factors that go into a charging decision and I can represent to the Court that there are besides just mere quantity.

Sentencing Transcript at 7.

As this dialogue exemplifies, the use ofthese mandatory minimum provisions�which were utilized in over 74% of all crack cases in FY 2011, see 2011 Sourcebook tbl. 44�results in a sentencing process that is far more objectionable and dangerous than the regime the Guidelines were created to replace. It is true that the pre-Guidelines regime was a "wasteland" characterized by unexplained,, unguided, and unreviewed sentencing discretion, Marvin E. Frankel, Lawlessness in Sentencing, 41 U. Cin. L.Rev. 1, 54(1972); see also Kate Stith and Jos� A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 172 (1998) ("What made sentencing authority truly extraordinary ... was not the broad discretion the judge exercised, but rather, the fact that his decision was virtually unreviewable on appeal."), but at least the discretion was exercised by a judge, whose mission was to impose a just sentence. The sentencing discretion in Dossie’s case was exercised by one


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of the parties to the case, in furtherance of the undisclosed interests of law enforcement.

Moreover, even the harshest critics of the Guidelines acknowledge that one of their greatest accomplishments is transparency. Judges now must follow established procedures and explain the reasons for their sentences. Those procedures, together with the reasons for the sentence and the sentence itself, are all subject to appellate review. This case reveals how mandatory-minimum provisions create the ultimate opaque sentencing regime: No explanation is required for why Dossie must do five years, none of the "factors" that went into the selection of that sentence was offered, and appellate review is impossible.

When I pressed the government further, the prosecutor reluctantly implied that the decision to charge Dossie with the mandatory minimum might have related to "information that ... link[s] him to a gang." Sentencing Transcript at 9. I agree that if Dossie were dealing drags as his way of participating in a gang, that would be a relevant, aggravating sentencing consideration. I think any judge would want to know facts like what sort of gang it was, what Dossie's alleged link to it was, how long any such link lasted, and how Dossie's actions as a middleman in street-level drug deals were related to the gang. But in this respect as well, Dossie's case places in clear relief the insidious consequences of mandatory sentencing provisions. If not for the mandatory minimum, Dossie would have had the opportunity to contest the governments suggestion that his offense was gang-related, and

the government would have had the obligation to prove it.

*7 Coincidentally, the case that was called for sentencing immediately before Dossie's involved a closely analogous situation. The government contended that the defendant committed the extortion to which he had pled guilty as his way of participating in the Genovese crime family. I agreed that such a fact, if proven, would aggravate the sentence. But the defendant denied the allegation, so I scheduled a sentencing hearing to give the government the opportunity to prove it. See Minute Entry of Feb. 17, 2012, United States v. Caramanica, No. 11 Crim. 26, ECF No. 102. That's how our system is supposed to work; if facts material to the sentencing are in dispute, they get resolved after both sides have notice of them and an appropriate opportunity to be heard. Where the fact in dispute would aggravate the sentence, the government bears the burden of persuasion. These are basic tenets of due process.

Mandatory minimum sentencing strips all of this away. In Dossi&s case, the governments unreviewable decision to invoke the mandatory sentencing provision made the actual facts irrelevant. Dossie might have denied a gang affiliation or that any such affiliation had anything to do with his offense. The government might not have been able to prove its suggestion that Dossie was linked to a gang. Dossie, for all we know, might even have been able to affirmatively disprove the link. But because a mandatory minimum was involved and everyone agreed that Dossie should not be sentenced


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above that minimum, none of these facts mattered. The government simply dictated a five-year sentence without even having to allege, let alone prove, the aggravating fact that it implied warranted the sentence. There is no fairness in a system that allows that to happen.

D. The Remedy: The Attorney General Should Use the Drug�Offense Mandatory Minimum Provisions Only Against the Defendants for Whom Congress Intended Them

Congress should get rid of mandatory minimum sentences generally, but no one expects that to happen soon. In the meantime, DOJ can and must play the leading role in bringing about needed sentencing reform. DOJ should seek mandatory minimum sentences only in the cases for which Congress intended them: in cases against leaders and managers of drug enterprises, not the low-level drug offenders like Dossie who constitute the bulk of the federal drug docket. Federal prosecutors should exercise their discretion to bring mandatory minimum charges against only the small percentage of drug defendants (less than 6% in FY 2011) who deserve the aggravating role adjustments for being leaders or managers in a drug business. Specifically, they should charge the ten-year mandatory minimum only when they intend to prove that the defendant occupied a leadership role that warrants a four-level upward enhancement under U.S.S.G. � 3B1. 1(a), They should charge the five-year mandatory minimum only when they intend to prove a managerial role worthy of a three- or two-level upward enhancement under

3B1.1(b) or (c). And if the relevant aggravating role is not proved or admitted during the sentencing proceeding, prosecutors should withdraw (or reduce, as the case may be) the mandatory minimum.

*8 Section 3B 1.1 of the Sentencing Guidelines states:

Based on the defendants role in the offense, increase the offense level as follows:

(a)If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.

(b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive, increase by 3 levels.

(c) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.

The four-level adjustment under subsection (a) for organizers and leaders of drug businesses that involve five or more people (including the defendant) or are ’otherwise extensive" dovetails with Senator Byrd’s description of the defendants who deserve the ten-year mandatory minimum as "kingpins" and "masterminds," as well as with the House committee report’s description of them as "major traffickers." The three-level adjustment under subsection (b) for


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managers and supervisors in such organizations similarly parallels the "middle-level dealers" or "serious traffickers" at whom the five-year mandatory minimum was directed. Finally, the two-level adjustment under subsection (c) that applies to all management personnel (organizers, leaders, managers, and supervisors) when the drug business involves fewer than five people and is not otherwise extensive also captures the type of defendant for whom Congress intended the five-year mandatory minimum. Even the founder and leader of a drug business that involves fewer than five people and is not extensive is not the "kingpin" or "major trafficker" Congress had in mind. Thus by following my proposal, DOJ could ensure that its use of mandatory minimum charges hews closely to Congress’s intentions.

My request is also consistent with the Attorney General Holder’s policy on charging and sentencing. Under that policy, a prosecutor’s charging decision "must always be made in the context of an individualized assessment of the extent to which particular charges fit the specific circumstances of the case." Memorandum from Eric H. Holder, Jr., U.S. Attorney Gen., to All Fed. Prosecutors 2 (May 19,2010) (quoting U.S. Attorneys’ Manual � 9-27.300) (internal quotation marks omitted). Furthermore, the policy provides that "[i]n all cases, the charges should fairly represent the defendant’s criminal conduct." Id. And, most importantly, the policy requires that "the decision whether to seek a statutory sentencing enhancement should be guided by these same principles." Id. By utilizing mandatory minimum provisions only in

cases involving managerial-type drug traffickers as I propose, prosecutors can better ensure that their charging decisions fit the specific circumstances of defendants cases and that punishments defendants receive fairly represent their criminal conduct.

*9 J am mindful of the fact that federal prosecutors find significant value in the way that charging mandatory minimum sentences helps them solicit the cooperation of defendants. See Lanny A. Breuer, The Attorney General Sentencing and Corrections Working Group: A Progress Report, Fed. Sent’g Rep., Dec. 2010, at 110, 112 ("We favor mandatory minimum sentences because such sentences remove dangerous offenders from society, ensure just punishment, and are an essential tool in gaining cooperation from members of violent street gangs and drug distribution networks."). I have previously written about the "enormous boost" mandatory minimum sentences give to federal law enforcement in its effort to advance investigations and obtain convictions by enlisting cooperation. John C. Jeffries, Jr. & John Gleeson, The Federalization of Organized Crime: Advantages of Federal Prosecution, 46 Hastings L.J. 1095, 1120 (1995). Federal prosecutors have gotten so inured to using severe sentences to leverage cooperation that,

an increasing degree, the Department has come to justify its requests for tougher sentencing rules, not on the ground that offenders actually deserve the higher sentences, but simply because the threat of the higher sentence provides a greater inducement for defendant cooperation." Frank 0. Bowman, iv[r.


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Madison Meets a Time Machine: The Political Science of Federal Sentencing Reform, 58 Stanford L.Rev, 235, 252 (2005.

An interest in pursuing cooperation justifies charging leaders and managers of drug enterprises with the corresponding mandatory minimum drug offense. Though deserving of stiff sentences, such defendants may properly be rewarded with a sentence below the mandatory minimum for providing substantial assistance to the government. See United States v. Ross, 719 F.2d 615, 623 (2d Cir.1983) (Friendly, J., concurring in part and dissenting in part) ("[T]he ability to offer leniency in return for cooperation is an indispensable tool of law enforcement."). The flip side is that a decision not to cooperate may effectively result in a harsher sentence, but a harsh sentence is what Congress intended for that type of drug trafficker.

That same interest in pursuing cooperation cannot justify charging a mandatory minimum when the defendant is neither a leader nor a manager. It is one thing to lower an otherwise appropriate sentence to reward a defendant s cooperation but quite another to threaten to impose an otherwise unjust sentence if he decides not to cooperate or tries but produces no law enforcement results. The latter situation essentially converts a refusal or inability to cooperate into an aggravating sentencing factor, in violation of a basic principle of our sentencing regime. See U.S.S.G. � 5K1.2 ("A defendant’s refusal to assist in the investigation of other persons may not be considered as an aggravating sentencing factor.").

I have reason to believe that Attorney General Holder will be receptive to my request. In 2009 he made the following remarks to the Vera Institute of Justice:

*10 One specific area where I think we can do a much better job by looking beyond incarceration is in the way we deal with non-violent drug offenses. We know that people convicted of drug possession or the sales of small amounts of drugs comprise a significant portion of the prison population. Indeed, in my thirty years in law enforcement, I have seen far too many young people lose their claim to a future by committing non-violent drug crimes.

One promising, viable solution to the devastating effect of drugs on the criminal justice system and on American communities is the implementation of more drug treatment courts. Drug court programs provide an alternative to incarceration for non-violent offenders by focusing on treatment of their underlying addiction. Program participants are placed in treatment and routinely tested for drug use�with the imposition of immediate sanctions for positive tests balanced with suitable incentives to encourage abstinence from drug use. These programs give no one a free pass. They are strict and can be extraordinarily difficult to get through. But for those who succeed, there is the real prospect of a productive future.

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diverting some non-violent offenders into drag court programs and away from prison, and extending early release to other non-violent offenders who participate in treatment programs. And while national prison populations have consistently increased, in New York the state prison population has dropped steadily and has 12,000 fewer inmates now than it did in 1999. And since 1999, the overall crime rate in New York has dropped 27%. Other states have followed New Yorks example. And most importantly, studies show significant reductions in re-arrests, from about 15 to 30 percentage points, for drug-court participants as compared to criminals simply incarcerated.

Eric H. Holder, Jr., U.S. Attorney Gen., Keynote Address at Vera Institute of Justice (July 9, 2009).

Those remarks preceded the crime in this case, but they may as well have been about Dossie, a young drug-user whose nonviolent drug offense now seriously threatens his "claim to a future" principally because the government forced me to impose a five-year jail term on him. The Attorney General was right to compliment the forward-looking approach of the state authorities here in New York. If Dossie had been prosecuted by them instead of by federal authorities he would have been given an opportunity to avoid not only time in jail but a conviction as well. The success of the Drag Treatment Alternative to Prison Program ("DTAP") in Brooklyn over the past twenty years proves the efficacy of treating defendants

like Dossie rather than subjecting them to prison terms. Graduates of DTAP "have a five-year post-treatment recidivism rate that is almost half the rate for comparable offenders who served time in prison." Charles J. Hynes, Kings Cnty, Dist. Attorney, Drug Treatment Alternative�to�Prison Twentieth Annual Report at Exec. Summ. (2011). 10

* 11 Indeed, many of the states that ventured into determinate (and more severe) sentencing at around the same time the federal system did have long since figured out how ineffective and expensive it is to reflexively incarcerate nonviolent, substance-abusing defendants like Dossie. As a former Republican member of Congress testified last year before a subcommittee of the House Committee on Appropriations, drug courts are proven solutions�from both the fiscal and public-safety perspectives�to the problems created by substance abusers committing crimes. Drag courts and other alternatives to incarceration reduce substance abuse and crime more effectively and much less expensively than incarceration, probation, or treatment programs not involving judicial participation. Jim Ramstad, Senior Policy Advisor, Nat’l Assoc. of Drug Ct. Professionals, Testimony to U.S. House of Reps., Comm. on Appropriations, Subcomm. on Commerce, Justice, S ci., & Related Agencies (Mar. 11, 2011).

But the benefits of drug treatment and drug courts as alternatives to incarceration for nonviolent offenders are unavailable when DOJ itself mandates incarceration by invoking


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mandatory minimum sentences. Those provisions continue to be routinely invoked by DOJ against nonviolent, low-level offenders, even though it is crystal clear that Congress did not intend them to be used against such defendants. The result: Judges are removed from the sentencing process, along with transparency, appellate review, and, most importantly, justice. And young men like Jamel Dossie end up losing out on what may be their last chance to save their future.

E. Conclusion

The only reason for the five-year sentence imposed on Dossie is that the law invoked by the prosecutor required it. It was not a just sentence. To avoid similar injustices in other cases, I respectfully urge the Attorney General to lead the way forward by altering DOJs charging policies in the manner described above.

FNI. This discussion borrows from United States v. Vasquez, No. 09 Crim. 259,2010 WL 1257359 (E.ID.NX. Mar. - 0. 2010) .

FN2. These numbers reflect the current threshold quantities for crack. Before the Fair Sentencing Act of 2010 ("FSA"), P.L. No. 111-220, 124 Stat. 2372, was enacted, an offense involving 50 grams of crack triggered the ten-year mandatory minimum and an offense involving only five grams of crack triggered the five-year mandatory minimum.

FIN -3. A defendant is subject to the mandatory minimum only if the charging instrument puts him on formal notice of it by alleging the requisite type and quantity of drug and citing the relevant penalty provision. E.g., United States v. Thomas, 274 F.3d 655, 663 (2d Cir2001); United States v. Gonzalez, 420 F3d 111 115,30-31 (2d Cir.2005’). Thus, whether a defendant faces a mandatory minimum at all is a matter left to prosecutorial discretion. At any time during a prosecution the government can withdraw its invocation of the mandatory minimum provision, allowing the court to sentence without being bound by it.

FN4. The table reports the number and percentage of defendants who received an aggravating role adjustment under U.S.S.G. � 3B1.l.

FN5. The Sentencing Commission has recommended that Congress "consider marginally expanding the safety valve at 18 U.S.C. � 3553(f to include certain non-violent offenders who receive two, or perhaps three, criminal history points." Mandatory Minimum Report at xxxi; accord id. at 355-56. This recommendation is too tepid, given how easy it is for nonviolent offenders to rack up criminal history points, especially while under supervision, see U.S.S.G. 4A1.l(d).


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FN6. The amounts paid to Dossie are detailed in the Complaint, ECF No, 1. Since the Complaint does not describe the last of the four transactions, I am assuming here that Dossie received $40 for that transaction as well, as it is comparable to the second and third sales, from which he received $40 each.

FN7. Dossies base offense level was 26 and, although he received a three-level reduction for acceptance of responsibility, he was ineligible for any other adjustments. Because Dossie had two misdemeanor convictions and was on probation when he committed his offense, he fell into Criminal History Category Ill. The range for Offense Level 23 in Criminal History Category Ill is 57-71 months.

FN8. The Pretrial Opportunity Program is designed for nonviolent defendants with documented substance abuse problems. Participating defendnts have their sentences postponed to engage in drug treatment that involves monthly meetings with the sentencing judge and the Chief Magistrate Judge of the district. The program relies on drug court methodologies that have been proven successful in many state criminal justice systems. If the defendant successfully completes the program by, inter alia, staying drug-free for at least one year, the post-arrest rehabilitation is considered by the sentencing judge. For

a description of the program, see U.S. Pretrial Servs. Agency, E.D.N.Y., Pretrial Opportunity Program (2012), available at http:// ww,,v.nyed.uscourts.gov/pub/does/local /POPDescription0l 1120 12.pdf.

FN9. If the long road to the FSA taught us anything, it taught us that DOJ can play precisely such a role. With the passage of the FSA, Congress finally jettisoned the infamous 100:1 ratio, by which a single gram of crack was treated for sentencing purposes as the equivalent of 100 grams of powder cocaine. Congress made this important change only after DOJ told the Senate Judiciary Committee that "fundamental fairness in our sentencing laws" required it to eliminate entirely the sentencing disparity between powder cocaine and crack offenses. See Lanny A. Breuer, Assistant Attorney Gen., Crim. Div., U.S. Dept of Justice, Statement Before the U. S. Senate Comm. on the Judiciary, Subcomm. on Crime & Drugs (Apr. 29, 2009). Although Congress failed to eliminate the deeply unjust disparity, DOJ’s leadership prompted Congress to reduce the 100:1 ratio to 18:1.

FN10. Ironically, Dossie is such a low-level drug defendant that he would not even be eligible for admission into the DTAP Program, which requires at least one prior felony drug conviction. However, he would be "eligible to be


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diverted into treatment through the court-run programs in Brooklyn's three drag court parts: Misdemeanor Brooklyn Treatment Court, Brooklyn Treatment Court, and the Screening and Treatment Enhancement Part." Id. at 4 n. 9.

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E.D. New York. UNITED STATES of America,

V.

Roberto VASQUEZ, Defendant. No. 09-CR-259 (JG).

March 30, 2010. West KeySummaryControlled Substances

96H €100(2)

96H Controlled Substances

96H111 Prosecutions 96Hk100 Sentence and Punishment

96Hkl 00(2) k. Extent of punishment. Most Cited Cases Sentencing and Punishment 350H €67

350H Sentencing and Punishment

35 OHI Punishment in General 350H1(D) Factors Related to Offense

350Hk67 k. Extent of offender’s participation. Most Cited Cases Sentencing and Punishment 350H 103


350E11 Punishment in General Q1I( Factors Related to Offender

350Hk103 k. Mental illness or disorder. Most Cited Cases Sentencing and Punishment 350H €'llO


350H]I Punishment in General 35 OH1(E) Factors Related to Offender

3SOHIkllO k. Childhood or familial background. Most Cited Cases

A district court acknowledged that it was forced by law to impose a five-year prison term on a drug defendant due to a prosecutors decision to insist on the mandatory minimum. The judge stated, however, that the mandatory minimum sentence supplanted any effort to do justice, leaving in its place "the heavy wooden club that was explicitly meant only for mid-level managers of drug operations." The absence of fit between the crude method of punishment and the particular set of circumstances was conspicuous. As a result of the prosecutor’s decision, the defendant’s difficult childhood and lifelong struggle with mental illness were out of bounds, as were the circumstances giving rise to his minor role in his brother’s drug business, and other factors. 18 U.S.C.A. � 3553(c). Bonnie S. Kiapper, United States Attorneys Office, Brooklyn, NY, for United States of America.

STATEMENT OF REASON FOR SENTENCE


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JOHN GLEESON, District Judge. *1 When people think about miscarriages of

justice, they generally think big, especially in this era of DNA exonerations, in which wholly innocent people have been released from jail in significant numbers after long periods in prison. As disturbing as those cases are, the truth is that most of the time miscarriages ofjustice occur in small doses, in cases involving guilty defendants. This makes them easier to overlook. But when they are multiplied by the thousands of cases in which they occur, they have a greater impact on our criminal justice system than the cases you read about in the newspapers or hear about on 60 Minutes. This case is a good example.

Roberto Vasquez was born 36 years ago in Puerto Rico, the youngest of 12 children. He had no relationship with his father, who died when he was four or five years old. He did, however, have a relationship with one of his many older brothers that was especially damaging. From the age of seven, Vasquez was sexually abused repeatedly by this brother, and as a result he has straggled with depression his entire life.

Vasquez dropped out of high school in the ninth grade. By his early twenties, he had acquired some expertise in fixing cars and trucks. He had also acquired a cocaine addiction. In approximately 1994, Vasquez commenced a turbulent ten-year relationship with Ingrid Melendez, with whom he had three children. During that period, he suffered from multiple bouts of depression. When the relationship ended in 2004 due to Melendezs infidelity,

Vasquez attempted suicide. He spent two months in Bellevue Hospital, where he received medications for depression and bi-polar disorder.

Other than the drug trafficking that got him convicted in this case, which is described below, Vasquez’s entire criminal history stems from his relationship with Melendez. In December of 2004, after his release from Bellevue, she refused to let him see their children. He reacted by menacing her with a knife in front of the children. Though he was given a conditional discharge, he failed to abide by the conditions; six months later he violated an order of protection by threatening to kill Melendez. This conduct got Vasquez 60 days in jail on the earlier menacing case and 60 more for contemptuously violating the order of protection. A year later, in June of 2006, Vasquez once again showed up at Melendezs home without permission. He was convicted of harassment and given another conditional discharge.

In 2005, Vasquez met Maritza Caraballo, a bank teller. They lived together and enjoyed a stable relationship until March 25, 2009, when Vasquez was arrested in this case. They have a three-year-old daughter, and Carabellos eight-year-old daughter from a prior relationship also lives with them. Vasquez worked continuously during that period, first as an auto mechanic, then, beginning in 2007, as a construction supervisor. Vasquez and Caraballo are engaged to be married in June.


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Melendez continued to deny Vasquez access to their three children. Caraballo reports that this produced an extremely stressful situation for Vasquez, who was complying with his court-ordered child support obligations to those children. Though Vasquez had stopped using drugs after he met and began living with Caraballo, under the mounting stress of his situation with Melendez and their children, he finally relapsed in 2008, when he began using cocaine again. That development laid the groundwork for his involvement in his offense of conviction.

*2 To support his expensive cocaine habit, Vasquez went to work in approximately September of 2008 for one of his older brothers, Jose Angel Vasquez, a drug dealer and his co-defendant in this case. Unfortunately for both of them, the government was intercepting the telephone calls of members of Jose Vasquez’s business. Those calls identified the defendant as a minor participant in his brother’s organization. More specifically, "[t]he government’s investigation revealed that, for the most part, the defendant was a street-level distributor for his brother’s organization, with only occasional and minor participation in the organizations broader activities." Letter from Assistant U.S. Attorney Bonnie Klapper to the Court, at 3 (Dec. 28, 2009). In the six to eight months he was involved in the business to support his habit, Vasquez personally assisted in the distribution of 300 grams of heroin. He was aWare of the distribution of 350 additional grams by others, so he was responsible under the sentencing guidelines for 650 grams.

After his arrest, Vasquez tried to cooperate with the government. He provided information about two individuals, but it could not be corroborated. As the prosecutor stated when Vasquez first appeared for sentencing on December 29, if he "had more information, he would have received a" substantial assistance motion. Tr. December 29, 2009, at 11.

The government had it within its power to charge Vasquez with a standard drug trafficking charge, which carries a maximum sentence of 20 years. Instead, it included him in a conspiracy charge with his brother and three others and cited to a sentence-enhancing provision that carries a maximum of life in prison and a mandatory minimum of ten years upon conviction. During plea negotiations, the government refused to drop that charge unless Vasquez pled guilty to a lesser-included sentencing enhancement that carried a maximum of 40 years and a mandatory minimum of five years.

A little background on these mandatory minimum sentences might be useful. In 1986, as part of the war on drugs and inflamed by the tragic death by overdose of a University of Maryland basketball star, Congress enacted the Anti-Drug Abuse Act of 1986, 21 U.S.C. �QJ et seq. The law mandated severe mandatory minimum sentences. As Senator Robert Byrd put it at the time, the goal was to require at least ten years in prison for "the kingpins-the masterminds who are really running these operations," and at least five years for the


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"middle-level dealers." 132 Cong. Rec. S14,301 (daily ed. Sept. 30, 1986). Most people, including me, agree that the kingpins, masterminds, and mid-level managers of drag trafficking enterprises deserve severe punishment. But right from the start Congress made a mistake: it made a drug defendant’s eligibility for the mandatory sentences depend not on his or her role in the offense, but on the quantity of drugs involved inthe crime. Thus, if the crime involved one kilogram of heroin, five kilograms of cocaine, or only SO grams of crack, every defendant involved in that crime, irrespective of his or her actual role, is treated as a kingpin or mastermind and must get at least ten years injail. 21 U.S.C. � 841(bW. The defendants are treated as mid-level managers (again, despite their actual conduct) if the offense involved as little as one-tenth of those amounts. 21 U.S.C. � 841(b)(1).

*3 The 1986 law was passed just as the recently-created United States Sentencing Commission was writing the federal sentencing guidelines, which would set forth sentencing ranges for all federal crimes. The Commission examined more than 10,000 drug sentences from around the country and considered formulating guidelines based on national averages. But it realized that it would not make sense to provide a guidelines range of, say, five to seven years when a mandatory sentencing law would trump the guidelines sentence and require at least a tenyear sentence. So the Commission fashioned sentencing ranges for all drug offenses-whether or not a mandatory minimum sentence was applicable-that were proportional to the severe

minimum sentences established by Congress. A later Commission-in its 15-year report to Congress in 2004-criticized the original Commissions failure to discuss why it extended this "quantity-based" approach of the 1986 act across the entire spectrum of drug sentences, stating, "This is unfortunate for historians, because no other decision of the Commission has had such a profound impact on the federal prison population. The drug trafficking guideline

had the effect of increasing prison terms far above what had been typical in past practice, and in many cases above the level required by the literal terms of the mandatory minimum statutes." U.S. Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System Is Achieving the Goals of Sentencing Reform 49 (2004).

One result of this regime is that the sentencing ranges meted out by the guidelines are roughly proportionate to the mandatory minimum sentences. Thus, Vasquez’s range is 57-71 months, which straddles his 60-month mandatory minimum. That range is too severe in this particular case, but the guidelines themselves permit departures from the applicable range. See U.S. Sentencing Guidelines Manual � 5K2.0. More importantly, in this post-Booker era of advisory guidelines, a defendant’s sentencing range, useful though it is, is but one factor to be considered. See United States v. Booker, 543 U.S. 220, 259, 125 S.Ct. 738. 160 L.EcL2d 621 (2005. If other considerations weigh in favor of a more lenient sentence, a more lenient sentence may be


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imposed. See Gall v. United States, 552 U.S. 38, 15. 56-60, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

The second result of this regime is placed in clear relief by this case. If they want to, prosecutors can decide that street-level defendants like Vasquez-the low-hanging fruit for law enforcement-must receive the harsh sentences that Congress intended for kingpins and managers, no matter how many other factors weigh in favor of less severe sentences. The government concedes, as it must, that Vasquez played a minor role in his brother’s modest drug operation, not the mid-level managerial role the five-year mandatory sentence was enacted to punish. Indeed, the government argues that Vasquezs guidelines computation includes a two-level downward adjustment because of his mitigating role in the offense. See U.S. Sentencinn Guidelines Manual � 3B1.2. Yet, by the simple act of invoking the sentence-enhancing provision of the statute, the government has dictated the imposition of the severe sentence intended only for those with an aggravating role.

*4 When the case was first called for sentencing in December, I pointed out the obvious: the five-year mandatory sentence in this case would be unjust. The prosecutor agreed, and welcomed my direction that she go back to the United States Attorney with a request from the Court that he withdraw the aspect of the charge that required the imposition of the-five-year minimum. She asked for a couple of months to make the case that the sentence enhancement should be abandoned. Tr. December 29, 2009, at

On March 5, 2010, the prosecutor appeared again, shadowed by a supervisor. She reported that the United States Attorney would not relent. She offered two reasons. The first was that I might have failed to focus on the fact that Vasquez had "received a bump down," meaning he was allowed to plead to the five-year mandatory minimum rather than to the ten-year mandatory minimum that he, his brother, and three other co-defendants were originally charged with. Tr. March 5, 2010, at 11. I think this means that Vasquez should be grateful the government did not insist on a ten-year minimum sentence based on additional quantities of cocaine it concedes he knew nothing about and could not be held responsible for under the guidelines, presumably on the theory that other members of the same conspiracy dealt those quantities.’ I suppose there is some consolation in the fact that the government did not pursue that absurd course, which would have produced an even more egregious injustice if Vasquez had been convicted. But that hardly explains, let alone justifies, the government’s insistence on the injustice at hand.

FN1. As the guidelines make clear, "[t]he principles and limits of sentencing accountability ... are not always the same as the principles and limits of criminal liability." U. S. Sentencing Guidelines Manual � I 13, application n. 1.

Second, the prosecutor suggested that I had


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failed to "focus" on the seriousness ofV asquezs crimes against his ex-wife, Melendez. Tr. March 5, 2010, at 11. Implicit in that assertion is the contention that even if Vasquez does not deserve the five-year minimum because he was not a mid-level manager of a drug enterprise, he deserves it because of his past crimes. This rings especially hollow. Those past crimes have been front and center at all times, not only because they render Vasquez ineligible for safety valve relief from the minimum sentence, see 18 U.S.C.

3553(f)(1), but also because there was litigation over how many criminal history points they warranted. When Vasquez first appeared for sentence on December 29, both of these subj ects were discussed. Tr. December 29, 2009, at 3-6, 13-14. And when the prosecutor took the position that the criminal history points produced by Vasquez’s past crimes overstated the gravity of those crimes, warranting a downward departure, it did not appear she had failed to focus on their seriousness either. Id. at 5, 13. In any event, I certainly had not.

I recognize that the United States Attorney is not required to explain to judges the reasons for decisions like this one, and for that reason I did not ask for them. But the ones that were volunteered do not withstand the slightest scrutiny.

*5 As a result of the decision to insist on the five-year mandatory minimum, there was no judging going on at Vasquezs sentencing. Though in theory I could have considered a sentence of greater than 60 months, even the prosecutor recognized how ludicrous that would

be, and asked for a 60-month sentence. But the prosecutors refusal to permit consideration of a lesser sentence ended the matter, rendering irrelevant all the other factors that should have been considered to arrive at ajust sentence. The defendant’s difficult childhood and lifelong struggle with mental illness were out of bounds, as were the circumstances giving rise to his minor role in his brothers drug business (i.e., it was to support an addiction, not to become a narcotics entrepreneur with a proprietary stake in the drugs), the fact that he tried to cooperate but was not involved enough in the drug trade to be of assistance, the effect of his incarceration on his three-year-old daughter and the eight-year-old child of Caraballo he is raising as his own, the fact that he has been a good father to them for nearly five years, the fact that his prior convictions all arose out of his exwife! s refusal to permit him to see their three children. Sentencing is not a science, and I don’t pretend to be better than anyone else at assimilating these and the numerous other factors, both aggravating and mitigating, that legitimately bear on an appropriate sentence. But I try my best to do just that, and by doing so to do justice for the individual before me and for our community. In this case, those efforts would have resulted in a prison term of 24 months, followed by a five-year period of supervision with conditions including both other forms of punishment (home detention and community service) and efforts to assist Vasquez with the mental health, substance abuse, and anger management problems that have plagued him, in some respects for his entire life. If he had failed to avail himself of those efforts, or if, for


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example, he intentionally had contact with Melendez without the prior authorization of his supervising probation officer, he would have gone back to jail on this case.

The mandatory minimum sentence in this case supplanted any effort to do justice, leaving in its place the heavy wooden club that was explicitly meant only for mid-level managers of drug operations. The absence of fit between the crude method of punishment and the particular set of circumstances before me was conspicuous; when I imposed sentence on the weak and sobbing Vasquez on March 5, everyone present, including the prosecutor, could feel the injustice.

In sum, though I am obligated by law to provide a statement of "reasons" for each sentence I impose, see 18 U.S.C. � 3553(c), in this case there was but one: I was forced by a law that should not have been invoked to impose a five-year prison term.

E.D.N.Y.,20 10.

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E.D. New York. UNITED STATES of America,

V.

Isaac OVID, Defendant. No. 09-CR-216 (JG).

Oct. 1, 2010. James G. McGovern, United States Attorneys Office, Brooklyn, NY, for Plaintiff.

STATEMENT OF REASONS FOR SENTENCE

JOHN GLEESON'District Judge.

A. Preliminary Statement *1 In a letter dated June 28, 2010 to the

Chair of the United States Sentencing Commission, the Director of the Office of Policy and Legislation of the United States Department of Justice ("DOJ" or the "Department") decries the "evolution" of "two distinct and very different sentencing regimes." Letter from Jonathan J. Wroblewski to the Hon. William K. Sessions III, at 2, 1 (June 28, 2010) ("DOJ Letter"). One "regime," the letter contends, "includes the cases sentenced by federal judges who continue to impose sentences within the applicable guideline range for most offenders

and most offenses." Id. at 1. This is apparently the good regime. The "second regime," by contrast, "has largely lost its moorings to the sentencing guidelines." Id. at 2. This regime is a cause of concern for the Department. It consists of judges who sentence fraud offenders, especially in high-loss cases, "inconsistently and without regard to the federal sentencing guidelines." Id. at 4. The Department concludes on this issue (the letter addresses various others as well) that "[t]he current sentencing outcomes in [fraud] cases are unacceptable, and the Commission should determine whether some reforms are needed." Id. at 5. In short, the premise of the letter is that unless the sentences in fraud cases are "moored" to the advisory ranges provided by the United States Sentencing Guidelines, they produce "unwarranted sentencing disparities" that are "extremely problematic." Id at 2.

The DOJ Letter recommends, inter alia, a systemic analysis and synthesis by the Commission of the federal sentencing data it has collected, followed by a report that "explore[s] how to create a single sentencing regime that will earn the respect of the vast majority of judges, prosecutors, defense attorneys, Members of Congress, probation officers, and the public." Id. at 3. It also suggests that "reforms might include amendments to the sentencing guideline for fraudoffenses."Id. at 5. .

The Department is an important influence in the formulation of sentencing policy. Jonathan


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Wroblewski, the author of the letter, is a thoughtful and well-respected expert in the area. Finally, the Attorney General enjoys ex officio membership on the Sentencing Commission, and Mr. Wroblewski is the Attorney Generals designee to that post. For all these reasons, the DOJ Letter to the Commission will carry great weight.

The sentencing of Isaac Ovid on July 30, 2010 illustrates well the fact that, here in the trenches where fraud sentences are actually imposed, there is a more nuanced reality than the DOJ Letter suggests. The letter describes two "dichotomous regimes" in fraud cases-one moored to the Guidelines, the other adrift in the vast regions beneath the low end of the advisory Guidelines ranges. Id. at 2. But Ovid’s sentencing shows otherwise. Specifically, it shows how the fraud guideline, despite its excessive complexity, still does not account for many of the myriad factors that are properly considered in fashioning just sentences, and indeed no workable guideline could ever do so. This reality does not render the Guidelines irrelevant in fraud cases; they are in fact quite useful in all sentencings. But sentencing judges know that a full consideration of "the nature and circumstances of the offense and the history and characteristics of the defendant," 18 U S.C. 3553(a)(1), implicates offense and offender characteristics that are too numerous and varied, and occur in too many different combinations, to be captured, much less quantified, in the Commission’s Guidelines Manual. A consideration of those and the other factors set forth in � 3553(a) produces sentences that are

moored to fairness, and to the goals of sentencing set forth in 3553(a)(), but sometimes not so much to the advisory Guidelines range. Indeed, in some cases the fair sentence can drift quite far away from the advisory range, which is, after all, but one of

ht factors the sentencing judge must consider.

FN 1. The other seven are (1) the nature and circumstances of the offense; (2) the history and characteristics of the offender; (3) the need for the sentence imposed to reflect the goals of sentencing (just deserts, general deterrence, incapacitation of the offender, and rehabilitation) set forth in � 3553( )(2); (4) the kinds of sentences available; (5) the Commission’s policy statements; (6) the need to avoid unwarranted sentence disparities among similar defendants who commit similar crimes; and (7) the need to provide restitution to victims. See 18 U.S.0 � 3553(a).

*2 Ovid’s sentencing reveals that the Department knows this as well. Aggressive, experienced, successful white collar prosecutors understand that it does not undermine the Sentencing Guidelines at all, much less create some kind of rogue sentencing regime, when the consideration of factors set forth in 18 U.S.0 3553(a) produces a sentence that happens to be substantially below the advisory range.

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Sentencing Commission review of fraud sentences. But in determining whether reforms are needed, and especially in determining whether the existing guideline should be burdened with even more adjustments, the Commission should examine whether our system already provides an adequate solution for the claimed "unacceptable" outcomes the Department complains about. I suggest that it does, in the form of appellate review, and for all of the handwringing in the DOJ Letter about unacceptable sentences, the Department for the most part has not even tried to avail itself of that solution.

B. The Ovid Sentencing

1. The Fraudulent Scheme

On March 5, 2010, Isaac Ovid pled guilty to Count One of a three-count indictment. It charged him with conspiring between November 2004 and December 2005 to commit securities fraud in relation to two hedge funds, the Logos Fund and the Donum Fund.

Between 2002 and 2006, Ovid was an ordained minister of the Local Christian Assembly (the "Church") in Queens, New York. He also provided private investment services to his family, friends and Church members. In October 2004, when Ovid was just 23 years old, he and his coconspirators formed Jadis Capital, an investment management company. Ovid provided $445,000 in start-up money, which included $100,000 of his own funds.

Between November 2004 and December 2005, Ovid and others created the first of the two hedge fluids, the Logos Fund. Neither fund was registered with the SEC, which meant the funds could legally be marketed only to individuals meeting specified income thresholds. However, Ovid and his coconspirators marketed the funds to friends, family and Church members who did not meet these thresholds. In addition, the private placement memorandums used to market the Logos Fund contained numerous fraudulent misrepresentations and omitted material facts.

By February 2005, nearly all of the start-up money for Jadis Capital was depleted. Ovid and coconspirator Aaron Riddle agreed that they would use the money from the Logos Fund to operate Jadis Capital. Approximately $3.5 million was used to pay Jadis Capital’s operating expenses, including a $1.6 million buildout of extravagant offices on Long Island. Another $1.6 million was used to purchase luxury items for the defendants and their family members, and to make payments to their businesses and to charities. Logos Fund money was also used to finance a business created by coconspirator Robert Riddle and his wife and to repay Ovid’s debts to his former client.

*3 In May 2005, Ovid began trading the money invested in the Logos Fund and within two weeks he lost more than $2 million, which almost entirely depleted the trading account. Thereafter, from May to mid-August 2005, Ovid stopped trading, but he instructed others to falsely advise prospective investors that Logos


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Fund was performing at a year-to-date profit of Category I yields a range of 210-262 months. 15%. 3. The Sentence

In August 2005, Ovid and his coconspirators established the Donum Fund. They marketed it to larger, institutional investors. The private placement memorandums included the same misrepresentations as the Logos Fund memorandums and some others as well. Between August and November 2005, almost $3.1 million was invested in the Donum Fund by outside investors, including $3 million by a group from Panama.

By November 2005, the funds had collapsed. Ovid and several other Jadis Capital executive team members apologized to the defrauded Church members during services. A letter was written in December 2005 advising investors in the Logos Fund that their investments had been lost. Ovid was forced out of the company and returned to Trinidad. After seeking legal advice, the defendants advised the SEC of the fraud.

2. The Advisory Guidelines Range

The advisory Guidelines range for Ovid was 210-262 months. His base offense level was 6; he received upward enhancements of 20 levels for a loss greater than $7 million, 4 levels for more than 50 victims, 4 levels for being associated with a registered broker, 2 levels for preying on vulnerable victims, and 4 levels for his leadership role in the offense. His early guilty plea earned him a 3-level reduction for acceptance of responsibility. The total offense level was 37, which in Criminal History

Ovid was sentenced to 60 months in the custody of the Attorney General and a three-year term of supervised release with various special conditions. He was ordered to pay restitution and was subjected to an agreed-upon forfeiture order. C. The Reasons for the Sentence

The reasons for the sentence were stated at the sentencing proceeding. They were:

"Jadis Capital, the Uniondale company in this case, was not ... started as a fraud."

"As opposed to your pump and dumps and some of these other types of criminal schemes that the court has .. - seen over the years, this Jadis Capital ... was started with the best of intentions. This firm was hoping to benefit the lives of the ministers and the people associated with the church who went to work at the firm and also specifically intended to benefit the members of the congregation."

"Mr. Ovid was ... at the center of Jadis Capital.... [B]ythe age of 23 years old,... there was a buzz about Isaac Ovid, that he really knew how to trade and that he was very successful trading stocks in the stock markets.... Mr. Ovid to some extent believed that he could pull this off; that he could be the supertrader that he and his co-conspirators were saying that he was."

*4 "Mr. Ovid provided money for start-up


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costs of Jadis Capital.... [H]e had had success and ... he did have some liquidity during the period of 2004 where he was able to contribute money, his own money, to the start-up of this company."

"The idea for hedge funds was not necessarily the original idea for the company. It was going to be a venture capital company where they were going to go out and open up businesses.... There was a buzz in this church about Isaac Ovid and about his abilities."

"[Ovid] never drew a salary from Jadis Capital. Now, did he avail himself of an expense account like many of the other members of Jadis Capital? Absolutely. But we do have him investing some portion of his own money, of $450,000 that he puts into the company when the company starts. Some portion of that, purportedly as much as a hundred thousand dollars of that, comes from Mr. Ovid. And thereafter Mr. Ovid ... does not collect a salary."

� "In late December of 2004 Mr. Ovid goes to South Africa on a missionary cause related

to his work with the church, and he is unable to get back into the United States; and he remains out of the United States from December up until late April, early May of 2005, which is when all of this, the vast majority of the $9.3 million into the Logos Fund is being collected.... That’s not to say that Mr. Ovid wasn’t directing matters from far away. He was having conference calls with his underlings...."

"The expenses were excessive for what it was that these gentlemen were running, but we are not talking about expenses that are, you know, $2 million parties for your wifeY"� We are talking about flying first class wherever you go, going out to Ruth’s Chris steakhouse for every business-related meeting, a Rolex for each one of the members of the firm, to present the image of being successful. Were they right to do this? Absolutely not. But these were expenses that in some businesses are covered under business expenses, but they were certainly excessive."

FN2. This was a reference to the prosecution of former Tyco International CEO L. Dennis Kozlowski, who was sentenced in state court in 2005 to an indeterminate prison term of eight and one-third to 25 years.

"Now, were there things in the [private placement memorandums] and the offering documents that were untrue? Absolutely. They didn’t represent that Mr. Ovid was even affiliated with the fund. But to most people who were associated with the church, that wasn’t really a material misrepresentation to them, because they all knew that Mr. Ovid was the person that was going to be trading. [A] lot of the folks who put money into this fund did so without looking at the proposals or without looking at the literature. They believed in Mr. Ovid."

� "By August of 2005 it was clear to the


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people at the highest levels, including Mi. Ovid, that the firm was [having] serious financial problems. Mr. Ovid... actually tried to cut back all of the costs at Jadis Capital and

they ended up firing most of their staff. They fired one of their own partners in the firm at that time."

*5 "Where did all that money go? That money went towards the $1.6 million build-out [of the Jadis offices]. That money went towards all the salaries for all the defendants and their family members who were working there. That money went toward paying Mr. Ovids expense accounts, which included his stays at hotels and other expenses, not grandiose expenses but expenses nevertheless. They were expenses that he incurred. Throughout this time he was not receiving a salary at all. There was no evidence that ... he was siphoning off money out of the company for his own personal gain."

� "[T]here is no evidence of him sending money off into foreign accounts."

"By September 2005, when it came to ahead and everybody at the firm realized that the investor funds had been decimated, they then sort of took a swing for the fences; and that’s where the Panamanians come in. And that was a deal that, frankly, Mr. Ovid, even though he was a co-conspirator in it, wasn’t personally involved in. He did not seek out this investment. This investment from Panama came in, a $3 million investment, that was orchestrated or solicited by his

co-conspirators. Mr. Ovid was either explicitly or implicitly asked not to be part of the presentation to the Panamanian investors so as not to run them off by the fact he was a 23-year-old kid; and there were some people at the firm who didn’t think that was a good idea to present him as their chief trader at that time."

"[After they] were able to convince the Panamanians to put $3 million into the fund,

Mr. Ovid was asked by his co-conspirators and he was convinced he could get back into trading, and he went back to trading and he went and traded the $3 million and ended up losing $500,000 of it in very short order. It was at that point that [Ovid] and his codefendants realized that their sort of scheme was done and they couldn’t survive. They went back to the church, in early November of 2005. They repented, to use their words, and went and told the church about everything that had happened and called all of their investors in and explained to them what it was they had done wrong. Mr. Ovid appeared before the congregation on November 5 and November 16, I think, of 2005 and confessed to the members of the church as to what he had done."

"[On] December 22 of 2005 Mr. Ovid was in the SEC on an entirely voluntary basis giving

them a fulsome explanation of what it was that was going on at Jadis Capital. He then went back to Trinidad, returned again, I believe, in January of 2005, and gave another full debriefing to the SEC."


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that Mt. Ovid was a ... net zero winner." "He appeared in the office of the U.S.

Attorney in March of 2005 and gave another full statement about his involvement in this case."

"[T]he guidelines often look to the amount of loss as a proxy for culpability, and certainly here the amount of loss is huge, [but] ... the defendant and his co-conspirators all believed that this was actually going to work.... [O]ne gets a strong sense that the people who were affiliated with Jadis Capital really believed that this was going to work and that this was a-this was going to, to use their terms, bless everybody."

*6 "There is a measure of exploitation here, but it’s hard to put that label on [it] when the people who started the firm did so with the best of intentions and did so to benefit all of the people in the church. And what happened here and what makes this a fraud is that their best intentions were entirely mismanaged, and when the problems blew up they didn’t know how to handle it, and people like Mr. Ovid decided that the best way to survive the thing is to ride it out and not tell anybody what you are doing while you know that your marketing materials contained misrepresentations."

� As for remorse, it was "demonstrated heavily" by Ovid.

"I think in a situation like this, ... a sentence of 60 months is appropriate in light of the fact

Transcript of Proceedings at 9-19 (July 30, 2010).

Though all of these factors are properly considered pursuant to 18 U.S.0 � 3553(a), they are not adequately accounted for in the Guidelines themselves. In combination, and taking into account all the facts of the case, the advisory Guidelines range and the other factors enumerated in � 3553(a), a 60-month term of imprisonment, 12 and one-half years less than the low end of the advisory Guidelines range of 210-262 months, was warranted.

D. The Importance ofNon-Guidelines Factors in Sentencing

Even though Ovid’s sentence amounted to a significant variance from the advisory Guidelines range, the Department does not regard it as an "unacceptable" sentencing outcome. This case will not be cited as evidence of a "second regime" of sentencing that breeds disrespect for our system. To the contrary, the Department regards Ovid’s 60-month sentence as the just result of a careful consideration of all the relevant sentencing factors-including the advisory range-and as entirely consistent with the Guidelines themselves.

I say this with confidence because all of the above-quoted statements from the sentencing proceeding were made by the prosecutor. The government had entered into a plea agreement with Ovid pursuant to Fed.R.Crirn.P. 1 1(c)(1)(A). In exchange for Ovid’s plea of


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guilty to Count One, which carried a five-year statutory maximum, the government agreed to dismiss other pending charges, which exposed Ovid to an additional 40 years in prison. The Guidelines instruct me that such a "charge bargain" may be accepted upon a finding by me that the offense of conviction "adequately reflect[s] the seriousness of the actual offense behavior and that accepting the agreement will not undermine the statutory purposes of sentencing or the sentencing guidelines." U.S.S.G. � 6B1 .2(a’. In its effort to persuade me to accept the bargain, the prosecution cited the factors set forth above and contended that it would not undermine the Guidelines for me to impose a 60-month sentence.

FN3. These are not soft prosecutors. Like her counterpart a mile away in the Southern District of New York, with whom she competes for results, the United States Attorney in this district aggressively pursues white collar offenders. See, e.g., Amir Efrati & Tom McGinty, "Youz Indictin Who? A Rivalry Grows for Stock Cops in Brooklyn, Manhattan," Wall St. J, June 20, 2008, at Cl; Paul Davies & Peter Lattman, "Subway Series Alive After All: The Legal One-Federal Prosecutors in Brooklyn One-Up Prosecutors Across River, Snag More White-Collar Cases," Wall St. J., Oct. 11, 2006, at Cl. The particular AUSA in charge of the Ovid case is an experienced and decorated white collar prosecutor.

Even though the prosecutor was justifying his plea bargain, not imposing sentence, I couldn’t help thinking as I listened to his various reasons for why it was all right to cap Ovid’s sentence at 60 months that this is what sentencing judges do. We canvass all of the many features of the case that bear on the culpability of the defendant. Though some of those features have been considered by the Sentencing Commission and incorporated into the Guidelines calculation, many are not. But they are still part of the nature and circumstances of the offense, or part of the history and characteristics of the defendant, and thus may (indeed must) be factored into the sentence by the judge.

*7 As if to make this point even clearer, by happenstance Ovid was sentenced moments after the sentencing of Aisha Hall in United States v. Aisha Hall, 09-CR-292-JG-7 (E.D .N.Y.). Hall’s fraudulent scheme involved the creation of phony "Proof of Funds" letters and the bribery of low-level bank officers to fraudulently verify that the funds described in the letters were in fact on deposit. As far as the Guidelines are concerned, Hall and Ovid were similar. Hall’s calculation did not include Ovid’s four-level adjustment for association with a broker dealer or two-level adjustment for preying on vulnerable victims, so her advisory range was 151-188 months, somewhat lower than Ovid’s 210-262 month range. Nevertheless, the Joss quantities involved were roughly comparable (Hall received an 18-level adjustment as compared to the 20-level adjustment for loss in Ovid’s case); both schemes involved more than


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50 victims; both defendants received four-level role adjustments for being leaders of their schemes; both pled guilty and received credit for accepting responsibility; and neither had any criminal history.

Like the Department, 1 "begin from the principle that offenders who commit similar offenses and have similar criminal histories should be sentenced similarly." DOJ Letter at 2. But the fact that two fraud defendants have similar or even identical Guidelines ranges does not necessarily mean they committed similar offenses. In ways captured by the � 3553(a) factors but not sufficiently by the Guidelines themselves, Hall was more culpable than Ovid. Her scheme was 100% fraudulent from the outset; her crime involved neither good intentions nor legitimate business activities. When Hall’s scheme collapsed, she did not convene her victims to disclose and apologize, as did Ovid; rather, she took steps to evade detection. Unlike Ovid, Hall did not invest (and lose) her own money in her business. And unlike Ovid, Hall drew a considerable amount of money (about $4 million) out of the fraudulent business, and it remained unaccounted for at sentencing. Though both defendants received the maximum upward adjustment for their leadership role, Hall micromanaged every aspect of her scheme, whereas Ovid was uninvolved (at least directly) in much of the fraudulent activity. Also, because Hall’s brazen scheme unraveled quickly, there was no danger that the loss amount in her case (gain was used as a proxy pursuant to ApplicationNote 3(B) to U.S.S.G. � 2B 1.1) would play a disproportionate role in her

advisory Guidelines range calculation. And whereas Ovid’s remorse was deep and sincere, Hall’s was tepid; even though she admitted her fraud and clearly accepted responsibility for it, she persisted with her implausible claim that no one was actually harmed by the scheme.

Other 3553(a) factors further differentiated Ovid from Hall. Specifically, the government mentioned a heightened need for the Hall sentence to promote general deterrence; because these proof-of-fund-letter schemes, it argued, are of recent vintage and are cropping up around the country, a strong deterrent message needed to be sent.

*8 So whereas the government asked me to sentence Ovid to a prison term 12 and one-half years below his advisory range, it requested that Hall’s sentence be "close to the advisory Guidelines range." Letter in Response to Defendant’s Sentencing Memorandum from Assistant United States Attorney Winston M. Paes to the Court in United States v. Aisha Hall, 09-CR-292-JG-7 (E.D.N.Y,), at 1 (July 30, 2010). I sentenced Hall to a 126-month term of imprisonment, more than twice the length of the 60-month jail term imposed on Ovid, even though the low end of Hall’s sentencing range was five years lower than the low end of Ovid’s.

The disparity between these two sentences cannot reasonably be described as unwarranted. When all the relevant factors were considered, Ovid and Hall were not in the end, similarly situated.


Slip Copy, 2010 WL 3940724 (E.D.N.Y.)

(Cite as: 2010 WL 3940724 (E.D.N.Y.))

E. The Remedy for Unwarranted Disparities

It remains true, of course, that a sentencing regime that permits consideration and weighing of all the various circumstances present in a case will result in disparities. Sentencing is not scientific, and the weight to be accorded, for example, Ovid's pure intentions at the outset, or his lack of personal profit from the scheme, or his confessions and apologies to his congregation and the SEC, are matters of judgment, not precise calibration. Reasonable people will reach different results. Indeed, though I agreed with the prosecutors observations about Ovid, and a 60-month term was not unreasonable, I would have weighed the various factors differently and sentenced Ovid to more time in prison were it not for the 60-month cap imposed by the plea agreement I accepted. I have no doubt some of my brother and sister judges might have weighed them differently than I did. Some might have imposed less than 60 months in prison; others might have rejected the plea agreement based on a judgment that a sentence no greater than 60 months could not adequately reflect the seriousness of Ovid's fraud, or would undermine the purposes of sentencing or the Guidelines themselves. The same is true with regard to Hall. The prosecutor no doubt thought her sentence, which was 25 months below the low end of the range, should have been closer to that range; other judges might have agreed, and still others might have sentenced Hall to an even shorter term.

FN4. Though I would have imposed a longer jail term, for reasons I have expressed at length elsewhere I believe

plea bargains that affect sentences are entitled to substantial deference, and I therefore accepted the plea agreement. See John Gleeson, "The Sentencing Commission and Prosecutorial Discretion: The Role of the Courts in Policing Sentence Bargains," 36 Hofstra L.Rev, 639 (2008). Although that essay specifically addressed "sentence bargains" pursuant to Fed.R.Crim.P. 1 1W(C), the reasons for deferring to sentence bargains apply equally to charge bargains like the one in this case. There are several such reasons, but one is that plea bargaining "help [s] to leaven a sentencing regime that is too harsh." Id. at 658.

There is nothing surprising or disturbing about the fact that once judgment is allowed to play a role in sentencing, it will be exercised differently by different people. It is the natural consequence of permitting judges to judge-to fashion a just sentence based on all the relevant facts in each particular case. The faithful discharge of the obligation to consider all the 3553(a) factors will produce a range of reasonable outcomes because there are so many relevant considerations that are so difficult to weigh, individually and in combination. That reality is not altered by the illusion of precise calculation created by the ever-expanding fraud guideline and the rest of the now 539-page Guidelines Manual. Thus, across the range of judges in the system, cases that are indeed similar will be sentenced differently. If that's all the DOJ Letter means when it refers to reports


NRM

Slip Copy, 2010 WL 3940724 (RD.N.Y.)

(Cite as: 2010 WL 3940724 (E.D.N.Y.))

by prosecutors that "judicial assignment" matters in a case, DOJ Letter at 2, the letter is correct but the observation is unremarkable.

*9 I suspect the Departments concerns run deeper than that. implicit in the way it describes a series of "inconsistent[ ]" fraud sentences that it plainly thinks were wayward, see DOJ Letter at 4-5, is the claim that judges are inexplicably and unjustifiably all over the lot, sentencing based on their personal preferences and producing the kind of unwarranted disparities the Sentencing Reform Act of 1984 and the Sentencing Guidelines were intended to eliminate. If that is correct, I agree it is unacceptable. But the solution to such a problem, if it exists, is not to promulgate more amendments to the Guidelines for fraud offenses, as the DOJ Letter suggests. The fraud guideline, U. S.S. G. � 2B 1 .1, already contains more than 40 "Specific Offense Characteristics" adjustments, not to mention 16 pages of dense application notes. It is way too complicated as it is.

Rather, if our system really is producing unwarranted disparities in fraud sentences, as opposed to disparities based on legitimate individualized sentencing concerns or on the reasonable exercise of judgment by different judges, we already have a remedy. Ajudge must explain the reasons for each sentence, and those reasons, and the sentences they support, are subject to appellate review. If the sentencing judge fails to calculate the Guidelines range, or calculates it incorrectly, or fails to consider it or any of the other � 3553(a) factors, or fails

properly to find the relevant facts, or fails to explain the sentence, including any deviation from the Guidelines range, the sentence is subject to reversal on appeal. See Gall v. United States, 552 U.S. 38, 51, 128 S,Ct. 586, 169 L.Ed.2d 445 (2007). And even if the "sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness ofthe sentence imposed under an abuse-of-discretion standard. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range." Id. Only reasonable sentences may be upheld; outliers will be reversed.

The Sentencing Commission’s data for Fiscal Year 2009 show that of 8,055 sentences imposed pursuant to the fraud guideline, 1,711 were below the advisory range (excluding "government-sponsored" variations from the range). If those sentences were imposed at the whim of individual sentencing judges, as the DOJ Letter suggests is happening with sufficient frequency that a "second regime" has evolved, the government should appeal them. But the Commission’s data show that the government almost never appeals sentences on the ground that the � 3553(a) factors were incorrectly applied. In Fiscal Year 2009 it appealed a total of only 18 such sentences. Even if every one of those appeals involved a fraud sentence, only 1% of the cases the DOJ Letter describes as "extremely problematic" are being appealed by the government.


Slip Copy, 2010 WL 3940724 (E.D.N.Y.)

(Cite as: 2010 WL 3940724 (E.D.N.Y.))

FN5. United States Sentencing Commission, 2009 Source book of Federal Sentencing Statistics 78 tbL28.

FN6. Id. at 144 tbl.58.

Even with respect to the eight sentences specifically identified in the DOS Letter, which are presumably the most egregious examples of what it describes as "unacceptable" fraud sentences, the government either didn’t appeal or withdrew its appeal in all but one of them. Five were imposed in United States v. Ferguson et al

06-CR-137 (CFD) (D. Conn.), and though the government filed notices of appeal, it withdrew them in exchange for the defendants’ agreement not to appeal the sentences as too harsh. The government also withdrew its appeal in United States v. Turkcan, 08-CR-428 (DJS) (E.D.Mo.), and it never even filed an appeal in United States v. Stinn, 07-CR-1 13 (NG) (E.D.N.Y.). The remaining sentence was appealed and the government persisted in its challenge, but the appellate panel affirmed summarily, explicitly rejecting the government’s claim that the district court acted on its "personal view" rather than pursuant to the � 3553(a) factors. United States i Adelson, 301 Fed. Appx. 93, 95 (2d Cir.2008) (quotation marks omitted). The court also observed, as I have here, that fraud cases present a wide spectrum of culpability, and the careful application of the � 3553(a) factors to fraud defendants may properly result in the imposition of sentences well below the advisory range. See Id. at 94r9 (citing United States v. Cavera, 550 F.3d 180, 192 (2dCir.2008) (en bane)).

*10 1 don’t know why the Department has chosen to complain about fraud sentences to the Commission but not to the circuit courts of appeals. It has no reason to believe such appeals would be futile-in the handful of cases in which the government has challenged sentences based on the sentencing judges’ application of the 3553(a) factors, it has prevailed two-thirds of the time. Perhaps, as in this case, the prosecutors who are actually handling the cases in the courtrooms do not regard the sentences as unacceptable simply because they are below the advisory Guidelines ranges. In any event, if the problem the DOS Letter identifies in this area of federal sentencing in fact exists, there is no need for reform, as the solution is already available.

FN7. 2009 Sourcebook of Federal Sentencing Statistics at 144 tbl .58.

E.D.N.Y.,2010.

U.S. v. Ovid Slip Copy, 2010 WL 3940724 (E.D.N.Y.) END OF DOCUMENT


IME

JUDGE BATFS ON

COOPERATORS FRAUDSTERS PUBLIC CORRUPTION

112 William Tennant Avoids Prison in Duane Reade Fraud Case - NYTimes.com

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September 6, 2011

Former Executive at Duane Reade Avoids Prison By REUTERS

A former Duane Reade executive was spared prison time by a judge on Tuesday for his conviction of securities fraud at the New York drugstore chain between 2000 and 2005.

The executive, William Tennant, who served as a vice president and chief financial officer, was sentenced to time served and supervised release of three years, along with a fine of $io,000.

The sentence was handed down by Judge Deborah A. Batts in United States District Court in Manhattan.

Mr. Tennant told the judge that he took "full responsibility" for his actions. He described how he "cooperated to my fullest ability" in the three-year legal process.

After imposing the sentence, Judge Batts explained to Mr. Tennant's lawyer, John Kenney, that "time served" referred to the brief period that Mr. Tennant was jailed after his arrest and the filing of charges in 2008.

Walgreen bought Duane Reade last year from Oak Hill Capital Partners. Prosecutors said Oak Hill was given a false evaluation of Duane Reade when it bought the chain in 2004 for $614 million.

Duane Reade's former chief executive, Anthony Cuti, was sentenced to three years in prison after he was convicted of securities fraud, conspiracy and making false statements to the Securities and Exchange Commission,

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Ex-Financier Is Sentenced to 8 Years for Fraud By BENJAMIN WEISER Published: December14, 1999

A federal judge in Manhattan sentenced the former chairman of a financial services company in Rockland County, N.Y., to eight years in prison yesterday, citing his greed and betrayal of hundreds of "trusting victims' in a large fraud scheme.

The man, Gerald P. Hirsch, was also ordered to pay back $30.9 million to his victims, although it was unclear yesterday how much money they would ever receive.

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Judge Deborah A. Batts of Federal District Court in Manhattan rejected a tearful plea of mercy from Mr. Hirsch, 61, who apologized and said he had never sought to exploit his investors. He blamed the millions of dollars in losses by the investment company, the Churchill Group of Suffern, N.Y., on the negligence of himself and others.

"As head of a rapidly growing business employing over 100 people," he told the judge, "I was constantly charging ahead. In doing so, I failed to look behind and keep careful watch of what was happening in my wake. I did not monitor my operations adequately. I relied too heavily on the professionals that I hired.

"With my eye on the prize, I was oblivious," he said, adding that he had lost his "moral and ethical compass, and failed miserably."

But Judge Batts said his "longstanding avarice and deceit of many individuals must be MOSTE-MAILED MOST VIEWED

'

punished at the highest end of the sentencing guidelines." T-514 N A I't.I

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Under those federal guidelines, Mr. Hirsch faced about six and a half to eight years o Cuomo Plan Would Limit Gas Drilling to prison. Judge Batts ordered his immediate imprisonment and refused his lawyer's i T a Few Counties in New York

that Mr. Hirsch be allowed to meet privately with his family for 10 minutes after ti F More

hearing. FRIEDMAN

Two Worlds Cracking Up

The lawyer, Richard B. Lind, said later that his client would appeal. Earlier, Mr. Hirsch had to withdraw his records show, a request the judge denied. sought guilty plea, 4, MAUREEN DOWD

American Horror Story

Mr. Hirsch had pleaded guilty in April to six counts of mail fraud. According to the indictment, he had told investors that he would invest their money in large certificates of 5. SPIRITS OF THE TIMES

deposit and securities backed by mortgages. He claimed the investments offered "high ______ Take On Summer With Gin From

Experienced Hands rates of return, liquidity and almost no risk,' the indictment said. 6. A Drug Family in the dinner's Circle

From 1987 to 1997, Mr. Hirsch sold more than 1,000 deals to about 500 investors, the indictment said. But federal prosecutors in Manhattan told the judge that Mr. Hirsch was

7. In Good Health? Thank Your 100 actually operating a Pon,zi scheme, in which "money contributed. by 'new' investors was Trillion Bacteria

used to pay 'old' investors" in a cycle that, "when the music finally stopped, left hundreds '

S. Cuomo Plan Would Limit Gas Drilling to of people holding nearly worthless paper." a Few Counties in New York

Many of the victims were elderly. Others were longtime friends of Mr. Hirsch. One 9. WELL Choosing a Sugar Substitute

investor, Myrna W. Barzelatto of White Plains, who lost $466,000, told the judge that Mr. -.57.-

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The Baroness and Her Lost Mercedes

12 Ex-Financier Is Sentenced to 8 Years for Fraud - NYTimes.com

Hirsch ingratiated himself with his clients. "He portrayed himself as your very best friend. 10. Summer Drinks

He was there to help you,' she said. "This embracing by Mr. Hirsch rather blinded us." Go to Complete List Show My Reoorn-smr,dstior,s

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/13/12 Jail for Leader And Advisers In Bribery Case At Police Union - The New York Times

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July 1, 1998

Jail for Leader And Advisers In Bribery Case At Police Union By BENJAMIN WEISER

The former head of the New York City transit police union and top union lawyers and advisers were sentenced to prison yesterday for their roles in a kickback scheme involving millions of dollars in union finds.

Ronald Reale, 45, the former union leader, was sentenced to seven years, and Richard Hartman, 57, a leading negotiator for the union, was sentenced to five years.

They were convicted in January in a racketeering conspiracy that involved the payment of more than $400,000 in bribes to transit union officers in return for more than $2 million in union money paid to the law firm of Lysaght, Lysaght & Kramer, which represented the transit union and other local police unions.

The former sole partners in the law firm, James J. Lysaght, 51, and Peter Kramer, 44, received terms of 27 months each.

Although the charges involved the transit police union, the lawyers and Mr. Hartman had also worked for the Patrolmen's Benevolent Association, which represented officers in the City Police Department, and were instrumental in winning a series of lucrative contracts from the city.

Federal prosecutors subpoenaed 10 years of financial records last year from the P.B.A. as part of a widening investigation into allegations of corruption.

Judge Deborah A. Batts of Federal District Court in Manhattan said that Mr. Reale had "shamelessly abused" a "position of authority and trust for his own corrupt gains and those of others." And she called Mr. Hartman "an architect of several of the kickback schemes," which increased his business as well as "contributed to the corruption of the labor negotiation process."

Mr. Reale and Mr. Hartman had also been convicted of trying to defraud the city's Campaign Finance Board of matching funds during Mr. Reale's 1993 campaign for public advocate.

Mary Jo White, the United States Attorney for the South em District of New York, said the convictions and sentences "are a warning to those individuals who corrupt the election system or

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1 12 Jail for Leader And Advisers In Bribery Case At Police Union - The New York Times

steal from union members that they will be prosecuted and, if convicted, sentenced to lengthy prison terms." She said the investigation was continuing.

After the transit police and the city’s Police Department were combined in 1995, the P.B.A. absorbed the members of the transit police union.

Judge Batts also sentenced two other former transit union officials yesterday who had earlier pleaded guilty.

Thomas Zichettello, 38, the former first vice president of the transit police union, who had cooperated with the Government’s investigation, received a six-month sentence for his role in the racketeering scheme.

Frank Richardone, 37, the former treasurer of the transit union, was sentenced to 33 months for his plea to one count of mail fraud in connection with what prosecutors said was a scheme to use union funds to buy luxury cars for himself, his friends and family.

Mr. Hartm an’s defense lawyer, Gerald L. Shargel, criticized the Government yesterday, saying: "1 don’t think it had anything more than big eyes for a larger investigation. I don’t think there’s ever been any evidence to substantiate what they’ve hinted at for years -- the notion of widespread corruption in the P.B.A. or wrongdoing by the law firm."

Mr. Shargel, as did the other defense lawyers, sought leniency for his client. He told Judge Batts that Mr. Hartman "has had a brilliant career" and was regarded as the pre-eminent representative of police officers throughout this state."

Mr. Reale’s lawyer, J. Bruce Maffeo, wrote to the judge that his client’s humiliation as a result of the conviction "has eclipsed his many accomplishments" as a reformer and "decorated police officer."

Mr. Lysaght’s lawyer, Michael Rosen, said his client had dedicated his life to improving the lot of the officer "who protects the citizen on the street.

"You just can’t throw that into the wastebasket," Mr. Rosen said.

Mr. Lysaght, the sole defendant to address the judge, said he had "served the law" his entire professional life.

The lawyer for Mr. Kramer, William Keahon, cited his client’s public service and his responsibility for an adopted child from China as a basis for seeking leniency.

Judge Batts ordered Mr. Reale, Mr. Hartman, Mr. Lysaght and Mr. Kramer to forfeit a total of $200,000 as part of their sentence.

Some of that money may be returned to the city’s Campaign Finance Board, said Nicole A. �60--

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/13/12 Jail for Leader And Advisers In Bribery Case At Police Union - The New York Times

Gordon, the board's executive director.

Ms. Gordon said in a telephone interview that her agency, which first uncovered the allegations of campaign fraud and took them to Ms. White's office in 1994, would seek to recoup the $163,000

in taxpayer money that Mr. Reale and Mr. Hartman were convicted of obtaining fraudulently.

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NON-CAPITAL MIT/GA TION: EFFECTIVE AD VO CA CY WITH REAL RESUL T5

PART 2 DEVELOPING MITIGATING INFORMATION

S

THE FACT PATTERN

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To: Heidi and Ed From: Francisco Re: Lamont Wilson, Reg. No. 68457-054 Date: June 18, 2012

Hi, Guys: Mr. Wilson is scheduled to plead guilty next week to a cocaine distribution conspiracy. He’ll be sentenced by Judge Solomon in September. The judge is new, and I don’t know her, although she has a reputation for being tough but scrupulously fair. I am writing to you guys for some help in putting together our mitigation package.

The Offense and Guilty Plea

Lamont is defendant number 8 in a 12-defendant cocaine case. The Indictment alleged a retail operation in a Bronx housing project that ran from early 2009 until a joint task force busted it up, which was in December of 2011. Lamont and the others were charged with dealing more than S kilograms of coke, in violation of 21 U.S.C. � 846 and 841 (b)(1)(A). The offense carries a 10-year mandatory minimum.

When I met Lamont, which was in mid-December, he was pretty adamant that he had nothing to do with it, and that he did not even know the other guys named in the Indictment. But in discovery there were a couple of recorded calls to Lamont from the ringleader’s cell phone, in which they seemed pretty clearly to be talking about drugs. In the end, Lamont agreed to plead guilty, and even made it through a "safety valve" proffer. Here is the deal we worked out:

We stipulated to between 5 and 15 kilograms, with a base offense level of 32. Deducting 2 levels for the safety valve and 3 for acceptance of responsibility, the total offense level is 27. At criminal history category I, his range is 70 to 87 months. Of course, we are free to ask for a non-Guideline sentence under � 3553(a).

The longest Lamont has ever been incarcerated prior to this is a few days. I hope we can get something better than 70 months for him.

Pre-Trial Supervision

Lamont was incarcerated at the MCC for about one month before he satisfied his bail conditions. While he was there, he saw a psychologist a couple of times, who gave him some pills to "help him sleep." Since his release, he has worked well with his pretrial services officer: Pretrial sent Lamont for a psychological evaluation, but he says there was no follow-up.

Lamont denies any drug history, but he has a prior conviction for trespass - it’s described below-where the sentence was a conditional discharge, and it looks as if drug treatment was ordered as a condition. When Lamont was first arrested in this case, Pretrial Services said that he tested positive for marijuana and cocaine. Through pretrial, he has been attending outpatient drug treatment at Daytop, and has not tested positive.

.4

Lamont's Background

Lamont doesn't seem to really like talking about himself, but here's what I've been able to glean. He is now 26 years old. He was born in the Bronx on February 23, 1986. His account of his childhood is kind of confusing. His mother is Cynthia Atkins and he says she's in her early 40's now. She has called my office once or twice to ask how the case is going, but has not really been involved. His father, also named Lamont Wilson, died of AIDS several years ago. Lamont lived in the Bronx until he was 3, when his father went to prison. He says he doesn't know what kind of case it was, and never really had much contact with his father after that.

When the father got locked up, Lamont' s mother brought him and his younger half-sister, Keisha Atkins, to Greenville, South Carolina, and left them with her mother, Mary Anne Atkins, who raised him along with what sounds like a shifting cast of cousins, neighbors' kids and foster children. Lamont says that his mother was using drugs at the time, and that's why she brought him down south, but also says that even though he missed his mother, he was pretty happy living with his grandmother. When he was 12, his mother arrived suddenly, picked him up, and brought him back to the Bronx, where she left him with his father's mother, Emma Connors, whom he had either never met or did not remember. Lamont says that Connors wasn't much of a parent and let him do "whatever he wanted." His mother would come visit once in a while, and would sometimes give Connors money to help pay for his care. The mother had left his sister in SC and he says she is in college there now. He also says that they have stayed close.

Lamont attended Taft High School until the 10th grade. When I asked him why he left he said he that he "didn't like it." From age 16 on, he doesn't seem to have done much of anything, although he says that over the past few years the super of his building would pay him a few dollars to help clean up. He also says that he was in a summer youth program when he was 17, through which he worked at a day camp for kids. He didn't seem to remember too many of the details. He tried to take the G.E.D. when he was 19 or 20, but failed the test.

Criminal Record

Lamont has two misdemeanor convictions in the Bronx for trespass, both from 2007. According to his rap sheet, the arrest charge for each case was drug possession, but each one was dropped down to trespass. For the first, from April of 2007, the sentence was time served - about 2 days. The second, from June of 2007, resulted in a conditional discharge. Both arrests occurred in the same building in the Soundview Houses, which is the same project where the current drag case arose. Lamont says that he was there visiting his then-girlfriend, "China" - he can't remember her last name - and that the police arrested him in the stairwell because he didn't have any i.d. He denied that those cases had anything to do with drugs.

He says that had a court-appointed lawyer for both cases and told her that he was innocent, but that she "didn't give a s* *f' and told him that he should just plead to trespass.

IM

Possible Medical Issues

He says that he has never been hospitalized, but while be was at the MCC he was complaining of abdominal pain. The prison brought him to an outside facility for some sort of test, but he was released before he got the result. He has not followed up - he takes Mylanta, which he says doesn't really help - because he does not have medical insurance.

'S

THE CRIMINAL JUSTICE ACT

The Criminal Justice Act, 18 U.S.C. � 3006A (2012)

� 3006A. Adequate representation of defendants

(a) Choice of plan.--Each United States district court, with the approval of the judicial council of the circuit, shall place in operation throughout the district a plan for furnishing representation for any person financially unable to obtain adequate representation in accordance with this section. Representation under each plan shall include counsel and investigative, expert, and other services necessary for adequate representation. Each plan shall provide the following:

(1) Representation shall be provided for any financially eligible person who--

(A) is charged with a felony or a Class A misdemeanor;

(B) is a juvenile alleged to have committed an act of juvenile delinquency as defined in section 5031 of this title;

(C) is charged with a violation of probation;

(D) is under arrest, when such representation is required by law;

(E) is charged with a violation of supervised release or faces modification, reduction, or enlargement of a condition, or extension or revocation of a term of supervised release;

(F) is subject to a mental condition hearing under chapter 313 of this title;

(G) is in custody as a material witness;

(H) is entitled to appointment of counsel under the sixth amendment to the Constitution;

(I) faces loss of liberty in a case, and Federal law requires the appointment of counsel; or

(J) is entitled to the appointment of counsel under section 4109 of this title.

(2) Whenever the United States magistrate judge or the court determines that the interests of justice so require, representation may be provided for any financially eligible person who--

(A) is charged with a Class B or C misdemeanor, or an infraction for which a sentence to confinement is authorized; or

MMM

(B) is seeking relief under section 2241, 2254, or 2255 of title 28.

(3) Private attorneys shall be appointed in a substantial proportion of the cases. Each plan may include, in addition to the provisions for private attorneys, either of the following or both:

(A) Attorneys furnished by a bar association or a legal aid agency,

(B) Attorneys furnished by a defender organization established in accordance with the provisions of subsection (g).

Prior to approving the plan for a district, the judicial council of the circuit shall supplement the plan with provisions for representation on appeal. The district court may modify the plan at any time with the approval of the judicial council of the circuit. It shall modify the plan when directed by the judicial council of the circuit. The district court shall notify the Administrative Office of the United States Courts of any modification of its plan.

(b) Appointment of counsel. --Counselfurnishing representation under the plan shall be selected from a panel of attorneys designated or approved by the court, or from a bar association, legal aid agency, or defender organization furnishing representation pursuant to the plan. In every case in which a person entitled to representation under a plan approved under subsection (a) appears without counsel, the United States magistrate judge or the court shall advise the person that he has the right to be represented by counsel and that counsel will be appointed to represent him if he is financially unable to obtain counsel. Unless the person waives representation by counsel, the United States magistrate judge or the court, if satisfied after appropriate inquiry that the person is financially unable to obtain counsel, shall appoint counsel to represent him. Such appointment may be made retroactive to include any representation furnished pursuant to the plan prior to appointment. The United States magistrate judge or the court shall appoint separate counsel for persons having interests that cannot properly be represented by the same counsel, or when other good cause is shown.

(c) Duration and substitution of appointments.--A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate judge or the court through appeal, including ancillary matters appropriate to the proceedings. If at any time after the appointment of counsel the United States magistrate judge or the court finds that the person is financially able to obtain counsel or to make partial payment for the representation, it may terminate the appointment of counsel or authorize payment as provided in subsection (f), as the interests of justice may dictate. If at any stage of the proceedings, including an appeal, the United States magistrate judge or the court finds that the person is financially unable to pay counsel whom he had retained, it may

appoint counsel as provided in subsection (b) and authorize payment as provided in subsection (d), as the interests of justice may dictate. The United States magistrate judge or the court may, in the interests of justice, substitute one appointed counsel for another at any stage of the proceedings.

(d) Payment for representation.--

(1) Hourly rate.--Any attorney appointed pursuant to this section or a bar association or legal aid agency or community defender organization which has provided the appointed attorney shall, at the conclusion of the representation or any segment thereof, be compensated at a rate not exceeding $60 per hour for time expended in court or before a United States magistrate judge and $40 per hour for time reasonably expended out of court, unless the Judicial Conference determines that a higher rate of not in excess of $75 per hour is justified for a circuit or for particular districts within a circuit, for time expended in court or before a United States magistrate judge and for time expended out of court. The Judicial Conference shall develop guidelines for determining the maximum hourly rates for each circuit in accordance with the preceding sentence, with variations by district, where appropriate, taking into account such factors as the minimum range of the prevailing hourly rates for qualified attorneys in the district in which the representation is provided and the recommendations of the judicial councils of the circuits. Not less than 3 years after the effective date of the Criminal Justice Act Revision of 1986, the Judicial Conference is authorized to raise the maximum hourly rates specified in this paragraph up to the aggregate of the overall average percentages of the adjustments in the rates of pay under the General Schedule made pursuant to section 5305 of title 5 on or after such effective date. After the rates are raised under the preceding sentence, such maximum hourly rates may be raised at intervals of not less than 1 year each, up to the aggregate of the overall average percentages of such adjustments made since the last raise was made under this paragraph. Attorneys may be reimbursed for expenses reasonably incurred, including the costs of transcripts authorized by the United States magistrate [FN1] or the court, and the costs of defending actions alleging malpractice of counsel in furnishing representational services under this section. No reimbursement for expenses in defending against malpractice claims shall be made if a judgment of malpractice is rendered against the counsel furnishing representational services under this section. The United States magistrate [FN1] or the court shall make determinations relating to reimbursement of expenses under this paragraph.

(2) Maximum amounts.--For representation of a defendant before the United States magistrate judge or the district court, or both, the compensation to be paid to an attorney or to a bar association or legal aid agency or community defender organization shall not exceed $7,000 for each attorney in a case in which one or more felonies are charged, and $2,000 for each attorney in a case in which only misdemeanors are charged. For representation of a defendant in an appellate court, the compensation to be paid to an attorney or to a bar association or legal aid agency or community

MMIOM

defender organization shall not exceed $5,000 for each attorney in each court. For representation of a petitioner in a non-capital habeas corpus proceeding, the compensation for each attorney shall not exceed the amount applicable to a felony in this paragraph for representation of a defendant before a judicial officer of the district court. For representation of such petitioner in an appellate court, the compensation for each attorney shall not exceed the amount applicable for representation of a defendant in an appellate court. For representation of an offender before the United States Parole Commission in a proceeding under section 4106A of this title, the compensation shall not exceed $1,500 for each attorney in each proceeding; for representation of an offender in an appeal from a determination of such Commission under such section, the compensation shall not exceed $5,000 for each attorney in each court. For any other representation required or authorized by this section, the compensation shall not exceed $1,500 for each attorney in each proceeding. The compensation maximum amounts provided in this paragraph shall increase simultaneously by the same percentage, rounded to the nearest multiple of $100, as the aggregate percentage increases in the maximum hourly compensation rate paid pursuant to paragraph (1) for time expended since the case maximum amounts were last adjusted.

(3) Waiving maximum amounts.--Payment in excess of any maximum amount provided in paragraph (2) of this subsection may be made for extended or complex representation whenever the court in which the representation was rendered, or the United States magistrate judge if the representation was furnished exclusively before him, certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit. The chief judge of the circuit may delegate such approval authority to an active or senior circuit judge.

(4) Disclosure of fees--

(A) In general. --Subjectto subparagraphs (B) through (E), the amounts paid under this subsection for services in any case shall be made available to the public by the court upon the court's approval of the payment.

(B) Pre-trial or trial in progress.--If a trial is in pre-trial status or still in progress and after considering the defendant's interests as set forth in subparagraph (D), the court shall--

(i) redact any detailed information on the payment voucher provided by defense counsel to justify the expenses to the court; and

(ii) make public only the amounts approved for payment to defense counsel by dividing those amounts into the following categories;

(I) Arraignment and or plea.

(II) Bail and detention hearings.

(III) Motions.

(IV) Hearings.

(V) Interviews and conferences.

(VI) Obtaining and reviewing records.

(VII) Legal research and brief writing.

(VIII) Travel time.

(IX) Investigative work.

(X) Experts.

(XI) Trial and appeals.

(XII) Other.

(C) Trial completed--

(i) In general.--If a request for payment is not submitted until after the completion of the trial and subject to consideration of the defendant’s interests as set forth in subparagraph (D), the court shall make available to the public an unredacted copy of the expense voucher.

(ii) Protection of the rights of the defendant.--If the court determines that defendant’s interests as set forth in subparagraph (D) require a limited disclosure, the court shall disclose amounts as provided in subparagraph (B).

(D) Considerations--The interests referred to in subparagraphs (B) and (C) are--

(i) to protect any person’s 5th amendment right against self-incrimination;

(ii) to protect the defendant’s 6th amendment rights to effective assistance of counsel;

(iii) the defendant’s attorney-client privilege;

(iv) the work product privilege of the defendant’s counsel;

(v) the safety of any person; and

�72-

(vi) any other interest that justice may require, except that the amount of the fees shall not be considered a reason justifying any limited disclosure under section 3006A(d)(4) of title 18, United States Code.

(E) Notice.-The court shall provide reasonable notice of disclosure to the counsel of the defendant prior to the approval of the payments in order to allow the counsel to request redaction based on the considerations set forth in subparagraph (D). Upon completion of the trial, the court shall release unredacted copies of the vouchers provided by defense counsel to justify the expenses to the court. If there is an appeal, the court shall not release unredacted copies of the vouchers provided by defense counsel to justify the expenses to the court until such time as the appeals process is completed, unless the court determines that none of the defendant's interests set forth in subparagraph (D) will be compromised.

(F) Effective date.--The amendment made by paragraph (4) shall become effective 60 days after enactment of this Act, will apply only to cases filed on or after the effective date, and shall be in effect for no longer than 24 months after the effective date.

(5) Filing claims.--A separate claim for compensation and reimbursement shall be made to the district court for representation before the United States magistrate judge and the court, and to each appellate court before which the attorney provided representation to the person involved. Each claim shall be supported by a sworn written statement specifying the time expended, services rendered, and expenses incurred while the case was pending before the United States magistrate judge and the court, and the compensation and reimbursement applied for or received in the same case from any other source. The court shall fix the compensation and reimbursement to be paid to the attorney or to the bar association or legal aid agency or community defender organization which provided the appointed attorney. In cases where representation is furnished exclusively before a United States magistrate judge, the claim shall be submitted to him and he shall fix the compensation and reimbursement to be paid. In cases where representation is furnished other than before the United States magistrate judge, the district court, or an appellate court, claims shall be submitted to the district court which shall fix the compensation and reimbursement to be paid.

(6) New trials.--For purposes of compensation and other payments authorized by this section, an order by a court granting a new trial shall be deemed to initiate a new case.

(7) Proceedings before appellate courts.--If a person for whom counsel is appointed under this section appeals to an appellate court or petitions for a writ of certiorari, he may do so without prepayment of fees and costs or security therefor and without filing the affidavit required by section 1915(a) of title 28.

(e) Services other than counsel.--

(1) Upon request.--Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate judge if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.

(2)Without prior request.--(A) Counsel appointed under this section may obtain, subject to later review, investigative, expert, and other services without prior authorization if necessary for adequate representation. Except as provided in subparagraph (B) of this paragraph, the total cost of services obtained without prior authorization may not exceed $800 and expenses reasonably incurred,

(B) The court, or the United States magistrate judge (if the services were rendered in a case disposed of entirely before the United States magistrate judge), may, in the interest of justice, and upon the finding that timely procurement of necessary services could not await prior authorization, approve payment for such services after they have been obtained, even if the cost of such services exceeds $800.

(3) Maximum amounts.-Compensation to be paid to a person for services rendered by him to a person underthis subsection, or to be paid to an organization for services rendered by an employee thereof, shall not exceed $2,400, exclusive of reimbursement for expenses reasonably incurred, unless payment in excess of that limit is certified by the court, or by the United States magistrate judge if the services were rendered in connection with a case disposed of entirely before him, as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is approved by the chief judge of the circuit. The chief judge of the circuit may delegate such approval authority to an active or senior circuit judge.

(4) Disclosure of fees.--The amounts paid under this subsection for services in any case shall be made available to the public.

(5)The dollar amounts provided in paragraphs (2) and (3) shall be adjusted simultaneously by an amount, rounded to the nearest multiple of $100, equal to the percentage of the cumulative adjustments taking effect under section 5303 of title 5 in the rates of pay under the General Schedule since the date the dollar amounts provided in paragraphs (2) and (3), respectively, were last enacted or adjusted by statute.

(f) Receipt of other payments.--Whenever the United States magistrate judge or the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that' such funds be paid to the appointed attorney, to the bar association or legal aid agency or community defender organization which provided the appointed attorney, to any person or organization authorized

pursuant to subsection (e) to render investigative, expert, or other services, or to the court for deposit in the Treasury as a reimbursement to the appropriation, current at the time of payment, to carry out the provisions of this section. Except as so authorized or directed, no such person or organization may request or accept any payment or promise of payment for representing a defendant.

(g) Defender organization.--

(1)Qualifications.--A district or a part of a district in which at least two hundred persons annually require the appointment of counsel may establish a defender organization as provided for either under subparagraphs (A) or (B) of paragraph (2) of this subsection or both. Two adjacent districts or parts of districts may aggregate the number of persons required to be represented to establish eligibility for a defender organization to serve both areas. In the event that adjacent districts or parts of districts are located in different circuits, the plan for furnishing representation shall be approved by the judicial council of each circuit.

(2)Types of defender organizations.--

(A) Federal Public Defender Organization.--A Federal Public Defender Organization shall consist of one or more full-time salaried attorneys. An organization for a district or part of a district or two adjacent districts or parts of districts shall be supervised by a Federal Public Defender appointed by the court of appeals of the circuit, without regard to the provisions of title 5 governing appointments in the competitive service, after considering recommendations from the district court or courts to be served. Nothing contained herein shall be deemed to authorize more than one Federal Public Defender within a single judicial district. The Federal Public Defender shall be appointed for a term of four years, unless sooner removed by the court of appeals of the circuit for incompetency, misconduct in office, or neglect of duty. Upon the expiration of his term, a Federal Public Defender may, by a majority vote of the judges of the court of appeals, continue to perform the duties of his office until his successor is appointed, or until one year after the expiration of such Defender's term, whichever is earlier. The compensation of the Federal Public Defender shall be fixed by the court of appeals of the circuit at a rate not to exceed the compensation received by the United States attorney for the district where representation is furnished or, if two districts or parts of districts are involved, the compensation of the higher paid United States attorney of the districts. The Federal Public Defender may appoint, without regard to the provisions of title 5 governing appointments in the competitive service, full-time attorneys in such number as may be approved by the court of appeals of the circuit and other personnel in such number as may be approved by the Director of the Administrative Office of the United States Courts. Compensation paid to such attorneys and other personnel of the organization shall be fixed by the Federal Public Defender at a rate not to exceed that paid to attorneys and other personnel of similar qualifications and experience in the Office of the United States attorney in the district where representation is furnished or, if two

MIM

districts or parts of districts are involved, the higher compensation paid to persons of similar qualifications and experience in the districts. Neither the Federal Public Defender nor any attorney so appointed by him may engage in the private practice of law. Each organization shall submit to the Director of the Administrative Office of the United States Courts, at the time and in the form prescribed by him, reports of its activities and financial position and its proposed budget. The Director of the Administrative Office shall submit, in accordance with section 605 of title 28, a budget for each organization for each fiscal year and shall out of the appropriations therefor make payments to and on behalf of each organization. Payments under this subparagraph to an organization shall be in lieu of payments under subsection (d) or (e).

(B) Community Defender Organization.--A Community Defender Organization shall be a nonprofit defense counsel service established and administered by any group authorized by the plan to provide representation. The organization shall be eligible to furnish attorneys and receive payments under this section if its bylaws are set forth in the plan of the district or districts in which it will serve. Each organization shall submit to the Judicial Conference of the United States an annual report setting forth its activities and financial position and the anticipated caseload and expenses for the next fiscal year. Upon application an organization may, to the extent approved by the Judicial Conference of the United States:

(i) receive an initial grant for expenses necessary to establish the organization; and

(ii) in lieu of payments under subsection (d) or (e), receive periodic sustaining grants to provide representation and other expenses pursuant to this section.

(3) Malpractice and negligence suits--The Director of the Administrative Office of the United States Courts shall, to the extent the Director considers appropriate, provide representation for and hold harmless, or provide liability insurance for, any person who is an officer or employee of a Federal Public Defender Organization established under this subsection, or a Community Defender Organization established under this subsection which is receiving periodic sustaining grants, for money damages for injury, toss of liberty, loss of property, or personal injury or death arising from malpractice or negligence of any such officer or employee in furnishing representational services under this section while acting within the scope of that person's office or employment.

(h) Rules and reports.--Each district court and court of appeals of a circuit shall submit a report on the appointment of counsel within its jurisdiction to the Administrative Office of the United States Courts in such form and at such times as the Judicial Conference of the United States may specify. The Judicial Conference of the United States may, from time to time, issue rules and regulations governing the operation of plans formulated under this section.

(i) Appropriations.--There are authorized to be appropriated to the United States courts,

S

out of any money in the Treasury not otherwise appropriated, sums necessary to carry out the provisions of this section, including funds for the continuing education and training of persons providing representational services under this section When so specified in appropriation acts, such appropriations shall remain available until expended. Payments from such appropriations shall be made under the supervision of the Director of the Administrative Office of the United States Courts.

) Districts included.--As used in this section, the term "district court" means each district court of the United States created by chapter 5 of title 28, the District Court of the Virgin Islands, the District Court for the Northern Mariana Islands, and the District Court of Guam.

(k) Applicability in the District of Columbia--The provisions of this section shall apply in the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit. The provisions of this section shall not apply to the Superior Court of the District of Columbia and the District of Columbia Court of Appeals.

List of Frequently Obtained Mitigation Records

:

Frequently Obtained Records:

Educational/Special Education

Medical

Hospitalizations-injuries, assaults, neurological problems, issues at birth, conditions

Psychiatric Hospitalizations or other residential psychiatric treatment

Mental Health Outpatient Treatment

Employment Personnel Files

Substance Abuse Treatment History (inpatient or outpatient)

Jail records �medical and psychiatric

Program Completion, disciplinary and medical records from past incarcerations

Vocational Certificates/GED

Foster Care Agencies/Administration for Children’s Services

Social Security Administration

Records:

- May require HIPAA release, subpoena or So Ordered subpoena (ex-parte or not)

- Some places have a policy that subpoenaed documents are sent to the Court Clerk

1 iii'] r111,1'i,I.1.N

- Administration For Children Services -N.Y City Board of Education -Social Security Administration

CRITIM

AD 89 (Rev. 11191) Subpoena in a Criminal Case - SDNY WEB 4199

Zlniteb *tattq 0" ~;trict Court

UNITED STATES OF AMERICA,

ET AL., CASE NUMBER: 09 C (>0(X)

TO: ADMINISTRATION FOR CHILDREN SERVICES LEGAL DIVISION 220 CHURCH STREET NEW YORK, NEW YORK

VI YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case. PLACE

UNITED STATES DISTRICT COURT UNITED STATES COURTHOUSE, 500 PEARL STREET, NEW YORK, NEW YORK 10007

(.OUN ROOM

20C

DATE AND TIME

APRIL 23, 2010, 9AM

YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s):

AS TO (DEFENDANT) (DOB: -I--I--, SS#XXX-XX-XXXX) (I) ALL RECORDS DOCUMENTING HIS PLACEMENT IN FOSTER CARE (INCLUDING PLACEMENT WITH RACHEL BENN IN OR AROUND MARCH 1990) (i) RECORDS OF REMOVAL AND PLACEMENT IN ALTERNATE CARE IN OR AROUND 1991; (iii) RECORDS OF ACS VISITS MONITORING MR. BENN'S PLACEMENT, LIVING CONDITIONS, AND ALL DOCUMENTS RELATING TO THE CARE OF MR. (DEFENDANT).

U.S. MAGISTRATE JUDGE OR CLERK OF COURT

SMAIN

(By) Deputy Clerk

ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER:

FRANCISCO E. CELEDONIO, ESQ. 401 BROADWAY, SUITE 2506 NEW YORK, NEW YORK 10013,212-219-7533

AC 89 (Rev. 11/91) Subpoena in a Criminal Case - SDNY WEB 4/99

PROOF OF SERVICE DATE PLACE

RECEIVED BY SERVER

DATE PLACE

SERVED

SERVED ON (PRINT NAME) FEES AND MILEAGE TENDERED TO WETNESS

LII YES NO AMOUNT$______________

SERVED BY (PRINT NAME) TITLE

DECLARATION OF SERVER

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct.

Executed on DATE SIGNATURE OF SERVER

ADDRESS OF SERVER

ADDITIONAL INFORMATION

sm

AD 89 (Rev. 11191) Subpoena in a Criminal Case - SDNY WEB 4199

Nuttrb *tattg; ~Dtkrirt Court SOUTHERN DISTRICT OF NEW YORK


(DEFENDANT) ET AL., CASE NUMBER: 09 CR -- (XXX)

TO: NEW YORK CITY BOARD OF EDUCATION P.S. 35 317 WEST 52ND STREET NEW YORK, NEW YORK 10039

-/ ]YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case.

PLACE


COURTROOM

xx-x

DATE AND TIME

APRIL 23, 2010, 9AM

FVI YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s):

AS TO (DEFENDANT) (DOB: 0/00/0000, SS#xx-xxx-xxxx, NYCID #) (I) ALL RECORDS DOCUMENTING HIS PLACEMENT IN A SPECIAL EDUCATION PROGRAM, INCLUDING TEST RESULTS, CLINICAL EVALUATIONS, PROGRESS REPORTS AS TO HIS PLACEMENT IN SPECIAL EDUCATION, ADADEMIC AND DISCIPLINARY RECORDS.

U . S. MAGISTRATE JUDGE OR CLERK OF COUR1

DATE

(By) Deputy Clerk

ATTORNEY'S NAME, ADDRESS AND PHONE NUMBER:


AO 89 (Rev. 11191) Subpoena in a Criminal Case - SONY WEB 4/99


RECEIVED BY SERVER

DATE PLACE

SERVED

SERVED ON (PRINT NAME) FEES AND MILEAGE TENDERED TO WITNESS

YES LII NO AMOUNT$______________



I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct.


ADDRESS OF SERVER


:A

AC 89 (Rev. 11/91) Subpoena in a Criminal Case - SDNY WEB 4/99

Z1 . r t , b bt , t , ,, y ,, , r

~ OUTHERN DISTRICT OF NEW YORK


VA (DEFENDANT), ET AL.,

CASE NUMBER: 09 CR XXXX (XX)

TO: SOCIAL SECURITY ADMINISTRATION 55 WEST 125TH STREET NEW YORK, NEW YORK 10027

V/ YOU ARE COMMANDED to appear in the United States District Court at the place, date, and time specified below to testify in the above case. PLACE


COURTROOM

XXX

DATE AND TIME

APRIL 23, 2010, 9AM

YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s):

AS TO (DEFENDANT) (DOB: XJXX/XXXX, SS# 000-00-0000) (I) RECORDS OF SOCIAL SECURITY DISABILITY AWARD; (ii) ANY AND ALL MEDICAL FILE, INCLUDING THE RESULTS OF ANY EXAMINATION, TESTS, AND CONSULATIONS THAT RESULTED IN THE DISABILITY AWARD; (iii) THE DATES OF THE COMMENCEMENT, TERMINATION, AND REINSTATEMENT OF ANY DISABILITY AWARD AS WELL AS THE UNDERLYING REASON FOR SUCH ACTION (COMMENCEMENT, TERMINATION, OR REINSTATEMENT).

US. MAGISTRATE JUDGE OR CLERK OF COURT

DATE

(By) Deputy Clerk

ATTORNEYS NAME, ADDRESS AND PHONE NUMBER:


AC 89 (Rev. 1 1/91) Subpoena in a Criminal Case - SONY WEB 4/99


RECEIVED BY SERVER

DATE PLACE

SERVED

SERVED ON (PRINT NAME) FEES AND MILEAGE TENDERED TO WITNESS

El YES III NO AMOUNTS______________



declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct.


ADDRESS OF SERVER


Im

Request for Appointment of Mental Health Professional

IIHIM

Law Office of Francisco E. Celedonio, Esq-

401 Broadway, 25 th Fl. New York, New York 10013

raNYINZAM

August 13, 2009

BYHAND and FACSIMILE Honorable United States District Judge United States District Court Southern District of New York 500 Pearl Street New York, New York 10007

Re: United States v. 09Cr. ( )

Dear Judge

Because this submission relates to defense strategy and investigation, it is submitted ex parte.

As Your Honor is aware, I am counsel to Mr. who is charged in the above-referenced indictment with participation in a long-term narcotics conspiracy in violation of 21 U.S.C. 841(b)(1)(B). Thus, Mr. is facing a statutory 5-year mandatory minimum sentence, and potentially more exposure under the applicable United States Sentencing Guidelines.

My interactions with Mr. over the course of the last five months suggest that there is a significant possibility that Mr. may suffer from an impairment or disability that compromises his cognitive function.

1 Pa g e

United States v. Hon. , US.D.J. August 13, 2009

At this stage in my representation of Mr. it is necessary that I ascertain the extent to which there is such impairment - and its degree - in order that I may be able to determine the appropriate course of action in his defense. In this regard I have contacted , Ph.D., a clinical and forensic psychologist. As apparent from the enclosed curriculum vitae, Dr. is a highly qualified mental health professional. Dr. informs me that he is available to assist in my representation of Mr. , and that his rate of compensation for CJA cases is $ per hour. I am further informed that Dr. estimates that his clinical evaluation and initial testing may require 20 hours of work. I am, therefore, requesting the Court authorize the expenditure of CJA funds in order that I may retain Dr.

It is my reasoned judgment that this request is not only necessary, but vital to rendering Mr. effective counsel.

Thus, in the event the Court looks favorably upon this request, I am enclosing herewith a proposed order for the Court's signature. I am also enclosing an order directing the Metropolitan Detention Center ("MDC - Brooklyn") to permit Dr.

to enter the facility for purposes of meeting with Mr.

I appreciate the Court's consideration of the issues presented herein.

Respecifully Submitted,

Francisco E. Celedonio, Esq.

cc: ,Ph.D.

2Page

Requests for Appointment of Private Investigator

'I

December 1, 2011

Honorable United States District Judge United States District Court Southern District of New York

New York

Re: United States v. S111Cr. ( )

Dear Judge

I am defense counsel to Mr. , appointed pursuant to the Criminal Justice Act ("CJA"). See 18 U.S.C. �3006A. Because this submission seeks the Court's authorization for the expenditure of CJA funds, and because it may contain strategic information about the on-going defense of Mr. , this submission is being made exparte. I respectfully request any action by the Court not be filed via ECF.

As the Court is aware, the allegations against Mr. include participation in a long-term narcotics conspiracy involving substantial quantities of crack cocaine, marijuana, related violent activity, as well as allegations of possession and usage of weapons in connection with the underlying narcotics conspiracy. Thus, Mr. Hardy has substantial exposure under the United States Sentencing Guidelines, as well as the relevant narcotics statutes.

The Court has set a trial date of April 23, 2012, with defense motions due in early January 2012. In order that I may both (i) expedite my trial preparation and (ii) conserve CIA funds in trial preparation, I believe it prudent to seek the services of a private investigator to assist in my trial preparation. Among the areas of investigation identified at this time are included identification and location of potential cooperating witnesses, retrieval of relevant documents, and investigation of specific prior events relating to the alleged conspiracy. I respectfully submit that a private investigator (who is billed at a substantially lower rate than CIA counsel) is often in a much better position (and trained) to investigate matters in preparation for trial.

Thus, I have contacted Mr. , a licensed private investigator in the State of New York for over 20 years. Mr. has been previously approved in various criminal cases in this district and has provided invaluable assistance in my representation of numerous clients. Mr. informs me that his hourly rate of compensation is $85 per hour. Therefore, I respectfully request that the Court endorse the accompanying proposed order approving Mr. s appointment for up to 50 hours of investigation. Should it become necessary, we will petition the Court for additional hours on behalf of Mr.


Respecifully Submitted,

Francisco F. Celedouio, Esq.

I

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

-----------------------------------------x UNITED STATES OF AMERICA,

Si ( ) ORDER

Defendant. ----------------------------------------x

,U.S.DJ.

UPON application of Francisco E. Celedonio, CJA counsel to Mr. and,

WHEREAS, the Court has determined that the services of a private investigator are an appropriate expenditure, under the Criminal Justice Act, to assist counsel in his pre-trial investigation and trial preparation;

IT IS HEREBY ORDERED, that Mr. is approved to provide services and assist in the defense of Mr. , for the reasons indicated in the letter of defense counsel dated November 30, 2011, for up to 50 hours of investigation at the rate of $85 per hour.

So Ordered

Hon. U.S.D.J.

mmz

Law Office of

401 Broadway, Suite 2506 New York, New York 10013

wN?JPIVfTI

March 10, 2010

VIA FACSIMILE Honorable United States District Judge United States District Court Southern District of New York 500 Pearl Street New York, New York 10007

Re: United States v. (Defendant) xx Cr. xxx (xxx)

Dear Judge

As Your Honor is aware, I am defense counsel to Mr. (Defendant), appointed pursuant to the Criminal Justice Act ("CIA"). See 18 U.S.C. �3006A. Because this submission seeks the Court’s authorization for the expenditure of CJA funds, and because it may contain strategic information about the on-going defense of M�.

this submission is being made exparte.

On January 14, 2010 Mr. pled guilty before Your Honor; he is currently scheduled to be sentence on May 13, 2010. In anticipation of sentencing, yesterday, March 9, 2010, Mr. was interviewed by an officer from the Office of the United States Department of Probation for the Southern District of New York in connection with the preparation of a Pre-Sentence Investigation Report ("PSI").

During the PSI interview various elements of Mr. ’s life history were revealed that are directly relevant to the Court’s assessment of an appropriate sentence under 18 U.S.C. � 3553(a), viz.: (i) a November 1996 assessment (when Mr. was 9 years old), by the New York City Board of Education, that Mr. was "emotionally disturbed" and needed special classes with related services, resulting in an "individualized education program"; (ii) the history and circumstances that led to granting Mr. receipt of Social Security benefits during periods of his childhood; (iii) the history and

.4

United States v. Hon. , US.D.J. March 9, 2009

circumstances that led to Mr. 's placement in foster care - and the manner in which such placement was terminated; and (iv) the facts and circumstances of his mother's crack abuse while Mr. was in utero.

I respectfully submit that given the import of these various historical facts at sentencing, and in order to present to the Court the relevant facts in the most cogent manner, this letter seeks the appointment of a private investigator to assist counsel in gathering relevant historical information. I respectfully suggest to the Court that the appointment of a private investigator would not only be cost-efficient to the Court (inasmuch as an investigator's services are billed at a lower rate than CIA counsel), but highly expeditious (in that an investigator would be better able to research and obtain relevant information and documents).

Thus, I have contacted Mr. Edwin Webster, a licensed private investigator in the State of New York for over 20 years; he has been previously approved in various criminal cases in this district and has provided invaluable assistance. Mr. Webster informs me that his hourly rate of compensation is $ per hour. Therefore, I respectfully request that the Court endorse the accompanying proposed order approving Mr. '5

appointment for up to 40 hours of investigation. Should it become necessary, we will petition the Court for additional hours on behalf of Mr. Webster.

Finally, given the exparte nature of this submission, I respectfully suggest that any action by the Court should not be electronically filed via ECF.


Respectfully Submitted,

Francisco E. Celedonio, Esq. Counsel to (defendant)

cc:

2


------------------X UNITED STATES OF AMERICA,

V.

xx Cr. Xxx (xxx) ORDER

Defendants. ----------------------------------------------x

U.S.D.J.

UPON application of Francisco E. Celedonio, CJA counsel to Mr. and,

WHEREAS, the Court has determined that the services of a private investigator are an appropriate expenditure under the Criminal Justice Act to assist counsel in his pre-sentencing investigation;

IT IS HEREBY ORDERED, that Mr. is approved to assist in the defense of Mi. , for the reasons indicated in the letter of defense counsel dated March 10, 2010, at the rate of $85 per hour for up to 40 hours of investigation.

So Ordered

Hon. , U.S.D.J.

Egg

Sample Harlem Hospital Records

rLrtrit1 NEW YORK CITY HEALTH & HOSPITALS CORPORATION

HARLEM HOSPITAL CENTER 506 Lenox Avenue

3 LI New York, N. Y. 10037-1802

Name: LB Vincent Carrao - Medical St

DON: 6/16/87

DE PART M FAT Wy' S Sources: Patient.,Patient's Grandmother, 3rd Grade teacher he. K. of P.S.46,

Patient's Cousin D.

Chief Complaint: Referred by P.S.46 for evaluation of uncontrollable behavior

exemplified by inability to remain seated and dirupting class. "Sometimes

I'm bad at school."

� History of Presenting Problem: L.B. is an 8 y/o black male who is one of

5 children born to a crack addicted mother. He is referred to HHC Child

Psych Care by Ms. K, a 3rd Grade school teacher at P.S. 46, who reports L.B.

presently reads at a 6th Grade level, however, his conduct is very poor. I

L.B. is extremely hyperactive, a constant disruption in class, and is con-

tinuously fighting with his classmates (both verbally and physically). He

also requests to be excused to use the bathrooms during class quite often

� which results in L.B. roaming the halls. This behavior has been present

since L.B. has been attending school. However, his hyperactivity and difficulty

with concentration has been increasing in the past 8 months.

L.B. is accompanied to HBC clinic by his maternal grandmother R.B. who

appears to be concerned and willing to provide the support needed to treat and

care for L.B. L.B.'s grandmother is the primary caretaker as his mother is

a crack addict and has very little contact with her children. R.B. reports her

� grandson is very active at home and will constantly move from room to room,

starting a task, and leaving it behind. She states he often will start watching

T.V., go to his room and play a video game, then return to. watching T.V. L.B.

also enjoys going outside to the playground. She states L.B. is often defiant

to her wishes, and will ignore her completely at times. She reports being

� .Speciasts in Urban Healthcare...

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� called by P.9. 46 often for his misconduct and will try to implement dis-

cipline by removing T.V., video games or playground privileges. However,

these actions don’t appear to overturn his aberrant behavior. T.B. has been

informed by P.5.46 of the referral to RHC Child Psych Center and the possibility

of treatment with medication. She is receptive to the idea of medication and

willing to implement whatever plan is developed at the center to take care of

When speaking with L,B., he was extremely active and difficult to inter-

view. He would answer questions usually after being asked twice and would

constantly be moving and running around the room, even when asked not to do so.

He states he came to EHC because he was bad in school. When asked what he had

� done, he replied that he would talk in class and sometimes get up and leave

the room. When questioned why he would do such things, he had no reply and

became irritable and asked to leave the interview. He states that he is in-

volved in multiple fights with his classmates that are not his fault and are

instituted by the other children. He also reports not having many friends

at school, however, he says he doesn’t like the other teachers. When questioned

why, he replied that they don’t allow him to use the bathrooms. As the initial

� interview came to a close, he asked if he was going to receive medicine. He

added that he wants to take medication because it will help him in school to

be good. He reports that his grandmother was informed of the possibility that

S he may have to take medication.

Past History: L.B. is one of 5 children born to P.B. at EHC OB department at

the age of 22. She was a crack addict and actively using crack during her

� pregnancy. L.B. was born full term by cesarian section without complications.

The mother’s post-partum course was uneventful. L.B., however, tested positive

for cocaine in his urine. He subsequently entered the NICU for close evaluation.

His NICU course was uneventful and was discharged from the NICU after 3 days

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to the floor. A legal battle ensued for custody of L.B. Custody was granted

to the maternal grandmother R.B. L.B. 1 s father has been involved in L.B.’s

life from birth to the present.’ He visits his son almost every saturday and

brings him to church on sundays. R.B. is the legal guardian and reports L.B.T S development being somewhat delayed. She reports L.B. walking by 1 yb, potty-

trained by 2, but L.B. did not speak clearly until the age of 4 y/o. During

this period of unintelligible speech, the grandmother did not seek professional

�

assistance. L.B. is an otherwise healthy young boy who takes no medications

and has no allergies to medications.

Family History: L.B. lives on 29-88 8th aye, apt 29K, NYC with his grandmother,

cousin D. and older brother L. The family is supported by public assistance.

(with subsidized housing, food stamps and income) rent + utilities 300/65 =

145 income/month.

� Mother: P.B. is a 31 y/o black female who lives in ’the Bronx at an unknown locati

She is currently still using crack. She is the mother of 5 children of which non�

live with her. The children are scattered about the family living with different � relatives functioning as primary caretakers. She has never been married and has

had her children fathered by different men. She has little to no contact with

L.B. and L. Her mother reports hearing from her approximately once every 6 months

�

whenever she’s looking for money. Her present status, both medically, and soc-

ially is unknown.

Father: L.H. is a 45 y/o black male who is employed presently, unsure of. positioi

1 He used to work on construction in the past by grandmothers report. He is

actively involved in L.B.’s care, exemplified by weekend visitation and weekly

calls by phone. His past and present medical and social history are unknown

� at this time.

LIJ

21WE

Grandmother: R.B. is a 51 y/o black female born in Virginia (1 of 3 children),

received a 9th Grade education and moved to HYC to look for work at the age of

18 yb. She was employed as a restaurant cashier until she became pregnant to

the 1st of her 5 children. She reports never being married. Her 1st child

being fathered by a different man than the next 4. She presently lives with

her 3 grandchildren without adult companionship. She denies any ETOH, tobacco,

or substance abuse.

Interaction with family members: The family interaction appears dysfunctional.

The grandmother, however, has raised three grandchildren as her own. The oldest

being L. at age 14 who is the oldest brother of L.B. He appears to be taking

the role of a father figure, being asked by the grandmother to discipline L.B.

L. has a close relationship with every member of the house, by report, and

carries a respectd position. The youngest of the household is. D. the son of

� R,B.’s youngest daughter, therefore, the first cousin of L.B. and L. He appears

be an intelligent boy of 7 y/o who will play quietly alone until otherwise provok

by L.B. to engage in more destructive play. L.B. and D. often play together

� because of their closeness of age. D. reports having quarrels with L.B. often

over video games or other toys. However, they appear to enjoy each other’s

company. The grandmother is the referee of ’the family who intervines as the

children misbehave, but will also tolerate a fair amount of misconduct. Her.

�

attempts at discipline appear to be temporary reliefs to the larger problems.

However, if instructed, she will follow all recommendations if explained complete

Developmental history/Living arrangement: As stated above.

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School Hist ory : L.B. is in the 3rd Grade at P.S.46 and has been enrolled at this

institution for the past four years (including kindergarten) He has an advanced

reading skill for his age and has been moved to an advanced class over the past

� year, but was subsequently placed back to Ms.K’s class due to his misconduct

and disruption in class. His record indicates that he has always been overactive

however, over the past 6 months his activity has increased to the level at which

the teaching staff felt it necessary to seek professional attention.

LA,

Medical History: L.B. is in good health. His physical exam is still P.

After the second session with L.B., he was placed on 5mg of Ritalin Q AM,

for which he has tolerated well to date.

App e arance and general behavior:

� L.B. is an S y/o black male appearing older than stated age secondary

to his increased size. He is well groomed and well dressed. He was very

active running from chair to chair looking in drawers and throwing objects

in the air throughout the interview. He was easily distractable.

Speech and language;

His speech was fluent, normal tone and pitch, however, he could speak

unintelligibly at times (maybe secondary to his disinterest in the discussio;

It seems that his language skills may be below average for an 8 yb (most

notably his vocabulary).

0 Mood and affect:

He said that he felt happy because he wasn’t at school, and was able

to play in the waiting room. His affect was appropriate, accompanied by his

$ increased figiting and inability to sit still.

Orientation:

L.B. is oriented to person, place and time

IMIM

Thought process and content:

Patient exhibits goal oriented thought with clear cause and effect relation-

ship. He shoes some tangential traits (secondary to disinterest or lack of

understanding what’s asked). L.B. does not appear to be delusional and has a

concrete thought pattern. (NO FOl, LOA, blocking, obsessions, compulsions, o,r .

SI).

� Perceptual Disturbances:

No hallucinations or illusions present.

Cognitive capacity:

Speaks well, may be of average intelligence, with a decreased attention

capacity with no obvious memory impairment.

� Insight, Judgement, and Impulse Control:

He has good insight, demonstrated by the fact that he knows when he is doing

things wrong and knows when something is bad or good. However, his judgement and

impulsiveness are poor. He will fight with the other children (both punch and

kick) and disobey direct orders by authority because he wants to, and has no fear

of the possible outcomes or punishments.

� Play:

Disorganized play. He will not sit with one item for more than a couple

of minutes, rather will like to run around the halls and into closet doors

causing interruptions involving staff and patients.

MUNIM

17 1

Drawings:

In obtaining the drawings on the initial visit, he was asked to draw a

penfon, and when asked who it was he said a boy. The picture, however, appeared

to be that of a girl. When asked to draw the opposite sex, he seemed confused

and the attending would not explain the request further. The drawing obtained

was of a man and a woman naked without faces, with a penis, vagina, and brets

illustrated, standing next to each other. A second set of drawings were obtained

on a later visit where he illustrated a boy first and animately refused to

draw the next picture thinking he needed to illustrate "sex." With reassurance,

he was asked to draw a girl and he did without difficulty.

L.B.s drawings arekexpected and common for his developmental age (taking

into account the stated nix-up in understanding the instructions).

The drawing of the first tree appears bizarre with spike-like projections

of which he called branches.

e Dynamic Formulation:

L.B. is an 8 y/o black male referred to HBC by P.S46 teaching staff for

hyperactivity, decrease attention span and misconduct in class. This is a 0

young boy being raised by his grandmother without knowing his mother and

occasionally seeing his father. His only adult model is his grandmother and

only male role model is his 14 y/o brother L. His life appears to be lacking

� structure and a definitive home life. It seems the results of these factors

have led to a lonely child who was somewhat developmentally delayed, and who is

being asked to perform in school at a progressively higher level that he may

[I

1=:77

find difficult. His frustration, therefore, may lead to his lack of discipline

or the willingness to complete a task. This frustration may lead to his need

for constant new stimulation, thus revealing itself in misbehavior and

decreased attention.

Differential Diagnosis:

AXIS I:

1. Attention deficit hyperactivity disorder:

L.B. meets criteria for this diagnosis

A. Inattention

- Fails to give close attention to details

- Difficulty sustaining attention

- Doesn't listen when spoken to

- Doesn't follow instructions completely

� -. Avoids tasks that demand mental efforts

- Easily distracted by external stimuli

B. Hyperactivity and Impulsivity

- Often fidgets in seat

- Often leaves seat in classroom

- Difficulty in engaging in leisure activity quietly

- Runs and climbs about excessively when inappropriate

AL - Difficulty waiting his turn

- Interrupts others

C. Symptoms before age 7

D. Behavior present in two or more different settings

� E. Impairment of academic functioning

F. Symptoms not associated with other psychiatric disorders

2. Must Rule Out:

A. Medical conditions:

- Rearing loss - Seizure disorder

- Thyroid dysfunction - Chronic medical illness

- Genetic disorders - Affects of allergy medications

B. Mental disorder:

- Tourattes disorder - Pervasive developmental disorder

- Oppositional defiant disorder O.C.D.

- Conduct disorder - Schizophrenia

- Anxiety and depressive disorder

C. Learning and Language disabilities:

- Night terrors - Enuresis

- Sleep difficulties - Encopreasis

- Coordination problems - Articulation problems

. LrJiiQ (ogpi t;f AXIS II: Evaluation of personality disorder deferred at this time.

AXIS III: Ntyite f4(-( AXIS IV: Unspecified.

AXIS V: GAP 51 -46

Treatment Plan: To be developed by the multidisciplinary teem.

Vincent Carrao, CC3

Dr. Sultan, M.D. Chief of Child Psychiatry

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INTERNET INVESTIGATION RESOURCES

CJA Investgator Training Program i Internet Investigation

Understanding the Internet will make searches more efficient. Here are a few hints:

Ending Type Sample and Notes .corn or Companies and www.Dominos.com No need to search for it within a search engine like Google, most

.net Businesses companies or for-profit have a .com or net. Just type the name in the URL bar. ,edu Most educational www.georgetown.edu anizations use .edu .gov Most democracy or .fbi.gov government sites use ,gov .org Most non-profits use .org I www.redcross.org There are about 600,000 non-profits in the USA alone.

Iflii tict Using the correct vernacular for specific search engines will produce the best results. This is most easily accomplished through understanding how each individual engine operates.

gs flCats

"And"All terms joined that "Or" Broadens search; includes "And Not" Excludes documents

appear in any order; small overlap any page with at least one of the containing whatever follows it. of terms Ex: Dogs and cats terms. Ex: Dogs or cats Ex: Dogs and not cats

Ask the FlEnginesUsing theRight&Words for t FYI lResults: Using search terms is a process similar to reading a recipe: the items are ordered according to their relevance. The first word you enter in the search bar is normally the most important and the most relevant. There is usually a 35-word limit with search engine bars. Don’t be limited to the number of words you use, but keep in mind more isn’t necessarily better. Quality trumps quantity. If you aren’t finding what you want, change your word selection: community vs. neighborhood; simple vs. easy; cop vs. police officer etc..,

'Website Tracing: � Internet Protocol Number - The internet protocol number is specific to a web page. Go to www.whois.com

and enter the TIPN (ex: 216.163.137.3); it will give the owner, address, phone number of a specific page.. � CACHE - Cache means previous version of a site. When searching with Google, Google Cache will show

the older Web sites, almost like a history. There are other sites in addition to Google showing archived sites. www.WayBackMachine.com Enter the Web site there. * denotes there is an updated version of a Web site. Web sites can restrict you such as Myspace, since they require user name and a password.

UbI. INl FlEngines: they have their own indexes to get information Cats � dogs.( marinara - sugar (searching a recipe for marinara without sugar) -music .mp3 or .wav

"paperbook" a phrase together

CiA tnvestgator Training Programj , Internet Investigation

The Invisible or Deep Web: � The Deep Web is composed of Web sites that are not searchable via any search engines. They often require a user’

name/password and/or are databases whose searchable content is not accessible via search engines. � www.completeplanet.com is a directory of databases and specialty search engines. � Surfwax uses a site’s existing search capability as part of the meta-search process to tap the Deep Web

(surfwax.com). It covers the last 7 days from 120 popular RSS sites and is updated every hour. The lines between search engine content and the Deep Web have begun to blur, as search services start to provide access to part or all of once-restricted content. An increasing amount of Deep Web content is opening up to free search as publishers and libraries make agreements with large search engines. In the future, Deep Web content may, be defined less by opportunity for search than by access fees or other types of authentication.

� RSS - RSS is a family of web feed formats use to publish work that is frequently updated blogs, news, video and audio in a standardized format,

� RSS document - An RSS document is often times called a "feed", "web feed". "channel" includes full or summarized text, plus metadata such as publishing dates and authorship

� Cache - Cache is a where your.computer stores recently accessed data Tweet �A Tweet is a post or message put on Twitter Twitter - online social networking and microblogging service that enables its users to send and read text-based posts of up to 140 characters

� Blog - A. blog is a part of a Web site or is a Web site that an individual will post commentary, descriptions of events, and other graphics, video, photos.

� Social Media - Social Media is a term that refers to the use of web-based and mobile technology that enable people to communicate using the Internet to share information and resources easily.

� Intranet - The Intranet is usually an in-house computer network to securly share information within that organization. � Web Host - A web host is a type of Internet hosting service in order to make your own Web site. � https:/! - https:// is HyperText Transfer Protocol with Secure Sockets Layer (SSL) and it means that data sent and received will

he encrypted. � http:// - http:// is HyperText Transfer Protocol without SSL. Data is sent over the Internet in plain text. � URL - URL stands for Uniform Resource Locator and it is basically the address of a World Wid Web.

Web Feed� Web feed is a data format used to share and distribute frequently updated web content to users.

IIISIInvestigativeResourcesiiimL1Tt

LOCATION ACCESS NOTES Courtview DC Superior Public Record

Court 4th _Floor DC Court case file management system. Search in all caps.

JACCS Web based Password required DC Department of Corrections (DC Jail and CTF) inmate record system. JUSTIS Web based Password required DC Court, DC DMV, MPD and AUSA records combined. Courtview

information can be accessed via JUSTIS too, PACER Web based Password required Federal Court System Information

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CiA Investgator Training Program I Internet Investigation

Here are Web site sites by common topics with notes on each Web site site:

TOPIC JACCS http:/!1 030.62,1 9/dcds+req nsf.- Account required. JUSTIS https://vw.justishub.dc.qovIJustisLogin/Login.aspx Account required Google www.qoogle.com �set up people alerts for updates and to track them

Yahoo People Search www. people, yahoo. com-need at least a last name, From there you search by city and state

Zaba Search www.zabasearch.com- use first since it gives a partial database, can get birthday, then use info on the birthday sites.

People Finders www.peoplefinders.com Who/Where www.whowhere.com -search multiple address listings for people with the

same name. Get previous, current addresses of people who move often. Directory Assistance www.411.com -search for phone numbers/addresses, get contact info.

Superpages www.superpaqes.com Switchboard www. switch boa rd.com- directory of personal and business information.

To begin this search you need only a last name. Anywho www.anywho.com -search for people by name/phone. Reverse directory.

I nfospace ww. infospace.com -comprehensive telephone directory, Access names, addresses and e-mail accounts, click on the "people" icon, and then

Sites to "United States" (or whichever area is relevant). Locate Craig Ball http://craigball.com/hotlinks.html - A list of helpful links for finding people.

People Web Crawler http://webcrawler.com - Meta-search engine Email Finder www.emailflnder.com

Info Bel www.infobel.com/world -Pay site. Myspace www.myspace.com -Need an account, user name and password.

Facebook www.facebook.com -Need an account, user name and password. You Tube www.youtube.com -Search videos that people post.

People Finder http://peoplesite.com/default.asp Usenet- Addresses http://usenet-addresses.mit.edu

Argali www.arqali.com - area codes and searching the White and Yellow Pages. Free for the first 10 searches in a month. it saves the last 20 searches

World Alumni Page ww.aIumnLnet World Pages www.worldpages.com

Birthdays www.birthdatabase.com -enter the first and last name to show relatives. Birth details www.Birthdetails.com -enter the first and Ist name and state

Pipi vwiw.Pipl.com - Has photos and pulls them from social sites. Can put in as much info that you have (name/address/phone).

Melissa Data www.Melissadata.com �With a 9 digit zip code and a person’s name, you can narrow dawn the block that they live on for an address

Qwest White & Yellow Pages www.dexonline.com -yellow and white pages White Pages www.whitepages.com - don’t underestimate this one

Yahoo Yellow Pages http://yp.yahoo.com - Yahoo Yellow Pages. Don’t underestimate this one Renotify notif .com �Pay to trace emails. Shows forwarding info on emails Spokeo www.spokeo.com -Search by name, email and phone number (land line)

Peekyou www.peekyou.com -Search by name, email and phone number (land line) BigFoot.com www.bigfoot.com - Fast way to search for emails, people, businesses. Find

businesses, yellow and white pages, phone numbers, email address, area codes.

I

CJA Investgator Training Program I Internet Investigation

TOPIC Technorati www.technorati.com -Searches blogs.

Omigili www.omqili.com -Searches message threads and discussions. CEO Express hftp://ce-express.com/default,asp Thumb Shots 'w,thumbshots.orq -Compares search engines against each other

Zapmeta www.zapmeta.com Clusty www.clusty.com -Makes complicated very simple. Ask the right questions,

Use left side as a guide to narrow search and wording Google www.qoocle.com Dogpile www.doqpile.com -Takes results, puts together (like MSN/Yahoo!ASK)

Ask www.ask.com Excite www.excite.com

lnfoSearch www.infosearch.com lXQuick http:Ilixguick,comleng -Doesn't record IF address.

Search LemmeFind www.lemmefind.com Engines Lycos www.lycos.com

Metacrawler www.metacrawler.com Web Crawler www.webcrawler.com

MSN www.msn.com Netscape www.netscape.com

Yahoo www.yahoo.com Alta Visa www.altavista.com

All the Web www.alltheweb.com Tools http://itools,com/ Gives you sub-categories and tools for searching

Collecta www.collecta.com -Gives you live and updated sites Teoma www.teoma.com -Basically ask.com but with less frills. Soople www.soople.com -Easy how google works and you can do a search within a

site, some that are non-public sites; good calculator Duckduckgo http://duckduckqo,com

Check thisliv- 6, H eq, Wolframalpha www Wolf ramalpha com -Computational knowledge engine Put in date or out: www.e6p5 DOB. It tells you what day of the week it was, sunrise, sunset, weather.

Scirus www scirus com Metasearch Searches scientific and research info only Accurint www accurint com Not free Account required CLEAR https://clear.thomsonreuters.com-Not free. Account required,

General H Lexis-Nexus www.lexisnexis.com - Not free. Account required.

Information . Autotrack www.autotrackxp.com - Not free.

Search Openonline .

www.openonline.com - Not free. Vivisimo www,vivisimo.com - Not free.

Services ChoicePoint www.choicepoint.com - Not free. Search.org www.search.org - Lists current contacts for subpoena compliance for cell

phone companies and other places. Click Resources; ISP addresses. Facebook www.facebook.com -700,000,000 estimated visitors a month

Twitter www.twitter.com - 200,000,000 estimated visitors a month

Major MySpace www.myspace.com - 80,500,000 estimated visitors a month Linkedln www.linkedin.com -100,000,000 estimated visitors a month

Social The Dead People of MySpace http:/imydeathsace.com/vb/content.php -deceased people's pages. Media Hi 5 www.hi5.com 11,500,000 estimated visitors a month

Sites Tracing Links www.uspinet.com/resources 40 links, various e-mail/site tracings.

Topsy www.topsy.com searches tweets and keywords on relevant links,photos Ning www.ninq.com - 60,000,000 estimated visitors a month

Google Plus https://plus.goople.com - 32,000,000 estimated visitors a month Tagged www.taqged.com - 25,04000 estimated visitors a month

Orkut www.orkut.com - 15,500,000 estimated visitors a month Meet Up www.meetup.com - 7,200,000 estimated visitors a month

My Year Book www.myyearbook.com -7,450,000 estimated visitors a month

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LTOPIC __________________ DC Government www,dc,gov DC Crime Map hftp://c;rimemap.dc.,qov/presentation/query.asp

DC citizen’s Atlas http:/!citizenatlas.dc.qov/atlasapps/reporthometab.asx DC Real Property Search www.taxpayerservicecenter.com/RP lndex.jsp?sessiontimeouttrue

www.wrnata.com �Washington Metro Area Transit Authority WMATA/DC Metro DC Public Library www.dclibrary.org

DC Water/Sewer Authority www.dcwasa,c6m Asian/Pacific Is. Affairs http://apia.dc.gov

DC Attorney General www.cag.dc.gov/occ!site/default. asp Chief Medical Examiner http://dc.gov/agencies/detaiLasp?idl 029

Child/Family Services hftp://cfsa.dc.gov/main.shtm Clean City Initiative http://cleancity.dc.gov

DC Council wvw,dccouncil.washinqton.dc.us Consumer/Reg. Affairs http://dcra.dc.gov

Criminal Justice Corrections www.cicc.dc,gov/cjcc/site/defaultasp DC Official Home Page http:/!dc.gov

DC DC Municipal Regulations http://os.dc.qov/os/cwp/view,a, 1206,q,522371. asp Government Emergency Management Fire and http://dcema.dc.gov

Sites Emergency Medical hftp://fems.dc.gov Health Department http://dhcd.dc.qov Housing Authority http://www.dchousing.org

Dept Human Services http://www.dhs.dc.cov Inspector General htto://dc.qov/mayor/corner.shtm

Mayors Office htto://dc,qov/mayor/corner.shtm Dept of Mental Health http://dmh ,dc.gov/main.shtm

Dept of Motor Vehicles http://dmv.dc.gov Parks and Recreation http://dpr.dc.pov/index.asp

Office of Police Complaints http://occr,dc.gov/main.shtm Police and Fire Retirement http://dc,qov/agencies/detail. asp? id7 1 Public Safety and Justice http://dmpsl.dc,gov/dmpsi/site/default.asp

DC Public Schools http://www,kl2,dc.us/dcps/home.html Dept of Public Works http://dpw.dc,gov

Dept of Transportation http://ddot,dc.gov Unified Communication http://ouc.dc.gov/ouc/site/default.asp

Martindale-Hubbell Lawyers.com www.martindale.com -locate attorney. Lists if government or private

Attorney Lawyers.com wwN,lawyers,com DC Bar Association wwwdcbar.or

Sites American Bar Association www.abanet.org Federal Bar Association www.fedbar.org

Internet Sleuth www.isleuth.net -Links to most sites listed here; ’How do I’ section Jonathan Lyon www.teatrovista,orq/a/inv.htmI -Jonathan Lyon’s Investigative Links

Jeff Flax Webite http://www.lflax.com �investigative resources Virtual Chase www.virtualchase.com -Legal professionals, Internet research,

General investigation portal, Investigative The Fl Directory www.thepidirectory.com -Various resources for private investigators

Resources NCJRS WArw,ncjrs.qov - National Criminal Justice Reference Service Maricopa PD Resources www,pubdef.madcopa,qov/legal.htm

Private Notes www.privatenotes.com �Create a note, that will not save to any drive and when it is opened up, it is gone for good.

Black Book Online I www,blackbookonline,info�Free, Public records searches for investigators Crime Spider www.crimespider.com search here for crime and law enforcement sites

by topics for research, information and photos needed SSN Decoder www.stevemorse.org/ssn/ssn.html- returns state and year issued for SSN. SSN Valid ator www.ssnvalidator.com

Ip

CM Investgator Training Program 1 Internet Investigation

TOPIC L _____________ Maryland Case Search hftp://casesearch.courts.state,md.usfinquiry/inquiry-jndex.sp -Civil/Criminal

http://www.courts,state.va.us/caseinfo/home.html - must know the county Virginia Case Search

Criminal Mug Shots www.mugshots.com Internet For Lawyer www.netforIawer,com/article public records 03. htm#chminal Records AmerUSA www.amerusa-chminal-records.com -Search by county, state, federal

Checks Caught.net wwiw,cauqht.net-A public list of judicial mconduct, prosecutorial misconduct, legal misconduct, ethics violations and civil rights violations in Rhode Island and elsewhere

CriminalSearches,corn www.crimralsearches.com - free nation-wide, details on date of birth,address, and offense date.

PACER flttpjjwww, pacer.qovlpsco/cqi-bin!links p1 - Federal Court System. Not free. Search most federal civil and criminal cases.

The Vine Link www.vinelink.com/vinelinklinitMap.do -Nationwide Inmate Locator, multiple state plus jails, not just prisons. Sign up inmate status updates.

Federal Bureau of Prisons www.bop.qov �Search by name, DCDC, Fed Reg # or SS# BOP Reg Number Codes www.fedcure.org/information/ReqisterNumberCodes.shtrnl - lists associated

Dept of districts for register numbers Prison Talk www.prisontalk.com/forums/showthread.php?=87818 - lists associated districts Corrections for register numbers. Those ending in 007 or 016 are generally DC prisoners.

JACCS http://10,30.62.19/dcpds -Run by the DC DCC. Password/user required.

Parole and JUSTIS DC Superior Court, MPD, AUSA info combined, Password/user required VA Dept of Corrections www.delbridge.net/iails.html-Phone numbers for VA local/state jails/prisons

Probation VA Local and state jails/prisons www.vadoc. state. va,us/defau It, htm National Inmate Locator wWw.corrections.com/links/inmate.html -Nation wide Inmate Locator

Maryland Dept of Public Safety www,dpscs.state.md.us -Public Safety and Correctional Services MD Inmate Locator http://inmatelookup.co.pq.md,us:8080/inmatelookup?Dage=SEARCH Search for

an inmate held in a MD detention facility USPC www,usdoj gov/uspc-Parole Commission controls Federal prisoners

CSOSA Www.csosa.qov - Court Services and Offender Supervision Agency - Federal agency controls "state"ievel community supervision for all of DC post conviction.

Pretrial Services Agency-PSA www.sa.gov�within CSOSA, pretrial community supervision DC Property Tax Search https://www,taxpayerservicecenter.com!RP Results jsp

Maryland Property Tax Search hftp://sdatceft3,resiusa.org/rp_ rewrite Property Property Quest http://propertyquest.dc.qov -Determine property owner, public housing, Search description, property boundaries, maps, photos, Ward, ANC, tax, zoning

Zillow www.zillow.com- estimated property values, specs on the property Homes Database www.homesdatabase.com - property for sale in the area Apartments.com www.apartments.com - Lists apartments available DC Superior Court www.dccourts.qov

Federal Public Defender www.fd.org US District Court for DC www.dcd.uscourts.qov

VA Court Records www. courts. state. va.us- civil/criminal by county - not all counties MD Court Records http://casesearch.courts.state.md.us/inguiry/inquiry-index.jsp - civil/criminal

US Sentencing Commission www.ussc.gov Sentencing Project www.sentencingproject.org

US Sentencing Commission www.ussc.aov

Courts Ntl Center State Courts www.ncsconiine,orq -Links to a large section of State Courts, Immigration Courts www.usdoigov/eoir/sibpages/lCadr.htm

Oyez www.oyez.org -Everything court related. U.S. Supreme Court www.supremecourtus.qov

US Courts www.uscourts.gov District Court Eastern District of VA www,vaed.uscourts.qov/Iocations/ale.htm

District Court MD www.mdd.uscourts.gov Capital Defense www.capdefnet.org

New York Courthouses www.nyc.qov/htmI/dcas/html/resources/(buiId.shtml National Center for State Courts www.ncsccnline.org


TOPIC MPD grade,eniployment hftp://qrc,dc.gov/qrc/lib/qrc/foia/publiobodyinformation.pdf

Police Agency Search http://search.officer.com/agencysearch DC crime statistics www.crimereports corn

DC neighborhood info http://dc.evervblock.com DC crime http://data.octo.dc.gov/Main. DataCatalog.aspx

MPD Website http://mpdc:dc.gov/main.shtrn Blank MPD report forms http://lefande.com/mpdforms -click on PD163 Arrest Package

Anne Arundel County PD w/w.aacopd.org/ Charles Co. Sheriffs Office http://ccso.us/

Greenbelt Police Dept www.ci.green beltmd us/Departments and Services/Poiice/police.htm Hyattsville Police Dept www. hyattsville org/police/al marpm/cpublic/rosterview,cim?Rl D=5 Maryland State Police w.mdsp.org

Montgomery Co. Police Dept www. montgomerycountymd .gov/poltmpi .asp?url/Content'POL/index.asp Law Montgomery Co. Sheriff www. montgomerycountymd .gov/mc/judicial/sheriff/sheriff.html

Enforcement Prince Georges Co. Police wiw,gopdnceseoigescouny.com/GovemmenbPublicSafety/Poce/aboutasp?h=2O&s&n23O

Rockville City Police Dept w.ci.rockville,md us/DEFT/POLl CE/RCPD . HTM Takoma Park Police Dept http//207. 176 ,67.2/police/

Alexandria Police Dept http://ci.alexandria.va.us/pohce/ Arlington County Police www , co.arlington,va.us/polic

County Sheriff www.arlingtonva.us/Departments/Sheriff/SheriffNlain.aspx Fairfax County Police www.co.fairfax.va.us/ps/police/homepage.htm Fairfax County Sheriff www.co, fai ,rfax,va.us/ps/sheriff/default.htm

U.S. Marshals - PD's Handbook www.usmarshals,gov/prisoner/pdhandbookh.htm -Information concerning subpoenas, etc.

VA Criminal Justice Services dci5,gmq0v VAJuvenile Justice vww.d.state.va.us

Maryland List www.mlac.umd.edu/contacts -lists MD police depts and detention centers DOJ Cl Guidelines www.usdoi,gov/ag/readingroom/ciguidelines,htm -Confidential Informants

Interpol's Most Wanted www,intei-pol,.!nVPublic/Wanted/Search/Form.asp NSOPW www.nsopw,gov/Core/Portal.aspx-Dru Sjodin Ntl Sex Offender Public Website

OCSE www.acf,hhs,gov/programs/cse- Office of Child Support Enforcement Jewelry and Gem Theft www.fbLgov/about-us/investigate/vc majorthefts!iag/-Jewelry/Gem Database

NDDIS ww. justice,gov/dea/foia/naddis . html-Narcotics and Dangerous Drugs Information System Centralized automated summaries of reports on over 5.9 million subjects of interest to DEA.

Area code search www.areacodesonlinelookup.com Fonefinder '.w.fonefinder.net - It will tell you the carrier. Only need the first 5 digits.

Pay Phone Directory www,payphone-directory.org Anywho www.anywho.com -use the reverse directory. Land line only.

Telco Cell Towers www.cellreception.com/towers Telephone Telco FCC http://nullfoss2.fcc.gov/cib/form499/499a.cfm

Antenna Search www.Antennasearch.com - free detailed info on towers, antennas and owners. Cell Phone Covers US and its' territories Cell Tower Phone Scoop www.phonescobp.com Antenna Mobile DIA wvvw.mobilffdia.com

Paraben www.paraben.com Logicube www.loqicube.com Cellebrite www.cellebrite.com

Final Data www.finaldata.com Cell Reception www.cellreception.com

Cell Tower Info www.celltowerinfo.com Tracking with CeIIIGPS http://icanstalku.com/how.php

Toll Free Carrier Identifier vvw.sms800.com - ID's toll-free carriers

C3A Investgator Training Program Internet Investigation

TOPIC

US Dept of Education www,ed.gov/index.jhtml ATF www.aff.gov

AUSA wvw.usdojgov/usao/dc Bureau of Justice Statistics www,ojp.usdoj.gov/bjs

US Capitol Police www.uscapitolpolice,gov Citizenship and Immigration www,bois.gov/qraphics/index,htm

COPS www.cops,usdo[.gov CSOSA www,csoa.gov

Customs/Border Protection www.cbp.gbv DEA www.usdoj,�ov/dea FBI wv.fbi.gov

Fed Protective Services www.bice immigration .gov/graphics/about/organization/org fps .htm Federal Homeland Security www,dhs.gov/dhspublic Agencies Dept of Justice www.usdoigov

US Marshal Service www.usdoj.gov/marshals NCJRS www.ncirs.org

US Park Police wwwnps.gov/uspp US Parole Commission www,usdoi.gov/uspc

US Postal lhspection www,usps.gov/.websites/deparUinspect Pretrial Service Agency http ://dc.gov/aencies/detail . asp?id=72

Federal Bureau of Prisons www,bop,gov US Secret Service www.treasgov/uss

US District Court for DC ww.dcduscourts.gov OPM www,opmgov -Federal Government Office of Personnel Management

Monitor For MPD www.policemonitor.org -Office Of The Independent Monitor NtI Legal Aid/Defender Assoc. www.nlada.org

Law Library Resource Exchange www.11rx.com Legal Ethics www.legalethics.com

Find Law wwwfidlawcom American Civil Liberties Union www.aclu.org

U.S, Code - Via Cornell www4.law.cornell.edu Legal Education Network http://jurist.law.pitt.edu

Legal Sites Immigration Law Resource www.visalaw.com Campaign Criminal Justice Reform http://iustice.policy.net

Equal Justice Initiative www.eii.org Equal Justice USA www.guixote.org/ei

American Paralegal Association www.aafpa.org National Law Journal www.law.com

The Justice Project www.thejusticeproject.org Other Side of the Wall http://prisonwall ,org

Sentencing Law and Policy http://sentencing.typepad,com/sentencinq_ law and policy Vera Institute www.vera.org

Electronic Surveillance Laws I s/lis/cp!surveiHaricehtm by state PG County Government www,co, pg. md us

Other Arlington Virginia’s Official Site www,co.arlington,va,us Government Fairfax County Government Site www.fairfaxcounty.gov

Sites Montgomery County Government www,montgomerycountymd.gov VA DMV www.dmv.state,va.us -VA Department of Motor Vehicles MD MVA www.mva.maryland.gov - MD Motor Vehicles Administration

CIA Investgator Training Program Internet Investigation

TOPIC American University www.american ed u/fi n an ce/d ps/a u police html

Catholic University http://publicsafetycuaedu Gallaudet University httpj/af.gallaudetedu/safety/safetyhtml

University George Washington http://gwiredgwuedu/upd Police Georgetown University mm . georgetowji.edu/student-affairs/dps

Howard University wwwhoward ed u/serviceslcampuspolice Johns Hopkins University www.Ihu edu/�security

University of Maryland wwumpd.umdedu

Ufl5 Weapons/Guns Info Ballistics Info www.securityarms.com- info about different types of weapons/guns

Handguns Basics/Interactive wwwfirearmsidcom Firearms Assoc. Firearm/Tool Mark www,genitroncom

Firearm Database www, genitron.com/HandgunDB/nfsearch.asp - enter basic info like model, caliber, manufacturer - get pictures, specs and info

Firearm and Tool Mark wwvafte,org -Association of Firearm and Tool Mark Examiners National Gang Center www.nationalgangcenter,gov

Gang Resistance Education I www,afftreas,gov/great’indexhtm Know Gangs vww.knowgangscom/forum/shohreadphp?t248

Gang Gang Tattoos v,,vw, tddi.orq./qanq-tattoo.html Resources Gang Tattoos www.tddi.org/pics-tattoo-gang-OO.html

Info on Prison Gangs wwwgangsorus.com!otherprisonhtml Info on Gang Graffiti www.pangsorus.com/graffitihtml

Institute I ntergovt Research, Gangs mvw.iir.com/nyqc/default,htm Anti-Gang Initiative ww.ojjdp.gov!programs/antigang

Street Gang Info www.streetgangs.com/ Albuquerque Gang Registry www.cabggov/police/gang - registry of all known area gang members

Gang War www.gangwar.com - gang prevention and intervention Washington Post www.washingtonpost.com -DO Crime under Metro/Crime

Washington City Paper www.washingtoncitypaper.com DC Express www.expressnightoutcom

Newspaper Search Engine wwwceoexpress.com/defaultasp New York Times www,nytimescom

Media New York Post www.nypost.com

Newspaper! CNN www,cnncom Fox News www.foxnews.com

News Sites MSNBC www,msnbccom Nationwide wwwusnplcom

Traditional Newspapers wwwecolacom Alternate Papers www.aan.or.q/,qyrobase/Aan/NewsweeklyDirectory

Alternate Papers Archive www, aan org/gyrobase/Aan/NewsArch ives Capitol Defense Weekly http://capitaldefenseweekly,com

Legal Times www.Iawcom/sp/dc/indexsp

Criminal Crime Lynx www.crimelinx.com

Justice Crime Spider www.crimespidercom

HomicideWatchDC http://homicidewatchg/ Related HoniiideWatchDC-document library http://homicidewatch ,org/docu ments/

Training Capital Case Handbook Ntl Criminal www.defender.oro/DPAc/Handbook -Capital Case Management Defense College wwwncdcret

Resources Public Defender Retreat www.publicdefenderretreat.com Criminal Defense Training Council www,defenseinvestigator.com-Cdminal Defense Investigator Training council

Denver Public Defender http:I/pdwebcoloradodefenders.us/ - check on the training tab

Internet Investigation

TOPIC American Board Medical Specialties www.abms.org American Academy of Pediatrics www.aap.org/

Deciphering Med Speak www. mlanetorq/resources/medspeakJmedshort.html-abbreviaflons Flash-Med www.flash-medcom/Abbreviation.asp

Global RPh www.qlobalrph.com/abbrev.htm Hospital Locator www.and.com/freesearch.php3

Medical Lab Tests Online www.labtestsonline.org/ And Health Nursing Home Care Comparison www.medicare,gov/nhcompare/homeasp

Related Human Body and Mind www.bbc.co.uk/science/humanbody/index,shtrnl - BCC Science, Nature DOC Board www.docboard.org - Ntl Org. for State Medical and Osteopathic Board Sites

Merck Manual www.merck.com/mrkshared/rnmanual home2/home,jsp Howard University Hospital www.huhosp.org

MD Dept of Health and Hygiene www,dhmh.state.md.us -Maryland Dept of Health and Mental Hygiene National Library of Medicine National wvAw.nlm,nih,qov/hinfohtml -Abstracts of medical journals, drug lookup

Physicians Search http://dbapps,ama-assn.orq/sps/amahq,htm Medical Library Association wwwmlanetorg/resources/medspeak/topten,html-Most useful medical sites

Medical Abbreviations Glossary www,idmd.com/.qlossary/medabbr.pd downioadable pdf file MediLexicon www.medilexicon corn--abbreviations, glossary, drugs, equipment

Deadbeat Doctors http://defaulteddocs, dhhs,,qov/search.asp - doctors who have defaulted on their student loans, banned by DHHS or Medicare

Food and Drug Administration www,fda.qov - Medical devices, vaccines info etc. ABPP www.abnp.org - American Board of Professional Psychology

American Academy ChildAdolescent Psychiatry http:IIvrww.aacap.org/ Intellectual & Developmental Disabilities http://ww,aamr.org/

American Counseling Association http://w,counseling.org/

American Psychiatric Association http:/twww.psych.orp/ Mental American Psych Association Amicus Briefs http://www.apa.org/psyclawjissues.htsnl Health Bazelon Center for Mental Health Law http://www.bazelon.org/

R Center for Social Services Research http://cssr.berkley.edu Related e Federation of Families Children’s Mental Health http:/f.ffcmh,org/ - featuring multiple articles Sites Kentucky Mental Health and Expert Manual http://dsa.state.ky.us/library/manuals/mental/toc2.html

National Alliance on Mental Illness http://w.nami.org/ Nth Association of Protection Advocacy Systems http://wt.napasorg/

Nth Association of Psychiatric Health Systems http://www.naphs.org/ National Association of Social Workers http:I/w.socialworkers.org/

National Mental Health Association fiffpL/www.nmha.org/ Ntil Assoc. State Mental Health Program Dir. http:f/www.nasmhpd.orgl

Ntil Center Mental Heath and Juvenile Justice http://www.ncmhii.com/ Nth Institute of Mental Health hthp://www.nimh.nih,gov/

Nfl Mental Health Association http:IIww,nmha.org/ Various Psych Links-Assoc, Psych Science http:llw.psychologicalscience.orglaboutIlinks.cfm

EROWID www.erowid.org -Reference Guide to drugs and behavior illicit Drug Policies www.dcfpd.org/library/chartbook.pdf- Selected Laws from the 50 States

Street Drugs www.streetdrugsq -Information about different drugs Drug Drug Info www.druginfo.net - www.druqid.info - 50,000 records Drug Info Net

Related Drug Reference www.thegooddruqspuide.com/indexhtml

Information Prescription Drugs/Drugs Medical www.rxlist.com RxList Pill Identification Tool wwwrdist.corn/pilI-identification-tooI/articIe.htm

Drugs.com www.drugs.com �Can use a description of a pill to figure out the pill FDA Electronic Orange Book v’ww.fda.gov/cder/ob/defauIt.htm-approved drugs and generics

National Institute of Health www.nih.gov/ Illegal Drug Interactions www,nida.nih,gov/

MedLine Plus www.nIm.nih,gov/medlineplus/druginformation.html National Institute on Drug Abuse hftp : //Vsa.va�sar,edu/�source/drugs/interactions.html

10

�.117-

CJA Investgator Training Program Internet Investigation

TOPIC FO!A Letter Genera

_T23_ M

Ntl Freedom Info. Coalition www.nfoic.org/foi-center State FOIA Request vw.splc.orq/foiletter.asp -Fully Automated, Fill-in-the-Blanks.

FOIA Federal FOIA Requests ww.rcfp.orq/foialetter/index.php - Federal FOIA Requests FBI FOIA www.newstrench.com/OlsecretJ01secret.htm - FBI FOIA Requests

Fire EMS Template www.refp,or/tappinq/index.cqi?function=broWse Federal Agencies http://usdoi.qov/dea/foia/foiatoc.html

The Police Complaint Center www.boliceabuse.com - nonprofit organization provides assistance to police abuse victims

DHS FOIA wwwdhs.qovlxfoia/editorial 0579shtm CBP FOIA www.cbp,qov/xp!cqov/adminlfl/foia

ICE FOIA wwwice.qov/foia/ips

State Dept FOIA wwwstate.gov/m/a Office of Police Complaints DC htp://policecomplaints.dc.gov/occ-r/site/defauIt,asp

Ancestry’s SS Death Index www, encestry,corn -If you have name, get their full name, SSN, DOB, birth city/state and Vital date of death, Use the World Tree to get information on parent’s names and/or marriages.

Maryland Vital Records www.dhmh.state,md.us/html/viialrec.htm Statistics Virginia Vital Records ww,vdh.state.va.us/vita! records/index.htrn Online Roots Web www.rootsweb.com � clickthelinkforSSN Death Index link

Divorce Records http://divorcerecords.q - Nationwide divorce records search but costs money National Directory of Vital Statistics www.health.state.pa.us/HPA/obd.htm Links to get vital states in 50 states.

SSN for Deceased www.sttw /ssdi/ssdi. emorse.orghtml - Find SSN for the deceased, 2010 DC Map jJftry/octo,dc,gov/DC/OCTO/About+OCTO/News�Room/OiStrictfof�COlUmbie+201 0+Aeri

al+Photography�Release Google Maps/Earth Pro www.earth.qoogle.com �Not free

Interactive a 11 1, Aerial Maps and more www.rnaps.live.com�Maps, aerial pictures, bird’s eye view - incident addreds, DC Aerial Maps http://citizenatlas.dO,nov/atlasapps/reporthometab.aSPX

w.burqersubo www.mapguest.com Property Quest http://propertyguest,dc.gov Determine the owner of a property, if the property is a public

housing project what that property looks like the property boundaries maps photos Ward ANC tax zoning and historic district information

Mapable Statistics http //mpdc & gov/mpdcicwp/view a 1239 a 566898 asp Tracks police calls to an area Maps and . &. DC Map jJgj/ggjs.dc.ov Interactive . MapQuest www.rrapguest.com -Maps/Directions (low quality aerial maps) - . -. Yahoo Maps http://maps.yahoo.com -Maps/Directions

Maps Site Atlas www.siteatlas.com/Maps/usstates.htm -US State maps Terraserver http:!/terraserver. homeadvisor.msn .com/default. aspx

Topozone wwrv,to.pozone,corn U.S. Geological Survey www.usgs,gov Nit Assoc. of Counties www.naco.org National counties search

Gliffy www.qliffv.com - Diagram, flow chart, floor plan software, 5 free per email Maps homicides with details about

DC Homicide Watch http://homicidewatch.org-cornmunity-oriented site, homicide information Murder Map www.burgersubpr- great interactive map for murders in the Mid-Atlantic

Geographic Names Database httg://geonames usgs.gov/pls/gnispublic/f?p=1 22:1:3664578463970505 2 million+ places in the U.S. It will tell you the location with just the name of a place.

American School Board Journal ,asbi.com/ Correctional Education Association ww.ceanational.org/

K-12 School Resource www.preatschools.net DC Public Schools www.dc.gov/DCPS

Schools Public School Locator http://nces.ed.gov/ccd/schoolsearch - Find any public school DCPS Yearbooks Archive w,nps,gov/nrtravel/wash/dc58,thm - DCPS maintains an archive in the Charles

and Sumner School. Contains yearbooks from local schools. Accessible to the public, but

Education . make an appointment, 202-730-1421, corner of 17th and M NW. Education Week www.edweek.org/ew/index.htrnl

Ntl Assoc. School Psyschologists w.nasponline.org/ Center Education, Disability, Juv Justice tgL/ed.offl

Ntl Community Education Assoc. www.infolit.org/members/ncea.htm Ntl School Board Association www.nsba.org/ste/index.asp

Ntl Center for Education Statistics httpr//nces.ed.pov/pubsearch/onhinedata.asP schools, districts, comparisons

11 �118-


TOPIC NAME URL and NOTES MuItoomah Co. Library www.mLiltcolib.org

Library OR University Library Catelog http://orbis.uoregon.edu -ORBIS Resources Virtual Librarian w.virtualUbraban.com/it/phone.html

Law Library Exchange www,Iftc corn Library of Congress www.loc,qov

Internet Legal Research Group www.ilrg.com State background Information www.doi.state.wi.ijs/DLES/CIBJsclisf asp

Statistics Public Data Center www.publicdatacenter.com -Criminal justice resource links by state T.R.A.C. http://trac.syr.edu -Transactional Records Acceqs Clearinghouse. Federal govt, law

enforcement prosecutions statistics; research, nationwide and by federal district. Ntl Public Safety Info Bureau www.safetysource.com -Fee based

FBI UCR http://www,fbi.qov/about-us/cis/ucr/ucr- FBI Uniform Crime Reports TVNews Archives at Vanderbilt Univ. I http://wew.tvnews.vanderbilt.edu/ - Largest archive of TV news history, Actual video is

Cable, available upton request

TV/Radio Radio Stations www.radiolocator.com Radio and TV Stations esw.cit-data,com

TV Guide www.tvquide.com �can get old guides. Must set up an a oourit:v .

Comcast Cable www.comcast.net Cox Cable Virgina

Utility Service Locator www.siteselection.com/directories/utilities water and power service Utility/Power provider for a given city/state

Services Baltimore Gas and Electric www.bge.com Pepco www.pepco.com

Historical Weather Records www,wunderqround.com/history-Historical weather data by city, by hour National Weather Service www.nws.noaa.gov and www.erh,noaa.qov/er/lwx/climate.htm

Weather Forecast, Baltimore/Washington Ntl Climatic Data Center www,ncdc.noaa.qov -world’s largest archive of weather data

Sunrise/Sunset Ww.usno.navymil/USNO/astronomical-aqplications/data-services/rsone_yearus 1 ather, com . Weather Channel

Big Book www,bigbook.com -Extensive

Business Switchboard www.switchboard.com

Company City Directory www.citydirectory.com Companies Online �www.companiesonlinecom - search by company or browse categories.

Companies Melissa Data www.melissadata.com/Lookups/index.htm -Marketing list company with some free search areas.

Charitable Resident Agent Listings www.residentaqentinfo.com -Links to state Resident Agent lookups for 47

Organizations states. Essential o serve subpoenas on businesses. Hoover w.hoover.com - proprietary company profiles/industry info Non-Profit Edgar Online www.edqar-online.com - Updated daily, financial info for public companies,

Organizations 37,000 corp executives Guide Star wvvw.guidestar.com - Find the Employer Identification Number and other

information on tax-exempt organizations. call 877-829-5500

Client Services Search httpJ/answerspleaseonline,dc.goy-find services for clients

Services Adult Resources www.pdsdc.org/Resources/ORD/Ad ult-Di rectory- 1 0-9 .pd Youth Resources http://www pdsdc.orq/Resources/ORD[YouthResourcesQgpdf

Expert Witness Expert Witness Locator http://expertpaqes,com/ .

Expert Witness Locator http:!/www.lawinfo.com/index.cfm/fuseaction/ExpertVVjtnesses. main

,q=.M I Internet Investigation

TOPIC NAME URL and NOTES Dr, Henry Lee vvww.drhenrylee.com

Serologici Researbh Institute www. serolo.gical.com -DNA Services (SERI) Forensic Analytical www.forensica corn -DNA Services Sites

Forensic Forensic Science www.ufrsd.net/staftwww/stefanl/forensics/webhits.htrn

Science Kruglaw www.bioforensics.com/kruglaw/search.htrH

Resources Zenos Forensics Page http://forensic.to/forensic.html -Links to Forensice Experts; Resources Evidence website www, mase,gov/cpcs/links/index,htrn

American Board Forensic Psych www.abfp.com Drug Reference www.thegooddrugsguide.com/index.html

Scirus www.scirus.com -Metasearch. Searches scientific and research info only ABA Moratorium www.abanet.org/moratorium -Implementation Project

Capital Defense Weekly http://capitaldefenseweekly.com Capital Defense Network www,capdefnetorg

Death Penalty Cornell Death Penalty Page www.law.comelI.edu/topics/death penalty,htrnl

Information Death Penalty Defense http://deathpenaltdefense.com Death Penalty Information www.deathpenaltyinfo.org

Center www,abanetorg/deathpenalty Death Penalty Representation www,floridacapitaicases.state.fl.us/ccc/index..Cfm FL Commission Capital Cases www,idoc. state, il.Us/ccp -IL Governors Commission Capital Punishment

Virginia Capital Cases www.vidcolatioin.org -Virginia Capital Case Clearinghouse (VCJ) Illinois Governors Commission http://www.idoc,state.il,us!ccp/index.html DOJ 361/Certification of Identity Form www.justice,gov/oip/forms/cert ind,pdf

BOP Reg Number Codes ww,fedcure,org/information/RegisterNumberCodes.shtrnl - lists associated districts for register numbers. 000 is usually someone held only for immigration related issues.

ICE Field Offices contact info www.icegov/contact/ero ICE Facilities nationwide vvww. ice, go/detention-facilities Witness in ICE custody www,locator,ice,gov/odls/homePage,do - search by name and ID info

Defending Immigrants Partnership www.defendingimmigrants.org - has national/state resources for defense NLADA www,nlada.ofg/Defender/Defender immigrants - partnership with National

Immigration Legal Aid and Defenders Association's Defending Immigrants

Deportation National Immigration Project wwwnationalimmigrationproiect.or National Legal Resource Center www.ilrc.org

ICE Immigrand Defense Project www.immigrantdefenseproect,org-case consultation hotline 212-725-6422 Immigration Advocates Network www.immigratienadvocates.org

Citizen and Immigration Services www. uscis ,gov/porta!/site/uscis Dept of Homeland Security www,dhs.gov/index,shtm

DHS FOIA tw,dhs,gov/xfoia/edftorial 0579.shtm Customs and Border Patrol ww&.cop.gov

CBP FOIA wcbp,govJxp/cgov/admin!fl/foia State Department

State Dept FOIA www.state.gov Immigration and Customs Enforcement www,stategov/m/aAps

www,icegov ICE FOIA www.ice,gov/foia

I ____________________________ hftps:Hlocator,ice,9ov/odIs/aboqt.Lsp

I

TOPIC NAME URL and NOTES ABA Routing Numbers www.fedwiredirectory.frb.org/search.cfm- ID banking institution by ABA#

Acquired Banking Institutions www.ffiecgov/nicpubweb/nicweb/SearchForm.aspx -Ntl Information Center Federal Reserves database on banks that were acquired/name change.

Bankruptcy Search www. bankruptcy-records-online.com/Search .aspx - Search for Bankruptcy Records, Search results are free but records cost money.

Banks Credit Card Validator www.stevemorse.org/ssn/cc.html - Validate a credit card number or

Financial determine if card number has correct structure.

National Credit Unions Admin www.ncua,qovlindexdata.html -Detailed data on credit unions Federal Reserves Bank Routing www.fedwiredirectory.frb.org/search ACH,cfm -A a search engine for

Numbers Search routing numbers and more. Enter a bank name to return location and its routing dumber. Enter routing number from a check to return the name and location of the bank to which it belongs.

Ntl Personnel Records Center www.archives,gov/facilities/mo/st louis html -Military records Active Duty Military Search www,drndc,osd,mll/scra/owa/home-Search for active duty with the military

eVetRecs vww, arch ives ,qov/veterans/evetrecs/index.html Copy fee. Veterans’ Military records for any military branch - those who served, discharged, retired, died before 1946. National Personnel Record Center provides this free.

U.S. Navy Ship Mailing Addresses http://www,chinfo,nav’,i.mil/navpalib/ships/lists/ship-fpo,html - who’s out to ea with the U.S. Navy

NtI Personnel Records Center www.archives.goV/facilities/mo/st louis. html -Military records Web Archives vnwi.archive.org �1996 and on, how many times a web site was looked at by year.

InterN IC www.internic.net/whois.html - best place to look up the owner of a domain name. Internet ISP Too http://tatumweb.com/iptools.htm - Tools for identifying domain name hosts, valid

World Wide email addresses, speed of your internet connection, etc

Google Modified Page Search www.stevemorse.org/gooqle/qooqledate.html -find pages based on when they Web were last modified

Old/Dead Web Pages www.searchengineshowdown.com/others/archive.shtmI - Archive of old, dead web pages - search engine took gives prior versions of the same web page at the URL

Internet Address Finder www.iaf.net USFS Zip Code Search www.usps.com/zip4

P 0 �1 Another USFS Zip Code Search http://zip4.usps.com/zip4/welcome.jsp

Zip Code Overview and Map hffp://v.stevemorseorq/icaI/zip,htmI -See groups of cities represented by first three digits of the zip code.

Vehicles Car Fax ww,wsf,carfax.corn - Vehicle history report. Fee. Google wwwgooglacom �Enter the VIN# to get make, model and year of the ca

E-autohistory Wwwe-autohistor.com - can decode the VIN Time http://tycho.usno.navy.mil/ Master Clock, Most accurate time available.

Urban Dictionary www.urbandictionary.com -Can have vocabulary for slang terms (unoffical) usc Rotten Neighbor www.rottenneiqhbor.com - what neighbors say about you or your client.\

P0 Box Locator http://www.blackbookonline.info/bbo_poaddress.aspx - Enter a P.O. Box I address to learn the physical location of the Post Office for that box.

MW


I fl ii ii ZiJi It T. Iii ii National Defense Investigators Association - www.ndia.net

Alabama (Middle District) Federal Public Defender-http://www.almfd .prni> Alabama (Southern District) Federal Public Defender-<http://wwwfederaldefender.org/> Alaska Federal Public Defender-<http://home.gci.netl�fpda> Alaska Public Defender-<http:Ilwww.state,ak.us/adminlpd/> AR - Arkansas Public Defender-<http://warkansas:qov/apdc> AR - Garland County Public Defender-<http://wwwgarlandcounty.org/pubdef.htm> Arkansas (East & West Districts) Federal Public Defender-<http://arfpdcom/> Arizona Federal Public Defender-<http:/!wvw.fpdazorg/> Arizona Public Defender Association-<httpj/wwwapdanetorg/> AZ - Maricopa County Public Defender-<http://www,pubdef.maricoPaPPyL> AZ - Pima County Public Defender-<http://wwwpima.govipublicdef/> Association of Federal Defense Attorneys<http://wwwafdaorg/> Association of Legal Assistants-<http://www.nalaorq/> CA - Alameda County Public Defender<http:Ilwww.co.alameda.ca.us/defender/> CA - Alpine County Public Defender-<httn:I/siw.coalpinecaus/> CA - Butte County Public Defender- http://wwvvbuttecounty. net/> CA - Calaveras Co. PD<http:/Iwwwco.calaveras.ca,us/departments/public defender.html> CA - Contra Costa County Public Defender-<http://www.cccontra-costacaus/dePart/Pubdef/defaulLhtml> CA - Del Norte County Public Defender-<http://wwwcodel-norte.caus/> CA - El Dorado County Public Defender-< http://www, co.el-dorado.ca.us/public defend.html> CA - Fresno County Public Defender<http:/Aw,fresnocaclov/288O/indeX.html> CA - Glenn County Public Defender<http://wglenncountygovrnt.net/> CA - Humboldt County Public Defender<http://www.co . humboldt.ca. us/poftal/justioe. asp> CA - Imperial County Public Defender-<http://imperialcounty.netldepartmentS.asPX> CA - nyc County Public Defender<http://mw,countyofinyoorq/COuntY Directory,html> CA - Kern County Public Defender<(p.//vwcokern.ca.us/dePts/> CA - Kings County Public Defender-<http://wwwcountyofkings.com/> CA - Lake County Public Defender-<bp://vwcolakecaus/> CA - Lassen County Public Defender-<http://www.co.lassen,ca . us/pubdefender missionhtm> CA - Los Angeles Alternate Public Defender-<http://www.co.Ia.ca.us/alterdef . htm> CA - Los Angeles County Public Defender-<http://pdcolacaus/> CA - Madera County Public Defender<http://www.maderacountYcom/dePa1tmentS/cOntractedhtml> CA - Mann County Public Defender-<http://www.co.marin,ca , us/depts/PD/mainfindex.cfm> CA - Mariposa County Public Defender <http: //wwwmariposacounty.o[qj> CA - Mendocino County Public Defender<http:/tww,comendocinocaus/ndxhfm> CA - Merced County Public Defender<http://wwwco.merced.caus/> CA - Monterey County Public Defender-<http:fiwwwcomontereyca,us/Pubdef> CA - Nape County Public Defender-http://vwwco.naPaca.uS/GOv/DePartmeflts/DePtDefauItaSP?DlD226DO> CA - Nevada County Public Defender-<http://wvvw.mynevadacountv.comihtml/Public defenderhtml> CA - Office of the State Public Defender-<http://wwwospd.cagovl> CA - Orange County Alternate Public Defender<http://wwwoc.cagov/pd/alternathtm> CA - Orange County Public Defender<http://www.occa.gov/pd/> CA - Placer County Public Defender<http://wwwplacer.capov/defender/defender.htm> CA - Plumas County Public Defender<http://wwwcountyofplumas.corn/> CA - Riverside County Public Defender<http://vwcoriverside.causIriverside.asP > CA - Sacramento County Public Defender-<http://wwwsaccountynetlportal/deptindeX/deptindeXhtm#P> CA - San Benito County Public Defender-<http://www.san-benito.caus/departments/> CA - San Bernardino County Public Defender<http://www co. san-bernardi no. caus/LJGROU P/pdefasp> CA-San Diego Criminal Bar Association-<http://wwwsdcbaorg/> CA - San Diego Alternate Public Defender-<http://oosan-diegocaus/cnty/cntydepts/safetY/aPd!> CA - San Diego County Public Defender-<http://www.co.san-diegocaus/cntY/CntydePtS/SafetY/defender/> CA - San Francisco City Public Defender<http://wci,sf,caus/pd/> CA - San Joaquin County Public Defender<http://www.co.san-joaguin.ca, us/pubdefender/>

15

CJA lnvestgator Training Program Internet Investigation

CA - San Luis Obispo Co. PD-<http:!/www.coslocausISLOCo lnterPortalnsf/SLOCo Departments. htm? Open Page >

CA - San Mateo County Public Defender<http://www.smcba.org/pdphtm> CA - Santa Barbara County Public Defender<http://wwwpublicdefendersb.orq/> CA - Santa Clara County Public Defender<http://wwwsccqovorg/site/O,4750,sid %253D I 2920,00html> CA - Santa Cruz County Public Defender<httpi/www.santacruzbarbrg/gpscrviccorq.html> CA - Santa Cruz County Public Defender - 2nd Site-<httpilwwwcosanta-cruzcaus/> CA - Shasta County Public Defender<http://wco.shasta,ca.us/> CA - Sierra County Public Defender-<http:JIwwsierracounty.ws/> CA - Siskiyou County Public Defender-<hftp://wcosiskiyouca.us/defender/index.htm> CA - Solano County Public D�fender-<hftp:/Ae.cosolanocaus/publicdefender/> CA - Sonoma County Public Defender-<http:/Awwwsonoma-countyorglcrimjustlpubdef/index.htm> CA - Stanislaus County Public Defender-<http:I/wwwco.stanislaus,caus/pd!defaulthtrn> CA - Sutter County Public Defender<http://www.cosuttercaus/law iustice/pubIi defenderhtm> CA - Trinity County Public Defender<http://www,trinitycounty,org/> CA - Tulare County Public Defender<httQ://www.co, tulare,ca , us/departments/public defenderhtm> CA - Ventura County Public Defender-<httpI/vww.venturaorg/vencntyhtm> CA - Yolo County Public Defender-<http:!/vwyolocountyorg/org/publicdefender/indexhtm> CA - Yuba County Public Defender-http:I/wwwcoyubaca.us/> California (East District) Federal Public Defender-<http://wwcae-fpdorg/> California (North District) Federal Public Defend er-<http://nd calf p d. g/> California (South District) Federal Public Defender-<http://wvm.fdsdicom/> California Appellate Project CAP-<http://www,cpsforg/Welcome5html> California State Public Defender-<http://wwwospd .cagov/> California Attorneys for Criminal Justice-<http://www.caclorg/> California Deuce Defenders-<http://wcdd .orgl> California Public Defender Association-<http:/AwvcpdaorgI> California State Bar-<http://wwwcalbaforgI> California Women’s Defender Association-<http://www,womendefenderscom/> Colorado Criminal Defense Bar-<http://www.ccob.org/> Colorado & Wyoming Federal Public Defender-<http://www.cofpdorg/> Colorado Public Defender-http://wv state. co. us/defenders/> Connecticut Federal Public Defender-<http://wwwfpdct,orq/> Connecticut Public Defender-<http://w,ocpd.state.ctus/> Consolidated Listings of Criminal Defense Lawyer Associations- wwwnladaorg/Defender/States/State Orgs Cook County Public Defender Association, Union’s site -<http:!Iafscme33 1 5.home.attnetl> Criminal Justice Legal Foundation-<httpJ/wwi.clforg/> Criminal Lawyers Association-<http://www,cri min allawiersca/> Delaware Federal Public Defender-<http://wwwfpddeorq/> Delaware Public Defender-<http://www.statede,ijs!pubdefen/> District of Columbia - Public Defender Service-<http://www.pdsdc.org/> District of Columbia Federal Public Defend er-<http:/Iwwwdcfpdorql> FL - 1 0th Circuit-<http://www,public-defenderl O-ftorgl> Hardee, Highlands, & Polk Counties FL - 11th Circuit<http:/lwvw.pdmiami,com!> Miami-Dade County FL - 13th Circbit-<http://pdl 3stateflus/> Hillsborough County FL - 15th Circuit-<http:I/www.pdI5statefl.us/> Palm Beach County FL - 17th Circuit-<http:/!wwwbrowarddefendercom/> Broward County FL - 19th Circuit-<http:i/www.pdl9.orq/> Indian River, Martin, Okeechobee, & St. Lucie Counties FL - 1st Circuit-http://www.pdolorg/> Escambia, Okalossa, Santa Rosa, & Walton Counties FL - 2nd Circuit-<http:/Iwwwco.leon.fl.uslpdl> Franklin, Gadsden, Jefferson, Leon, Liberty, & Wakulla Counties FL - 4th Circuit-<http://www.coj.netlDepartments/Public+Defender/defauft.htm> Clay, Duval, & Nassau Counties FL - 5th Circuit-<http://www.hernandocounty.us/judiciailpubdef.htm> Citrus, Hernando, Lake, Marion, & Sumter Counties FL - 6th Circuit-<http:I/wearethehope.org!> Pasco & Pinellas Counties FL - 7th Circuit-<http://voiusia.org/property/pubjicdefender/defaulthtm> Volusia, Flagler, Putnam, & St. John Counties FL - 9th Circuit<http:I/pd.circuit9.org/> Orange & Osceola Counties FL - Alternatives to the Death Penalty-http://www.fadporq/> - FL- 18th Circuit-<http://www.brevardcounty,us/publicdefender/> Brevard & Seminole Counties FL- 20th Circuit-<http://pd.cjis20.orgi> Charlotte, Collier, Glades, Hendry, & Lee Counties

Mr

CIA Investgator Training Program f, Internet investigation

Florida (Middle) Federal Public Defender-<http:/Iflmfd orq/> Florida (North) Federal Public Defender-<http:I/wwwfpd-fin,org/> Florida (South) Federal Public Defender-<http://fpdfis2 home. netcom.coml> Florida Association of Criminal Defenbe Lawyers-<http:I/wwfacdlorg/> Florida PD Assoc.-<http://www.flpda.orgl> all addresses, phone numbers, contact information for all Florida Public Defender GA - Atlanta Public Defender-<httpi/www.atlantaqa.qov/governmenticourts/mc-publicdefender 102303 .aspx> GA - Fulton County Conflict Defender-<http:/Jwww.fccd.com/> GA Hall County Public Defender<http://wwwhallcounty.orq/iudicial/iud pubdefend.asp> GA - Innocence Project<http: /Jwwwqa innocenceprojecLorg/> GA - Lookout Mountain Public Defender<http://www.Im1c.neUpublicdefenderspage1,htm> Georgia - Georgia Public Defender StandardsCouncil-<http:/Jwwwqpdscorq/> Georgia Indigent Defense Council<http://wwwgidccom/> Georgia Multi-County Public Defender Office-<http:/Jgeorgiacapitaldefenders.com/> Offices Georgia Association of Criminal Defense Lawyers-<http://wwgacdlcom/> Guam Public Defender-<http:I/m’wiusticegov!gu/pdsc/> Gulf Region Advocacy Center (GRACE)-<hftp:/Iw.gracelawcomI> Hawaii Public Defender-<hftp://hawaiigov/budnepd/pd.htm> Idaho - State Appellate Defender-<http://sapd.stateid_us/> IL - Boone County Public Defender-<http://wvw.boonecountyiI ,org/pubdefend/pubdefendhtm> IL - Cook County Public Defenders Office-<http://wwwcocook.il.us/aqencyDetail.php?pAgencYlDl8> IL - Dekalb County Public Defender-<hftp://www.dekalbcounty,org/Court/public defenderhtml> IL - DuPage County Public Defender’s Office<http://wwwdupagecoorg!pubdefi> IL - Kane County Public Defender-<http://www.co. kane ,il,usl’COC/Guide/Offices/public defender.htm> IL - Lake County Public Defender-<http://co.lake.iI.us/pubdef/> IL - McHenry County Public Defender-<httn://wwwco.mchenrv,iIus/County/Dptlpubdef/default.asP> IL - Rock Island County Public Defender-<http://wvw,rockisIandcountyorg!PD.asp?id355> Illinois (Center) Federal Public Defender-<http:/!vwca7uscourts.govpub def.htm/> Association - Illinois PD Association-<http://www.stateil.u/Defender/ipda.html> IN - Allen Co,-http://wwico. alien. inus/index.php?optioncom content&taskcatecory&sectionid=4&1 0=91 81temid=404> IN - Monroe County Public Defender<http]/co.monroein.us/pubdefender/index.htm> IN - Tippecanoe County Public Defend er-<http://www,tipecanoe. in. qov!defenderI> IN - Vanderburgh County Public Defender<http:/!wwwvanderburqhqovorg/home/indexasp?page=78> IN - Vigo County Public Defender<http:!/ww,vigocountyorg/defender/> Indiana (North) Federal Public Defender-<http://www.crim-lawnetf> Kansas Association of Criminal Defense Lawyers-<http//wvwkacdIorcl> KS - Kansas State Board of Indigent Defense Services-<http:!/www.ksbidsstate.ks.us/> Kentucky Public Advocacy Department-<http:!/dpaky.qov/defaulLphp> Louisiana (East) Federal Public Defender-<http://wvfederaIdefender.ne> Louisiana Public Defender Association-<http:I/NIidab.com!> Maine Association of Criminal Defense Lawyers-<http:J/www,twi.netl--macdl/> Maryland Federal Public Defender-<hftp://www .md-fd.org > Maryland Public Defender<http://www.opdstate.rndus/> Maryland Criminal Defense Aftorneys’Assc)ciation-<hftp://www.mcdag.or /> MA, NH & RI Federal Public Defender-<http://www,bostondefenderorg/> Massachusetts Committee for Public Counsel Services-PD Link<http://www.rnassgov/cpcs/index.htm> Massachusetts Criminal Defense Lawyers Association-<http://www.macdl,coml> MI - State Appellate Defender Office-<http://wwwsado.org/> Michigan (East) Federal Public Defender-<http:/Awwmicfdo,org/> Michigan (West) Federal Public Defender-<http:!/w.westmichigandefenderorg/> MN - Public Defenders Office Home Page-<http:/Iwww.pubdef.state.mnus/default ban�ner.htm> Minnesota Association of Criminal Defense Lawyers-<http://www.macdl.usl> Missouri (Easterrr) Federal Public Defender<http:!/moe.fdorg/> Missouri (West) Federal Public Defender-<http://mowfdorg/> Missouri Public Defender-<http://www.publicdefender.mogov!> MS - Jackson County Public Defender-<http://www,co.jackson.m. us/DS/PublicDefsnder.htmt> Mississippi Public Defender Association-<http://ww.publicdefenderneti> Montana Federal Public Defender<http:I/wwwfdom,orqj>

17

A

C3A Investgator Training Program Internet Investigation

Montana State Public Defend er<http:!Ipublicdefen der. mt. gov/> National Association of Criminal Defense Lawyers-<http://www,nacdlorg/> National Association of Federal Defenders<http:/!federaldefenders.com/> Nationla Defense Investigators Association - www.ndia.net National Juvenile Defender Center -wwwnjdcinfo National Legal Aid & Defender Association-<http://www.nladaorg/> National Legal Professionals Association<http://www,nlpa.org/> National Notary Association-<http:/Iwwwnationalnotarv.org/> NE - Buffalo County Public Defender-<http://www.buffalogov.orq/Office/PublicDefender/> NE - Dakota County Public Defender-http:/!wwwdakotacountyne.orglpublicdefender2.htm> NE - Dawes County Public Defender-<hftp://wwoi.co,dawes.ne.us/defender.html> NE - HoItCounty Public Defender-<http:/!co.holt.neus/defender.html> NE - Madison County Public Defender-<http://co,madison.ne.us/pd.htm> NE - Otoe County Public Defenderhttp://co.otoe.ne.us/defender.html>. NE - Pierce County Public Defender<http://www.copierce.ne.usldefenderhtml> NE - Platte County Public Defender<http://wwwplattcountynetl> NE - Sarpy County Public Defend er-<http://sarpycom/defender/> Nevada Attorneys for Criminal Justice-<http://www.nacjcom!> NV - Washoe County Public Defenders Office<http:Ilwww.co .washoe.nvus!defender/> Nebraska Commission on Public Advocacy-<http:I/wwwncpanegov/standardhtml> Nebraska Federal Public Defender-http :I/ne,fd.org/> New Hampshire Public Defender-<http://www.nhpdorq/> New Jersey Federal Public Defender<http://vw.wfpdnjorg/> New Jersey State Public Defender-<http://w,statenlus/defender/> New York - New York Capital Defender<http://vwnycdoorg/> New York (East) Federal Public Defender<http:J/www.legal-aidorg/Documentlndexhtm?docid=38&catid= 14> New York (Northern) Federal Public Defender-<http://wnynd-fpdorql> New York (South) Federal Public Defenders Office<http:/Inys.fdorq/> New York (West) Federal Public Defender-<http://nyw.fd,orq/> New York Association of Criminal Defense Lawyers-<http://www.nysacdLorg/> New York State Defender Assoc! ation-<http://wwwnysdaorg/> NY - Bronx Defenders-<http://wwwbronxdefenders,orq/> NY - Jefferson County Public Defender-<http://www.co.jefferson .nyus/Jefflivenstlpubdef?OpenPage&Click=> NY - Legal Aid Society-http://www.legal-aidorql> NY - Monroe County Conflict Defender-<http:/Iwww,rncacp.org/> NY - Neighborhood Defender Services of Harlem-<http:/!www.ndsnyorg/> NY - Office of the Appellate Defender --<http://wvw.appellatedefenderorqi> NY - Ulster County Public Defender-<hftp://vw.cculster.nyus/resourcesJpublicdefender.html> North Carolina Indigent Defense Services-<http://www.ncids.org/> North Carolina (Middle) Federal Public befender-<http:I/wwwfpdmdncornf> North Carolina (Western) Federal Public Defender-<http:!Jwww.federaldefenderswnc.org/> North Dakota Federal Public Defenderhttp://vvww.fpdsdorg/> OH County Public Defenders-<http://ood.ohiogov/pub/pub cty.htm> OH - Hamilton County Public Defender-<http://wwwhamilton-co.orglpub_def!> OH - Ohio Public Defenders Office-<http://opd.ohio.gov/> Ohio (North) Federal Public Defender-http://wetwfpd-ohnpjqj> Ohio (South) Federal Public Defender-<hffp://wwwfpd-ohs.orql> Ohio Association of Criminal Defense Lawyers-<http:/Mww.oacdl.org/> Oklahoma (North & East) Federal Public Defender-<http://wwwtulsafpd,org/> Oklahoma Public Defender-http://www.state.ok.us/�oids/> Ontario County Public Defender Association<http://tocdaorg/> OR - Oregon Public Defenders Services-<http:/!www.opdsstateor,us/> OR - Southwest Oregon Public Defender Servicbs-<http:/Mww.swopdsorg/> Oregon Federal Public Defender<http://or.fd.or/> Oregon Public Defenders Office-<http://www.opdsstateor.us/> Oregon Criminal Defense Lawyers Association-<http://ocdlaorql > Panhandle Criminal Defense Lawyers Association-<http://www.pcdla.com


PA - Montgomery County Public Defenders Office-<http :!/montcopa.org/countyoffices/pubdefhtm> Pennsylvania (East) PhiIIy Defender Office-<littp:/Iwwwphilqov/defender/> Pennsylvania (Middle) Federal Public Defender-<http/!www,pamd-fpd org/> Pennsylvania (West) Federal Public Defend er-<http:!/fpd paw. org/> Pennsylvania Association of Criminal Defense Layers-<http://wwwpacdl.om/> Public Defender & Indigent Defehse Councils, Commissions, & Panels -http://wwwilrx.com/featureslpublicdefender.htm> Public Defender Investigator Network- httpi/www.pdinvestigatornetl> Puerto Rico Federal Public Defender-<http:/!wwwfodpr.com/> Rhode Island PD-<http:I/leaq 1 .comI3oto,asp?URLhttp%3A%2F%2FvMrW%2EriPd%2EOrg&ASSOcl D=25 15> Rhode Is Association of Criminal Defense Lawyers-<http:/!www.riacdlorg/> SC - Charleston Co. PD-<http://wwwcharlestoncountyorq/index2. asp?p/Departments/D-PublicDefender.htm San Diego Public Defender Association<http://sandiegopdacom/> Seattle-King County Public Defender Asociabon-<http://wwwdefensenetorg/> South Carolina Federal Public Defender-<http://www.fpdsc.org!> SD - Lawrence County Public Defenders Office-<http://www. lawrenGe,sd,us/pubdef, htm> SD - Pennington County Public Defender-<http://wvvw, co . pennington, sd.us/Pubdef/Pubdef.html> South Dakota Federal Public Defenderhttp:/!wwwfpdsdorql> Southern Center for Human Rights-<http://wwwschrorg/> Tennessee - (Eastern) Federal Public Defender-<http:I/fdset.ofgL> TN - Blount County Public Defender<httD://www. blounttn,org/pdefend.htm> TN-Nashville/Davidson Co.<httpJ/publicdefender.nashville.gov/portal/page?pageid=51 4920433& dad=portal& schenaPORTAL> TN Association for Criminal Defense Laters-<http:/!wwwpdknox.org/tacdl/> Texas (East) Federal Public Defenders Office<http://txefd.orq/> Texas (North). Federal Public Defender-<http://ho men ages, waymarknetI�fpd> Texas (South) Federal Public Defender<http:Ilwwwfpdsdotorg/> Texas (West) Federal Public Defender-<http://txw.fdArg/> TX - El Paso County Public Defender - <http://co.el-paso.tx.us!pdefender/> TX - Travis County Juvenile Defender - <http://wco.travis.tx.us/uvenile public defend er/defau It. asp> Texas Criminal Defense Lawyers Association-<http://www,fcdlacom!> Utah Association of Criminal Defense Lawyers-<http://www..uacdLorqL> Utah Association of Criminal Defense Lawyershttp://www.uacJrgi> Vermont Public Defender - <httQ://www.defgen, state, vt. us!> VA - Virginia indigent Defense Commission - <pj/indigentdefense.virginia.qov!> Virginia (Eastern) Federal Public Defender - http://vae.fdorg(> Virginia Indigent Defense Commission - <http:I/www.publicdefenderstateva.us!> Virginia Indigent Defense Commission http://www.publicdefender.state.va,us! WA-Seattle Defender Association<http:/AWM!defender.org/> Washington Association of Criminal Defense Laershftp://w.wacdLorg/> WA - King County Public Defender - <http:/!wwwmetrokcqov/dchs/opd/> WA - Spokane County Public Defender - <http:i/wmilspokanecountyorg/pubdefender/> Washington (East) & Idaho Federal Public Defender - <http://wwwfdewi.or�/> Washington (West) Federal Public Defender - <http://wwwwawfpdorg/> Washington Public Defender Associatiori<hftp:/Aw.defensenefg> West Virginia (North) Federal Public Defender - <http://wvn.fd.org/index.html> West Virginia (South) Federal Public Defender- <http://www.fpdsdwv.org!> WV - West Virginia State Public Defender System - <http:J!www.nypds.orgiWVPDShtml> West VirginiaPublic Defender - <http://www.wvpds.org!> WI - Wisconsin State Public Defender - <http:!/wwwwisspd.org/> Wisconsin (Eastern) Federal Public Defenders Office - <http://vwrw.fdswi.org/> Wisconsin Public Defender - <http://www.wisspdorg/> Wisconsin Public Defender Association-<hfip://wiaftorgM’SPDA/> Wyoming Public Defender - <http:!!wyopdefenderstate.wf/>

NONA , CAPITAL MIT/GA TION, EFFECTIVE ADVOCACY WIT) PEAL RESUL TS

PART 3: EFFECTIVE COURTROOM STRATEGIES

we

DEVELOPING A SENTENCING PLAN

MORE

514 10a

STEEET NW SUITE 1000 WASEINGTON, DC 20004

THE TEL: 202.028.0871 WAX: 202.028,1091

SENTENCING ST.s'@S c.

1 11PROJECT WWW - SENTZMCINGPROJECT. ORG

tpjallm

The possible elements of a cohesive sentencing plan are limited only by the imagination of the case developer and defense lawyer. The Sentencing Project urges case developers to consider as fall a range of community placements, punishments, and alternative sanctions as is possible for each case. A partial list of these includes the following:

1. Living Arrangements and Residential Options. Where and with whom the client lives, and any necessary special consideration throughout the duration of the sentence. Options include the family home, group homes, half-way houses, secure residential treatment centers, and residences of collateral family members or friends.

2. Geographic Relocation. Moving an offender from an area or out of the family setting which causes him or her problems. Moving an offender to remove him or her from the presence of the victim, or for employment reasons.

3. Psychological Assessment or Treatment. To assist the client with problems which give rise to criminal behavior or to further rehabilitation, appropriate assessment or treatment must be arranged for alcohol and drug dependency, and for emotional and psychological disorders, including unacceptable sexual conduct. Plans must document an offender's acceptance into a program, the location of treatment, the treatment facility personnel, and the extent of the period of treatment.

4. Counseling. Many offenders can benefit from counseling in areas such as financial management, employment, parenting skills, family relationships, and the like. We too often neglect the difficulties offenders have coping with the basics of their lives.

5. Community Service, Unpaid work contributed to a community through its agencies which fulfills the payment of a defendant's debt to society; should be more than "busy work," and if possible, should be intimately related to the characteristic of the offense and the skills of the client, and should in fact and in appearance "fit the crime" as much as possible. (Some of the following items might be considered variations of community service).

6. Public Acknowledgement of an Offense or a Characteristic. Known as "public humiliation" sentences. Courts have adopted this sentencing option on occasion in an effort to ensure that an offender publicly acknowledge his offense or responsibility, through devices such as paid newspaper advertisements, marked clothing, signs, or bumper stickers. Community Service serves a similar purpose, and is much more constructive.

7. Contributions to Law Enforcement. Sheriff and police offices are intrinsically related to almost every crime and the role of law enforcement. Some offenders can contribute their special knowledge about the techniques of illegal conduct (fraud, technologically assisted crimes) and others can provide manual services, such as yard work or cleaning up garages, to these agencies.

S. Public Information Services. Some offenders are well positioned to inform the public about the seriousness or the means of preventing certain types of offenses, such as drunk driving, check fraud and the like. The means of providing information extend beyond public speaking to writing newspaper articles, or assisting reporters and other media professionals in preparing articles on crime and justice issues.

9. Victim Restitution. Payment of the victim's monetary loss to compensate for damages or financial loss as a result of the offender's criminal activity.

10. Symbolic Restitution. The amount of restitution must be related to a person's ability to pay, which is often far below the fair value of damage or loss. Courts need to be impressed with the value of partial, symbolic restitution, which punishes the offender even as it partially offsets a victim's loss. In addition, restitution to the victim isn't always possible or appropriate. Symbolic restitution may be paid to a public agency, including the police, medical services, or the like, who may have suffered an indirect financial expense due to the offender's behavior, or to a charitable organization. (Note: some state and federal statutes preclude restitution other than directly to victims of crimes).

11.Special Consideration for the Victim. There is no reason why a sentencing order should not take into account the reasonable needs or desires of the victim. An offender's offer to "stay away from" an individual or a neighborhood, or to in some way assist a victim, his or her friends, family, or a person in whom the victim has an interest, may be appropriate in some cases.

12.Education. In public or private schools, GED preparation, remedial or special education programs, or specialized training; usually considered a rehabilitating function.

13.Employment. Important to most courts, the offender should be employed whenever possible. The case developer should specify who should supervise the offender, the hours of employment, the salary, the duties of the position.

14.Vocational Training. When employment is impossible or inappropriate, vocational training should be considered as leading toward gainful employment in the future. In addition to state vocational rehabilitation, manpower, Job Corps, and corporate on-the-job training, case developers might consider variations on the apprenticeship model.

15, Community Advocate,Third Party Monitor, A highly recommended, if not essential, component, for most clients, this element provides individuals in the community to monitor an offender's compliance and behavior. Properly arranged, a third party monitor can extend supervision beyond that normally provided by probation or parole officials. There may be more than one advocate or third party monitor. This function may be linked to employment, counseling, vocational training, and the like. Community organizations such as churches and civic organizations may contribute to this function.

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16.Relinquishing a Right/Sacrificing Freedom. The most common form involves house arrest," which need not be linked to electronic monitoring. Other provisions may involve limits upon use of a car or travel, rigid structuring of an offendefs time, restrictions on privacy, and voluntary submission to searches, breathalyzer tests, and the like at the behest of law enforcement, including probation. Punishment for some offenders may be giving up treasured activities, including fishing or hunting, sports, television, social drinking, and the like.

17.Part Time Incarceration. Work release or periodic (e.g., weekends) imprisonment, usually in a local (jail) facility.

18. Short Term Incarceration. A week, a month, or six months in jail.

19 Day Reporting/Treatment Programs, Day reporting offers daily accountability and observation, including optional drug testing. Linked to outpatient treatment, it combines control, supervision and rehabilitation elements.

20. Special Considerations. Tailored to the offender, includes steps to solve medical needs, transportation problems, transferring probation elsewhere (interstate compact), financial assistance, immigration problems, or developmental disabilities.

21. Letters of Support and Recommendation. A sentencing plan needs to provide indications of the support available to the offender in the community and from family, friends, employers, public officials, clergy and the like. Care must be taken that letters are consistent with the sentencing strategy, including acceptance of responsibility, presented to the court.

INSTRUCTIONS FOR WRITING CHARACTER LETTERS

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OMCE or TilE FEDEPAL PUNIC DEFENDEQ DITlCT OF MAl2YLAND

&OUThN DIVhION 6411 IVY 1A9, WITE 710

CN3LT, MAPYLAND 20770 Tnr (301) 344-0600 FAk (301) 344-0019

PAULA XINI rDtAL PUbLIC DNDEQ hM1,5TMT ULDCAL PUbLIC DIfUNDQ

PLEASE WRITE A CHARACTER LETTER

You are being asked to a write a character or reference letter for our client, As you may know, has been charged in federal court with

He needs such letters from friends, relatives co-workers and supervisors, former teachers, and others who know him in a variety of life situations. Such a letter is of great importance in obtaining fair and just treatment for him. Below are a few pointers on character letters that you may want to keep in mind when writing your letter.

Iii'ktO:XeJI

The best character letters often begin by saying (1) who your are, (2) what you do, (3) how long you have known Mr. (4) under what circumstances you have come to know Mr. (i.e. school, work, charitable activities), (5) what is your current relationship with Mr. , and (6) how well do you feel you know him.

4 ;f:w :111 ii I .

At this point you should give a frank opinion as to Mr. 's character. Do you consider him honest? Law abiding? Generous? Does Mr. show thoughtfulness and concern for others? Does he have ambitions in life? How has he made a contribution to his community or the world? Does he have a good reputation? Is he well-liked? If you know, what is the quality of his work habits?

Importantly, in this section give concrete examples of why you attribute certain qualities to Mr. . We have found that you can most effectively convey the true character of a person if you not only state your opinion, but also explain FhY you hold that opinion. It is often helpful to include an example of some praiseworthy incident or conduct by Mr. that you have witnessed or heard of as to who how he has behaved well in the past.

In this section, there is also no need to ignore the fact that he has been charged for a violation of the law. Rather, if your opinion remains the same even in the face of what you know about Mr. 'offense, please state that. If Mr. has expressed remorse and sorrow for his mistake, state that too.

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Your letter should be addressed to the Honorable Richard D. Bennett, United States District Judge, however send it do Paula Xinis and Susan Bauer, Assistant Federal Public Defenders, Office of the Federal Public Defender, 6411 Ivy Lane, Suite 710, Greenbelt, Maryland 20770. You may also fax a copy at the above fax number, or e-mail the letter to Paula [email protected] or [email protected]. While you may hand-write or type your letter, it should be easily readable. We also welcome and encourage your submitting photos that you can send to us through the mail or as e-mail attachments that depict your relationship with Mr.

or important events to which Mr. contributed.

L'ASP*I PITIIJUiI

Thank you in advance for the time, thought and effort you will no doubt put into your character letter. Writing this letter on Mr. 'behalf will, no doubt, be an important part of Mr. 'case. Your letter is vital to educating the Court as to the kind of person Mr.

really is. Should you have any questions or concerns, please do not hesitate to call either Paula Xinis or Susan Bauer at (301)-344-0600.

DEVELOPING THE CLIENT'S SENTENCING ALLOCUTION

OEM

p Ni1 I flJMflI Northern District of Texas

RICHARD A. ANDERSON 525 GRIFFIN STREET 600 TEXAS STREET Federal Public Defender SUITE 629 SUITE 100

DALLAS, IX 75202 FORT WORTH TX 76102-4612 CHARLES BLEIL 817/978-2753 CARLOS 15 CARDONA JASON D. HAWKINS 1205 TEXAS AVENUE CARLTON MeLARTY DOUG MORRIS PHONE (214767-2746 ROOM 506

JOHN NICHOLSON FAX (214)767-2886 LUBBOCK, TX 79401

SAM OGAN 806/472-7236 Assistant Federal Public Defenders

500 S. TAYLOR JOEL PAGE SUITE 110 Research and Writing Specialist AMARILLO, TX 79101

806/324-2370

January 10, 2007 Mr. USM No. FCI

As you know your sentencing is currently scheduled for before Judge. I have been trying hard to think about a way to better present you to the Court so that it will be more lenient in sentencing than it otherwise might be inclined to be. As you well know, your criminal history category played a dramatic role in determining what your sentence was the last time. We need to try and express why the Judge should overlook your past actions and be willing to give you a break.

I think in general that it is best for the Judge to hear from the person who is being sentenced so I am trying a new tactic. What I want for you to do is answer the following questions on the enclosed paper and return it to me as soon as possible. The questions are the following:

1). What are your best accomplishments?

2). What are your best attributes?

3). What have you done that you are most proud of?

4). What are your short term goals?

5). What are your long term goals?

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6). Why are you a better person now?

7). How does giving you leniency reflect the seriousness of your offense?

8). How would leniency promote your respect for the law?

9). How will giving you leniency promote other people's respect for the law?

10). What is a just punishment for your offense and why?

11). Will giving you leniency cause other people not to break the law as you did?

12). Why will giving you leniency protect the public from further crimes by you?

13). Do you need educational or vocational training?

14). How would leniency provide you educational or vocational training?

15). Do you need medical care? How would leniency provide you with medical care?

16). Why should the Judge give YOU a break?

Please remember that you are writing these answers to the Judge who will be sentencing you. If you deny responsibility for any of the facts related to your arrest and conviction it will not help you and I will not submit it. What I plan to do is submit your appropriate answers to the Court in a pleading that I file prior to the sentencing.

Sincerely,

Jason D. Hawkins Assistant Federal Public Defender

cc:

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I IN THE UNITED STATES DISTRICT COURT

2 FOR TUE NORTHERN DISTRICT OF TEXAS

3 DIVISION

4 UNITED STATES OF AMERICA

5 Plaintiff,

6 V. No.

7

8 Defendant.

9 DEFENDANT’S ALLOCUTION STATEMENT

10 Comes now before the Court the Defendant, (hereinafter "Mr."), by and through

11 undersigned counsel with his statement of allocution. Rule 32(i)(4) of the FEDERAL RULES

12 OF CRIMINAL PROCEDURE permits a defendant the opportunity to speak or present any

13 information to mitigate the sentence. Counsel for Mr., gave him/her a list of questions

14 relating to reasons why he should be given leniency. The Allocution Statement is provided

15 for the Court’s consideration in determining what type and length of sentence is sufficient,

16 but not greater than necessary, to comply with the statutory directives set forth in 18 U.S. C.

17 � 3553(a). Mr.’s verbatim handwritten Allocution Statement addresses the following �

18 3553(a) factors:

19 1) What are your best accomplishments?

20 2) What are your best attributes?

21 3) What have you done that you are most proud of?

22 4) What are your short term goals?

23 5) What are your long term goals?

24 6) Why are you a better person now?

25 7) How does giving you leniency reflect the seriousness of your offense?

26 8) How would leniency promote your respect for the law?

and SengsTho1sandkoe Senings\TampotesFFF692oMotioa_AlIOCUdOWPd Page 1 of 3

MOME

1 9) How will giving you leniency promote other people's respect for the law?

2

10) What is a just punishment for your offense and why?

3

11) Will giving you leniency cause other people not to break the law as you did?

4

12) Why will giving you leniency protect the public from further crimes by you?

5 13) Do you need educational or vocational training?

6

14) How would leniency provide you educational or vocational training?

7

15) Do you need medical care? How would leniency provide you with medical care?

8

16) Why should the Judge give YOU a break?

9

While Mr. is not fluent in English, the attached answers were dictated by Mr. and

10 translated and written for him in English by Patricia Tovar, a secretary with the Federal

11

Public Defenders Office.

12

Respectfully submitted this th day of, 2007.

13

RICHARD A. ANDERSON

14

Federal Public Defender

15 16

17

Assistant Federal Public Defender

18 Federal Public Defenders Office

19

525 Griffin Street, Suite 629 20 Dallas, Texas 75202

21

214.767.2746

22

214.767.2886 facsimile

23 (fd.rg

24

Texas Bar No.

25

Attorney for

26

CERTIFICATE OF SERVICE

27

I, , hereby certify that on 2007, a copy of the foregoing motion was hand delivered to

28 the United States Attorney's Office, attention, at 1100 Commerce Street, 3rd Floor, Dallas,

and Settings\holsendk\Lacal Settings\Temp\notesFFF692\Form_Motionjallonudon.d Page 2 of 3

us] MO

Texas, 75202.

Assistant Federal Public Defender

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1I

USING STATISTICS EFFECTIVELY

SENTENCING RESOURCES:

Using Studies & Statistics to Support Reduced Sentences

Compiled by Sarah Gannett, D. Md., Hugh Mundy, M.D. Tenn. & Molly Roth, W.D. Tex,

Updated by Eric Fuchs & John Stinson, Law Clerks, Summer 2006

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Many of the assumptions underlying the United States Sentencing Guidelines and government sentencing recommendations are simply untrue. The following resource list was compiled to help guide you to studies and statistics that undercut many of the most common assumptions. These are just examples. Web sites, professional journals, and even newspapers are replete with such information. Citing these sources to the Court will give strength and objectivity to your sentencing arguments.

It is our hope that this resource becomes a living document that expands over time with the input of defense attorneys nationwide. If you come across a source that is not included in this list, particularly sources published by the federal government, please submit the cite and excerpt in an email to sarah gannettcifd.org or molly roth(fd.org so that it may be included in future editions of this resource.

1. Firearms Offenses 3

2. Age 4

3 Physical Condition 5

4, Race & Socio-Economic Factors 6

5. Impact on Children and Families ...................................................................................... 7

6. Substance Abuse and Mental Illness ............................................................................... 9

7. Incarceration of Non-Violent Offenders ......................................................................... 10

8. Drug Sentencing .............................................................................................................. 13

9. Crack-Power Disparity .................................................................................................... 15

10. Immigration ..................................................................................................................... 1 7

11. Sex Offenders ................................................................................................................... 20

12. Career Offenders ............................................................................................................. 22

13 . Criminal History .............................................................................................................. 23

14. Recidivism ....................................................................................................................... 24

15. Victim Impact .................................................................................................................. 27

a. Restorative Justice .............. ...................................................................................... 27

b. Interests of the Child ............................................................................................. 27

16. Sentencing Reform & Philosophy ................................................................................... 28

2

United States v. Serna, 435 F.3d 1046, 1049 (9th Cir. 2006). In holding that possession of a semiautomatic assault weapon was not a 'crime of violence' "The most plausible inference to be drawn from the evolution of federal law as to assault weapons is that Congress allowed the ban to lapse, having found it unnecessary. Because current federal policy places assault weapons on the same footing as other non-registerable weapons, we see this, on balance, as supporting [the defendant's] position" Id. at 1049.

David McDowall, Cohn Loftin and Brian Wiersema, A Comparative Study of the Preventive Effects of Mandatory Sentencing Laws for Gun Crimes, 83 J. Crim. L & Criminology 378 (1995)

"Our analysis is based on six city-specific case studies, which monitored the effects of mandatory sentencing on violent crime in Detroit, Jacksonville, Tampa, Miami, Philadelphia and Pittsburgh. The key features of the laws were the same in each area. First, each law required judges to impose a specified sentence on defendants convicted of an offense involving a gun. Second, mitigating devices such as probation, suspended sentences and parole were prohibited." Id. at 378-379. "Although the results of the case studies are complex, no individual study provides clear support for the proposition that mandatory sentencing reduces firearm violence." Id. 385.

Steven Raphael and Jens Ludwig, "Do Prison Sentence Enhancements Reduce Gun Crime? The Case of Project Exile," Evaluating Gun Policy. Jens Ludwig and Philip J. Cook, eds. Brookings (2003).

Evaluating the impact of Project Exile and mandatory sentencing enhancements on gun-related violence in Richmond, VA. "[T]he reduction in Richmond's gun homicide rates surrounding the implementation of Project Exile was not unusual and that almost all of the observed decrease probably would have occurred even in the absence of the program." Id. at 252. "Our analysis confidently rules out the possibility that Project Exile achieved the dramatic reductions in gun violence that have been claimed in the past. . ." Id. at 277.

United States Sentencing Commission, Guidelines Manual, � 51-11.1 (2005).

"Age may be a reason to depart downward in a case in which the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration"

Measuring Recidivism: the Criminal History Computation of the Federal Sentencing Guidelines, A Component of the Fifteen Year Report on the U.S. Sentencing Commission's Legislative Mandate (May 2004).

Available at: http://www.usse.gov/publical/Recidivism General,pdf

"Recidivism rates decline relatively consistently as age increases." Id. at 12.

Nora V. Demleitner, Smart Public Policy: Replacing Imprisonment with Targeted Nonprison Sentences and Collateral Sanctions, 58 STAN, L. REV. 338, 2005.

"As they constitute a large financial burden, older offenders might be a primary target group for nonincarcerative sanctions." Id, at 351..

Vera Institute of Justice, Esperanza Shows Promise at Lowering Recidivism Among Troubled Teens, Saving City Millions, 21 July 2006.

Available at: www.vera.org Vera's demonstration project "Esperanza," which provides alternatives to placement for youth in troublewith the law, is helping to save New York City million of dollars and shows promise for reducing recidivism according to a new report from the New York City Independent Budget Office (IBO). Esperancza and a similar program run by the Department of Probation saved the city more than $1.2 million in 2005 and could save nearly $5 million this year, the report notes. The authors project that outcomes could be even better if the early recidivism numbers persist: "The city will have savings from lower operating costs and also from lower recidivism which means lowerjail costs, less police time, and better outcomes for city youth."

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United States Sentencing Commission, Guidelines Manual, � 5H1 .4 (2005). "An extraordinary physical impairment may be a reason to depart downward; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment."

Erik Eckholm, "Plight Deepens for Black Men, Studies Warn," N.Y. Times, March 20, 2006. "Especially in the country’s inner cities, finishing high school is the exception, legal work is scarcer than ever and prison is almost routine, with incarceration rates climbing for blacks even as urban crime rates have declined." "If you look at the numbers, the 1990s was a bad decade for young black men, even though it had the best labor market in 30 years." "In 2000, 65 percent of black male high school dropouts in their twenties were jobless� that is, unable to find work, not seeking it, or incarcerated. By 2004, that share had grown to 72 percent, compared with 34 percent of white and 19 percent of Hispanic dropouts. Even when high school graduates were included, half Of black men in their twenties were jobless in 2004, up from 46 percent in 2000."

The Sentencing Project, The Federal Prison Population: A Statistical Analysis. Available at: http://vrww,sentencingpi-oiect.org/pdfs/federalpi.ison,pdf

"African Americans now serve virtually as much time in prison for a drug offense (57.2 months) as whites do for a violent offense (58.8 months)." Id. at 2.

Jens Ludwig, Greg J. Duncan and Paul Hirschfield, "Urban Poverty and Juvenile Crime: Evidence From A Randomized Housing-Mobility Experiment," Quarterly Journal of Economics, Vol. 116:2 (2001).

Analyzing federal and state government data on housing and juvenile crime activity in the Greater Baltimore Metropolitan Area to discover the effects of neighborhood poverty levels on criminal offending "Our central finding is that [a relocation] from a high- to a lower-poverty neighborhood reduces involvement in violent crime." "[M]oves to very low-poverty areas may cause an increase in property crime offending, at least in the short term."

United States Sentencing Commission, Guidelines Manual, � 5H1.6 (2005). "Family responsibilities that are complied with may be relevant to the determination of the amount of restitution or fine"

United States Sentencing Commission, Report to Congress: Downward Departures from the Federal Sentencing Guidelines (October 2003).

Available at: Nvww.ussc.gov/departri)tO3/del)ai-ti -DtO3.T)d "Almost all (90%) of offenders in the family ties departure sample provided caregiving and/or financial support to family members. Nearly two-thirds (61.9%) of these offenders, however, were not the sole provider of such support to dependents." Id. at 51.

Child Welfare League of America, 'What Happens to Children?" (2005). Available at: http://vnvw.ewla.org/T)rograi-ns/incarecrated/NvhathaT)Pens.h

a parent is incarcerated (1) children's lives are disrupted; (2) children often lose contact with their parents; (3) prison visits are difficult (4) most children live in poverty before, during and after their parents incarceration; (5) children experience difficult memories; and (6) children are at an increased risk for poor academic treatment, truancy, dropping out of school, gang involvement, early pregnancy, drug abuse, and delinquency.

Marc Mauer and Meda Chesney-Lind, invisible Punishment: The Collateral Consequences of Mass Imprisonment (2005).

"Examines the financially encumbered families who must travel hundreds of miles as a result of the rural prison movement, and the communities deprived of young men who would otherwise be starting families and careers."

U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, Risk Factors for Delinquency: An Overview (2001).

Aggression, anti-social behavior, substance abuse, linked to poverty, anti-social parents, broken home, separation from parents, physical and emotional abuse, and neglect. Id. at 4.

Federal Interagency on Forum on Child and Family Statistics, America’s Children: Key National Indicators of Well-Being (2005).

"Violence affects the physical, mental, and emotional well-being of young people who experience, witness or fell threatened by it. . . . such violence can adversely affect victims' mental health and development and increase the likelihood that they themselves will commit acts of serious violence. Id. at 44.

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The Sentencing Project, Incarceration and Crime: A Complex Relationship Available at: http://www.sentencingproj ect.og/dfs/incarceration-crime.pdf

"The persistent removal of persons from the community to prison and their eventual return as a destabilizing effect that has been demonstrated to fray family and community bonds, and contribute to an increase in recidivism and future criminality." Id. at?.

Nora V. Demleitner, Smart Public Policy: Replacing Imprisonment with Targeted Nonprison Sentences and Collateral Sanctions, 58 STAN. L. REV. 338, 2005.

"More than half of the women incarcerated in federal prisons have children, and more than eighty percent of them lived with their children prior to incarceration. Because of the sparseness of federal women's prisons, most of the women are housed far from their families, making it more difficult for them to stay in regular, close contact with their children. Longer prison terms often automatically end parental rights. On the other hand, children of incarcerated parents are more likely to experience a host of negative consequences, including a greater likelihood of going to prison themselves." Id, at 352. "Since many of the offenders with young children also constitute lower recidivism risks in light of their offense of conviction and their prior criminal records, sentencing judges should at least be allowed to consider the impact of a prison sentence on families and minor children. For that reason, more offenders with heavy family responsibilities, and especially those with minor children, should be eligible for intermediate sanctions." Id. at 352.

Ross D. Parke and K. Alison Clarke-Stewart, Effects of Parental Incarceration on Young Children, from U.S. Department of Health & Human Services Conference "From Prison to Home" (2001).

Available at: http://aspe.hhs.gov/hsp/prison2home02l "Over 50% of the children of incarcerated parents had school problems, such as poor grades or instances of aggression." "70% of young children with incarcerated mothers had emotional or psychological problems, Children exhibit internalizing problems, such as anxiety, withdrawal, hypervigilance, depression, shame and guilt." "Many of the problems associated with either separation from the parent or co-detention can be avoided by provision of some form of cothmunity-based sentencing, instead of prison-based incarceration. These alternatives include house arrest, half-way houses where mother and children reside, and day programs in which mothers attend programs in a correctional institution during the day but are permitted to return home at night. Devine (1997) surveyed 24 community-based programs for mothers and children in 14 states. Community sentencing programs yielded reduced recidivism and increased family preservation outcomes that have positive implications for children's adjustment. In view of the cost effectiveness achieved by reducing the number of incarcerated women, it is surprising that these types of programs are available to only a small percentage of women violators. Because the vast majority of offenses committed by women are relatively minor and non-violent (e.g., drugs, prostitution), alternatives to regular incarceration merit more consideration."

Creasie Finney Hairston, PhD, Prisoners and Families: Parenting Issues During Incarceration, from U.S. Department of Health & Human Services Conference "From Prison to Home" (2001).

Available at: http://aspe.hhs.gov/hsp/prison2home02i "Most families experience financial losses as a result of parental incarceration and the loss is greatest for those families who try to maintain the convicted individual as a family member."

10"I

Doug McVay, Vincent Schiraldi, & Jason Ziedenberg, Treatment or Incarceration: National and State Findings on the Efficacy of Cost Savings of Drug Treatment Versus Imprisonment (March 2004), Justice Policy Institute Policy Report.

Available at: http://www.iusticepolicy.org/article.php?list=type&type=98

"Though the time behind bars spent is limited, the impact of a felony conviction may last a lifetime, and even a short period of incarceration has been shown to affect people’s earnings, and ability to get a job, to be parents, and to become productive parts of their communities." Id. at 3. "Treatment is a much less expensive option than incarceration for handling substance abusing offenders." Id. at 5. "Dollar for dollar, treatment reduces the societal costs of substance abuse more effectively than incarceration does." Id. at 6.

National Treatment Improvement Evaluation Study 1997 Highlights. (March, 1997) Washington, D.C.: U.S. Department of Health and Human Services, Center for Substance Abuse Treatment, Substance Abuse and Mental Health Services Administration.

Available at: http://www.health.org/nties97/costs.htm

Treatment appears to be cost effective, particularly when compared to incarceration, which is often the alternative.

National Institute on Drug Abuse, Principles of Drug Abuse Treatment for Criminal Justice Populations, National Institutes of Health (2006).

Available at: http://www.nid�.nih.qoviPDF/PODAT CJ/PODAT CJ.pdf

"Untreated substance abusing offenders are more likely to relapse to drug abuse and return to criminal behavior. This can bring about re-arrest and re-incarceration, jeopardizing public health and public safety and taxing criminal justice system resources. Treatment offers the best alternative for interrupting the drug abuse/criminal justice cycle for offend�rs with drug abuse problems."

"In 2002, it was estimated that the cost to society of drug abuse was $180.9 billion (Office of National Drug Control Policy, 2004), a substantial portion of which�$107.8 billion�is associated with drug-related crime, including criminal justice system costs and costs borne by victims of crime. The cost of treating drug abuse (including research, training, and prevention efforts) was estimated to be $15.8 billion, a fraction of these overall societal costs. Drug abuse treatment is cost effective in reducing drug use and bringing about associated healthcare, crime, and incarceration cost savings."

Jennifer C. Karberg and Doris James, Substance Dependence, Abuse, and Treatment of Jail Inmates, 2002, Bureau of Justice Statistics Special Report (2005).

Available at: http://www.oip.usdoi.gov/bis/l)ub/‘t)df‘/sdatii02.lDdl’

"In 2002, 68% of jail inmates reported symptoms in the year before their admission to jail that met substance dependence or abuse criteria."

"Three-quarters of inmates in jail for drug or property offenses met dependence or abuse criteria." "Half of all convictedjail inmates were under the influence of drugs or alcohol at the time of offense."

Rydell, C.P. & S.S. Everingham, "Controlling Cocaine," (1994). Prepared for the Office of National Drug Control Policy and the United States Army.

Each $1 spent on cocaine treatment yield $7.48 in societal benefits.

Rutledge, Josh-,"Drug treatment urged in criminal justice," The Washington Times, 25 July 2006.

A report from the National Institute on Drug Abuse (NIDA) states that failure to treat incarcerated dug abusers can lead to higher crime rates and re-incarceration and "the costs of treatment are not nearly as high as the costs to society when drug abuse is ignored." "Ninety-five percent of those who receive no treatment while incarcerated end up relapsing into drugs. And 70 percent of those end up re-incarcerated as a result." "NIDA says every dollar spent toward effective treatment programs yields a $4 to $7 return in reduced drug-related crime, criminal costs and theft, That return is even greater when health care savings are taking into account."

10

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John Irwin, Ph.D., America's One Million Non-Violent Prisoners (March 1999), Justice Policy Institute Policy Report.

Available at: http://www.justicepolicy.org/article.php?list=type&type=83

"The European Union, a political entity of 370 million, has a prison population including violent and nonviolent offenders, of roughly 300,000. This is one-third the number of prisoners which America, a country of 274 million, has chosen to incarcerate for just nonviolent offenses." Id. at 5. "The 1,185,458 nonviolent offenders we currently lock up represents five times the number of people held in India’s entire prison system, even though it is a country with roughly four times our population." Id. at 5.

The Sentencing Project, The Federal Prison Population: A Statistical Analysis. Available at: http://www.sentencingproject.org/pdfs/federalnrjson.pdf

"Nearly three-fourths (72.1%) of federal prisoners are serving time for a non-violent offense and have no history of violence." Id. at 1,

United States Department of Justice, Bureau of Justice Statistics Fact Sheet, Profile of Nonviolent Offenders Exiting State Prisons, October 2004.

Available at: httT)://N~r\v w.oi p.usdoi.gov/bi s�/publpd.‘f/-Pnoesp.pd

Among nonviolent releases, about 1 in 5 were rearrested for a violent crime within 3 years of discharge. Id. at 2.

United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform (2004) at 13.

Available at: 1-ittp://www.ussc.gov/15 year/15year.htm

"Rehabilitation was not taken into account in formulating the guidelines."

United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform (2004) at 15, 22.

Available at: http://www.ussc.ov/15 year/ l5year.htrn

"The [Sentencing Commission Fifteen Year] Report criticizes mandatory minimum penalties for creating unwarranted uniformity, unwarranted disparity, and undue severity, and for bypassing collaboration with essential participants and criminological research as sources of sentencing policy development. However, the Report essentially acknowledges that the Commission took a had idea and made it worse."


Available at: http://www,ussc.gov/1 5 vear/15vear.htm

"Congress intended to establish a two-tiered penalty structure with five-year mandatory minimums

11

for "managers of the retail traffic," and ten-year mandatory minimums for "manufacturers or the heads of organizations"

12

a

DRUG SENTENCING

United States Sentencing Commission, Fifteen Years of Guidelines Sentencing. An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform, 2004.

Available at: http://www.ussc.gov/15 year/15year.htm

"73.7 percent of district court judges and 82,7 percent of circuit court judges [rate] drug punishments as greater than appropriate to reflect the seriousness of drug trafficking offenses." Id. at 52.

The Sentencing Project, The Federal Prison Population: A Statistical Analysis. Available at: littp://iArww.sentencingl)roject.org/pdfs,/federal]2rison.pdf

"From 1992-2002, the average time served in prison for a drug offense increased by 31% from 32,7 months to 42.9 months." Id. at 2.

See The Sentencing Project, Incarceration and Crime: A Complex Relationship at 6-7 (2005). "Incarceration has little effect on reducing drug crime because drug crime is driven by demand, and low-level dealers and couriers are easily replaced."

United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform (2004) at 44-45.

Available at: http://www.ussc.gov!15 year/15year.htm "A majority of judges responding to a 2002 survey urged greater availability of probation with confinement conditions, especially for drug offenders."

See U.S. Sentencing Commission, Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines 13 & Exh. 11 (May 2004), available at http://www.ussc.gov/research.htm.

"Of all federal offenders, drug offenders are the least likely to recidivate."

United States Sentencing Comrhission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform (2004) at 48-55, 132, 134.

Available at: http://www.ussc.gov/15 year/15year.htrn

"Tying punishment to mandatory minimum quantities, enhanced by the guidelines, sweeps in low-level offenders and punishes them as harshly as kingpins. This misdirects law enforcement resources from the kingpins and traffickers Congress had in mind."

13

MEM

United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the. Federal Criminal Justice System is Achieving the Goals of Sentencing Reform (2004) at 117-18, 127-29, 130,

Available at: htt2://,ArwAr.usse.gov/.1 5 year/i Syear.htm "A typical male drug offender is twice as likely as a female to be sentenced to prison, sentence length is 25-30% longer for men in all types of cases, women get larger downward departures, and are more likely to get an alternative sentencing option. This may be warranted by lesser involvement by women, greater family responsibilities and greater separation from their families caused by the relative scarcity of prisons for women, or it may be unwarranted disparity driven by paternalism or an incorrect assumption that men do not have family responsibilities."

14

MMEM

[Iie1Ai1 IJi1

United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform, 2004.

Available at: http://,A ,ww.usse.gov/15 year/15year.htm

The United States Sentencing Commission evaluation stated that the 100-to-i crack/powder cocaine quantity ratio disproportionately impacts a "particular offender group," (again, African-Americans) but serves "no clear sentencing purpose" because the "[t]he harms associated with crack cocaine do not justify its substantially harsher treatment compared to powder cocaine." Id. at 132-33.

"The harms associated with crack cocaine do not justify its substantially harsher treatment compared to powder cocaine." Id. at 132.

"Powder cocaine is easily converted into crack cocaine through a simple process involving baking soda and a kitchen stove. Conversion usually is done at the lowest levels of the drug distribution system. Large percentages of the persons subject to five- and ten-year penalties under the current rules do not fit the category of serious or high-level trafficker that Congress described when initially establishing the five- and ten-year penalty levels. Most crack cocaine offenders receiving sentences greater than five years are low-level street dealers. For no other drug are such harsh penalties imposed on such low-level offenders. High penalties for relatively small amounts of crack cocaine appear to be misdirecting federal law enforcement resources away from serious traffickers and kingpins toward street-level retail dealers." Id. at 132.

United States Sentencing Commission, Cocaine and Federal Sentencing Policy (May 2002) at 91.

Available at: http://www.ussc.gov/r congress/02crackl2002crackrpt.pdf

The 100-to-1 ratio "fails to meet the sentencing objectives set forth by Congress in both the Sentencing Reform Act and the 1986 Act"

Blanchard & Rogers, 'Presumptively Unreasonable: Using the Sentencing Commission's Words to Attack the Advisory Guidelines," The Champion, March 2005 at 24.

"The commission's desire to create an evenly-spaced grid took precedence over sparing defendants whose drug amounts fell between the amounts specified in the mandatory minimum statutes. By admitting this, the commission creates an opportunity for you to challenge the reasonableness of drug trafficking guideline sentences falling between the statutory mandatory minimums." Id. at 27.

Pamela A. Maclean, "After Booker, Judges Reduce Crack Cocaine Sentences," The National Law Journal, October 11, 2005.

Available at: http://w-,vw.law.com/isp/article.isp?id=1128947761797

"What has emerged among recent federal court rulings are expression by some of the jurists that a more reasonable ration would-be a 20-to-I difference between crack and cocaine."

15

Diana Murphy, Statement to Senate Judiciary Committee, May 22, 2002, reprinted in 14 Fed. Sen. Reptr. 236-239 (Nov./Dec. 2001- Jan./Feb. 2002).

"[A]ggavatidg conduct occurs in only a small minority of crack cocaine offenses" and it "does not differ substantially from the prevalence in powder cocaine offenses" Two-thirds of federal crack-cocaine defendants are street-level dealers.

William Spade, Jr., Beyond the 100:1 Ratio: Towards a Rational Cocaine Sentencing Policy, 38 ARIz. L. REV. 1233, 1249 (Winter 1996).

"The 500 grams of-cocaine that can send one powder defendant to prison for five years can be distributed to eighty-nine street dealers who, if they converted it to crack, could make enough crack to trigger the five year mandatory minimum for each defendant."

Ryan King & Marc Mauer, Sentencing with Discretion: Crack Cocaine Sentencing After Booker (January 2006), -

Available at: htti)://www.sc-iatenciiigi)roiect,org Provides a comprehensive analysis of 24 written federal court decisions in 2005 that specifically implicate Booker to assess how courts have adjusted sentencing strategies for crack cocaine under this new system.

United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform (2004) at 5-1, 131-32, Available at: http://www.ussc.gov/15 yearl15year.htm; U.S.S.G., App. C, Amend. 515, 624, 640, 668. -

- "The Commission has recommended reducing the 100:1 powder to crack ration because 'the harms associated with crack cocaine do not justify its substantially harsher treatment compared to powder cocaine,' but Congress has not yet acted on that recommendation."

Amy Baron-Evans, Sentencing Resource Counsel, Enforcing the New Sentencing Law.' Advanced Federal Criminal Appellate Practice Seminar, March 2006.

"As the May 2002 Commission Report concludes, 'there is no authoritative legislative history that explains Congress's rationale for selecting the 100 to 1 drug quantity ratio for powder cocaine and

- crack cocaine offenses." Id. at 28.

American Bar Association Justice Kennedy Commission, Report with Recommendations to the ABA House of Delegates (August 2004). -

Available at: sentencing.typepad com/sentencing law and policv/files/JusticeKennedyCommission Reports-1 iAug2004

"[The Anti-Drug Abuse Act of 1986's] differential treatment of crack and powder cocaine has resulted in greatly increased sentences for African-American drug offenders." Id. at 28.

The Act also "makes crack one of only two drugs for which possession is a felony" and it "prescribes crack as the only drug that triggers a mandatory minimum sentence for mere

- possession." Id. at 28. "The overwhelming majority of crack defendants are African-American, while the overwhelming majority f powder cocaine defendants are white or Hispanic." Id at 28.

:

IIh%itiA1iI I'll hI

Robert J. Sampson, Open Doors Don't Invite Criminals, N.Y. Times, March 11, 2006. Discussing studies showing that immigrants form stable, non-violent communities Evidence points to increased immigration as a major factor associated with the lower crime rate of the 1990's (and its recent leveling off). Living in a neighborhood of concentrated, immigration is directly associated with lower violence.

Tim Schepers, Does the Punishment Fit the Crime? U.S. Alien Deportation and the Requirement of Acceptance in Jama v, l.N.S., 28 HAMLINE L. REV. 387 (2005).

Arguing that U.S. alien-removal procedure requires nothing less than the assent of a removal country because such a process upholds congressional intent, maintains the moral character of U.S. foreign policy, and recognizes a human beings right to even-handed, safe treatment.

Blanchard & Rogers, "Presumptively Unreasonable: Using the Sentencing Commission's Words to Attack the Advisory Guidelines," The Champion, March 2005 at 24.

"The presence of [fast-track] programs in some districts, and their absence from neighboring districts, could lead to disparate sentencing outcomes for offenders convicted of similar conduct." Id. at 27. "Practitioners in districts that do not have fast-track programs have a powerful argument that a sentence within the advisory guideline range in unreasonable when similarly-situated offenders in fast-track districts routinely receive sentences well below the range." Id. at 28. "Practitioners whose clients plead guilty and waive procedural rights similar to the rights waived by offenders who benefit from formal fast-track programs can argue that a sentence four levels below the range reconimended by the advisory guidelines is a presumptively reasonable sentence." Id. at 28.

Karen C. Turnlin, Suspect First: How Terrorism Policy Is Reshaping Immigration Policy, 92 CAL. L. REV. 1173 (2004).

Arguing that since 9/11, few immigration policies have been created without terrorism policy in mind, which has led to immigration policy existing largely as a means of fighting terrorism. "Several Department of Justice post-9/11 policies explicitly employ immigration-plus profiling to impose greater scrutiny and selective enforcement of immigration laws on certain groups of immigrants." Id. at 1185.

Nora V. Demleitner, Smart Public Policy: Replacing Imprisonment with Targeted Non prison Sentences and Collateral Sanctions, 58 STAN.. L. REV. 338, 2005.

"Noncitizens should not be automatically precluded from participation in intermediate sentences. They may be particularly suited for custodial confinement or an enhanced supervision program." Id. at 353.

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MIME

Bill Ong Hing, Deporting Our Souls and Defending Our Immigrants, Amerasia Journal, Vol. 31, Issue 3 (2005).

Explores how criminality can lead to, the deportation of Asian American who have grown up in the U.S. and argues that the nation ought to be looking at alternatives to deportation.

United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform (2004) at 139; see also id. at 54, 62, 64, Fig. 2.11

Available at: http:/Iwww.ussc.gov/15 year/15year.htm "Independent of mandatory minimums, the Guidelines account for 25% of the more than, tripling of immigration offense sentences."

U,S.S,G., App. C, amend. 375. "The ranges under �21,1.2 for unlawfully entering or remaining were increased four times, the most significant of which was the 16-level increase for re-entry after an aggravated felony. That 16-level increase, the steepest increase in the Guidelines Manual, was not required by Congress, not supported by data or research, and was not explained."

United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform (2004) at 87, 91.

Available at: http://Nvww.ussc.gov/15 year/I 5year.htm "The real evidence of the undue severity of the immigration guidelines is that for many years, they have been rarely applied. Judges and prosecutors have avoided the harshness of the immigration guidelines through "fast track" charge bargaining and departures."

U.S. Sentencing Commission, Special Post-Booker Coding Project at 13-15, 98, 112,140, Jan. 5, 2006, http://www.ussc.gov/Blakely/PostBooker 01 0506.pdf.

"Average sentence length under �2L1.2 decreased from 36 months in 2000 to 35 months in 2001 to 30 months in 2002 to 28 months in 2003 to 29 months in 2004 to 27 months in 2005. The highest departure rates by district are due to fast track programs and the guidelines have been unsuccessful in reducing inter-judge disparity in immigration cases."

United States Sentencing Commission, Report to Congress: Downward Departures from the Federal Sentencing Guidelines at 139 (October 2003).

Available at: http://www.usse.gov/15 year/l5year.htm "In districts without fast track programs, defendants are receiving sentences double or more the average in cases sentenced under �2L1.2, because they are among the twenty or so percent who happen to get arrested in a district without a fast track program." Id. at 16.

Kristin F. Butcher & Anne Morrison Piehl, Cross-City Evidence on the Relationship Between Immigration and Crime, Journal of Policy Analysis and Management, Vol. 17, No. 3 (1998).

Concluding from statistical analysis that recent immigrants appear to have no effect on crime rates and that youth born abroad are statistically significantly less likely than native-born youth to be criminally active.

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Kristin F. Butcher & Anne Morrison Piehi'

Recent Immigrants: Unexpected Implications for Crime and Incarceration, 51 INDUS. & LAB. REL. REV. 654 (1998),

Study conducted extensive analysis of "institutionalization" of immigrant groups as compared to "native" groups. Institutionalization primarily indicated incarceration but also included residence at mental hospitals and other long-term care facilities. Id. at 656. As a fraction of the population, the incarceration rates between native and immigrant residents were as follows - 1980: native-born (0.0135), immigrant (0.0069); 1990: native-born (0.0216), immigrant (0.0 149) Id. at 659. Concluded that "the rate of institutionalization in the United States in 1980 and 1990 was lower among immigrants than the native born. When controls are included for characteristics that correlate with labor market opportunities and criminal justice enforcement intensity, institutionalization rates are much lower for immigrants than for natives." Id. at 677. Calculated that "if natives had the same institutionalization probabilities as immigrants, our jails and prisons would have one-third fewer inmates." Id. at 677.

19

Center for Sex Offender Management, Office of Justice Programs, US, Department of Justice, Myths and Facts About Sex Offenders (Aug. 2000).

Available at: ,j//yww.csom.org/pubs/pubs.html "It is noteworthy that recidivism rates for sex offenders are lower than for the general criminal population" Child molesters have a lower rate of reconviction than rapists (for sex offenses, 13% compared to 19% in one study). "Individual characteristics of the crime" such as gender of the victim and relationship of the offender to the victim "further distinguish recidivism rates," "Treatment programs can contribute to community safety because those who attend and cooperate with program conditions are less likely to re-offend than those who reject intervention," (Characterizing as a "myth" the notion that "treatment for sex offenders is ineffective.") Treatment costs less than incarceration ($5-15,000 compared to $22,000 for one year).

Center for Sex Offender Management, Office of Justice Programs, U.S. Department of Justice, Recidivism of Sex Offenders (May 2001).

Available at: http://www.csorn.org/oubs/pubs.html Discusses likelihood of re-offense, contributing factors, and treatments. Dynamic factors associated with recidivism should influence the structure and supervision of individualized interventions. These factors include the formation of positive relationships with peers, stable employment, avoidance of alcohol and drugs, prevention of depression, reduction of deviant sexual arousal, and increase in appropriate sexual preferences.... This model is "currently the only approach that enjoys any evidence of effectivness in reducing sexual recidivism." Id. at 16.

Bureau of Justice Statistics, Office of Justice Programs, Recidivism of Sex Offenders Released from Prison in 1994 (Nov. 2003).

Available at: littp://w-ww.oil2.usdoi.gov/bis/abstract/rsorl)94.hti-n - "[S]ex offenders had a lower overall rearrest rate" compared to non-sex offenders. "No clear-association was found between how long [sex offenders] were in prison and their recidivism rate." The more prior arrests they had, the greater their likelihood of being rearrested for another sex crime after leaving prison." -

National Juvenile Online Victimization Study, Child Pornography Possessors Arrested in Internet-Related Crimes.

Available at: http://mw.unh.edu/ccrc/ Stats on offender characteristics that can help you show that your client is "normal" or "better than normal" (at least for a sex offender), e.g., "Most CP producers had multiple victims and many victimized groups of children or adolescents." -

Hanson, R. Karl & David Thornton, Static-99: Improving Actuarial Risk Assessments for Sex Offenders.

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SEIM

Available at: hqp://Nvww.psepc-spr)cc.gc.calres/cor/rel)/cpLrnindex-.en.asp Compares the predictive accuracy of the three most commonly used sex offender risk assessment measures, Explains how each measure is used, and gives you the factors so you can present them to the court (e.g., prior sex offenses, prior non-sex offenses, male victims, stranger victims, never married, under 25 years old, etc.).

Berlin, F.S. & H.M. Maim, A. Dyer, G.K. Lehne, A Five-Year Plus Follow-up Survey of Criminal Recidivism Within a Treated Cohort of 406 Pedophiles, Ill Exhibitionists and 109 Sexual Aggressives: Issues and Outcome," 12 American Journal of Forensic Psychiatry 3 (1991).

Documenting the effectiveness of community treatment for sex offenders

21

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Available at: httl2://wwm,,usse.gov/15 year/i Syear.htm The career offender provision is a sentencing rule "that [has] a disproportionate impact on a particular offender group [namely, African-Americans] but that serve[s] no clear sentencing purpose. . The recidivism rate for career offenders more closely resembles the rates for offenders in the lower criminal history categories in which they would be placed under the normal criminal history scoring rules in Chapter Four of the Guidelines Manual. The career offender guideline thus makes the criminal history category a less perfect measure of recidivism than it would be without the inclusion of offenders qualifying only because of prior drug offenses." Id. at 134 (emphasis in original).

Anne E. Blanchard & Kristen Gartman Rogers, "Presumptively Unreasonable: Using the Sentencing Commission's Words to Attack the Advisory Guidelines," The Champion, March 2005 at 24.

"The career offender provision is not necessary to protect the public from future crimes of the defendant when the provision's application to the defendant rests on his or her prior drug trafficking convictions." Id. at 27.


Available at: http://wwml.usse.gov/15 year/15year.htm "The Career Offender guideline has a racially disparate impact on Blacks that is not warranted by an increased risk of recidivism."


Available at: http://www.usse,gov/15. year/15year.htm 'The racial disparity is not warranted because the recidivism rate for offenders whose 'career offenders' status is based on controlled substance offenses is not more than that for offenders in the criminal history category in which they would have been placed under normal criminal history rules, This means that career offender status is unwarranted in any case in which the predicates are controlled substance offenses, regardless of the defendant's race."


Available at: httn:HwA,w.ussc.gov/l5 year/i Syear.htm "The use of non-moving violations in the criminal history score may also adversely affect minorities."

9kIIhY'IU : uasiu 22

United States Sentencing Commission, Guidelines Manual, � 4A1.3 (2005). "If reliable information indicates that the defendant's criminal history category is substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes, a downward departure may be warranted,"

RECIDIVISM

23

Measuring Recidivism: the Criminal History Computation of the Federal Sentencing Guidelines, A Component of the Fifteen Year Report on the U.S. Sentencing Commission's Legislative Mandate (May 2004).

Available at: http: /Iwww,ussc.gov/publicatlRecidivism General.pdf

� Provides specific data supporting USSG Guidelines, including data on age, gender, employment status, and educational attainment Criminal history points are more predictive of recidivism than an offender’s Criminal History Category. Id, at 7. "Women recidivate at a lower rate than men, and the difference is even greater in CHC V and VL" Id. at 11.

� "Recidivism rates decline relatively consistently as age increases, from 35.5% under age 21 to 9.5% over age 50." Id. at 12. "Stable employment in the year prior to arrest is associated with a lower rate of recidivism. However, in CHC V, recidivism rates are higher for those with a college education than those with less than a high school education." Id. at 12. "Recidivism rates decrease with educational level of recidivism." Id, at 12, "Offenders sentenced under the fraud, larceny and drug guidelines are the least likely to recidivate, and drug offenders are the least of all except in CHC I." Id. at 13.

"The Offense Level is not a predictor of recidivism." Id. at 13. "Offenders are most likely to recidivate when their sentence is straight prison, as opposed to probation or split sentences." Id. at 13.

� Conclusion: Rehabilitation programs focused on drug use or education would have a high cost- benefit value (and should be used instead of incarceration where appropriate.)

Recidivism and the "First Offende"A Component of the Fifteen Year Report on the U.S. Sentencing Commission's Legislative Mandate (May 2004).

Available at: http://www.ussc.gov/publicat/Recidivism FirstOffender.pdf "The guideline mitigating role adjustments to reduce the offense level was infrequently given: only 5.6 percent among all offenders in CHCs II through VI received this adjustment. First time offenders were overall, only slightly more likely to receive this adjustment." Id. at 10.

"All offenders with zero criminal history points have a primary recidivism rate of 11.7 percent. This zero point offender rate is substantially lower than the recidivism rates for offenders with only one criminal history point. (22.6%), or for offenders with two or more points (36.5%) combined in the CHC II though CHC VI." Id. at 13-14. "The three first offender groups all come from offenders with zero criminal history points, and are defined as follows: group A contains offenders with no prior arrests; group B contains offenders with prior arrests, but no prior convictions; and group C contains offenders with only prior convictions that are to never count towards criminal history. Among these groups the lowest recidivism rate is for group A with a rate of 6.8 percent. Group B has a recidivism rate of 17.2 percent. Group C has a recidivism rate of 8.8 percent." Id. at 16-17, "Recidivism risk . . . is lowest for offenders with the least experience in the criminal justice system. Offenders with zero criminal history points have lower recidivism rates than offenders with one or more criminal history points. Even among offenders with zero criminal history points, offenders who have never been arrested have the lowest recidivism risk of all." Id at 17.

A Comparison of the Federal Sentencing Guidelines Criminal History Category and the U. S. Parole Commission Salient Factor Score, A Component of the Fifteen Year Report on-the U.S.

24

S.

Sentencing Commission's Legislative Mandate (January 2005). Available at: http://wwwussc,gov/publicat/RecidivismSalientFactorCompdf

� The SFS method is a better predictor of recidivism than is the CHC. Id. at 12,

VICTIM IMPACT

25

EMM

Coberi, J. & Penelope Harley, "Intentional Conversations About Restorative Justice, Mediation and the Practice of Law," 25 HAMLJNE JOURNAL OF PUBUC LAW AND POLICY 235 (Spr. 2004).

Describing the positive impact of restorative justice approaches that consider victim need and provide offenders with experiences that motivate reform.

Interests of the Child

Faller, Kathleen Coulborn, United States Department of Health and Human Services Administration for Children and Families, Child Sexual Abuse: intervention and Treatment Issues (1993).

Available at: http:I/nccanch .acf.hhs. gov/ubsIusermanuaisIsexabuse/index.cfm

Discussing importance of family therapy and wishes of the child

"The court can be helpful in compelling family members, especially offenders, into treatment; in protecting victims and families from offenders; and in effecting alternative living situations for offenders (or victims, if necessary)."

aursi iei i ai iYA 1 lii UJ[OJ I '4

U.S. Sentencing Commission, Public Opinion on Sentencing Federal Crimes at 86 (Oct. 1995).

26

mom

Available at: http://,Arww.usse.gov/nss/ip exsum.htm

"Fairly strong consensus exists on the seriousness ordering of crimes, with those involving actual or threatened physical harm to victims generally considered to be the most serious and status victimless crimes regarded as least serious." Id. at 11.

"In giving concrete sentences to convicted persons, citizens are not guided solely by the seriousness of the crimes but also by the convicted person’s previous record and the amount of damage or loss suffered by victims." Id. at 12.

� "There is some evidence that respondent sentencing preferences can be affected, perhaps strongly, by providing a wider range of punishment choices, information on prison conditions, and the costs of incarceration." Id. at 12,

"The general public does not make important distintions between trafficking in heroin, powder cocaine and crack cocaine." Id. at 86. "[The general public] did not typically favor long prison sentences for drug possession." Id, at 85.


Available at: htti)://mrww.u.sse.gov/15 year/i 5vear.htm

"Using a sample of 264 federal judges sentencing a different series of hypothetical cases, they found that judges who were on average than judges who emphasized other goals." Id. at 80.

Samuel B. Lutz, The Eighth Amendment Reconsidered: A Framework forAnalyzing the Excessiveness Prohibition, 80 N.Y.U. L. REV. 1862 (2005).

Asserting that the Supreme Court must revisit 8" Amendment jurisprudence to create a consistent standard for excessive criminal sanctions.

"Current doctrine has created a situation in which nonviolent offenses like cocaine possession or obtaining $120.75 by false pretenses can be punished by mandatory life imprisonment, while far more serious crimes of rape, felony-murder, and even non-aggravated murder cannot be punished by death. Thus, despite the fact that life imprisonment and death are the two most-severe punishments authorized by law and are similar in the enormous degree to which they infringe upon an individual’s interests, the level of scrutiny applied to each is dramatically different." Id, at 1876.

Erik Luna, Gridland: An Allegorical Critique of Federal Sentencing, 96 J. CRIM. L. & CRIMINOLOGY 25 (2005).

Advocating post-Booker for sentencing policies that (1) consider all the factors that distinguish individual defendants and offenses; and (2) allows judges to make a decision based on a moral balancing of the crime, the individual factors and circumstances, and the judge’s legal experience.

"The fair method for sentencing is for an impartial judge, who is fully cognizant of an individual defendant’s personal character, family responsibilities, medical and mental condition, criminal record, and the particular circumstances surrounding the crime, to impose a sentence after deep reflection, informed by the judge’s experience in life and in the law." Id. at 78.

Nora V. Demlietner, Smart Public Policy: Replacing Imprisonment With targeted Nonprison Sentences and Collateral Sanctions, 58. STAN. L. REV. 339 (2005).

Arguing that post-Booker, federal courts should follow the lead of the states and impose non-

27

ONDSM

prison sanctions on offenders who pose a low-risk to public safety.

Patrick Kelly & Don Stemen, Probation Reform: Is Zero Tolerance a Viable Option?, Vera Institute of Justice, Research and Practice Forum (October 2005).

Outlining a probation and community-corrections punishment model that empowers officers to create rewards and sanctions for offenders.

Andrew R. Strauss, Losing Sight of the Utilitarian Forest for the Retributivist Trees: An Analysis of the Role of Public Opinion in a Utilitarian Model of Punishment, 23 CARDOzO L, REV. 1549 (2002).

Arguing that the juvenile justice system has become inflexibly retributive as the result of mounting political pressure and public misperception. Asserting that the law must return to

utilitarian goals that seek to deter and rehabilitate criminal conduct. "The juvenile justice system has evolved over the past thirty years from a rehabilitative system to a punitive one, due in large part to a misplaced emphasis on public opinion. This change has been harmful both to society and the juvenile. [D]etermining what works, rather than by appeasing the public, is of premier importance."

Steven L. Chanenson, The Next Era of Sentencing Reform, 54 EMORY L.J. 377 (2005). Advocating for an indeterminate sentencing system wherein a commission creates a presumptive minimum and maximum sentence and a system of parole release that allows judges and parole boards to tailor incarceration to the requirements of the offense and the individual characteristics and conduct of the offender.

Steven L. Chanenson, Guidance from Above and Beyond, 58 STAN. L. REV. 175 (2005). Advocating for the adoption of three sentencing "tools" in the wake of Booker: more thorough appellate review of sentences; resinstitution of parole release authority; and creation of "extended sentences review" for older offenders serving lengthy prison terms.

Aaron Xavier Felimeth, Civil and Criminal Sanctions in the Constitution and Courts, 94 GEO. L.J. 1 (2005).

Finding that federal courts draw too sharp a line between civil and criminal offenses when interpreting constitutional protections while federal government agencies increasingly impose severe "civil penalties" on individuals. Arguing that the courts and federal government need to reform criminal and civil sanctioning to ensure constitutional protections, proper deterrence, and basic fairness.

John Braithwaite, A Future Where Punishment is Marginalized: Realistic or Utopian? 46 UCLA L. REV. 1727 (1999).

Arguing for restorative justice to bring together stakeholders (victims, offenders, communities) in search of outcomes that heal the hurt of crime, instead of responding with more hurt.

The Sentencing Project, Incarceration and Crime: A Complex Relationship Available at: http://www.sentencingproect.org/pdfs/incarceration-crimepf

"Incarceration does not always have a uniformly positive impact on reducing crime and that, therefore, other factors significantly affect crime trends," Id. at 3.

28

as 1

"Nationally, violent crime has declined by 33% and property crime has decreased 23% since 1994, During the same period incarceration rates rose by 24%." Id. at 3. "Between 1991 and 1998, those states that increased incarceration at rates that were less than the national average experienced a larger decline in crime rates than those states that increased incarceration at rates higher than the national average." Id, "Expanding the use of imprisonment inevitably results in diminishing returns in crime control, This is because high-rate and serious or violent offenders will generally be incarcerated even at modest levels of imprisonment, but as prison systems expand, new admissions will increasingly draw in lower-rate offenders." Id. at 6. "The expenditure of $) million to expand mandatory minimum sentencing would result in a national decrease in drug consumption of 13 kilograms, while dedicating those funds to drug treatment would reduce consumption by 100 kilograms." Id at 8 (citing Cauikins, J.P., Rydell, C.P., Scwabe, W.L., Chiesa, J. (1997). MandatoiyMiniinurn Drug Sentences: Throwing Away The Key or The Taxpayers' Money? Santa Monica, CA: RAND.)

Nancy Lucas Restitution, Rehabilitation, Prevention, and Transformation: Victim-Offender Mediation for First-Time Non-Violent Youthful Offenders, 29 HOFSTRAL. REV. 1365, 2001.

"Restorative justice is characterized by the following three principles: First, crime is not, as is often wrongly assumed, primarily an offense against the state. Rather, it is a conflict between individuals resulting in injuries to victims, communities and the offenders themselves; only secondarily is it lawbreaking. Second, the overall aim of the criminal justice process should be to make peace between the parties, repair the harm caused by crime, and not to be obsessively concerned about punishment for punishment's sake. Finally, the criminal justice process should not be "dominated by the government" to the exclusion of victims, communities, and the offenders themselves." Id. at 1370.

Nora V. Demleitner, Smart Public Policy: Replacing Imprisonment with Targeted Non prison Sentences and Collateral Sanctions, 58 STAN. L. REV. 338, 2005.

"In contrast to many state and foreign systems that allow for fines, restitution orders, and community service as stand-alone sanctions, the Federal Guidelines permit them; only as part of a probation sentence. The federal criminal justice system only offers limited forms of alternative sanctions, Among the notable omissions are intensive probation with enhanced supervision of offenders and day fines that are based directly on the gravity of the offense and an offender's economic situation." Id. at 344. "Nonprison sentences allow, and even require, individuals to be employed, pay fines, and make restitution, pay taxes, and assist their families. Such demands are crucial to allowing them to regain their place in society." Id. at 346.

OHear, supra note 44. "In contrast to mitigating offender characteristics and offense circumstances, the Guidelines fully reflect one aggravating characteristic of the defendant and a seemingly infinite and ever-increasing sea of aggravating offense circumstances. In assessing its work over the first fifteen years, the Sentencing Commission has identified some guidelines that produce sentences that are too severe, but none that are not severe enough. Thus, it is highly probable that the guideline range already takes into account whatever factor the government may argue for a sentence above the guideline

29

range, and it should be extremely difficult for a judge to justify a sentence higher than the guideline range as insufficient to meet the goals of sentencing."

Hofer & Aflenbaugh, supra note 58, at 83; Justice Stephen Breyer, Federal Sentencing Guidelines Revisited, 11 Fed. Sent. R. 180, **30 35 (Jan/Feb. 1999)

"As both Justice Breyer and the Commission's Senior Research Associate note, . the Commission and appellate courts treated the departure power more restrictively than originally intended."

American Bar Association Justice Kennedy Commission, Report with Recommendations to the ABA House of Delegates (August 2004).

Available at: sentencing.typepad.comlsentencing law and policy/files/JusticeKennedyCommission Reports lAug2004

"Our recommendation is that shorter period of incarceration should be prescribed for offenders whose crimes are not the most serious and do not pose the greatest danger to the community. We believe that the trend throughout the states is to recognize that the seriousness of the crime and the danger to the community are key factors in determining both whether incarceration is an appropriate sanction and how lengthy a sentence of incarceration is warranted." Id. at 25. "The reality . . . is that well designed alternatives to incarceration that save money, protect the community and reduce recidivism are worth exploring once they have been shown to work." Id. at 29. "If treatment works, reduces recidivism, and is cost-effective, it is a desirable alternative to incarceration for many low-level offenders." Id. at 32.

"Not all who violate a condition of parole require imprisonment. Imprisonment may be the correct sanction for violators who commit additional criminal acts or who pose a danger to the community, but a graduated system of sanctions may make as much sense in the parole/probation context as in the basic sentencing decision following conviction." Id. at 34.

John J. Gibbons and Nicholas Katzenbach, Commission Co-Chairs, Confronting Confinement: A report of the Commission on Safety and Abuse in America's Prisons, Vera Institute of Justice (2006).

Available at: http://www.prisoncommission.org/pdfs/Conftonting Confinement,pf

"What happens inside jails and prisons does not stay inside jails and prisons. It comes home with prisoners after they are released and with corrections officers at the end of each day's shift. When people live and work in facilities that are unsafe, unhealthy, unproductive, or inhumane, they carry the effects home with them. We must create safe and productive conditions of confinement not only because it is the right thing to do, but because it influences the safety, health, and prosperity of us all:" Id. at 11.

30

SAMPLE SENTENCING MEMORANDA


-- - - - - - - - - - - x

UNITED STATES OF AMERICA

-

08 CR xxx (xxx)

JANE DOE,

Defendant.

-- - - - - - - - - - - x

DEFENDANT JANE DOE'S SENTENCING MEMORANDUM

Federal Defenders of New York, Inc. Attorneys for Defendant Jane Doe 52 Duane Street - 10th Floor New York, New York 10007 Tel.: (212) 417-8736

STEVEN M. STATSINGER, ESQ. Of Counsel

TO: LEV L. DASSIN, ESQ. Acting United States Attorney Southern District Of New York One St. Andrew's Plaza New York, New York 10007 Attn: xxxxx xxxxxx, Esq.

Assistant United States Attorney


-- - - - - - - - - - x

UNITED STATES OF AMERICA

- v- -

08 CR xxx (xxx) JANE DOE,

Defendant.

-- - - - - - - - - - x

DEFENDANT'S SENTENCING MEMORANDUM

This Sentencing Memorandum is respectfully submitted in advance

of Ms. Doe’s sentencing, currently scheduled for xxxxx, 2009. For

the reasons set forth in Section B(l) below, the Court should

conclude that Ms. Doe was not deported after a conviction for a

drug trafficking offense" as defined in U.S.S.G, � 2L1.2(b), and

thus that the 16-level enhancement of � 2L1.2(b) (1) (A) does not

apply. Rather, the Court should use the 8-level aggravated felony"

enhancement of � 2L1.2(b) (1) (C) . Alternatively, for the reasons set

forth in Section B(2) below, if the Court rejects this argument and

concludes that Ms. Doe was convicted of a drug trafficking offense,

it should conclude that the "sentence imposed" on that conviction

did not exceed 13 months’ imprisonment, and should use the 12-level

enhancement set out in � 2L1.2 (b) (1) (B) . In addition, for the

reasons set forth in Section C below, the Court should conclude that

- 1 -

Ms. Doe is in criminal history category II, not III. Finally, for

the reasons set out in Section E below, regardless of the Guideline

recommendation,, the Court should sentence Ms. Doe to a lenient a

non-Guideline sentence in light of her heartbreaking personal

circumstances.

A. MS. DOE'S BACKGROUND AND OFFENSE CONDUCT

1. Ms. Doe's Tragic Background

Ms. Doe’s true name is xxx xxx. She was born on xx xx, 19xx,

in Kingston, Jamaica. Her parents were not married, and she was

their only child. The parents separated soon after she was born, and

her mother abandoned her to her father when she was three months

old. PSR at � 37. When she was one year old, her father was

incarcerated, and left her with his new girlfriend, xxxx xxxx.

Ms. Doe had a truly miserable childhood. From the time she was

5 years old, she was repeatedly sexually abused by all four of her

step-brothers (Ms. xxxx’s sons) . PSR at � 39, In addition, Ms. xxxx

regularly beat her. PSR at � 39. When Ms. Doe was 10, her father was

released from prison and she went to live with him. But when her

father began sexually abusing her, Ms., Doe had no choice but to

return to Ms. xxxx’s household. PSR at � 39. She only escaped by

becoming pregnant by someone else, at age 13. This allowed her to

leave Ms. xxxx’s home to live with xxxx xxx, the child’s father. PSR

at � 39.

Ms. Doe ultimately had three children with Mr. xxx. All are

-2-

S

grown and live in Jamaica. In addition, Ms. Doe has a son, xxx xxx

who is approximately 16, and a 7-year--old daughter, xxx.

2. Education and Employment

Ms. Doe attended school in Jamaica, but dropped out after the

seventh grade because she was pregnant. PSR at � 49. She cannot read

or write. While at the MOO, Ms. Doe has completed a parenting

course r see Exhibit A attached hereto, and a breast cancer awareness

seminar. Exhibit B.

Since her arrest, Ms. Doe has been working at the commissary

at the MOO. For 8 months in 2008 she was a home attendant in

Yonkers. When she was deported to Jamaica, she worked as a street

vendor. She then moved to England, where she cleaned railway cars

and hotel rooms.

3. The Offense Conduct and Ms. Doe's Deep Remorse

Ms. Doe has an exceptionally sympathetic reason for committing

the crime of illegal reentry. She did so to find her son, xxxx, whom

she had no choice but to abandon as an infant at the time of her

1994 deportation. As she explained to the Court at the time of her

plea, and again to the probation officer who prepared her pre-

sentence report, .Ms. Doe was deported in 1994, when her son was 2

years old. She left him with his father, and never saw him again.

She came back to the United States to try to find him, but was

- 3 -

unable to locate either the boy or his father.’

As noted above, Ms. Doe is illiterate. However, while at the

MCC she dictated her feelings about the offense to another inmate,

who kindly put them on paper. In that letter, attached hereto as

Exhibit C, Ms. Doe writes I would like to tell you now what the

last thirteen years has been like for me, it has been a living and

waking emotional and psychological hell on earth not knowing if my

son is alive or dead. It is a suffering I would not wish for another

mother to experience."

Ms. Doe’s letter goes on to explain that she now understands

that searching for her son from within the United States "is not a

viable option that’s available to me as in doing so will cause me

to be incarcerated."

B. THE OFFENSE LEVEL CALCULATIONS IN THE PRESENTENCE REPORT ARE INCORRECT.

The presentence report in Ms. Doe’s case recommends a total

offense level of 21: a base offense level of 8 under U.S.S.G. �

2L1.2(a) enhanced by 16 levels under � 2L1.2(b) (l)(A) because Ms.

Doe allegedly was deported after "a conviction for a felony that - is

a drug trafficking offense for which the sentence imposed

exceeded 13 months." Deducting 3 levels for acceptance of responsi-

bility results in the recommended offense level of 21. However, for

’ Our office has been unable to help with Ms. Doe’s guest. Hampered by Ms. Doe’s inability to spell the relevant names, and her uncertainty as to either the son’s or the father’s date of birth, we lack sufficient information to find either person.

- 4 -

IWOZ

the reasons set out below, the 16-level enhancement does not apply

in Ms. Doers case.

1. There is Insufficient Evidence that Ms. Doe Was Convicted of a Drug Trafficking Offense.

Here, there is insufficient evidence that Ms. Doe was convicted

of a "drug trafficking offense." Accordingly, the Court should not

apply the 16-level enhancement under � 211.2 (b) (1) (A) . Rather, since

she was convicted of an "aggravated felony," the Court should use

the 8-level enhancement prescribed by � 2L1.2 (b) (1) (C)

In 1991, Ms. Doe was convicted of committing criminal posses-

sion of a controlled substance in the fifth degree, in violation of

N.Y. Penal Law � 220.06 (McKinney 1989) . At that time, the statute

provided that:

A person is guilty of criminal possession of a controlled substance in the fifth degree when he knowingly and unlawfully possesses: 1. a controlled substance with intent to sell it; or 2. one or more preparations compounds, mixtures or substances of an aggregate weight of one-half ounce or more containing a narcotic preparation; or 3. fifty milligrams or more of phencyclidine; or 4. one or more preparations, compounds, mixtures or substances of an aggregate weight of one-quarter ounce or more containing concentrated, cannabis as defined in paragraph (a) of subdivision five of section thirty-three hundred two of the public health law. 5. five hundred milligrams or more of cocaine.

On the assumption that Ms. Doe was convicted under Subsection 1 of

� 220.06, the presentence report has concluded that Ms. Doe was

convicted of a "drug trafficking offense" for the purposes of

U.S.S.G. � 2L1.2(b), and has recommended that her sentence be

- 5 -

enhanced accordingly. However, given the age of Ms. Doe’s prior

conviction, there is insufficient evidence that she was actually

convicted of violating Subsection 1 of � 220.06, and hence,

insufficient evidence that her 1991 conviction arose from a "drug

trafficking offense.

For purposes of � 2L1.2(b), a "drug trafficking offense" means

"an offense under federal,. state, or local law that prohibits the

manufacture, import, export, distribution, or dispensing of, or

offer to sell a controlled substance (or a counterfeit substance)

or the possession of a controlled substance (or a counterfeit

substance) with intent to manufacture, import, export, distribute,

or dispense." � 2L1.2, comment. n.2(B) (iv) . Simple possession of a

controlled substance, however, is not a "drug trafficking offense"

under this definition. United States v. Ramirez, 344 F.3d 247, 252

(2d Cir. 2003)

Accordingly, only a violation of Subsection 1 of Penal Law �

220.06 - which makes it a crime to possess a controlled substance

"with intent to sell it" - constitutes a "drug trafficking offense."

The other Subsections of that statue prohibit the simple possession

of. various types or quantities of specific drugs, with no require-

ment of any distributional intent.

Here, while the Certificate of Disposition for Ms. Doe’s 1991

conviction, which was generated in 2008 and is attached hereto as

Exhibit D, appears to reflect a conviction under Subsection 1, in

21RIM

fact there is considerable doubt as to whether this is correct, and

Ms. Doe specifically disputes it. As explained by the Court of

Appeals in United States v. Green, 480 F.3d 627, 633 (2d Cir. 2007),

while such certificates are presumptive evidence, that presumption

is rebuttable, not conclusive. More pertinently, Green describes

litigation in the New York State courts that revealed that "prior

to the 1990Ts," if no subsection was entered into the computer at

the time the defendant pled guilty, the state's computers were

automatically programmed to indicate Subsection 1 when a subsequent

certificate of disposition was produced, whether the defendant pled

guilty to Subsection 1 or not. Id. at 633-34.

The Green court accordingly concluded that the reference to

Subsection 1 in a defendant's Certificate of Disposition arising

from a conviction that occurred in that era - there, the Certificate

was generated in 2005 but the conviction was from 1996 - could have

been the result of this "default mode" error during the "recording,

inputting, or accessing" stages of the state's record-keeping. If

this occurred, "then the reference to [Subsection 1] ... could not

properly be taken at face value." Id. at 635. The court vacated the

sentence and remanded for further proceedings, reminding that since

the government bears the burden on this question, it must provide

"evidence to show that the reference to [S]ubsection (1) in Green's

Certificate of Disposition is accurate, rather than a subsection

- 7 -

added by default." 2

Ms. Doe’s case is indistinguishable from Green. The only

evidence that she was convicted of a drug trafficking offense is a

spurious Certificate of Disposition from a conviction that clearly

falls within the time period when New York State computers regularly

committed the "default mode" Subsection 1 error. 3 Accordingly,

unless the government can provide reliable evidence that Ms. Doe was

actually convicted of Subsection 1 of Penal Law � 220.06, the Court

cannot conclude that she was convicted of a "drug trafficking

offense."

It should be noted that Shepard v. United States, 544 U.S. 13,

20-21 (2005) , limits the type of evidence that can satisfactorily

establish this fact to "judicial record evidence," such as a

"statement of factual basis for the charge, . . . shown by .a tran-

script of plea colloquy or by a writcen plea agreement presented to

the court, or by a record of comparable findings of fact adopted by

the defendant upon entering the plea." Neither a police report, id.,

nor a presentence report, United States v. Rosa, 507 F.3d 142, 157

(2d Cir. 2007), will suffice..

2 The remand never took place. Green was deported while his appeal was pending, and the district court granted his attorney’s motion to "forgo further sentencing proceedings." United States v. Green, No. 04-cr-216 (MRK) (D.Conn.), docket entries 49 & 50.

The actual conduct associated with the conviction, as described in the current presentence report, assuming arguendo that it is accurate, would also violate Subsections 2 and 5 of � 220.06.

- 8 -

Accordingly, under this analysis, Ms. Doe is not subject to any

sentencing enhancement under � 2L1.2 (b) relating to a "drug

trafficking offense" She can be subject only to either the 8-level

enhancement under � 211.2(b) (1) (C) for deportation after "conviction

for an aggravated felony," or the 4-level enhancement under �

2L1,2(b) (1) (D) for deportation after a "conviction for any other

felony." Although the Certificate of Disposition is not sufficient

to establish the particular subsection under which Ms. Doe was

convicted, that document also indicates that the drug that she

possessed was crack cocaine. There is no apparent basis to dispute

this. Accordingly, the Certificate establishes that Ms. Doe was

convicted of an "aggravated felony," and hence that the 8-level

enhancement should apply.

For these reasons, the Court should conclude that Ms. Doe’s

total offense level is 13 - 8 plus 8 minus 3 - and not 21,

2. Even if the Court Concludes that There Is Evidence that Ms. Doe's 1991 Conviction Was for a "Drug Trafficking Offense," the "Sentence Imposed" Did Not Exceed 13 Months.

Alternatively, even if the Court finds that there is sufficient

evidence that Ms. Doe’s 1991 conviction was for a "drug trafficking

offense," the 16-level enhancement still does not apply, because the

"sentence imposed" did not exceed 13 months, as required by �

2L1.2(b) (1) (A). When Ms. Doe was originally convicted in that case,

she was sentenced to 6 months’ imprisonment and 5 years’ probation.

PSR at a � 26. A probation violation resulted in her being resen-

-9-

sUM

tenced to one year’s imprisonment. Id. Since neither of those

sentences exceeded 13 months’ imprisonment, and since there is no

authority under � 211,2 to aggregate them, even assuming arguendo

that the Court finds that the conviction was for a "drug trafficking

offense" at all, it must apply the 12-level enhancement under �

211.2(b) (1) (B) that applies to a drug trafficking offense for which

the sentence imposed was 13 months or less."

The Second Circuit has never authorized aggregating an original

sentence and a violation sentence to reach the 13-month cut-off that

divides �5 211.2(b) (1) (A) and (b) (1) (B). Although United States v.

Compres -Paul ino, 393 F.3d 116, 118 (2d Cir. 2004), permits the use

of .a violation sentence to satisfy � 2L1.2(1) (1) (A), that case does

not address the question of aggregation. Ihere, the violation

sentence itself exceeded 13 months, and the court was not called

upon to address the issue.

Moreover, in United States v. Huerta-Moran, 352 F.3d 766,. 769-

70 (2d Cir. 2003) (revocation sentence that itself exceeded 13

months’ imprisonment triggered � 211.2(b) (1) (A)), the court

expressly declined to reach the question. It noted that the issue

was "complicated," and expressed doubt that those courts that had

permitted aggregation were correct. Id. atn.6. Moreover, the court

noted that the issue was dicta in those cases, id. at n.4, and that

those cases were ’sin tension" with other Second Circuit precedent.

Id.. at n.6. Specifically, the court pointed out that in United

- 10. -

States v, Valdovinos-Soloache,309 F. 3d 91 (2d Cir. 2002), it held

that "that it is appropriate to look only to the initial sentence

imposed for purposes of determining the length of the "sentence

imposed" under � 21,1.2(b). " Huerta-Moran, 352 F.3d at 770 n.6,

emphasis in original.

The text of the relevant Guideline provisions fully supports

the Second Circuit’s skepticism that both the initial and any

violation sentences are to be aggregated to reach a "sentence

imposed" of 13 months or longer for � 2L1.2(b) (1) (A). The commentary

to � 21,1.2 provides that the term "sentence imposed" has "the

meaning given the term ’sentence of imprisonment’ in Application

Note 2 and subsection (b)of � 4A1.2." � 2L1. 2, comment. n.1(B) (vii).

But neither of those provisions requires aggregation.

Rather, subsection (b) of U.S.S,G. � 4A1.2 defines the term

"sentence of imprisonment" as "a sentence of incarceration and

refers to the maximum sentence imposed." � 4A1.2(b) (1), emphasis

added.’ This section quite pointedly uses the word "maximum," and

not the word "aggregate.’( In Ms. Doe’s case, the "maximum" sentence

she received on the 1991 conviction was one year in prison, which

is, of course, less than 13 months.

Nor does Application Note 2 to � 4A1.2 authorize aggregation.

That comment provides:

It also deals with suspended sentences, an issue not relevant here. � 4A1.2(b) (2).

- 11 -

To qualify as a sentence of imprisonment, the defendant must have actually served a period of imprisonment on such sentence (or, if the defendant escaped, would have served time). See �4A1.2(a) (3) and (b) (2). For the purposes of applying �4A1.1(a), (b), or (c), the length of a sentence of imprisonment is the stated maximum (e . g . , in the case of a determinate sentence of five years, the stated maximum is five years; in the case of an indeterminate sentence of one to five years, the stated maximum is five years; in the case of an indeter-minate sentence for a term not to exceed five years, the stated maximum is five years; in the case of an indeter-minate sentence for a term not to exceed the defendant’s twenty-first birthday, the stated maximum is the amount of time in pre-trial detention plus the amount of time between the date of sentence and the defendant’s twenty-first birthday) . That is, criminal history points are based on the sentence pronounced, not the length of time actually served, See �4A1.2(b) (1) and (2). A sentence of probation is to be treated as a sentence under �4A1.l(c) unless a condition of probation requiring imprisonment of at least sixty days was imposed.

� 4A1.2, comment. n. 2. Again, this section does not deal with

aggregating initial and violation sentences, and hence has no

applicability to Ms. Doe’s case.

And, while there is a provision of � 4A1,2 that provides for

aggregating initial and violation sentences for criminal history -

not offense level - purposes, � 4A1.2(k) (1), neither � 211.2 nor its

commentary incorporates � 4A1. (k) (1) . And there is no legal basis

for importing that provision to � 2L.2 without a specific instruc-

tion to do so. The clear "negative implication" of the omission of

� 4A1.2 (k) from the commentary to � 2Ll.2 is that the Sentencing

Commission did not intend for aggregate sentences to trigger the �

211.2(b) (1) (A) enhancement. See., e.g., Custis v. United States, 511

U.S. 485, 491 (1994) (inclusion of a provision in some statutes but

- 12 -

slum

not in a different statute created a "negative implication" that the

provision was intentionally omitted, and hence, did not apply)

In addition, the Second Circuit has specifically rejected the

blanket importation of the Chapter 4 criminal history principles

into � 2L1.2. In United States v. Hidalgo-Macias, 300 F.3d 281, 286

(2d Cir, 2002) , the court held that the "offense level determination

is intended to serve a different purpose than criminal history

calculation; the two are analyzed independently" and went on to

conclude that "[t]here is no authorization or justification for

consulting the criminal history rules in Chapter Four for an

explanation of" a term in chapter 2.

Accordingly, since the "maximum" sentence, �8 4A1.2 (b) (1)

2L1. 2, comment, n.1(B) (vii), imposed on Ms. Doe’s 1991 conviction

was one year’s imprisonment, and since � 2L1.2 does not permit

aggregating initial and violation sentences, if the Court concludes

that she was convicted of a "drug trafficking offense" at all, it

should also conclude that the 12-level enhancement under �

211.2(b) (1) (3) and not the 16-level enhancement under �

Nor does Hidalgo-Macias permit the type of aggregation at issue here. In that case, the court aggregated initial and revocation sentences to conclude that the sentence was long enough for an offense to meet the definition of "aggravated felony" in 8 U.S.C. � 1101 (a) (43), an entirely different question than that presented here. Indeed, in Huerta-Moran, the court specificlJ.y relied on Hidalgo-Macias in expressing its skepticism that aggregate sentences could trigger the 16-level enhancement for � 211.2(b) (1) (A). See Huerta-Moran, 352 F.3d at 760-70 & n.4, 5.

- 13 -

2L1.2(b) (1) (A) applies.

Under this alternative analysis, the correct offense level

would be 17 - 8 plus 12, minus 3.

C. THE CRIMINAL HISTORY CALCULATIONS IN THE PRESENTENCE REPORT ARE INCORRECT.

The presentence report indicates that Ms. Doe’s 1991 drug

conviction generates 3 criminal history points. PSR at � 26. This

calculation is cOrrect. 6 Three criminal history points would put Ms.

Doe in criminal history category II. However, the report goes on to

recommend that she receive two additional points, putting her in

category III, under U.S.S.G. � 4A1.1(d) and 4A1.2(m), because, the

report alleges, she committed the instant offense while a probation

violation warrant relating to this conviction was pending. PSR at

par. 41.

The addition of these additional two points is error. Guideline

section 4A1.1(d) requires two additional points if the defendant

committed the federal offense while "under any criminal justice

sentence," including probation. Both the commentary to this section

and section 4A1.2 (m) indicate that this enhancement also applies if

the federal offense was committed while a "violation warrant" was

outstanding. The probation department has incorrectly assumed that

these provisions apply here.

6 As noted above, unlike in � 2L1.2, Ms. Doe’s initial and violation sentences were correctly aggregated for criminal history purposes under � 4A1,2(k) (1).

- 14 -

Iflon

They do not. First, there is no evidence that Ms. Doe was

actually on probation when she reentered the United States.

Moreover, while the presentence report correctly notes that a ’bench

warrant" was issued February 28, 1994, there is no indication that

this warrant was "violation warrant," the only type of warrant that

triggers the sentencing enhancement under � 4A1 .2 (m) .

The accepted meaning of the term ’bench warrant" is a warrant

issued by a judge as a result of a defendant’s missing a court

appearance. Indeed, Blacks Law Dictionary defines the term as a

"writ issued directly by a judge to a law-enforcement officer, esp.

for the arrest of a person who has been held in contempt, has been

indicted, has disobeyed a subpoena, or has filed, to appear for a

hearing or trial." Black’s Law Dictionary 164-65 (8th ed. 2004) . By

contrast, a violation warrant" is a’warrant issued for the arrest

of a convict who has violated the terms of probation, parole, or

supervised release.". Id. at 1617. All available information shows

that Ms. Doe was subject to a bench warrant, probably because she

missed a court appearance, and not a violation warrant. Hence the

2-point enhancement does not apply.

According to the Second Circuit, the Sentencing Guidelines are

interpreted in the same manner as any statute, and thus that, absent

compelling reasons to the contrary, guidelines terms are given their

7 A copy of the relevant entry from Ms. Doe’s criminal history record, attached hereto as Exhibit E, confirms that she was subject to a "bench warrant," and not a "violation warrant."

-

"ordinary meanings." United States v. McSherry, 226 F.3d 153, 158

(2d Cir. 2000). The enhancement contemplated by � 4A1.2(m) is not

triggered by an ordinary bench warrant, it is only triggered by a

violation warrant. Accordingly, absent proof that the warrant here

was.a violation warrant, as opposed to an ordinary bench warrant,

Ms. Doe should not receive the two additional criminal history

points.

This leaves her with 3 criminal history points, not 5, and

places her in criminal history category II, not III.

D. THE CORRECT GUIDELINE RANGE

The sentencing range recommended in the presentence report is

incorrect.-Ms. Doe’s offense level is not 21 and, Ms. Doe is in

criminal history category II, not III. Thus, assuming that the Court

agrees with the argument set out in Section B(1) above that Ms. Doe

was not convicted of a "drug trafficking offense," her Guideline

range should be 15 to 21 months’ imprisonment.

If, instead, the Court concludes that Ms. Doe was convicted of

a "drug trafficking offense," however, then as explained in Section

(2) above, since the "sentence imposed" did not exceed 13 months’

imprisonment, her Guideline range should be 27 to 33 months’

imprisonment.

E. REGARDLESS OF THE GUIDELINE RANGE, THE COURT SHOULD IMPOSE A LENIENT BELOW-GUIDELINE SENTENCE.

When imposing sentence, the Court is required to consider all

of the factors set forth in 18 U.S.C. � 3553(a), not just the

- 16 -

II

Guideline range. It must impose a sentence that is "sufficient, but

not greater than necessary, t' to: reflect the seriousness of the

offense, promote respect for the law, provide just punishment for

the offense, afford adequate deterrence to criminal conduct, protect

the public from further crimes of the defendant and provide the

defendant with needed educational or vocational training, medical

care, or other correctional treatment in the most effective manner.

18 U.S.C. � 3553(a) (2).

To arrive at such sentence, the Court is directed to consider,

to the extent relevant: (1) the nature and circumstances of the

offense and the history and characteristics of the offender; (2) the

kinds of sentences available; (3) the kinds of sentence and the

sentencing range established in the Sentencing Guidelines; (4)

policy statements issued by the Sentencing Commission; (6) the need

to avoid,unwarranted sentence disparities among similarly situated

defendants; and (7) the need to provide restitution to any victims

of the offense. See 18 U.S.C. � 3553 (a) (1) r (a) (3)-(7)

As noted above, the Sentencing Guidelines are only one of

several factors the Court must consider before determining what

sentence is "sufficient but, not greater than necessary to comply

with the purposes" of sentencing. Given the enormously sympathetic

circumstances surrounding Ms. Doe’s offense conduct, a very lenient

non-Guideline sentence will constitute sufficient punishment.

First, Ms. Doe’s reason for returning to the United States

- 17 -

Hi

could not be more sympathetic. Having been forced to abandon her

infant son before her deportation, she returned to the United States

to try to find him. This situation is particularly tragic given Ms.

Doe’s own extremely sad childhood, which included not just repeated

sexual abuse but also her abandonment both by of her parents.

In addition, wholly apart from Ms. Doe’s reason for returning

to the United States, her history and characteristics do not

indicate that a lengthy period of incarceration would be appropri-

ate. In this connection, attached as Exhibit F, is a letter from xxx

xxxx, with whom Ms. Doe resided after she reentered. Ms. xxxx

describes Ms. Doe as a "hard working, family oriented person" who

is kind, caring and patient." Ms. Doe has only one serious criminal

conviction that is now nearly 20 years old, and there is every

reason to take Ms. Doe at her word that, having tried without

success to find her son, she will not reenter the United States

illegally again.

Third, a below-Guideline sentence will still be sufficient to

deter both Ms. Doe and others who might consider illegally reenter-

ing the United States for similar reasons. See, e.g., � United States

v. Zambrano, 2007 WL 4115993 at *1 (E,D.N.Y. November 20, 2007)

(holding, in an illegal reentry case where the Guideline range was

forty-six to fifty-seven months’. imprisonment, that an eighteen-

month sentence would satisfy the statutory concerns relating to

"general and specific deterrence." Ms. Doe fully understands that

- 18 -

p

she cannotagain return to the United States and is committed to

remaining in Jamaica once she is deported there again.

Finally, the Court has the discretion to consider the lower

sentences regularly imposed in jurisdictions that dispose of illegal

reentry cases through ’fast-track" programs when determining how

much prison time is ’sufficient but not greater than necessary" to

serve the goals of sentencing. 18 U.S.C. � 3553(a). That a

Guideline sentence is not needed to deter, punish, or rehabilitate

all, or even most, illegal re-entrants is evident from the Govern-

ment’s advocacy of below-Guideline sentences in fast-track cases,

which account for more than 80% of all illegal re-entry prosecutions

in this country.

In United States v. Melia, 461 F.3d 158 (2d Cir. 2006), the

Second Circuit held that a district court is not required to

compensate for the absence of a fast-track program in this district.

Mejia does not mean, however, that a district court lacks the

discretion to consider the lower sentences available in fast-track

districts when determining, as it must, what sentence imposed will

be ’sufficient, but not greater than necessary" for a particular

defendant. See United States v. Kingsley, 210 F. App’x 68, 68-69 (2d

Cir. December 21, 2006) (summary order) ; United. States v. Ministro-

Tapia, .470 F.3d 137, 142 (2d Cir. 2006) ("Plainly, if a district

court were explicitly to conclude that two sentences equally served

the statutory purposes of � 3553, it could not, consistent with the

- 19 -

OMM

parsimony clause, impose the higher;")

Surely it would violate the parsimony clause to conclude that

a greater sentence is necessary for Ms. Doe as compared to other

similarly situated defendants, solely because of the location in

which he is being prosecuted. Accordingly, the Court can and should

consider the availability of lower sentences in "fast-track"

districts in determining what sentence is actually "sufficient" for

Ms. Doe "but not greater than necessary" under 18 U.S.C. � 3853(a).

Her is individual circumstances, which show her to be a nothing more

than an extremely dedicated mother, warrant a non-Guidelines

sentence.

In conclusion, under United States v. Jones, 460 F.3d 191, 195

(2d Cir. 2006) , a could may include its "own sense of what is a fair

and just sentence under all the circumstances" in making a sentenc-

ing decision, so long it properly considers all of the 3553(a)

factors. For the above reasons, then, the Court should impose a

lenient non-Guideline sentence in this case.

CONCLUSION

For the reasons set forth in Section B(1) above, the Court

should conclude that Ms. Doe was not deported after a conviction for

a "drug trafficking offense" as defined in U.S.S.G. � 2L1.2(b), and

thus that the 16-level enhancement of � 2L1.2(b) (1) (A) does not

apply. Rather, the Court should flse the 8-level "aggravated felony"

enhancement of �2Ll.2(b) (1) (C); Alternatively,for the reasons set

- 20 -

forth in Section B(2) above, if the Court rejects this argument and

concludes that Ms. Doe was convicted of a drug trafficking offense,

it should conclude that the "sentence imposed" on that conviction

did not exceed 13 months’ imprisonment, and should use the 12-level

enhancement set out in � 2L1,2(b) (1) (B).

In addition, for the reasons set forth in Section C above, the

Court should conclude that Ms. Doe is in criminal history category

II, not III. Finally, for the reasons set out in Section B above,

regardless of the Guideline recommendation, the Court should

sentence Ms. Doe to a lenient a non-Guideline sentence in light of

her heartbreaking personal circumstances.

Respectfully submitted, Federal Defenders of New York, Inc.

By: StevenM. Statsinger, Esq. Attorney for Defendant Jane Doe Assistant Federal Defender (212) 417-8736

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=195-

FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION

VA .jr1rnirwOzO:OJ

EDWAPD C. (Smith *

*

N 3I[s1 I(eLU * Is) u1UflIflTF!1I]

Defendant herein, Edward C. Smith, through his attorneys, James Wyda, Federal Public

Defender for the District of Maryland, and Michael T. CitaraManis, Assistant Federal Public

Defender, hereby submits the following memorandum in aid of sentencing.

I. INTRODUCTION

In the instant case, Edward C. Smith was charged in a two-count indictment with

poeasion of a firearm after having been previously convicted of a felony, in violation of 18

922(g)(1), and poe&ion of an unregiulered firearm, in violation of 26 UAC. �� 5845

and 5861(d)1 On June 22, 2005, Mr. cSmith pleaded guilty to the felon in po&erion charge.

edntencing is scheduled for eptembe 7, 2005-

In the plea Weement reached with the government. Mn &nith and hig counsel entered

into ulipulatioas regarding the applicable U.S. Sentencing Guideline ("Guideline") factors, as well

as the facts supporting his guilty plea. As also set out in the plea agreement, the parties understand

the Guidelines are advisory and not mandatory.

Mr. Smith was arrested on April 8, 2005, and charged in state court. Soon after, the case was taken over by federal authorities resulting in a federal criminal complaint being issued on May 24, 2005, on which Mr. Smith was taken into federal custody on May 31, 2005, after the state charges were no! prossed. The federal indictment was returned and filed on June 1, 2005.

'S

Pursuant to this agreement, the government will recommend a sentence at the low end of the

advisory Guideline range and the defense will be free to ask for: (1) a downward departure due to

Mr. Smith’ employment and family history and the fact that Mr. Smith possessed the firearms for

the protection ofhis wife and family, and (2) a sentence below the sentencing range found applicable

after any departure.

The U.S. Probation Office ("Probation") has prepared a Pre-Sentence Report (’TSR") in this

case and found, consistent with the plea agreement, that the final offense level is 19. See PSR at

122. Probation has also determined that Mr. Smith’ criminal history category is 1111. See PSR at

�41. The advisory sentencing range is 33-41 months. See PSR at 148. The defense does not

dispute this determination.

II.

The purpose of this Sentencing Memorandum is to detail for the Court the following: (1) why

a downward departure of four levels is appropriate; and (2) why a sentence of probation with a

period of confinement on electronic home-monitoring is not appropriate.

As discussed in detail below, a downward departure under the Guidelines is appropriate for

two reasons: (1) considering Mr. Smith’ family history and employment, he has turned his life

around to such an extent his case is atypical; and (2) he possessed the firearms after reasonably

fearing for the safety of his family.

In addition, an analysis under 18 U.S.C. �3553(a), pursuantto United States v. Booker,

U.S. , 125 S. Ct. 738 (2005), does not require incarceration in order to protect the public, deter

Mr. Smith from further crimes or provide for just punishment for his crime.

IPA

1 HISLI FE 1itflJii] AND ACTED W PROT ECT iiI S FAMIL Y

The PSR in this case reflects that Mr. Smith is a 49 years old man, who was born and raised

in Washington, D.C. The PSR further reflects that Mr. Smith never met his father, who abandoned

his family when Mr. Smith was a small child. The PSR also notes that Mr. Smith was "bitter"

towards his father "for a long time" due to his father leaving and never taking an interest in him

during his childhood. PSR at 111 54-56.

The PSR also reflects a criminal record of half-a-dozen theft-related offenses, along with

convictions for simple possession of heroin and disturbing the peace, sandwiched between two

robbery offenses for which he was convicted first as a young man at age 22, and later at age 39. PSR

at �11 27-37. During this same time, Mr. Smith abused drags, principally marijuana and cocaine.

PSR at 1166-68. He also abused alcohol, especially in the 1990’s. This included "several months

of very heavy drinking," which led to his 1995 arrest and conviction for robbery. PSR at 165.

According to Mr. Smith, alcohol became a problem for him in the mid-1990’s when he

’began experiencing the stress of his brothers’ incarcerations" (three of whom were then and are still

-3-

MLOYM

incarcerated), combined with "the worry he had for his mother" (due to her health problems and

stress). PSR at � 65.

Since his arrest and conviction in 1995, Mr. Smith has left behind the life of hanging out with

friends, running the streets, stealing and using drags which marked his life before then. He has,

from any perspective, turned his life around.

Mr. Smith began this turnaround when incarcerated after his 1995 conviction. While in

prison, he became "heavily involved" with both Alcoholics Anonymous and Narcotics Anonymous

and participated in any and all drag and alcohol abuse programming that was available. FSR at �65.

See e.g., Certificate of participation in Alcoholics Anonymous, dated January 21, 2997, attached as

Exhibit A.

Mr. Smith’ turnaround continued after his release on February 13, 1998. Since then, over

the last 7V2_ years, he, has:

o Refrained from any use of drags or abuse of alcohol. See PSR at � 69.

o Committed no new criminal offenses or incurred no new arrests for criminal offenses

(other than in this case).

Been steadily employed, first for a year or so at a TGI Fridays, and since August 1999

- for the last 6 years - at the Sweet Pea restaurant in Bethesda, Maryland, where he

is a chef. PSR at 172. Also see letter from TGI Fridays and two letters from Sweet

Pea, collectively attached as Exhibit B; and photographs, attached as Exhibit C.

S Stayed very close to his mother, Carol Smith, whom he calls, according to his

mother, "every day to check on her." PSR at 156. Currently, Mrs. Smith suffers

from respiratory problems, asthma, hypertension, and sleep apnea. Id.

� Maintained a stable and loving relationship with his wife of 14 Vz years, Denise

Smith, who is employed as a nursing assistant at FoxFall Rehabilitation Center in

Bouie, Maryland. PSR at � 58. Although previously employed at Foxhall on a fufl-

time basis, she is now part-time due to her own medical situation (hypertension). See

letter attached as Exhibit D.

� Kept and neatly maintained a modest two-bedroom apartment in Silver Spring,

Maryland, with his wife and, up to recently, her youngest son. See photographs,

attached as Exhibit E.

Upon being incarcerated in 1995, Mr. Smith realized it was important for him to turn around

his life for his sake and the sake of his family. Indeed, it was out of concern for his family that he

possessed the firearms charged in this case.

B. Why Mr. Smith Possessed the Firearms.

�

Mr. Smith possessed the Taurus

38 caiiber rcvolvcr and a .22 caliber rifle with a diortened barrel for a very simple reason: to

protect his wife and family out of concern they might be the targets of violence after his wife

provided police with information concerning her oldest son’s murder.

After Mr. Smith was arrested, he provided a written statement to detectives concerning his

-5-

reason for possessing the guns. The substance of this statement is included in the PSR, at �111 1-12,

and was included in the stipulated facts attached to the plea agreement herein and offered in support

of Mr. Smith’ guilty plea. A copy of the actual written statement is also attached see Exhibit F.

Mi. Smith explained in his statement:

The guns was taken from me was basicallypossessed solely for the protection of my family. 2 years ago my wife son Ray Jones was murdered in Wash. D.C. and the reason for the guns was for protection. And me and my wife was afraid because of what happened to her son- , ,

Some 18 months before Mr. Smith’ arrest, on July 12, 2003, Denise Smith’ oldest son, Ray

Jones, was shot and murdered in Washington, D.C. PSR at 158. Also see copies of newspaper

article and obituary, along with a funeral program for Ray Jones, collectively attached as Exhibit

Subsequently, Mrs. Smith provided police with information which helped lead to the arrest

of a suspect, "Carlos,"who ended up being released due to lack of evidence. Afterwards, Mrs. Smith

received threatening telephone calls and "hang-ups."

As a result, Mr. Smith and his wife were fearful for themselves and Mrs. Smith’ son who

lived with them.

After receiving these threats and "hang-ups," in early2005, Mrs. Smith’ brother-in-law, Dick

Bond, separated from his wife, Mrs. Smith’ sister, and moved into the Smith’ home. At the time,

he brought with him various personal possessions.

Mr. Bond also owned two firearms which he himself had purchased - the same two firearms

And when asked by the detective, "Did you intend to use the firearms for any crime?" Mr. Smith responded: "Hell know [sic]." PSR at 112. See Exhibit F.

I

charged in this case. After he moved into the Smith' home, Mr. Bouie brought the firearms into the

home and kept them there. The handgun was stored in a dresser drawer, while the rifle was stored

in the closet. See written statement of Denise Smith attached as Exhibit II.. Also see photographs

of the drawer and closet, collectively attached as Exhibit I.

Although Mr. Bond ended up moving from the Smith' home and back with his wife after he

and his wife reconciled, he left the guns behind. At that time, Mr. Smith had the firearms under his

control and intended to use them, if necessary, to protect him and his family from any intruder

interested in harming them. See Mrs. Smith' statement, as Exhibit H.

A few weeks before his arrest, Mr. Smith himself saw Carlos in his neighborhood in Silver

Spring, Maryland, despite the fact Carlos lived in Washington, D.C. This caused him to go out and

purchase ammunition for the handgun (which is what led authorities to suspect Mr. Smith was in

possession of a firearm, causing them to seek and obtain a search warrant for his home). See Mrs.

Smith' statement, Exhibit H.

It was only because Mr. Smith reasonably believed he and his wife and her son were in

danger that he exerted control over the guns and purchased ammunition for the handgun. If not for

the reasonable belief he needed to protect himself and his family, and if not for the opportunity

occasioned by his brother-in-law's marital problems, Mr. Smith would not have possessed the

firearms in this case.

-7-

I

C. The Law Before Booker and Why it Supports a Downward Departure.

1. Protection of Set! and Family.

"5K1.2 Coercion and Duress (Policy Statement)

If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may depart downward. .. . Ordinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property or similar injury..

Even before the decision of the United States Supreme Court in United States v. Booker,

U.S. , 125 S. Ct. 738 (2005), a sentence below the applicable Guideline sentencing range

by way of a downward departure was available in cases where a defendant committed an offense to

avoid a greater perceived harm, such as serious coercion, duress or other circumstances not

amounting to a complete defense. See U.S.S.G. �5K1.12.

Protection of oneself or others due to a fear or threat of harm at the hands of a third party has

been held to justify a downward departure. See e.g., United States v. Amor, 24 F.3d 432 (2d Cir.

1994) (downward departure under � SK1.12 upheld on appeal in case involving firearms offenses and

retaliation against a witness where departure was based on fact that defendant purchased rifle after

an incident in which his vehicle was shot up and a threatening note was left behind); United States

v. Lam, 20 F.3d 999 (9b Cu. 1994) (where defendant was convicted of possessing a sawed-off

shotgun, the case was remanded for a new sentencing hearing due to the sentencing judge’s

erroneous belief that he could not downward depart, in part, because the defendant possessed the

charged gun for personal protection after he and his sister were robbed at their place of business).

I

In the instant case, Mr. Smith sincerely believed that having the firearms in his home was

necessary for the purpose of protecting him and his wife from physical harm, and this fear had a

good-faith basis which was not unreasonable. Thus, a departure under �5K1.12 is appropriate.

2. An atypical defendant.

Although the Guidelines contain policy statements that a defendant’s employment record or

family ties and responsibilities are "not ordinarily relevant" in determining whether a departure is

warranted, see U.S.S.G. �5Hl.5, 5H1.6, these factors can still support a downward departure if

individually, or collectively with other factors, they make the case atypical or not "ordinar[yJ."

In addition to Mr. Smith’s motivation for possessing the firearms, his employment history

and family ties make his situation not "ordinar[y]" or typical of felon-in-possession defendants

especially when viewed in the context of him turning his life around amidst the various difficulties

he faced in his past (Le., abandonment by his father, drug and alcohol abuse).

Thus, this case is similar to United States v. Big Crow, 898 F.2d 1326 (8th Cir. 1990) (cited

in the plea agreement), wherein the Eighth Circuit Court of Appeals upheld the district court’s

downward departure based on the defendant’s excellent employment record and efforts to overcome

the adverse environment of the Indian reservation, which the court found were "sufficiently unusual

to constitute grounds for a departure." Id. at 1332.

The Court in Big Crow also found (pre-Booker/Fanfan) that the sentence imposed by the

district court "is reasonable and adequate to serve the ends which sentencing under the Guidelines

should promote," citing 18 U.S.C. �3553(a). Also see United States v. Neiman, 828 F. Supp. 254

(S.D.N.Y. 1993) (where the defendant received home detention in lieu of imprisonment because he

was working full-time, attending to the needs of his wife and children, embarking on religious

-9-

studies, and appearing to turn his life around, in addition to the fact that imprisonment would set

back his rehabilitation); United States v. Ragan, 952 F.2d 1049 (8th Cir. 1992) (where the defendant's

steady employment during the year before his indictment and his stoppage of drug use were factors

in the court's decision to downward depart).3

Because Mr. Smith has turned his life around and his case is atypical, a downward departure

is also warranted for this reason.'

D. The Law After Booker and Why a Sentence of Incarceration is not Necessary or Appropriate.

However, in light of United States v. Booker, U.S. ,125 S. Ct. 738 (2005), it is no

longer necessary for a case to be "atypical" or "not ordinary" in order for a sentencing judge to

In this district, an example of a felon-in-possession case where a downward departure was found appropriate based upon the defendant's personal characteristics is United States v. Erik Gabriel Tyler, Crim. No. AW-00-0121. Tyler was found to be an "atypical" felon-in-possession defendant after his personal characteristics were compared with those of other felon-in-possession defendants prosecuted in Greenbelt. In Tyler, United States District Judge Alexander Smith, Jr., downward departed due the following facts: (1) unlike many other felon-in-possession defendants, Mr. Tyler was not committing a separate felony at the time of the gun possession; (2) his federal gun offense was committed over nine years after his last serious crime; (3) his federal gun offense was committed over six years after his last release from a sentence of imprisonment; (4) he had a history of steady employment at the time of his gun offense; (5) he was actively supporting his four children and wife; (6) he had complied with conditions of release, unlike most other felon-in-possession defendants, who were either detained or violated release conditions; and (7) he had not used illegal substances over the previous eight years. Aside from Mr. Tyler's support of four children, Mr. Smith shares all these characteristics with Mr. Tyler.

Under the plea agreement herein, undersigned defense counsel can ask for a downward departure of up to four levels. With a criminal history category II, this would place Mr. Smith in an advisory sentencing range of 21-27 months.

- 10-

impose a sentence below the Guideline sentencing range, as the sentencing range is just one factor

on par with other sentencing factors.

In Bookcr the Court held that the United &tate &entencin Guidellne& are no longer

mandatory and must fbnction as merely one factor among othei et forth more enera1ly in 18

U.C. 3553(aL AIthouh the Courts must consider the Guideline range, they also must "tailor

the sentence in light of other statutory concerns, see 18 UC. 553(a)" 5ookcr 125 &Ct-

at 757

Docker reshapes sentencing viz s viz 55(a) in at least three ways:

(1) It requires a Court to impose a sentence "sufficient bzri not Srestcr than necessar/

((-=mphasis added) to comply with the several goals of sentencing -

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (ID) to provide the defendant with needed educational or vocational training, medical care,

or other correctional treatment in the most effective manner.

(2) In arriving at an appropriate sentence, the Court bsll consider certain factors,

including: (a) the "nature and circumstances of the off'ense,"(18 BAC. 553(a)(1)), (b) "the

history and character of the defendant" (18 II.0 355(a)(1)),5 (c) the kinds of sentences

available (18 U.C. 55(a)(3)), and (d) how to avoid unwarranted disparities between similarly

situated defendants (18 USC. 553(a)(6)), as well as the applicable guideline factors and

5

Under the Guidelines, the Court was prohibited or discouraged from considering a defendant's age, educational and vocational skills, mental and emotional condition, physical condition, drag and alcohol dependence, employment record, family ties, socio-economic status, and civic and military contributions. See U.S.S.G., Part H.

- 11-

INUI M.

policy tom,--fit (3553(a)(4) and (5)), and (e) the need to provide for restitution to any

victims. 18 TiC. 5553(a)(7).

(3) A entencin1g court cannot uncritically apply the Guidelines and ue the advi8ory

,5,ntencir,8 range as a pre&inptively correct range as it carries no8ileatcf weht than any of the

other factors under 5553(a). cc c... URiL�dcRaLf v. ,oaflza 353 F.edpp.26 984 (ED. Wi8. JaiL

19, 2005).

The bottom-line is that pot-ooker the Courts are free to disagree with a Guideline

range and can iinpoae a sentence that is reaonable and tied to the factors hated in �3553(a),

without having to find the factors which take the case out of the "heartland" or make it "atypical:’

For the reasons expressed below, and upon considering the factors under 3553(a), a

sentence of imprisonment in this case is not necessary to accomplish the goals under 3553(a).

1. The Factors - General Discussion.

With regard to the goals or factors to be considered under 3553(a), certain factors are not

relevant to this case or no information on their applicability is available. This includes �55 53(a)(7)

(restitution to victims). Other factors may as a practical matter be appropriately considered together,

e.g., "promote respect for the law," 3553(a)(2)(A), and "afford adequate deterrence to criminal

conduct." 5553(a)(2)(B). Further, since the Guideline sentencing range is not in dispute, no

discussion of the offense level or policy statements (see �5553(a)(4) and (5)), will follow (and to

the extent any policy statements issued by the Sentencing Commission conflict with the other

provisions of � 3553(a), those policy statements must be ignored; see infra at 3, n. 1).

-12-

IRM

The nature and cffum8tanecs of the offense do not makc it pnrlyseriou&

Although the nature of the offense herein can be characterized as serious since it is a

felony, it is not as serious as many other felonies provided for under federal law. In fact it is

labeled a "Class C' felony, below Class A and b felonies, which pertain to the most serious of

felonies. See 18 U.S.C. �3581(b).

Moreover, the facts of this case distinguish this case from most cases prosecuted under 18

USE. �922(g)(1):

� The guns were possessed for an altruistic purpose: the protection of Mr. Smith and

family in the face of a reasonably perceived threat;

� The guns were not possessed or used in connection with another crime;

� The guns were not owned by Mr. Smith or brought into the house by him; and

� The guns were never taken out of the house by Mr. Smith but remained in the house

in his bedroom.

As far as felon-in-possession for a firearm cases, the possession in this case was benign and

the circumstances make this a relatively non-serious felon-in-possession case.

b Mr. (Smith' pensonal history and current characteristics show he is a law-abiding and productive member of society

A1thouh Mr. &nith's history includes a siniflcant criminal record, this record arose within

the context of him growing up bitter without his father, his abuse of drugs and alcohol, and his

brothers being incarcerated for lengthy terms of imprisonment Most relevant curreni!vis that

he has turned his life around and at present his characteristics show him to be:

S A loving and devoted husband and son.

-13-

No longer an abuser of drus or alcohol-

0 A (good and productive employee

someone who has been able to steer clear of involvement in crimes.

In essence, the sum total of Mr. smith’s current personal characteristics show him to be

a person who is a law-abidin(g and contributing member of society.

C. There is no need to inca=mtc Mr. &mith to deter him or protect the public-

in this case, no need exists to incarcerate Mr. smith in order to protect the public in

general or other people. This is evident by his conduct over the last 7 0 years since being

released from prison, including the lack of any new criminal offenses during that time - other

than the instant offense to protect his family.

It is also relevant that Mr. smith successfully completed his state terms of mandatory

release and probation after being released from his last conviction in 1995. F�11Q at � 36.

Also, in the instant case, he was released after the Court found, at least implicitly, that

there were conditions which would reasonably assure that he did not pose a danger to the

community. According to the Pre-Trial (gervices Office, Mr. cSmith has been "in full compliance

with the conditions of his release" PP at � 69.

These circumstances show that incarceration is not necessary to deter Mr. smith from

committing new criminal conduct or to protect the public.

CL Disparity should not exist between Nr. (Smith sentence and those of similarly situated defendants.

A sentence in this case should be commensurate with sentences given defendants who

are similarly situated to Mr. 6mith, as opposed to defendants whose cases do not share the

ame mitigating circum.6tancc OQ perona1 characteriniic& as exist in Mr. cmith' cane.

Notable in this regard ig the recent case of Unte1CtaIe V Ar/off Jacksori, Criim No. DKC-

05-0050, in which Mr. Jackson, also convicted under 18 U.C. 922(&X1) under remarkably

similar circumstances as here, received a sentence of five years probation despite a seaiencing

range of 27-53 months. In support of her decision, Jude Chasanow found

Defendant has 15 year employment history with same employer, and has been entirely law abiding during that time. He came into possession of the firearms when he moved into the family home to renovate it after the murder of his brother, who had been living there. The suns were left there by his deceased brother. The defendant bought ammunition, without thinking about his prior conviction, and intended to keep the firearm for protection in the house Other than this lapse of judgment, Mr. Jackson has been a truly productive member of socie, helping out neighbors and family since his release from the state sentence in 1990.

cfecr copy of tatement of 10eason8," attached as Exhibit J.

Although Mr. Jackson had a lengthier period of employment since his release from a state

sentence than Mr. 6mith, Mr. &nith has a more compelling claim for having the (guns for

protection. In other significant respects, the cases are the same and for the same reasons

given in Mr. Jackson's case, Mr. csffiithahouldreceivc- a sentence which does not include a term

of confinement in a correctional facility.6

e. "Just" punishment does not require incarceration.

If this were a case where Mr. Smith used or intended to use a gun to commit another crime,

a sentence within the advisory range - and probably at the high end of the range - would be

6

Another recent felon-in-possession case in this District in which a sentence below the advisory Guideline sentencing range was imposed was United States v. Michael Sean Massenburg, Crim. No. PJM-04-0150. JnMassenburg, United States District Judge Peter J. Messitte imposed a sentence of 24 months imprisonment despite an advisory range of 46-57 months.

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appropriate. If this were a case where Mr. Smith possessed a gun for no apparent reason and all

other factors being the same, a sentence at no more than the low end of the advisory range might be

appropriate. And, if Mi. Smith possessed a gun soon after being released from prison, even if for

protection as here, then some period of incarceration might be appropriate.

However, here, taking into account the accumulation of mitigating facts relevant to the

offense, Mr. Smith's current character, and the sentences imposed in the cases of similarly situated

defendants, a 'just" and reasonable sentence does not have to include incarceration.

Instead, undersigned defense counsel and Mr. Smith ask that this Court impose the following

sentence:

Five (5) years probation with a condition that Mr. Smith serve twelve (12) months on electronic home-monitoring, with appropriate special conditions and work-release privileges.

Such a sentence is "sufflcient but not; &eatr than nooeary 'to accomplish the goals of

sentencing under �3553(a). It imposes some modicum of punishment by restricting Mi. Smith's

liberty in a constructive way. It provides him and his family with the opportunity for him to continue

to provide financial support. It allows him to continue his rehabilitation in the most meaningful way.

Moreover, it is in line with sentences of other, similarly-situated defendants and the policies

underlying the Sentencing Guidelines.

Under most circumstances, it might be difficult for a Court to take a chance on someone with

Mr. Smith' criminal record, and place him on probation. However, this is not the typical case and

Mr. Smith has turned his life around over the past seven years and shown that he can live up to any

and all expectations the Court might have for him.

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In this case, the chance is worth it. If given a chance, Mr. Smith will, as stated in his written

statement to Probation, attached as Exhibit K:

prove to the Court, DA, the probation system, and above all, to myself, that I truly can [sic] again become a productive citizen and again [sic] I will remain crime, drag and alcohol free.

M. CONCLUSION

In light of the foregoing, undersigned defense counsel asks this Court to impose the sentence

requested.

Respectfully submitted,

Federal Public Defender for the District of Maryland

Michael T. CitaraManis (#03674) Assistant Federal Public Defender 6411 Ivy Lane, Suite 710 Greenbelt, Maryland 20770 Office: (301) 344-0600 Fax: (301) 344-0019

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asm

INTERNET RESOURCES

A

This Guide is intended to give readers a sense of the internet resources that address issues of concern to defenders. It is by no means exhaustive, but hopefully will get readers started on productive research paths.

http://circuit9.blogspot.com (Circuit by Circuit blogs�insert your Circuit’s number)

Searchable blogs organized by circuit tracking recent case law and offering litigation strategy. The most developed of these is www.circuit9.blogspot.com, which has much useful information even for practitioners outside of the Ninth Circuit.

www.criminalj ustice.org (National Association of Criminal Defense Lawyers website)

Features free, searchable archive of articles from The Champion, an excellent resource for practice guides on all areas of litigation.

www.fd.org (Defender Services Training Branch website)

Includes publications, practice guides, sample briefs, and intemet links on a variety of topics from appeals to firearms cases to sentencing.

www. sentencingpro ect. org (The Sentencing Project website)

Provides criminal justice policy analysis, data, and program information. Focuses on over-incarceration and prison alternatives.

www.ussc.gov (United States Sentencing Commission website)

Searchable site offering all sentencing guideline manuals, commentary, and minutes from debates. Also includes all Commission reports, including the recent Fifteen Years of Guideline Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing. Offers updated sentencing statistics for each circuit and district.

http://sentencing.typepad.com/ ("The Berman Biog")

A comprehensive, searchable national blog following all manner of Booker issues. Includes sentencing mitigation case law and commentary and links to many useful websites and blogs.

www.usdoi .gov (United States Department of Justice Website)

Searchable site makes available many federal government agency reports on issues relevant to sentencing, many of which actually rebut common assumptions about crime and defendants. Includes links to the Bureau of Justice Statistics website (www.oipusdo.gov/bjs), which contains useful data on such topics.

Compiled by Sarah Gannett, StaffAttorney, Federal Public Defender, District of Maryland Last Updated October 18, 2006

www.bop.gov (Bureau of Prisons Website)

Contains information about Bureau of Prisons policies and programs as well as an inmate locator, to help you find your clients. Searchable.

www.pubmed.gov (National Library of Medicine website)

Searchable database provides over sixteen million citations to scientific and medical journals, including links to full-text articles. A good place to research mental health or medical mitigators. Also a good place to locate experts.

www.afte.org (National Association of Firearm & Toolmark Examiners website)

A good resource for locating information about firearms examination and crime lab standards. Searchable.

www.groups.yahoo.com/BOPWatch ("BOPWatch")

Yahoo group devoted to understanding and monitoring BOP policies and practices. Great source for answering tricky questions about BOP. Join the group for regular email updates and to access searchable archives.

www.vera.org (Vera Institute website)

Research on topics like the relationships (or lack thereof) between race, immigration, youth, sentencing and crime. Searchable.

www.cwla.org (Child Welfare League of America website)

Child welfare organization that offers information on child protection, juvenile justice, mental health, housing and homelessness, domestic violence and other issues that infuse our cases. Also offers information about the impact of incarceration on the children of our clients and on parenting from prison. Searchable.

usw.iusticepolicy.org (Justice Policy Institute Website)

Reports addressed at ending reliance on incarceration and providing rehabilitation and other alternatives. Recent report on drug treatment vs. incarceration

www.nlada.ora/defender (National Legal Aid and Defender Association website)

Offers practice tips, a forensics library, an immigration work-group, and resource lists for locating experts. Also a good place to locate mitigation specialists.

Compiled by Sarah Gannett, StaffAttorney, Federal Public Defender, District of Maryland Last Updated October 18, 2006

NON, CAPITAL MIT/GA TION EFFECTIVE ADVOCACY WITH REAL RESUL TS

THE PRESENTERS

Part

Hon. Denny Chin, United States Circuit Judge, United States Court of Appeals for the Second Circuit

Denny Chin is a United States Circuit Judge for the United States Court: of Appeals for the Second Circuit. He was sworn in on April 26, 2010.

Judge Chin graduated from Princeton University magna cum laude in 1975 and received his law degree from Fordham Law School in 1978. After clerking for the Honorable Henry F. Werker, United States District Judge for the Southern District of New York, he was associated with the law firm Davis Polk & Wardwell from 1980 to 1982. He served as an Assistant United States Attorney in the Southern District of New York from 1982 until 1986, when he and two of his colleagues from the U.S. Attorney's Office started a law firm, Campbell, Patrick & Chin. In 1990, he joined Vladeck, Waldman, Elias & Engelhard, P.C., where he specialized in labor and employment law.

From September 13, 1994, through April 23, 2010, Judge Chin served as a United States District Judge for the Southern District of New York. He presided over both civil and criminal cases, including cases involving Megan's Law, the Million Youth March, Al Franken's use of the phrase "Fair and Balanced" in the title of a book, the Naked Cowboy, the Google Books settlement, and the United Nations Oil for Food Program.

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He also presided over the trial of an Afghan warlord charged with conspiring to import heroin and the guilty plea and sentencing of financier Bernard L. Madoff.

Judge Chin was born in Hong Kong. He was the first Asian American appointed a United States District Judge outside the Ninth Circuit. He is one of only two active federal appellate judges of Asian American descent in the country.

Hon Deborah A. Batts, United States District Judge, Southern District of New York

Judge Balls was sworn in to the Southern District bench on June 23, 1994

She graduated from Radcliffe College and received her law degree from Harvard Law School. On graduating, she clerked for Judge Pierce, who was then a District Court

Judge.

Judge Balls was an associate at Cravath, Swaine and Moore for six years, then became an Assistant United States Attorney in the Southern District of New York. She joined the faculty of Fordham Law School in 1984, and became a tenured Associate Professor of

Law in 1990.

Judge Balls is active in several bar associations, including The Bar Association of the City of New York, the Metropolitan Black Bar Association, and the Lesbian and Gay Law Association of Greater New York. She is also a member of the CUNY School of Law Board of Visitors and was Conference Chairperson of the Second Circuit Judicial Conference from 2007 to 2008. On October 1, 2008, she was appointed to the national Judicial Conference Committee on Defender Services and, in 2009, was appointed to the Executive Committee/Board of Directors of the Federal Judges Association.

Hon. John Gleeson, United States District Judge, Eastern District of New York

Judge John Gleeson went to college at Georgetown University and received his law degree in 1980 from the University of Virginia School of Law. After law school, Judge Gleeson served as a law clerk for the Hon. Boyce F. Martin, Jr., United States Circuit

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Judge in the Sixth Circuit, in Louisville, Kentucky. From 1981 to 1985, he was a litigation associate at Cravath, Swaine & Moore in New York City.

Judge Gleeson was an Assistant United States Attorney in the Eastern District of New York from 1985 to 1994. He served as Chief of Appeals, Chief of Special Prosecutions, Chief of Organized Crime, and Chief of the Criminal Division, the position he occupied when he was appointed to the bench. In 1992, Judge Gleeson was awarded the Attorney Generals Distinguished Service Award for his work as lead prosecutor in the

case United States v. John Gotti etal. Judge Gleeson was appointed as a United States

District Judge by President Bill Clinton on September 28,1994, and sits in the Eastern District courthouse on Cadman Plaza in Brooklyn Heights.

Judge Gleeson is an author of the treatise Federal Criminal Practice:A Second Circuit Handbook, LexisNexis(l2th Edition 2012) (with Gordon Mehler and David C. James), and of thefollowing articles: "The Sentencing Commission and Prosecutor/al Discretion: The Role of Courts in Policing Sentence Bargains," 36 Hofstra Law Review 639 (2008);

"Supervising Federal Capital Punishment: Why The Attorney General Should Defer When U.S. Attorneys Recommend Against The Death Penalty," 89 Virginia Law Review

1697 (2003); "Supervising Criminal Investigations: The Proper Scope of the Supervisory Power of Federal Judges," 5 Journal of Law and Social Policy 423 (1997); "Sentence Bargaining Under the Guidelines," 8 Federal Sentencing Reporter 6 (1996); and " The Federalization of Organized Crime: The Advantages of Federal Prosecution," 46 Hastings Law Journal 1095 (1995) (with John C. Jeffries, Jr.).

Judge Gleeson is an Adjunct Professor of Law at New York University School of Law, where he teaches courses in Complex Federal Investigations and Sentencing. He has also taught at Brooklyn Law School and the University of Virginia School of Law.

Judge Gleeson is married to Susan Gleeson; they and their two daughters live on Long

Island.

Part 2

Francisco Celedonio, Esq.

PA U11

Francisco Celedonlo is a criminal defense attorney in private practice in New York City, specializing in federal and state trials and appeals. He graduated from Columbia College in 1982, and received a law degree from N.Y.U. in 1985. Mr. Celedonlo derked for the Hon. James E. Doyle, United States District Judge, Eastern District of Wisconsin, from 1985 to 1986. He opened his practice in 1994, and has been a member of the C.J.A. panel since 1997.

Heidi van Es, M.S.W.

Heidi van Es is the director of social work programs at Federal Defenders of New York in the Southern District . Prior to joining the Federal Defenders Office in this capacity, Ms. van Es spent six years at the Office of the Appellate Defender, heading that organization's social work/reentry unit, the nation's first such program at an appellate defender. Ms. van Es also worked previously at the Center for Alternative Sentencing and Employment Services' (CASES) Nathaniel ACT Alternative-to-Incarceration Program. Ms. van Es is currently an adjunct professor of Social Work at the Columbia University School of Social Work, and has previously served as a field instructor at New York University Silver School of Social Work, Hunter College School of Social Work and Fordham University School of Social Work. Ms. van Es has a B.A. from Bryn Mawr College and earned her M.S.W. at Columbia University School of Social Work.

Ed Webster

Ed Webster, the owner of Orion Investigations, 401 Broadway, in New York City, is a licensed private Investigator in New York State. He has provided a full range of investigative services to the legal and insurance communities for more than 30 years. For 20 years he was the Director of Special Investigations at the MONY Life Insurance Company and MONY Financial Services Corp., in New York City. He has worked extensively with Federal, State and local law enforcement throughout the United States and has experience in insurance fraud, securities fraud, money laundering and medical fraud investigations. For the past eight years, he has also been heavily involved in criminal defense and mitigation investigations. His work has been featured on Dateline NBC, CNBC and Discovery ID.

lTIcI

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Paula Xinis, Esq.

Paula Xinis has been a Senior Attorney at Murphy PA, a litigation firm based in Baltimore, MD, since November of 2011. Prior to joining the firm, Ms. Xinis was an Assistant Federal Defender for the District of Maryland, where for fourteen years she represented individuals charged with the most complex and serious federal crimes, including wire, mail and bank fraud, public corruption, Trade Embargo violations, bribery, tax evasion, drug conspiracies and firearms offenses. From 2005 until 2011, Ms. Xinis was that office's Director of Training, coordinating bi-annual seminars for local C.J.A. attorneys and Assistant Federal Defenders, and supervising that office's Research and Writing Specialists.

Ms. Xinis has also prepared and used effectively all manner of experts, amassing extensive experience with forensic pathologists, neuropsychologists, psychiatrists, social-work mitigation experts, and other health-care providers employed successfully in competency hearings, contested sentencings, and in negotiations to secure a reduction or dismissal of charges pre-trial.

Since 2003, Paula has also lectured as an expert on federal sentencing. She has been a featured speaker at national seminars in Miami, Philadelphia, San Diego, San Antonio, Chicago, Savannah, Atlanta, New Orleans, Las Vegas, Myrtle Beach, Puerto Rico and the Virgin Islands.

Paula was also an Adjunct Professor at the University of Maryland Law School in Legal Writing and Oral Argument. She received her B.A. with Highest Distinction from the University of Virginia in 1991, and a J.D. from Yale Law School in 1997. She served as a law clerk to the Hon. Diana Gribbon Montz, United States Circuit Judge, United States Court of Appeals for the Fourth Circuit, from 1997 to 1998.

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