Bharara Silver

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 1 of 35
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA
-v.-
:
:
SHELDON SILVER,
S1 15 Cr. 093 (VEC)
:
Defendant.
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THE GOVERNMENTS SENTENCING MEMORANDUM
PREET BHARARA
United States Attorney for the
Southern District of New York
One St. Andrews Plaza
New York, New York 10007
Carrie H. Cohen
Howard S. Master
Andrew D. Goldstein
James M. McDonald
Assistant United States Attorneys
-Of Counsel-
Table of Contents
I.
PRELIMINARY STATEMENT ........................................................................................... 1
II.
THE OFFENSE CONDUCT IN THIS CASE ....................................................................... 4

A.
B.
C.
III.
The Asbestos Scheme ......................................................................................................... 4

The Real Estate Scheme...................................................................................................... 6
The Money Laundering Scheme ......................................................................................... 9
THE GUIDELINES CALCULATION................................................................................ 10
IV. SENTENCES IN OTHER FEDERAL PUBLIC CORRUPTION PROSECUTIONS

13
A.
B.
V.
Sentences of New York Public Officials for Corruption Offenses ................................... 14

Silvers Offenses Indisputably Were Among
the Most Serious of Public Corruption Crimes In New York and Elsewhere...20
APPLICATION OF THE RELEVANT SECTION 3553(A) FACTORS..................... 22
A.
B.
C.
D.
The Nature and the Circumstances of the Offense ........................................................... 22

The History and Characteristics of the Defendant ............................................................ 24
The Need for the Sentence Imposed to Promote
Respect for the Law and to Afford Adequate Deterrence................................................. 27
Other Sentencing Factors .................................................................................................. 29
VI. THE COURT SHOULD IMPOSE A SUBSTANTIAL FINE AND ORDER FORFEITURE
.............................................................................................................................................. 30
CONCLUSION ............................................................................................................................. 33

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-v.-
SHELDON SILVER,
S1 15 Cr. 093 (VEC)
:
Defendant.
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THE GOVERNMENTS SENTENCING MEMORANDUM
The United States of America respectfully submits this memorandum in advance of
defendant Sheldon Silvers sentencing proceeding, which is scheduled for May 3, 2016 at 2:00 p.m.
I.
PRELIMINARY STATEMENT
For more than twenty years, Sheldon Silver held a position of unparalleled power in New
York. By the time of his arrest in January 2015, Silver had occupied one of the three most
powerful offices in New York State government Speaker of the New York State Assembly
for decades. As the evidence at trial conclusively proved, Silver repeatedly abused that position
of power and public trust during the span of more than a decade for private gain. He enriched
himself with millions of dollars in bribes and kickbacks, confident that his power and his
repeated lies to the press, the public, his staff, members of the Assembly, and others would
enable him to operate with total impunity.
Silver exploited the vast political power entrusted in him by the public to serve himself.
He preyed on others dependence on him for favorable official action, and used the cover of his
law license to secretly steer to himself millions of dollars worth of business that he knew nothing
about and could not (and did not) perform, in exchange for official action that only he could
provide. There is no excuse or mitigating factor tempering the seriousness of Silvers crimes,
which were motivated by greed and accomplished through exploitation of his enormous power
and his willingness to lie and deceive at every turn.
While telling the public that disclosure [is] the key to preventing corruption (GX 4) and
insisting that he disclose[d] everything (GX 5), Silver lied year after year on his mandatory
disclosure forms, used an account in his wifes name to hide hundreds of thousands of dollars in
crime proceeds, and lied to the public again and again about the nature and sources of his outside
income. Silver further abused his power by resisting legislative reforms that would have shed
greater sunlight on his ill-gotten gains and refusing to comply with the inquiries of the Moreland
Commission to Investigate Public Corruption (the Moreland Commission) that might have
exposed his corrupt schemes.
Silvers crimes corrupted the institution that he led for more than 20 years. As a fixture
in the legislative leadership, an entire generation of New York legislators served in an institution
framed by his corrupt example. His crimes struck at the core of democratic governance a man
with unparalleled power over the affairs of New York State was secretly on the take, abusing all
that power to enrich himself and prevent anyone from learning about his corrupt schemes. His
crimes tainted an untold number of legislative actions.
The sentence imposed on Silver should reflect the unprecedented magnitude, duration,
and scope of his abuse of power. It should reflect the immeasurable damage Silver caused to the
democratic process and to the public trust. It should punish Silver for the vast harm he has
caused and the position of trust that he exploited, deter other elected officials from the temptation
towards corruption, and communicate to the public that the rule of law applies even to the most
prominent of public officials.
The sentencing range advised by the United States Sentencing Guidelines (the
Guidelines or U.S.S.G.) appropriately reflects the severity of Silvers crimes. As set forth in
the United States Probation Offices (the Probation Office) Presentence Investigation Report,
dated March 25, 2016 (Presentence Report or PSR), the applicable Guidelines range is 262
to 327 months imprisonment. (PSR 47-67). The Guidelines range is high because the United
States Sentencing Commission explicitly has recognized the threat to the integrity of democratic
processes caused by public corruption offenses, U.S.S.G. Manual app. C (Amendment 666),
and because of the many egregious aspects of the defendants crimes, including Silvers role as a
high level public official, his engagement in multiple corrupt schemes, the millions of dollars in
bribe money Silver took in, and his laundering of his crime proceeds. (PSR 47-67).
While a sentence within the Guidelines range would not be unreasonable or unjust, in
light of the egregiousness of Silvers conduct and the need for deterrence, the Government
respectfully submits that the Court should sentence the defendant to a term of imprisonment
substantially in excess of the 10 years recommended by the Probation Office and greater than
any sentence imposed on other New York State legislators convicted of public corruption
offenses. The Government further respectfully submits that the defendant must be required to
forfeit all of his crime proceeds which to date totals $5,179,106 and that a substantial fine of
at least $1 million is appropriate in this case, particularly in light of the defendants significant
remaining resources and his more than $70,000 per year pension, paid for by New York State
taxpayers, that Silver obtained over the course of years during which he was violating the public
trust.
II.
THE OFFENSE CONDUCT IN THIS CASE

The Court is well aware of the trial record in this case, which overwhelmingly established
that the defendant orchestrated two complex and long-running schemes to monetize his public
position for private gain. 1 Relevant to sentencing, and as set forth in more detail below, the
defendants conduct demonstrated a brazen misuse of the enormous power he had amassed as
Speaker of the Assembly and caused immeasurable damage to the publics trust in its
government. Silver also abused his law license and damaged the legal profession by using his
status as a lawyer to obtain and make it difficult to trace the corrupt source of his outside income.
Through the two schemes, the defendant obtained nearly $4 million in bribes and extortion
payments, and he ultimately succeeded through his laundering of those crime proceeds to obtain
a total of over $5 million in ill-gotten gains.
A.
The Asbestos Scheme
As the jury unanimously found, Silver engaged in a quid pro quo scheme to obtain
valuable leads to unrepresented patients with mesothelioma and millions of dollars in resulting
referral fees for himself in exchange for engaging in a series of official actions that benefited the
provider of those leads. Silver exploited Dr. Robert Taubs devotion to his medical research and,
through the use of his public position and access to State funds, induced Dr. Taub to send him
lucrative mesothelioma cases, all the while keeping secret and deliberately deceiving the public,
his Assembly staff, the partners at Weitz & Luxenberg (W&L), and others about how he
obtained such cases and the nature and source of his outside income.
For a more detailed recitation of the facts proven at trial, the Government respectfully
refers to its opposition to the defendants post-trial motions pursuant to Rules 29 and 33 of the
Federal Rules of Criminal Procedure and related transcript and exhibit cites. Herein, the
Government highlights the facts it respectfully submits are most pertinent to sentencing.
Once Silver had received a substantial quid, the lucrative leads and resulting referral fees
that exceeded his annual income as Speaker, he took official action that benefited Dr. Taub, the
provider of the quid, by directing his staff to disburse two consecutive $250,000 grants from the
taxpayer-funded and Silver-controlled Health Care Reform Act Assembly Pool (HCRA
Assembly Pool) to Dr. Taubs mesothelioma research. Silver did not disclose to his Assembly
staff or the distributor of the funds, the New York State Department of Health (DOH), the
millions of dollars in financial benefits he was obtaining from Dr. Taub, and, as Silver well
knew, neither his staff nor DOH had any way of figuring it out, given Silvers lies and secrecy
concerning the sources of his outside income. Silver also never publicly disclosed that he had
distributed the funds to Dr. Taub, even though the fundings stated purpose was to educate the
public and perform research that helped those harmed during the attacks of September 11, 2001,
which occurred in Silvers Assembly District.
The corrupt nature of the scheme was highlighted by proof that Silver cut off State
funding to Dr. Taub only because changes in laws, regulations, and funding sources would have
required that any additional grant to Dr. Taub be publicly disclosed and accompanied by
disclosure of the financial benefits that Silver was obtaining from Dr. Taub. Not content to end
his criminal conduct, as it had proven far too lucrative, Silver found other ways to use his official
position to benefit Dr. Taub. Again, Silver enlisted the unwitting help of his State-paid
Assembly staff to continue to provide official actions benefiting Dr. Taub, and thus keep the
lucrative leads and resulting referral fees coming his way. Silver helped Dr. Taubs daughter and
son secure jobs; Silver approved State funding to an organization affiliated with Dr. Taubs wife;
and Silver caused the New York State Assembly to issue an official resolution a form of
legislation that required a vote on the floor of the Assembly and an official Assembly
proclamation honoring Dr. Taub.

Certain aspects of the Asbestos Scheme were particularly egregious and damaging to the
public trust. First, Silver cynically exploited the tragic events of 9/11 to get rich. He obtained
millions of dollars in referral fees in exchange for funding Dr. Taubs research, knowing that the
researchs purported connection to 9/11 would help shield it from scrutiny. Silver did nothing to
promote the research or any benefit it might provide to victims of 9/11, and he cut Dr. Taub off
when the funding, and its connection to Silvers private financial gain, was at risk of being
revealed to the public. Second, Silver repeatedly lied to the public, his press officer, and others
during the course of more than a decade about the source of his outside income, including the
more than $3 million that he obtained as a result of the leads sent to him by Dr. Taub. Among
other things, Silver falsely told the public that he obtained cases because people in the
community came to him based on his lengthy experience as a lawyer, and that he spent hours
each week reviewing potential cases referred to him in this manner, when the reality was that he
spent minutes receiving multi-million dollar leads associated with people who never met or
spoke with him from Dr. Taub, who sent them to him as part of a quid pro quo. Third, as set
forth above, Silver exploited more than a dozen taxpayer-funded State employees who
unknowingly facilitated the scheme, and he perpetrated it without detection for more than a
decade as a result of his power and his lies.
B.
The Real Estate Scheme
The Real Estate Scheme reflects similar greed and betrayal of the public trust. As the
jury unanimously found, for more than 15 years, Silver used the power of his office and others
dependence on favorable official action from him to get two real estate developers to send their
tax certiorari business to a law firm, Goldberg & Iryami, P.C. (the Goldberg firm) in exchange
for hundreds of thousands of dollars in kickbacks paid to him by that firm.

To the public, Silver portrayed himself as a champion of tenants who obtained none of
his copious outside income more than any other member of the Assembly, despite his
numerous responsibilities as Speaker from the real estate industry, nor anyone else with any
business before the State. In reality, Silver directly solicited fungible real estate tax certiorari
business from real estate developers who were dependent on him for favorable official action,
and who were afraid to alienate Silver in view of his control over their business interests.
Silvers more than $800,000 in actual and accrued profit from the Real Estate Scheme
came as a result of Silvers direct solicitation of The Witkoff Group, Inc. (Witkoff) and
Glenwood Management, Corp. (Glenwood). Glenwood, as Silver knew, was particularly
dependent on favorable State legislation and official action for its profitability and survival,
including State legislation governing rent regulation and a tax abatement program known as
421-a that periodically expired, requiring regular renegotiation with, and approval by, the State
Legislature. Silver played a dominant role in these negotiations: he was personally involved in,
and personally had to sign off on, any legislation covering these subjects otherwise he could
use his near-total control over the Assembly to keep the legislation from coming to a vote. In
addition, Glenwood depended on the State for tax-exempt financing, which had to be approved
by an entity called the Public Authorities Control Board (PACB) to which Silver appointed
himself as one of three voting members. Silver similarly was aware of Witkoffs dependence on
favorable official action, given Witkoffs ownership of 421-a buildings and other buildings in
Silvers Assembly District.
As he had done with the Asbestos Scheme, Silver covered up the quid pro quo Real
Estate Scheme with secrets and lies. Even while Silver was confirming in a secret side letter that
he purportedly was representing Glenwood, one of the most active participants in the State
political process, he insisted to the public that he derived no outside income from anyone with
business before the State. Among other things, Silver falsely stated that his clients were little
people and that he did not represent corporations or entities that are, uh, um, you know,
involved in the legislative process or had an impact on anything we do legislatively. (GX 1A,
2, 4). Silver also lied about how he got the business: Silver falsely represented that he got
business because people in the community knew him and came to him based on his experience as
a lawyer, and that he spent hours each week evaluating such cases, never revealing the business
he got from major real estate developers by directly soliciting them. (Id.; see also GX 275).
Moreover, Silvers annual financial disclosures never revealed that the Goldberg firm served as a
source of outside income, despite forms that required Silver to list EACH SOURCE of outside
income, and Silver never revealed in those disclosures that he derived any outside income
connected to the real estate industry at all. (GX 2009 (summarizing disclosure forms)). Silver
persisted in these lies even while he stated publicly that disclosure [was] the key because,
among other things, it prevents activities that may be in conflict with an officials obligations
to the public. (GX 4).
Several aspects of the Real Estate Scheme were particularly harmful. Among other
things, Silver betrayed the trust that fellow legislators placed in him as their Speaker by
concealing his corrupt scheme from them even while he served as the Assemblys lead negotiator
on real estate legislation negotiations that included one of the very entities, Glenwood, that was
paying him. Silver also betrayed the trust that the people of the State placed in him as one of
three voting members of the PACB, a position to which Silver had appointed himself, by
concealing from the PACB and the public the fact that he was receiving hundreds of thousands
of dollars in Glenwoods largesse at the same time he was approving more than $1 billion in
financing for Glenwood. (GX 1522). Silver again enlisted his press officer in facilitating
unknowingly his fraudulent scheme, never disclosing to his press officer that he had made any
money from the real estate industry whatsoever, much less money from the States largest
corporate or individual donor, who regularly sought favorable specific official actions from him.
Silver also subjected Witkoff to legal and reputational risk, hiding the corrupt arrangement from
Witkoff until the Goldberg firm received a grand jury subpoena, at which time Jay Arthur
Goldberg tried to pretend that Witkoff had known about the arrangement.
C.
The Money Laundering Scheme
The jurys verdict also reflected that Silver maximized the value of his ill-gotten gains by
laundering it through investment vehicles not available to the general public. Jordan Levy, a
private investor who was friends with many politicians, testified that Silver, alone among all of
his politician friends, asked Levy to invest his funds in private high-yield investment vehicles.
Testimony and exhibits introduced at trial reflected that Silver funded these investments by
taking money that he made from the Asbestos and Real Estate Schemes, depositing the money
into a federally-insured bank account, and sending the money, including transactions in
increments of greater than $10,000, to the vehicles as directed by Levy.
The laundering scheme included further evidence of Silvers efforts to conceal the source
and extent of his ill-gotten gains. As Levy testified, Silver disclosed to him only that he was
looking for lucrative private investments because he had come into some extra money, without
ever disclosing his receipt of asbestos- or real estate-related fees to Levy. Moreover, Silver
asked that one of the investment vehicles be split in half, with half placed in his wifes name, so
that the public would not see the amount of his investment, and thus the wealth he had amassed
from the schemes.

*
In sum, the defendant abused his power and exploited others who reported to him or who
were dependent on him for favorable official action to obtain close to $4 million in bribes,
kickbacks, and extortion payments, and to obtain an additional $1 million in proceeds from the
laundering scheme. He facilitated and concealed the schemes through repeated lies, defiantly
insisting that his outside income bore no relation to his official position even while he knew that
the truth was the opposite. Silver acted with impunity during the course of a more than a decade,
continuing to engage in official acts benefiting those who were benefiting him personally, and
continuing to lie to the public, until he got caught. As set forth above, there is no excuse for or
mitigating aspect of his conduct, and no explanation for it other than greed.
III.
THE GUIDELINES CALCULATION

The defendant was convicted of engaging in schemes to defraud the citizens of the State
of New York of their right to his honest services using the wires and mails, in violation of Title
18, United States Code, Sections 1341, 1343, and 1346 (Counts One and Two of the Indictment
(the Asbestos Scheme) and Counts Three and Four of the Indictment (the Real Estate Scheme)).
Silver also was convicted of extortion under color of official right, in violation of Title 18,
United States Code, Section 1951 (Count Five of the Indictment (the Asbestos Scheme) and
Count Six of the Indictment (the Real Estate Scheme)), and of engaging in prohibited monetary
transactions involving the proceeds of the Asbestos and Real Estate Schemes, in violation of
Title 18, United States Code, Section 1957 (Count Seven of the Indictment).
The applicable Guideline for Counts One through Six of the Indictment is Section 1B1.11
and for Count Seven of the Indictment is Section 2S1.1. Counts One through Seven are grouped
10
because, among other things, the offense level for these Counts is determined largely on the basis
of the total amount of harm or loss, see U.S.S.G. 3D1.2(d), and because the money laundering
guideline, U.S.S.G. 2S1.1, incorporates the offense level applicable to the honest services fraud
and extortion offenses (Counts One through Six of the Indictment), see U.S.S.G. 3D1.2(c).
Pursuant to U.S.S.G. 2S1.1(a)(1), the base offense level for Count Seven, the money
laundering charge, is the offense level applicable to the underlying offense(s) from which the
laundered funds were derived because the defendant committed the underlying offenses and the
offense level for those offenses can be determined. Here the underlying offenses are covered by
U.S.S.G. 2C1.1. (PSR 49).
Pursuant to U.S.S.G. 2C1.1(a)(1), the base offense level is 14 because the defendant
was a public official. The following specific offense characteristics increase the offense level as
follows:
Pursuant to U.S.S.G. 2C1.1(b)(1), because the offense involved more than one
bribe or extortion from more than one entity, the base level is increased by two
levels.
Pursuant to U.S.S.G. 2C1.1(b)(2) and 2B1.1(b)(1)(J), because the defendant

obtained more than $3.5 million but less than $9.5 million, the base offense level
is increased by 18 levels. 2
This calculation is conservative, as it does not include the millions of dollars in gain
obtained by W&L or the Goldberg Firm as a result of Silvers conduct, nor does it include the
millions of dollars in tax exemptions and other benefits obtained by Glenwood and others as a
result of Silvers favorable official actions, even though either such measure could have been
used to calculate Silvers Guidelines level. See U.S.S.G. 2C1.1(b)(2) (Guideline level based on
the greatest of, inter alia, the value of the payment, the benefit received or to be received in
return for the payment, the value of anything obtained or to be obtained by a public official or
others acting with a public official).
The Guidelines calculation also is conservative because it does not incorporate the
arguably applicable upward departure under U.S.S.G. 5K2.7. See U.S.S.G. 2C1.1 cmt. 7 (In
a case in which the court finds that the defendants conduct was part of a systematic or pervasive
corruption of a governmental function, process, or office that may cause loss of public
confidence in government, an upward departure may be warranted. See [U.S.S.G.] 5K2.7
(Disruption of Governmental Function).). Here, the defendants conduct arguably merits an
11
Pursuant to U.S.S.G. 2C1.1(b)(3), because the defendant was an elected highlevel public official, the base offense level is increased by four levels.
Pursuant to U.S.S.G. 2S1.1(b)(2)(A), because the defendant was convicted under

Title 18, United States Code, Section 1957, the base offense level is increased by
one level.
(PSR 50-60).
The resulting adjusted total offense level is 39. (PSR 57). The defendant has no prior
convictions, so his Criminal History Category is I.
(PSR 61-64). Based on a total offense
level of 39 and a Criminal History Category of I, Silvers Guidelines range is 262 to 327 months
imprisonment. The Probation Office recommends a below-Guidelines sentence of 120 months
imprisonment (on each count to run concurrently). (PSR at 33).
The Probation Office also calculates a Guidelines fine range of $25,000 to more than $7
million. It recommends a fine of $1,000,000, as well as forfeiture in the amount of
$5,179,106.12, a mandatory special assessment of $700, and two years of supervised release (on
each count to run concurrently). (PSR at 33).
The applicable Guidelines range is high, but it is based on the Sentencing Commissions
considered assessment of the high level of culpability of public officials who abuse the public
trust, and the severity of the harm caused by their crimes. Indeed, approximately ten years ago,
the Sentencing Commission increased the offense levels applicable to public corruption offenses.
See U.S.S.G. Manual app. C (Amendment 666). In doing so, the Commission stated, in relevant
part:
This amendment increases punishment for bribery, gratuity, and
honest services cases while providing additional enhancements
to address previously unrecognized aggravating factors inherent in
some of these offenses. This amendment reflects the
upward departure in view of the systematic and long-running abuse of his office and the loss of
confidence in government caused by his conduct, among other factors.
12
Commissions conclusion that, in general, public corruption

offenses previously did not receive punishment commensurate
with the gravity of such offenses. . . . The higher alternative base
offense levels for public officials reflect the Commissions view
that offenders who abuse their positions of public trust are
inherently more culpable than those who seek to corrupt them, and
their offenses present a somewhat greater threat to the integrity of
governmental processes.
(Id.). The significant recommended Guidelines range in this case reflects the considered
judgment of the Sentencing Commission, and is the product of the Commissions stated belief
that lenient sentences for public corruption defendants do not adequately reflect the gravity of
such offenses. (Id.). Accordingly, the Court should give the recommended Guidelines range
careful consideration as the starting point and the initial benchmark for the appropriate
sentence in this case. Gall v. United States, 552 U.S. 38, 49 (2007); see also 18 U.S.C.
3553(a)(4) (requiring consideration of applicable Guidelines range in determining appropriate
sentence).
IV.
SENTENCES IN OTHER FEDERAL PUBLIC CORRUPTION PROSECUTIONS

The Court requested that the Government prepare and file with its sentencing submission
a chart reflecting sentences imposed on other elected state and federal officials convicted in
federal court of public corruption-related offenses (the Sentencing Chart); it is attached as
Exhibit A. 3 The sentences set forth in the Sentencing Chart reflect that, nationally, public
officials who seriously abuse the public trust over a substantial period of time, or using multiple
3
The Sentencing Chart was compiled using information provided by the Department of
Justices Public Integrity Unit and gathered by the Government through public sources but
because there is no central database of federal public corruption cases or sentences, it is possible
that sentences inadvertently may not be included.
The Sentencing Chart does not include the many other New York State legislators who
were convicted in State court or who were convicted of crimes that did not involve corruption.
See New York Public Interest Research Group, A Review of Albanys Ethical Failures,
December 2015, available at
http://www.nypirg.org/pubs/Albany_Ethics_Failures_2015_12.11.15.pdf (listing 41 state
officials convicted since 2000) (last visited Mar. 29, 2016).
13
means and methods, consistently receive significant sentences approaching the Guidelines range
applicable to their offense conduct.
Indeed, averaging all the sentences on Exhibit A together,
including the Guidelines (except for the one instance where the Guidelines range was life) and
non-Guidelines sentences, the average sentence for public officials convicted of public
corruption offenses is approximately a downward variance of between 20 and 25 percent from
the applicable Guidelines range.
A.
Sentences of New York Public Officials for Corruption Offenses
Focusing on the sentences of New York public officials reflects that during just the past
several years the very time when Silver was committing the crimes for which he is to be
sentenced numerous other New York State legislators have received substantial sentences after
being convicted of federal public corruption-related crimes, although those crimes did not
approach Silvers in their length, amount of corrupt gain, or extent to which the publics trust
was violated. While the Court must sentence the defendant based on the conduct specific to this
case and the defendants individual circumstances, in order to fully take into account the
seriousness of the defendants offenses, the acute need to deter others who might be tempted to
follow the defendants path, as well as to avoid unwarranted sentence disparities with
similarly-situated defendants, 18 U.S.C. 3553(a)(6), a more detailed overview of several recent
federal prosecutions and convictions of other New York public officials convicted of similar
crimes is warranted.
1.
United States v. Carl Kruger, 11 Cr. 300 (JSR)
Carl Kruger, a former State Senator who served for a brief period of time as Chairman of
the Senate Finance Committee, fully accepted responsibility for his criminal conduct by pleading
guilty to corruption charges resulting from his participation in two separate bribery conspiracies
14
involving approximately $500,000 in bribes that occurred over a four-year period of time,
between 2007 and 2011. Krugers principal offenses involved pressuring a hospital executive
who depended on favorable legislation to award a contract to a hospice company that employed
Krugers consulting firm, and providing favorable official actions to other individuals and
entities that were paying third parties connected to Kruger offenses similar in nature to Silvers
Asbestos and Real Estate Schemes, though far more brief and far less lucrative. After his guilty
plea, Kruger requested a very lenient sentence and only a short period of imprisonment from
Judge Rakoff, which the defense argued would account for the good Carl Kruger [had] done as
a senator, as a community member, and as a family man. 11 Cr. 300 (JSR), Docket #207 at 1-2,
71 (Kruger Sentencing Memorandum).
After calculating a Guidelines range of 108 to 135 months imprisonment, based on a loss
amount of between $400,000 and $1,000,000 and inclusive of acceptance of responsibility credit,
Judge Rakoff largely rejected Krugers sentencing arguments and imposed a sentence of 84
months (7 years) imprisonment. In doing so, Judge Rakoff described the systemic harm
wrought by public corruption and the concomitant need for stiff punishment:
. . . without any need to do so, Mr. Kruger entered into extensive,
long-lasting, substantial bribery schemes that, frankly, were like
daggers at the heart of honest government. Its really difficult to
overstate the evils that are wrought when a government official
comes to bribery, let alone one of Mr. Krugers power and
province. We have only to look at other countries to see that once
corruption takes hold, democracy itself becomes a charade, justice
becomes a mere slogan camouflaging a cesspool of self-interest.
When a legislator accepts bribes, he not only betrays his
constituents trust, he strikes a blow against every principle on
which a democracy is founded.
(Sentencing transcript, attached hereto as Exhibit B, at 46-47).
15
Notably, the need for punishment was not overridden by Krugers cited history of good
works in office. Judge Rakoff acknowledged that there is a great deal of good in Mr. Krugers
character and in the way he has conducted much of his life, as evidenced by the many letters
that the Court has received and in the evidence of his activities over many years inside and
outside New York government. (Ex B at 46). But Judge Rakoff explained that, whatever
credit is due Mr. Kruger for his good deeds and whatever sympathy one might feel, as I do feel,
for a fellow human being who, in the Courts view, feels genuine remorse[,] must be balanced
against the huge harm that Mr. Kruger has done that make this country, and the principles for
which it stands, the last best hope of democracy. And I think that balance weighs heavily in
favor of a substantial sentence. (Ex. B at 47).
There are several important distinctions between Silvers crimes and Krugers crimes,
none of them favorable to Silver. First, as set forth above, Silvers crimes ran for far longer and
resulted in millions of dollars more in ill-gotten gains. Second, unlike former Senator Kruger,
Silver stood at the apex of power in New York State government, possessing near-unparalleled
ability to grant or withhold favorable official action from the State. Silver betrayed the
extraordinary public trust that came with extraordinary power not only through his ill-gotten
gains, but by lying to the public and using his State-paid staff to carry out his schemes and
unknowingly repeat his lies. Third, and perhaps most critically, unlike Kruger, here Sheldon
Silver has accepted no responsibility and shown no remorse for his crimes, instead repeatedly
trumpeting that he will be vindicated if not by the jury of his peers that convicted him of all
counts, then at some later point in time.
16
2.
United States v. Malcolm Smith, 13 Cr. 397 (KMK)
Malcolm Smith served as a New York State Senator and for a very brief period as Senate
Majority Leader. Smith was convicted at trial of various corruption offenses that arose
principally from his scheme to bribe Republican Party officials to be placed on the Republican
ballot for the 2013 New York City mayoral race. Even though Smith requested a sentence of one
year and one day, and even though Smith obtained no personal financial gain from the offense,
Judge Karas sentenced him to a term of imprisonment of 84 months (seven years), only slightly
below the Guidelines range of 97 to 121 months imprisonment. In imposing sentence, Judge
Karas noted that a sentence imposed in a public corruption case should be fashioned to give
serious pause to other public officials, who may be in [the defendants] position going forward
who have to say to themselves I dont want to face the consequences of not giving my
constituents or the people of the State of New York my honest services. (Sentencing transcript,
attached hereto as Exhibit C, at 25). Judge Karas also determined that a sentence of 84 months
imprisonment, close to the applicable Guidelines range, was appropriate notwithstanding the
defendants prior good acts, explaining:
[I]n any of these public corruption cases there is that tension where
presumably the person who has been elected or appointed to some
sort of public service position is engaged in public service but if
they have taken a bribe or offered a bribe or done something that
corrupts the process, then the law takes into consideration the fact
they theyre public servants. Thats what makes the crime so
serious. It is that we are entitled to expect our public officials to
only engage in selfless good deeds and to only legislate in the best
interests of their constituents and to act in a way that is exemplary.
(Ex. C at 21-22). 4
In that case, Judge Karas also sentenced former New York City Councilman Daniel
Halloran to 10 years imprisonment for his participation in the scheme. See United States v.
Daniel Halloran, 13 Cr. 297 (KMK).
17
By any measure, Silvers conduct was more serious than Smiths conduct. Unlike Smith,
Silver abused the power of the office of the Assembly Speaker for millions of dollars in personal
financial gain. Unlike Smiths scheme, which related to failed efforts to influence a single
election in 2013, Silvers abuse of power was highly successful, and highly lucrative, over the
course of more than a decade at the apex of power, and it corrupted State funding and legislation
over a period of years.
3.
United States v. Anthony Seminerio, 08 Cr. 1239 (NRB)
Anthony Seminerio, Silvers former colleague in the New York State Assembly, pleaded
guilty to corruption charges relating to his receipt of approximately $1 million worth of bribes
from hospitals through a consulting firm. Although the applicable Guidelines range was 135 to
168 months imprisonment, Seminerio sought a sentence of home confinement, citing his
advanced age, significant health issues, his acceptance of responsibility, and his long career in
public service. In rejecting such arguments and sentenced Seminerio to 72 months (six years)
imprisonment, , Judge Buchwald explained that [c]itizens are entitled to trust in the integrity of
their government. Now is the time to impose a sentence which sends a message that such
conduct is unacceptable because it destroys the fabric of our society. This is [a] message to
people like you . . . who have a choice, who have options. This sentence must be a message to
other public officials who see easy money and a setting in which the ethics rules do little to
prevent temptation. (Sentencing transcript, attached hereto as Exhibit D, at 19).
Again, Silvers crimes were more serious by any measure, reflecting greater abuse of
power over a longer period of time, greater financial gain, no acceptance of responsibility, and
no analogous health circumstances.
18
4.
United States v. Efrain Gonzalez, 06 Cr. 726 (WHP)
Efrain Gonzalez, a former New York State Senator, pleaded guilty to corruption charges
involving the embezzlement of more than half a million dollars from nonprofit groups to cover
his personal expenses. Judge Pauley found that the Guidelines range was 108 to 135 months
imprisonment, and sentenced the defendant to 84 months (7 years) imprisonment. In doing so,
Judge Pauley also observed the immeasurable damage caused by public corruption crimes:
As an elected official for so many years, you understand better
than anybody else in this courtroom that what you did was wrong
. . . . In the end, you undermined the publics confidence in the
integrity and altruism of their elected officials, and in this respect
you have done incalculable damage.
(Sentencing transcript, attached hereto as Exhibit E, at 41-42). In response to Gonzalezs
citation to his prior good acts, Judge Pauley explained that [w]hile he undoubtedly performed
some good and generous acts throughout his life and as a senator, as many of the letters that were
submitted to the Court attest, he has brought public disgrace onto himself and the New York
State Senate. (Ex. E at 40). Thus, there is a compelling need to punish him for his venal acts
and to ensure general deterrence among those who would try to use their public offices for
personal gain. (Ex. E at 41).
5.
United States v. William Boyland, Jr., 11 Cr. 850 (SLT) (E.D.N.Y.)
William Boyland, Jr., a former New York State Assemblyman and a rank-and-file
member and colleague of Silvers in the Assembly, was convicted at trial in the Eastern District
of New York of 21 public corruption counts, stemming from four separate corrupt schemes, one
of which was an FBI sting operation. The applicable Guidelines range was 235 to 293 months
imprisonment, and Judge Townes sentenced him to 168 months (14 years) imprisonment,
notwithstanding Boylands record of community service, noting that he had betrayed the trust of
19
his constituents. He violated his ethical duties as an Assemblyman. (Sentencing transcript,

attached hereto as Exhibit F, at 7-9, 16-17). Silvers crimes were more serious by many
measures, given Silvers greater abuse of power, his facilitation of the schemes through repeated
and systematic deception of the public, the greater duration of the crimes, and the far larger
amount of proceeds he obtained as a result of those crimes. 5
B.
Silvers Offenses Indisputably Were Among the Most Serious of Public

Corruption Crimes in New York and Elsewhere
As established at trial, given Silvers virtually unmatched position of power, the duration
of his misconduct, the multiplicity of his schemes, the extent of his ill-gotten gains, his repeated
lies to the public about his outside income and how he earned it, and his continuation of illegal
conduct in the face of the repeated warnings that came in the form of so many fellow legislators
convicted before him, the magnitude of Silvers betrayal of the public trust exceeds the harm to
the public manifested in the other cases discussed herein. In terms of the Guidelines, the 262 to
327 month range (driven largely by the extent of Silvers ill-gotten gains, his position of power,
and the multiplicity of his schemes) exceeds that of all the foregoing public officials. Those
New York officials with the Guidelines ranges closest to Silver were William Boyland, Jr. (235
5
Also notable was the sentence imposed on former New York State Assemblyman and
Silver colleague Eric Stevenson, a rank-and-file member, who was convicted at trial for
accepting multiple cash bribes from businessmen in exchange for taking official actions in their
favor. The bribes to Stevenson totaled approximately $22,000, and his conduct took place over
the course of less than a year. In sentencing Stevenson to 36 months (three years)
imprisonment based on a Guidelines range of 51 to 63 months, Chief Judge Preska observed that
the crime of conviction was that of selling an assemblymans core function for money. It was a
betrayal of the responsibility bestowed on an elected official by his constituents for his own selfaggrandizement and not in the service of his constituents. (Sentencing transcript, attached
hereto as Exhibit G, at 15). Chief Judge Preska took into account the good works that
[Stevenson] had done, but stated that there is a need for an incarceratory sentence here to
reflect the seriousness of the offense, particularly the betrayal of an elected officials core
function. There is certainly a need for an incarceratory sentence to provide general deterrence to
others who might be so minded. (Ex. G at 15-16).
20
to 293 months imprisonment), Anthony Seminerio (135 to 168 months imprisonment), Carl
Kruger (108 to 135 months imprisonment), Malcolm Smith (97 to 121 months imprisonment)
and Efrain Gonzalez (108 to 135 months imprisonment). They were sentenced to 14, six, seven,
seven, and seven years imprisonment, respectively, despite having significantly lower
Guidelines ranges and despite making arguments similar to Silvers argument to the Probation
Office, and expected argument to this Court, that his good works in public service warranted
leniency. Moreover, as discussed above, their conduct was less serious than proven here, and
unlike Silver, all but Boyland and Smith pleaded guilty and accepted responsibility for their
crimes. 6
The significant sentences imposed by other federal sentencing judges in this Circuit and
others and the compelling rationales articulated in support of them, which are equally if not more
applicable here, animate the need for a significant incarceratory sentence for Silver. The
defendants crimes tragically demonstrated that corruption of public office for personal financial
Sentences for public officials in other circuits vary widely based on the applicable
Guidelines ranges, the nature and circumstances of the offense, local conditions, and other
factors not relevant to the instant proceeding. One recent high-profile public corruption
sentencing, that involving the former Governor of Commonwealth of Virginia, Robert
McDonnell, for example, is readily distinguishable from this case. McDonnell received a
sentence of only 24 months imprisonment based on a Guidelines range of 121-151 months after
having been convicted at trial of trading favors in return for $177,000 in loans, vacations, and
gifts for himself and his co-defendant wife. (See Ex. A and United States v. McDonnell, No.
3:14-cr-12 (E.D. Va. 2015)). Among other things, McDonnells conduct was far shorter and less
lucrative than Silvers crimes, McDonnell did not initiate the scheme, and McDonnells wife
played a significant role in the offense and received many of the luxury goods. By contrast,
Silver personally initiated and actively extorted the bribe payments through two separate
schemes over the course of more than a decade, netting (when laundering conduct is taken into
account) more than five million dollars for himself. Moreover, unlike former Governor
McDonnell, Silvers criminal conduct arose in the context of a long and public history of
corruption within New York State, and he blocked legislative and other efforts to increase
transparency, as well as making numerous false statements and taking other steps to avoid
discovery of his corrupt schemes.
21
benefits reached the very highest levels of New York State a true dagger[ ] at the heart of
honest government, Ex. B at 46, even more damaging to the public trust than the crimes set
forth above. The sentence in this case must account for the seriousness of the defendants crimes
and promote sorely-needed deterrence and respect for the law particularly among elected
officials, who should have no doubt that, if they flout the publics trust like Silver did, their
conduct will be met with severe consequences.
V.
APPLICATION OF THE RELEVANT SECTION 3553(A) FACTORS

It is difficult to overstate the seriousness of the defendants public corruption crimes.
Every time a public official commits a crime, his or her conduct taints the body in which he or
she serves and the government as a whole. Such conduct undermines the core principle of a
representative democracy that elected representatives should act solely in the interest of the
public good and their constituents. It perpetuates the belief that New Yorks government is
hopelessly corrupt. It unfairly taints those elected officials who are law-abiding and who serve
their constituents with integrity. And it discourages many honest citizens who would otherwise
seek out public service from doing so at a time when their service is sorely needed. In sum,
elected officials who exploit the power and responsibility of representing the people by using
their power as an opportunity for private gain do true violence to our system of governance.
Also important is the harm Silvers crimes have caused to the legal profession and the popular
notion that lawyers are inherently dishonest.
A.
The Nature and the Circumstances of the Offense
The offenses of conviction were extremely serious. As set forth above, the defendant
engaged in two long-running schemes in which he repeatedly sold one of the three most
powerful offices in the State for millions of dollars in personal financial gain. He cynically
22
exploited 9/11, his near-unparalleled power over State funding and legislation, and his staff to
carry out his crimes. He facilitated and concealed his crimes with repeated lies to the public
during the course of more than a decade, despite knowing the importance of disclosure to the
public trust and to prevention of misconduct. Silver acted with impunity to resist legislation and
investigations such as the Moreland Commission that might have prevented or revealed his
schemes until he was caught. The defendants crimes were sustained, systematically carried out,
and multifarious, involving two different schemes and using two different law firms, numerous
private investment vehicles, and numerous different lies and methods of concealment.
To make matters worse, Silver committed these crimes during a time when numerous
State legislators were being convicted of public corruption offenses and he publicly was claiming
to be trying to prevent such crimes. Silver repeatedly told the public that he favored stronger
laws and regulations to prevent public corruption in the State legislature while, in truth and in
fact, he further abused his power by resisting legislative reforms and inquiries of the Moreland
Commission that would have shed greater sunlight on his ill-gotten gains and might have
exposed his corrupt schemes.
Importantly, there is no excuse or mitigating factor warranting imposition of a lesser
sentence for Silvers criminal conduct. Silver engaged in a long-running abuse of power for no
reason other than personal financial gain. Silver was financially stable by any objective
standard, even without his criminal schemes, his children were no longer dependent on him, and
he had no desperate need for the money, earning more than $120,000 as the Speaker, and another
$120,000 just for agreeing to affiliate with W&L and occasionally appearing at the firms New
York office. The only apparent motivation for his crimes was greed and the belief that he could
23
get away with it undetected through abuse of official power and his law license, and through
systematic lies.
Like all public officials, Silver took an oath swearing to provide the people of the State of
New York with honest services to subordinate his own personal interests to the publics needs.
He renewed that oath many times while he was perpetrating the schemes. The nature and
circumstances of the offenses of conviction support a severe punishment that reflects the degree
to which Silver betrayed the public trust for private gain.
B.
The History and Characteristics of the Defendant
Silvers history and characteristics do not support a lenient sentence. As no doubt every
other public official convicted of criminal conduct has done at sentencing, Silver has asserted to
the Probation Office, and is expected to assert to this Court, that his public service, including
several official acts benefiting specific constituencies, merits leniency in this case. While Silver
may cite his good acts as a politician to try to avoid otherwise-warranted punishment for his
crimes, he fails to acknowledge the special position of trust and obligation that accompanied his
position. Undeniably Silver has done good deeds in his political life but he was supposed to do
that. Service to the public is expected of a member of the New York State Assembly. Silver
received a substantial salary, a large staff, and control over legislation and hundreds of millions
of dollars in discretionary funds in order to ensure that he was able to carry out that expected
service. Thus, Silvers provision of some honest services as part of his lengthy career in public
service does not merit a reduction of the sentence that is warranted for his corrupt use of that
same position, staff, and power to serve dishonestly, for his own private gain. See United States
v. Serafini, 233 F.3d 758, 773 (3d Cir. 2000) (good works as a legislator reflect[] merely the
political duties ordinarily performed by public servants and if a public servant performs civic
24
and charitable work as part of his daily functions, these should not be considered in his
sentencing because we expect such work from our public servants); United States v. Morgan,
No. 13-6025, 2015 WL 6773933, at *22 (10th Cir. Nov. 6, 2015) (finding that sentencing judge
erred in sentencing the former President Pro Tem of the Oklahoma State Senate to probation for
accepting a $12,000 bribe, in part, by giving undue weight to letters of support: The number of
letters was certainly impressive but not surprising. As the Government aptly points out: One
does not become President Pro Tem without the confidence of many supporters, some quite
influential. The letters must be viewed in that light.).
In any event, Silvers service to the public was tainted in many respects, including and
extending beyond his offenses of conviction. As set forth above, Silver may have provided
important service to the community after 9/11, but he also exploited 9/11 to get millions of
dollars in ill-gotten gains without detection by steering State grants referencing 9/11 to Dr. Taub
in exchange for lucrative leads and referral fees.
In addition, while Silver may have helped certain needy members of his community, as
more fully set forth in the Governments Motions in Limine, dated September 11, 2015, Silver
engaged in concerted efforts over the course of decades to prevent development of much-needed
low-income housing in the Seward Park Urban Renewal Area (SPURA), a large, barren site in
Silvers District near his personal residence. When confronted with evidence of his involvement
in preventing low-income housing from being developed at the SPURA site, Silver publicly tried
to distance himself from his own actions by falsely representing to the public that his actions had
been mistaken for that of another individual named Sheldon E. Silver, who in fact had no
involvement in the defendants continuing efforts to stop low-income housing at SPURA.
Similarly, as reflected in the motions in limine, Silver used his power to try to obtain a reduction
25
from the City in local real estate taxes for the building in which he resided tax burdens that
would have been redistributed among other New Yorkers without disclosing to the City that he
stood to benefit financially from any reduction.
Moreover, while Silver may have used his official position to help certain members of the
community, he also benefited some more than others based in part on his relationship to them
and the benefits that they were providing him. As the evidence at trial showed, Silver pressed an
entity that depended on him for discretionary funding, and that had never before received such a
request from him, to hire Dr. Taubs son, without revealing that he was receiving millions of
dollars in private benefits in exchange for that assistance. In addition, as set forth in the
Governments Motion in Limine, dated October 12, 2015, Silvers assistance to women with
whom he had extramarital relationships further demonstrates Silvers misuse of his office for
personal benefit. In particular, Silver pressed a state agency that was particularly dependent on
him, and that had never before received such a request from him, to hire one of the women,
without revealing the nature of his relationship with that woman. Silver also gave preferential
private access to a lobbyist who lobbied the defendant on a regular basis on behalf of clients who
had business before the State, contributing substantially to the lobbyists financial success, while
concealing from his staff and the public his personal relationship with the lobbyist, and his
personal motives for providing that access.
Each of these abuses of power further demonstrate Silvers willingness to use his position
to further his personal interests, rather than to act in the best interests of all of the people of his
Assembly District and the State.
In addition, through his conduct, Silver misused his law license both as a shield from
disclosure (see, e.g., GX 4 and 5 (statements by Silver that he could not disclose much about his
26
outside income because of attorney ethics rules)) and as a vehicle to commit fraud and extortion.
The harm Silver caused to the legal profession and the reputation of attorneys in general also
should be considered as part of Silvers history and characteristics.
The Probation Office also cites Silvers age, health, and family circumstances as
mitigating factors. While many of the sentencing factors weigh heavily in favor of a significant
term of imprisonment, the Government recognizes that Silver is 72 years of age, has had some
recent health problems, and generally appears to have had a positive impact on family and
friends. While the Court can and should take these circumstances into account, the described
personal difficulties faced by an educated, accomplished professional, who had plenty of options
other than illegal conduct, are not any more sympathetic than those of the many less-privileged
defendants that are routinely sentenced to significant terms of imprisonment in this District,
many of whom are of advanced age and have similar health concerns. Moreover, any of Silvers
health concerns can be handled effectively by the Bureau of Prisons, which routinely deals with
such issues.
C.
The Need for the Sentence Imposed to Promote

Respect for the Law and to Afford Adequate Deterrence
The need to promote respect for the law and deter other legislators from engaging in acts
of corruption also requires a substantial sentence here, particularly given that political corruption
has plagued the New York State Legislature in recent years, including through the conviction last
year of Silver and his counterpart in the Senate, Dean Skelos. 7 See 18 U.S.C. 3553(a)(2)(A).
7
Indeed, in recent prosecutions by this Office, public officials have been caught on
recorded conversations candidly discussing the sad state of affairs in New York government.
See, e.g., Assemblyman Stevenson (Bottom line . . . if half of the people up here in Albany was
ever caught for they do . . .they . . . would probably be [in jail], so who are they BS-ing?); City
Councilman Daniel Halloran (Money is what greases the wheels good, bad, or indifferent . . .
Thats politics, thats politics, its all about how much . . . and thats our politicians in New York.
Theyre all like that, all like that. And they get like that because of the drive that the money does
27
Given the harm caused by public corruption crimes, and the extent of the corruption problem in
New York, Silvers sentence should communicate that these types of violations of the public
trust will be met with significant sentences.
Silvers conduct here provides a powerful reminder of the dire need for greater
deterrence. Silver persisted in corrupting his official position even after he watched numerous of
his legislative colleagues brought down by criminal charges. As if that was not enough of an
aggravating factor warranting significant punishment, even as Silver knew he was being
investigated by the Moreland Commission for conduct related to his outside income he did not
stop the scheme, but rather took steps to stop that investigation and lie to the public about his
outside income. In this light, Silvers conduct demonstrates, as Judge Pauley emphasized in
sentencing former State Senator Gonzalez, a compelling need to punish him for his venal acts
and to ensure general deterrence among those would try to use their public offices for personal
gain. (Ex. E at 40-41).
A significant sentence in this case also would promote deterrence and respect for the law
by refuting Silvers repeated assertions that his conduct effectively was business as usual in
Albany, and by showing that to the extent his conduct could be considered business as usual, that
was so only because Silver set the rules of Albany rules that allowed Silver and other corrupt
legislators to act with impunity year after year, over and over again. A significant sentence is
necessary to demonstrate that no one, not even one of the most powerful public officials in this
for everything else. You cant do anything without the Fing money.). Silver himself
acknowledged awareness of convictions of New York State elected officials, including
Seminerio, for engaging in similar conduct, but he was undeterred by those convictions from
continuing to engage in criminal conduct. (See GX 3 (unredacted version reflecting Silvers
awareness of Seminerios conviction for corrupt receipt of outside income and concealment on
disclosure forms)). These statements by public officials, including Silver himself, support the
need for the sentence in this case to promote general deterrence.
28
State, is above the law. Indeed, the Second Circuit specifically has endorsed the sentencing court
taking into account local deterrence under Section 3553(a). See United States v. Cavera, 550
F.3d 180, 195 (2d Cir. 2008) (en banc) (affirming sentence based, in part, on need for local
deterrence of crime); see also United States v. George Pabey, (recounting recent public
corruption convictions in the region and stating that the sentence for the former Mayor of East
Chicago should send the necessary message that corruption by elected public officials will not
be tolerated and the epidemic of political corruption that has existed in this region of our state for
at least the past three decades has got to stop).
Silvers repeated assertions that he will be vindicated at some later point, and his lack
of remorse or acceptance of responsibility for the offense, also are relevant considerations when
determining the sentence necessary to promote deterrence and respect for the law. See, e.g.,
United States v. Martinucci, 561 F.3d 533, 535 (2d Cir. 2009) (lack of remorse is a pertinent
sentencing factor under Section 3553(a)); see generally United States v. Keskes, 703 F.3d 1078,
1090-91 (7th Cir. 2013) (A lack of remorse is a proper sentencing consideration because it
speaks to traditional penological interests such as rehabilitation (an indifferent criminal isnt
ready to reform . . .). (citation omitted)).
Thus, Silvers corrupt conduct and the institutional harm he has caused, as well as the
compelling need for deterrence, are aggravating factors that call for a significant term of
imprisonment.
D.
Other Sentencing Factors
As set forth above, the Guidelines range in this case also is entitled to careful
consideration under Section 3553(a)(4). As noted above, the Sentencing Commission
purposefully raised offense levels applicable to bribery offenses because offenders who abuse
29
their positions of public trust are inherently more culpable than those who seek to corrupt them,
and their offenses present a somewhat greater threat to the integrity of governmental processes.
U.S.S.G. Manual app. C (Amendment 666).
In consideration of all of these factors, the Government respectfully submits that while a
sentence within the Guidelines range would not be unreasonable or unjust, in light of the
egregiousness of Silvers conduct and the need for deterrence, the Court should sentence the
defendant to a term of imprisonment substantially in excess of the 10 years recommended by the
Probation Office and greater than any sentence imposed on other New York State legislators
convicted of public corruption offenses.
VI.
THE COURT SHOULD IMPOSE A SUBSTANTIAL FINE AND ORDER FORFEITURE

The Government respectfully submits that a fine of at least the $1 million recommended
by the Probation Office should be imposed on Silver to reflect the fact that Silver stands to
collect a lifetime pension of more than $70,000 per year from the ultimate victims of his crime,
the people of the State of New York, and that he has ample means to pay a larger fine and has no
dependents, as his children all are adults well-past college age and his wife has sufficient
remaining funds.
Section 3572(a) of Title 18, United States Code, sets forth the factors to be considered by
the district court before imposing a fine, in addition to the factors set forth in Section 3553(a).
Such factors include: (1) the defendants income, earning capacity, and financial resources;
(2) the burden that the fine will impose upon the defendant and any of his dependents; (3) any
pecuniary loss inflicted upon others as a result of the offenses; (4) whether restitution is ordered;
(5) the need to deprive the defendant of illegally obtained gains from the offenses; and (6) the
expected costs to the government of any imprisonment. 18 U.S.C. 3572(a). Section 5E1.2 of
30
the Guidelines states that a district court shall impose a fine in all cases, except where the
defendant establishes that he is unable to pay and is not likely to become able to pay any fine.
U.S.S.G. 5E1.2(a). In determining the size of any fine, the district court shall consider:
(1) the need for the combined sentence to reflect the seriousness of the offense (including
the harm or loss to the victim and the gain to the defendant), to promote respect for the
law, to provide just punishment and to afford adequate deterrence;
(2) any evidence presented as to the defendants ability to pay the fine (including the
ability to pay over a period of time) in light of his earning capacity and financial
resources;
(3) the burden that the fine places on the defendant and his dependents relative to
alternative punishments;
(4) any restitution or reparation that the defendant has made or is obligated to make;
(5) any collateral consequences of conviction, including civil obligations arising from the
defendant's conduct;
(6) whether the defendant previously has been fined for a similar offense;
(7) the expected costs to the government of any term of probation, or term of
imprisonment and term of supervised release imposed; and
(8) any other pertinent equitable considerations.
U.S.S.G. 5E1.2(d). The Guidelines further provide that, [t]he amount of the fine should
always be sufficient to ensure that the fine, taken together with other sanctions imposed, is
punitive. Id. The defendant bears the burden of demonstrating an inability to pay a fine. See
United States v. Camargo, 393 F. Appx 796, 798 (2d Cir. 2010); United States v. Salameh, 261
F.3d 271, 276 (2d Cir. 2001).
31
In this case, pursuant to 18 U.S.C. 3571(b), the maximum fine is $10,358,212.24 (twice
the gain) per count, which totals $72,507,485.68 over the seven counts of conviction here. (PSR
122, 124). At offense level 39, the fine recommended pursuant to Sections 5E1.2(c)(3) and
5E1.2(h)(1) of the Guidelines is in the range of $25,000 to $72,507,485.68. Here, the need to
provide just punishment for the offense, to promote respect for the law, and to afford adequate
deterrence to criminal conduct, and accounting for Silvers ample future income and financial
resources, all weigh in favor of imposing a substantial fine of no less than the $1 million fine
recommended by the Probation Office. (PSR at 33).
Silver has managed to amass a net worth, excluding seized funds, in excess of $2 million
(including readily liquid assets of more than $1 million) during his tenure in the Assembly.
(PSR 107 at 23). On top of that, the day after the jury rendered its verdict in this case, Silver
applied to New York State to receive a pension of $5,846 a month totaling more than $70,000
per year for the rest of his life. (PSR 107 at 23). Imposing a fine that somewhat counteracts
the pension income that even corrupt State legislators collect, serves the purpose of sending the
strongest message possible that the community will not tolerate corruption by its highest-level
public officials. 8
Accordingly, the Government respectfully submits that the need for the sentence to
reflect the seriousness of the offenses, promote respect for the law, deter others, and provide just
punishment combined the defendants ability to pay warrants the imposition of a substantial fine.
In addition, forfeiture of the defendants ill-gotten gains is mandated under the applicable
forfeiture statutes.
Perhaps not surprisingly, efforts to pass legislation to prevent convicted elected officials
from collecting State-funded pensions failed in the Assembly under Silvers leadership.
32
CONCLUSION
For the reasons set forth above, the Government respectfully requests that the Court
impose a significant sentence and fine on Sheldon Silver that reflects the seriousness of his
crimes, the immeasurable harm he has caused to the public trust, and the need to deter other
public officials who might consider abusing their power for personal gain.
Dated:
April 20, 2016

New York, New York
Respectfully submitted,
PREET BHARARA
United States Attorney
By:
/s/
_____
Carrie H. Cohen/Howard S. Master/
Andrew D. Goldstein/James M. McDonald
33
Case 1:15-cr-00093-VEC Document 264-1 Filed 04/20/16 Page 1 of 6

United States v. Sheldon Silver, S1 15 Cr. 093 (VEC)
Federal Public Corruption Sentencing Chart
New York Cases1
Defendant
Defendants
Position
Guidelines
Range
Sentence
Disposition
Court
Year
Malcolm
Smith
State Senator
97-121
months
84 months
Trial
SDNY
(Karas, J.)
2015
William
Scarborough
Assemblyman
12-18
months
13 months
Plea
NDNY
(McAvoy, J.)
2015
John Sampson
State Senator
N/A
Pending
Trial
EDNY
(Irrizary, J.)
2015
Trial
SDNY
(Briccetti, J.)
2015
Thomas
Libous
State Senator
0-6 months
Six
months of
house
arrest
William
Boyland Jr.
Assemblyman
235-293
months
168
months
Trial
EDNY
(Townes, J.)
2015
Dan Halloran
NY City
Councilman
151-188
months
120
months
Trial
SDNY
(Karas, J.)
2015
Eric Stevenson
Assemblyman
51-63
months
36 months
Trial
SDNY
(Preska, J.)
2014
Larry
Seabrook
NY City
Councilman
70-87
months
60 months
Trial
SDNY
(Batts, J.)
2013
State Senator
18-24
months
12 months
and one
day
Plea
EDNY
(Weinstein, J.)
2013
Shirley
Huntley
Cases are listed in reverse chronological order, according to date of sentencing.

Defendant
Defendants
Position
Guidelines
Range
Sentence
Disposition
Court
Year
Pedro Espada,
Jr.
State Senator
70-87
months
60 months
Trial
EDNY
(Block, J.)
2013
Carl Kruger
State Senator
108-135
months
84 months
Plea
SDNY
(Rakoff, J.)
2012
Nicholas
Spano
State Senator
12-18
months
12 months
and one
day
Plea
SDNY
(Seibel, J.)
2012
Hiram
Monserrate
State Senator
21-27
months
24 months
Plea
SDNY
(McMahon, J.)
2012
Vincent
Leibell
State Senator
18-24
months
21 months
Plea
SDNY
(Eginton, J. (by
designation))
2011
Efrain
Gonzalez
State Senator
108-135
months
84 months
Plea
SDNY
(Pauley, J.)
2010
Anthony
Seminerio
State
135-168
Assemblyman months
72 months
years
Plea
SDNY
(Buchwald, J.)
2010
Brian
McLaughlin
State
151-188
Assemblyman months
120
months
(reduced
to 72
months)
Plea
(cooperator)
SDNY
(Sullivan, J.)
2009
Miguel
Martinez
NY City
Council
Member
60 months
Plea
SDNY
(Crotty, J.)
2009
57-71
months

National Cases
Defendant
Defendants
Position
Guidelines
Range
Sentence
Disposition
Court
Year
Leland Yee
California State
Senator
57-71
months
60 months
Plea
N.D. Cal.
(Breyer, J.)
2016
Paul Bookout
Arkansas State
Senator
27-33
months
18 months
Plea
E.D. Ark.
(Miller, J.)
2016
Michael Morgan
Oklahoma State
Senator,
President Pro
Tempore
41-51
months
Pending2
Trial
W.D. Okla.
(Cauthron, J.)
2016
Robert
McDonnell
Governor of
Virginia
121-151
months
24 months
Trial
E.D. Va.
(Spencer, J.)
2015
Derrick Smith
Illinois State
Representative
51-63
months
5 months
Trial
N.D. Illinois
(Coleman, J.)
2015
Gordon Fox
Speaker of
Rhode Island
House and
41-51
Vice-Chairman months
of City Board of
Licenses
36 months
Plea
D.R.I.
(Lisi, J.)
2015
Martha Shoffner
Arkansas State
Treasurer
188-235
months
30 months
Trial
E.D. Ark.
(Holmes, J.)
2015
George Grace, Sr.
Mayor of St.
Gabriel,
Louisiana
Life
(capped at
1200
months)
240 months
Trial
M.D. La.
(Hicks, J.)
2014
Michael A.
Brown
D.C. Council
Member
57-71
months
39 months
Plea
D.D.C.
(Roberts, J.)
2014
Patrick Cannon
Mayor of
46-57
Charlotte, North
months
Carolina
44 months
Plea
W.D.N.C.
(Whitney, J.)
2014
Morgan was originally sentenced in 2015 to probation, but the Tenth Circuit reversed the sentence as
insufficiently low. Resentencing is pending.
3

Defendant
Defendants
Position
Guidelines
Range
Sentence
Disposition
Court
Year
Ray Nagin
Mayor of New
Orleans
188-235
months
120 months
Trial
E.D. La.
(Berrigan, J.)
2014
Tony Mack
Mayor of
Trenton, New
Jersey
63-78
months
58 months
Trial
D.N.J.
(Shipp, J.)
2014
Paul Ben
Arredondo
Arizona State
Representative
18-24
months
18 months
of home
confinement
Plea
D. Ariz.
(Martone, J.)
2013
Jesse Jackson, Jr.
U.S.
Congressman
46-57
months
30 months
Plea
D.D.C.
(Jackson, J.)
2013
John Bencivengo
Mayor of
Hamilton
Township, N.J.
63-78
months
38 months
Trial
D.N.J.
(Thompson, J.)
2013
Kwame Kilpatrick
Mayor of
Detroit
360
months-life
(capped at
4,416
months)
336 months
Trial
E.D. Mich.
(Edmund, J.)
2013
Richard Renzi
U.S.
Congressman
97-121
months
36 months
Trial
D. Ariz (Bury,
J.)
2013
David Silva
Mayor of
Cudahy
70-87
months
12 months
Plea
C.D. Cal,
(Real, J.)
2013
Stanley Wright
Mayor of
Bayou La Batre
41 t51
months
15 months
Trial
S.D. Ala.
(DuBose, J.)
2013
Bob Mellow
Pennsylvania
State Senator
21-27
months
16 months
Plea
M.D. Pa.
(Slomsky, J.)
2012
Harry Thomas Jr.
D.C. Council
Member
41-51
months
38 months
Plea
D.D.C. (Bates,
J.)
2012
Hector MartinezMaldonado
Puerto Rico
Senator
120 months 48 months
Trial
D.P.R.
(Besosa, J.)
2012
Terry Spicer
Alabama State
Representative
57-71
months
Plea
M.D. Ala.
(Thompson, J.)
2012
57 months

Defendant
Defendants
Position
Guidelines
Range
Sentence
Disposition
Court
Year
Don Siegelman
Governor of
Alabama
151-188
months
78 months
Trial
M.D. Ala.
(Fuller, J.)
2012
Rod Blagojevich
Governor of
Illinois
360
monthsLife
Pending3
Trial
N.D. Ill.
(Zagel, J.)
2011
Jack Johnson
Executive of
Prince Georges
County,
Maryland
87-108
months
87 months
Plea
D. Md.
(Messitte, J.)
2011
Jorge De Castro
Font
Majority Leader
108-135
of the Puerto
months
Rico Senate
60 months
Plea
D.P.R.
(Besosa, J.)
2011
Phillip Hamilton
Member of
Virginia House
of Delegates
151-188
months
114 months
Trial
E.D. Va.
(Hudson, J.)
2011
Salvatore F.
DiMasi
Massachusetts
House Speaker
235-293
months
96 months
Trial
D. Mass.
(Wolf, J.)
2011
George Pabey
Mayor of East
Chicago
27-33
months
60 months
Trial
N.D. Ind.
(Moody, J.)
2011
Peter Kott
Speaker of
Alaska House
of
Representatives
N/A
Time
Served (17
months)
Plea
pursuant to
Rule 11(c)
D. Alaska
(Beistline, J.)
2011
Dianne Wilkerson
Massachusetts
State Senator
37-46
months
42 months
Plea
D. Mass.
(Woodlock, J.)
2010
Larry Langford
President of
Jefferson
County
Commission
and Chairman
of Finance
292-365
months
180 months
Trial
N.D. Ala.
(Coogler, J.)
2010
Blagojevich originally was sentenced to 168 months before certain of his counts of conviction were
vacated on appeal by the Seventh Circuit. Resentencing is pending.
4
The defendant pled guilty pursuant to a Rule 11(c)(1) plea agreement providing for a time-served
sentence after his initial 72-month sentence was vacated for reasons unrelated to the sentence.
5

Defendant
Defendants
Position
Guidelines
Range
Sentence
Committee
Disposition
Court
Year
1
C4qdkrus
SENTENCE
1
2

------------------------------x
UNITED STATES OF AMERICA,
4
5
v.
11 Cr. 300-02 (JSR)
CARL KRUGER,
6
7
New York, N.Y.
Defendant.
------------------------------x
8
April 26, 2012
4:05 p.m.
9
10
Before:
11
HON. JED S. RAKOFF,

12
District Judge
13
14
15
16
17
APPEARANCES
PREET BHARARA
BY: MICHAEL BOSWORTH
GLEN McGORTY
18
19
20
BRAFMAN & ASSOCIATES, P.C.

Attorneys for Defendant
BY: BENJAMIN BRAFMAN
JOSHUA D. KIRSHNER
JENNIFER LI
21
- also present 22
23
SA Christopher Kelly, FBI

SA Julie Brown, FBI
24
25
SOUTHERN DISTRICT REPORTERS, P.C.

(212) 805-0300
2
C4qdkrus
SENTENCE
1
THE CLERK:
This is April 26, 2012, United States v.
Carl Kruger, docket number 11 Cr. 300, defendant number two.
Will the parties please identify themselves for the
record, and will everyone please be seated.
MR. BOSWORTH:
Good afternoon, your Honor.
Michael
Bosworth and Glenn McGorty for the government.
counsel table are Chris Kelly and Julie Brown of the FBI.
THE COURT:
MR. BRAFMAN:
With us at
Good afternoon.
Benjamin
10
Brafman, Joshua Kirschner and Jennifer Li for Mr. Kruger, who
11
is present in the courtroom.
12
THE COURT:
13
MR. KATZBERG:
14
Good afternoon.
Your Honor, are you going to take Mr.
Turano at the same time or after?
15
THE COURT:
No.
We are going to take Mr. Turano after
16
Mr. Kruger, but you are more than welcome to stay there at
17
counsel table, if you would like.
18
MR. KATZBERG:
19
THE COURT:
20
So we are here for sentence on
Let me ask defense counsel whether the defendant has

read the presentence report and discussed it with his counsel?
23
MR. BRAFMAN:
24
THE COURT:
25
All right.
Carl Kruger.
21
22
Thank you, your Honor.
report?
Yes, your Honor.

And are there any objections to the
You had a number, and I noted that you presented them

(212) 805-0300
3
C4qdkrus
SENTENCE
1
to the Probation Office.
that you wish to raise?
Are there any remaining objections
MR. BRAFMAN:
Not now, your Honor.
THE COURT:
Any objections from the government?
MR. BOSWORTH:
THE COURT:
OK.
No, sir.
Very good.
No, your Honor.
So the Court is in agreement with counsel
and the Probation Office that the total offense level is 31,
the Criminal History Category is I, and the guideline range,
10
which is not binding on the Court but which the Court must and
11
will consider, is 108 to 135 months.
12
I will note, however, the Court's continuing
13
discomfort with the artificial manner which the guidelines
14
calculate proposed sentence recommendations.
15
things, the guidelines always place what appears to be an
16
inordinate emphasis on the amount of money involved in any
17
white-collar scheme.
18
course, an important factor, but the guidelines tend to make it
19
dwarf all other factors, both positive and negative.
20
Among many other
The amount of money involved is, of
So of the 31 points of the total offense level, 14, or
21
45 percent, are the product in this case of the amount of the
22
bribes, which are of course substantial.
23
this Court at least, to be an overemphasis on what can be
24
measured -- namely, money -- at the expense of what may be more
25
important, though it may not be so measurable, such as what
But this seems, to

(212) 805-0300
4
C4qdkrus
SENTENCE
1
kind of a crime this was, how did it affect the public wheel,
what kind of human being was the defendant, what motivated his
actions, and a host of other factors that would seem to this
Court, at least, to be quite central to the issue of
punishment.
Having said that, the mandate of Congress is that this
Court consider not just the guidelines but all the factors
under Section 3553(a) of Title 18, factors that individually
and collectively encompass all the kinds of considerations of
10
which I have just so alluded and much more as well.
So I think
11
we need to direct ourselves at the factors under Section
12
3553(a) and not be focused more than secondarily on the
13
guidelines.
14
So let me hear from defense counsel, then from
15
government counsel, then from the defendant, if he wishes to be
16
heard.
17
MR. BRAFMAN:
18
Judge, at the outset, I would like to thank you
19
because I understand that we have provided the Court with a
20
great deal of written materials, which I know from past
21
experience that this Court will have carefully read, and I
22
appreciate --
23
THE COURT:
24
difficulty as lifting them.
25
MR. BRAFMAN:
Well, reading them was not so much a
I have actually suffered through lifting

(212) 805-0300
5
C4qdkrus
SENTENCE
1
them myself, your Honor, most recently.
the important part.
secondary.
was I know your Honor read them.
But reading them was
Whoever helped the Court lift them was
As the Court observes, the first and most important
And they were written with this Court specifically in
mind, your Honor.
To be candid, it is because I know that your
Honor struggles with the appropriate sentence to impose in
every case, and I think the Court very carefully reviews the
options and discretion which a sentencing Court has today
10
obviously post-Booker, where the Court can again be a court and
11
not simply a mathematician.
12
So I share your Honor's view, and I am pleased that
13
the Court began with the observation that it made, and I will
14
not focus my attention on the guidelines.
15
interest today is where the Court ends and imposes sentence,
16
not where the Court begins.
17
advisory guidelines, as we all do.
18
Court does after looking at the guidelines, after reading the
19
materials, considering the 3553 factors, and then in your
20
infinite wisdom, Judge, decide what is the right sentence,
21
after making an individualized assessment of this man, as the
22
District Court is required to do.
23
Obviously, my grave
I recognize you must look at the

My concern is what the
I want to start on something completely separate and
24
apart before I forget.
Once, you know, an advocate gets revved
25
up, he may forget and I don't want to forget.
I think it is

(212) 805-0300
6
C4qdkrus
SENTENCE
1
appropriate, even though I strongly disagree with where they
come out and the position that the government has taken, I just
want to note for the record that both the representatives of
the United States Attorney's Office in this difficult case in
my judgment acted with great professionalism and with great
courtesy.
today, but that's it.
there is an office policy, and they have individual assessments
of what's the right sentence in this case.
I strongly disagree with the position they take

I recognize they have a job to do and
But I greatly
10
respect the manner in which they have conducted themselves, and
11
it's a credit to the office that I know we all greatly respect
12
as well.
13
THE COURT:
I thought the sentencing advocacy by both
14
sides was at the very highest level of both the memos I
15
received from the two excellent prosecutors and those I
16
received from you, Mr. Brafman, and your associate, who I am
17
sure played a big role in assisting you in the memoranda that
18
you presented.
19
MR. BRAFMAN:
Well, thank you, sir.
20
I start, your Honor, with a difficult observation.
21
have dreaded this day for many months, to be perfectly candid,
22
because at the end of the day, absent divine intervention or a
23
miracle, I believe that Carl Kruger will receive a prison
24
sentence.
25
today, and that's what I would like to focus on.
The amount of prison is open to obvious discussion

(212) 805-0300
But to be
7
C4qdkrus
SENTENCE
1
perfectly candid, when I contemplate that someone who I think
is as fundamentally good and decent a man as Carl Kruger is
will end his career in a federal prison with his wonderful
career destroyed, by his own conduct so I am not blaming
anyone, when I contemplate that, it saddens me.
And I think for the first time in many years I
actually wrote my own letter to the Court on behalf of a
client, who I happen to have known for 30 years.
with great concern, because I value my own integrity in this
10
Court and in this building and my own reputation for being a
11
serious advocate and I pick my spots very, very carefully, and
12
when I choose to write on behalf of someone personally, which
13
is extremely rare, I'm hoping that it suggests to the Court
14
that I really honestly believe everything that I've said not
15
only in the sentencing memo but also in this personal letter.
16
And I write
And what has struck me about Mr. Kruger throughout not
17
just the period of my professional relationship with him but
18
over the years, as I know so many people who have been helped
19
by him getting nothing -- asking nothing in return but whose
20
lives he has saved and whose lives he has improved, I really
21
come away from this with a sense of despair that there isn't
22
anything I'm going to be able to say regardless of how hard I
23
say it that is going to completely save him, and yet I think
24
it's important that not only that your Honor hear it but that
25
the public hears this.

(212) 805-0300
8
C4qdkrus
SENTENCE
1
And I just want you to know, sir, that I try not to
burden the Court by repeating things that I've said in writing.
I recently, several years ago, participated in a sentencing
seminar that was run by Judge Ruben Castillo, of the Sentencing
Commission, and I was a panelist and we had a chance to talk.
And I said to him, I said, I want to ask you a question I've
always wanted to ask a district court judge.
judge who is well respected for his or her scholarship.
ready everything you give them.
You come before a
They know their job.
They
You come
10
into the well of the courtroom, and then you are an advocate,
11
and hopefully a passionate advocate that I think every accused
12
person deserves, and you then have the opportunity to address
13
the Court.
14
or she has read everything.
15
on my written materials?
16
You know when you're speaking to the judge that he

Should I speak, or should I rely
And he said very, very clearly to me, he said, if you
17
are a passionate advocate, continue your advocacy until
18
sentence is imposed.
19
maybe, maybe on occasion, however rare it may be, a judge may
20
come on the bench not yet firm in his or her mind where they
21
are going to come out and maybe something you say helps.
22
speak.
23
And you will never know, Mr. Brafman, how
So
And I have another reason for wanting to speak today
24
in particular, because I know you've read the sentencing memo,
25
we've read the sentencing memo.
Nobody in this courtroom

(212) 805-0300
9
C4qdkrus
SENTENCE
1
besides Mr. Kruger and perhaps the people closest to him and
the Court and the government has read the sentencing memo.
I think this record requires it to include some good things
about Mr. Kruger in addition to all of the bad that this case
presents and all of the bad that's in the public record
already.
And
And I think that when someone who cares about
Mr. Kruger perhaps years from now reads the record of these
proceedings, it should not only be negative and it should not
10
only be bad, because he deserves better and he deserves to have
11
this feel level to the extent that it can be, because despite
12
the fact that he committed a serious crime, I want to tell you,
13
sir, of an item that struck me as --
14
THE COURT:
Might I just mention, Mr. Brafman, that I
15
agree that it's important to have a full presentation orally at
16
the time of sentence not only for the reasons that you have
17
mentioned, that Judge Castillo mentioned, but because the law,
18
in many respects, and particularly at the time of the sentence,
19
is an exercise in the affirmation of morality and basic decent
20
standards and also an affirmation of mercy.
21
can ever be captured in a written document the way it can be
22
captured by the interchange of counsel and the Court in open
23
court, in public court, as we are doing now.
24
there is also, if you will, a symbolic importance to the oral
25
presentations at the time of sentence.
And none of that
So I think myself

(212) 805-0300
10
C4qdkrus
SENTENCE
1
So please continue.
MR. BRAFMAN:
I want to just start with an observation that appears
Thank you very much, sir.
at page 40 of the revised probation report.
Let me read you
just one sentence, sir.
recommending a guidelines' sentence.
at paragraph -- the end of page 40:
acknowledge that over the vast majority of his public life
Kruger carried out immeasurable good in his role as a state
This is the probation officer who is

Nevertheless, he starts
"We recognize and
10
senator."
11
for today, and this morning when I read this paragraph again,
12
it struck me that's a very powerful statement.
13
powerful observation.
14
officer is that Kruger carried out "immeasurable" good.
15
word "immeasurable" is an interesting word; it suggests that he
16
did so much good that you can't even measure it.
17
quantify it.
18
You know, I read this report several times preparing
It is a very
And the word used by the probation

The
You cannot
I am not certain how many people come before the Court
19
at the time of sentence where an independent, objective
20
probation officer, who is not supposed to be on anybody's side,
21
concludes for the Court that the man that you are about to
22
sentence has throughout his life done immeasurable good.
23
think that is a powerful statement.
24
25
I think the letters that we submitted to the Court

verify that Mr. Kruger has done a lot of good.

(212) 805-0300
And if someone
11
C4qdkrus
SENTENCE
1
wants to characterize it as immeasurable, I would like to use
the word "extraordinary."
provided to the Court, of which I'm going to quote very briefly
from, your Honor, suggest that the help that Mr. Kruger
provided throughout his career as a public servant, when he was
perhaps the only full-time state senator in Brooklyn, who
worked tirelessly on behalf of an interesting, diverse
community, his help to them was extraordinary, and that however
flawed he stands before you now, that counts for something.
10
11
Because some of the materials we
And I want you to know, sir -THE COURT:
It does, but I think we have to temper
12
that a little bit in the following sense.
13
job of an elected public official to be sensitive to his
14
constituents' needs and to do his best, within the law, to
15
further their interests and to deal with their problems.
16
It is part of the
And I do not have any doubt that Mr. Kruger went well
17
beyond what any public official should do.
But that is part of
18
his job, at least to a substantial extent.
It is not as if
19
these were acts that he had no obligation to undertake.
20
an obligation to be helpful to his constituents.
21
Yes, he went an extra mile; that's important.
22
Court will take account of that.
23
qualification before you, as you can take it.
24
25
MR. BRAFMAN:
He had
The
But I do want to put that
That is a fair observation, your Honor.
And I also think it is a fair response to say that all of us --

(212) 805-0300
12
C4qdkrus
SENTENCE
1
and I say this with respect to the difference in our obvious
positions, but all of us recognize that there are those in
every profession who despite what their job is on occasion go
way beyond what's expected of them.
beyond what's expected of them, their colleagues and their
constituents or that personnel, or whoever is there
responsible, take note of that extraordinary performance.
on occasion when someone comes before a court, who, yes, is a
politician who is supposed to help his community and, yes, he
And when they go way
And
10
is someone who is paid to do that, nevertheless takes on
11
missions of mercy that suggest that you are really dealing with
12
a very special human being, I think that is a fair note to
13
bring to the attention of a sentencing court.
14
And I start with the proposition, your Honor, I
15
have -- with great deference and always given you credit, your
16
Honor -- I have quoted you in sentencing courts, when
17
appropriate, in many districts, and always, your Honor,
18
referring to --
19
20
THE COURT:
You are certainly taking your life in your
hands.
21
MR. BRAFMAN:
No.
You would be surprised how well
22
received this quote has been.
23
bench that it was the quote from Adelson that caused them to
24
reconsider a sentence they would otherwise be inclined to
25
provide.
Some judges commenting from the
And you have that great influence, good influence,

(212) 805-0300
13
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SENTENCE
1
intelligent, smart influence on judges who don't have your
experience and wisdom at a time when it wasn't so easy to
impose a nonguideline sentence, used your quote in the Adelson
case to justify a sentence that was below a guideline sentence.
And I know you wrote this; I don't have to read it to you.
I just want to read it for Mr. Kruger.
Adelson:
good he has done and his immediate misconduct assessed in the
context of his overall life hitherto, it should be at the
And you wrote in
"Surely if ever a man is to receive credit for the
10
moment of his sentencing, when his very future hangs in the
11
balance."
12
So
And I think, Judge, that's where we are.
All of the
13
good that Carl Kruger has done is important because I think he
14
is a good man.
15
didn't do them so that when he comes before a judge 30 years
16
later at the time of sentencing he could have a rsum of
17
wonderful acts of kindness and service that his lawyer could
18
then quote from.
19
the Court referenced good things he did from the time of this
20
case beginning until now so that he could have a record between
21
indictment and sentence that he could then cite to, someone who
22
does hurry-up community service.
23
let me just say one thing about the job of being a state
24
senator.
25
But at the time he did these good things, he
Because none of the items that we provide to
I know it was his job, but
I've looked at this for a long time.

The vast majority of state senators and state

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assemblymen are part-time employees; they have other
professions.
involved in other businesses.
assemblyman, a state senator from the day he was sworn in until
the day he resigned.
Most of them are lawyers.
Many of them are
Mr. Kruger was a full-time
He never had another job.
When his passport was surrendered to the United States
Attorney's office on the day of his arrest on consent, it had
no stamps in it whatsoever.
never left the United States.
It has never been used.
He has
I defy anyone to show me a
10
politician who has never gone on a fact finding junket or
11
mission to some southern climate or some hot tropical island.
12
He has never gone away from his district.
13
the West Coast.
14
to Manhattan and occasionally to visit people in Connecticut
15
and in New Jersey.
16
years old; he's never gone anywhere.
17
He has never been to
He has traveled to Albany and to Brooklyn and
It's a remarkable statement.
He is 62
Second, to be honest with you, Judge, the thing that
18
struck me as quite unique in this case -- and I understand the
19
law, it is not a defense --
20
THE COURT:
21
22
23
Of course, a cynic might say that once
you've seen New York, you've seen everything worth seeing.

MR. BRAFMAN:
A cynic might say it but not most
politicians.
24
One of the things that I think is quite remarkable
25
when I drilled down and looked at the facts of this case, I

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know it is not a defense under the law for a political person
who misuses his political office and accepts and does a favor
for someone in return for a benefit, for that benefit to come
to them.
This is not a legal defense that Mr. Kruger did not personally
directly benefit by using any of the money.
I get it.
And we have all been in agreement on this.
But the thing that's quite remarkable, to the extent
that he was, under the theory of had case, a partner in a
corrupt scheme, at a time when the Olympic fund was flush and
10
had hundreds of thousands of dollars available to him,
11
Mr. Kruger to pay off his Visa credit card bills borrowed
12
against his pension in Albany.
13
When that was being paid back at a time when the Olympic
14
accounts were flush, he did not use those funds to pay back his
15
debt; it was charged against his weekly salary until the loan
16
was completely repaid.
17
We have the documentation.
Now, they have quoted other cases to you that involve
18
political persons.
19
for the following reasons.
20
stolen from not-for-profit agencies and is used to support a
21
lavish lifestyle of the political person, and stole it from
22
agencies that really needed the money.
23
others, the money was used directly and personally by the
24
political person to enhance his lifestyle.
25
Every one of those cases is distinguishable

In a couple of them, the money was
And with respect to
I will never be able to figure out much of the

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psychology of this case, and I understand that it's not a
defense.
who is accused of participating in bribes exceeding $450,000
never spent a dime on himself and never used it to travel or
buy anything of a luxurious nature.
But this is a pretty unique situation where someone
THE COURT:
Well, as I understand it, both sides agree
that the defendant had a deep emotional involvement with the
Turano family and that that was a significant part of his
motivation.
10
nonmonetary.
11
So that is a benefit that he was receiving, albeit
MR. BRAFMAN:
We don't quarrel with that.
But the
12
observation that I make is that in mostly political corruption
13
cases, and I think perhaps all of them or the vast majority of
14
them, the benefit that is obtained goes directly to the
15
politician.
16
spend it.
17
whole laundry list of things that they have purchased for
18
themselves.
19
It's real.
It's hard.
You can buy things.
You can touch it.
You can
And in every case you find a
Again, I say it is not a defense, and I am not looking
20
to suggest to you that it's a compelling factor by itself, but
21
it is part of who Carl Kruger is.
22
same home for the last 40 years.
23
life, with the exception of an elderly sister, with the
24
exception of a sister who he cared for and helped care for for
25
the last 35/40 years, he has nobody.
Carl Kruger has lived in the

He has almost nobody in his
So the Turanos and the

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family, they adopted each other.
a horrible end, it's sort of like a nice story, because they
needed each other at a time when each of them was going through
substantial personal issues and they ended up helping each
other develop into what turned out to be a pretty interesting
family unit.
doctors, the real tragedy in this case is that one of them,
brilliant physician who had trained very hard, lost his medical
career as a result of Mr. Kruger's actions and his own illegal
10
11
But for the fact that it has
And these two men who he helped make into

a
activity that Mr. Katzberg will refer to in minute.

But I want you to understand, sir, that I think this
12
is a complicated case.
13
think it is a run-of-the-mill, standard corruption case,
14
because Mr. Kruger does not present in any of the evidence
15
that's presented to the Court as a meanspirited, tough guy who
16
was demanding, demanding, demanding because he wants to fly, he
17
wants to go, he wants to buy, he wants to enjoy.
18
I think it is complicated.
I don't
I ask your Honor to let me, if I can, just give you a
19
very quick glimpse into I think who the person is by words
20
spoken not by me -- obviously, paraphrased by me or read by me,
21
but words that were spoken.
22
your Honor, we could have filled the courthouse with people who
23
wanted to come here today.
24
2,000 additional letters or asked people or brought in 2,000
25
additional letters.
And I'm going to be very brief,
We did not.
We could have written
We did not.

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And if you look at the letters that we wrote --
THE COURT:
MR. BRAFMAN:
I am very grateful for that.

I understand that.
But, your Honor, the
letters that we submitted are not from heavy-duty people.
They
are not from powerful individuals who were inappropriately
trying to say, you know, I'm who I am and I want you to read
this because of who I am.
very law-abiding, ordinary citizens who write to your Honor not
as sophisticated individuals, they write to your Honor to tell
These are very normal, very decent,
10
a personal -- a personal vignette, if you will.
11
some of these small, small vignettes, however small they are, I
12
think tell you very eloquently, to be perfectly candid, the
13
kind of man Carl Kruger is.
14
And I think
The letters that talk about Mr. Bloustein, who dies
15
and has nobody, and Mr. Kruger finds his body, brings it back,
16
gets him buried, gets a marker, gets him to have a funeral
17
service.
18
worked in Mr. Kruger's office, no family whatsoever, and not
19
being abandoned.
20
you do in life and some are more significant than others.
21
According to Jewish law, if you do a kindness on behalf of
22
someone who is dead, and that is probably the highest form of
23
kindness you can do, because you cannot ever expect to have
24
anything repaid from that person.
25
because you are a good guy, just because you are a nice person,
This is someone who is emotionally disabled who
You know, there is a level of kindness that
You are doing it just

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you are a kind person.
impose, I think the fact that someone is a kind human being and
a good human being is a factor judges are permitted to
consider.
When you decide how much jail to
And this is not a kindness that his job required him
to do.
check them off the insurance list because they no longer have
to pay his coverage and they move on and they replace them.
They don't track down their bodies and get them a grave and
10
then get them a marker and get them a veteran's citation.
11
12
One of the most remarkable quotes comes from a letter

of Fira Stukelman.
13
14
There are many employers who when a person dies they
I gave the reporter the spellings of all of these

names, your Honor.
15
She's 78 years old.
She is a survivor.
She comes to
16
the United States from the Ukraine.
17
woman, has seen only hardship and terror by governments in the
18
countries in which she lived and in which her parents were
19
murdered.
20
And she writes to you, your Honor, and that is Exhibit 51 in
21
our memo:
22
legs.
23
When we could not fight for ourselves, he fought for us.
24
we could not walk, he walked for us."
25
And she is an interesting
And then she comes and she meets Senator Kruger.
"Senator Kruger was our mouth, our arms, and our
When we would not, could not speak, he spoke for us.

When
And then she goes on and explains all of the things

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2
that Senator Kruger did on a regular basis.

But there are hundreds of people who Mr. Kruger fought
for and spoke for.
But that's not the way, unfortunately, many public officials
conduct themselves.
They don't see individuals.
see a people, they see a group, they see an electorate, but
they don't see the individuals.
And I know that's a public official's job.
Many public officials see major issues.

They don't see the person.
They
You know, there is one man who insists on coming to
10
court, and he's hear today.
11
his name is Orazio Martello, his begins, "If not for Senator
12
Kruger, I would not be alive today."
13
story, your Honor, and I'll paraphrase it, but this man was
14
suffering from stage four bladder cancer.
15
going to die.
16
been approved by the Food and Drug Administration, and
17
Mr. Kruger took them on.
18
a job of a state senator under normal circumstances, to force
19
the Food and Drug Administration to get compassionate care for
20
someone who is just a plain ordinary citizen.
21
His letter, which is Exhibit 32,
And then we have the
He was told he was
The medicine that could help him had not yet
And I know that sometimes that is not
And then you have, I think the quote that I want to
22
read to you from the end of the letter I think is again
23
something that I want your Honor to focus on, respectfully:
24
"Senator Kruger didn't have to help me the way he did.
25
could have written a letter just like the other politicians did

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2
and then stopped when the FDA said no."

And I want to stop here for a minute and respond to
what your Honor said.
these people.
he could have written a letter like the other politicians did.
That's what politicians do in a state senate office when
someone comes in and says I'm going to die unless you get the
FDA to change their mind.
Your Honor said that's his job to help
What he's saying to you, this Mr. Martello, is
He continues:
Mr. Kruger did not.
"But Senator Kruger wasn't like the
10
other politicians.
11
constituent with a reference number.
12
He saw how desperate I was.
13
politician but as a human being.
14
was part of his job but because it is part of who he is.
15
that meant the difference between life and death."
16
He saw me as a person, not just a

He saw the pain I was in.
He took on my case not as a

He helped me not because it
To me
And in his initial paragraph he says all I wanted to
17
do is see my grandchildren grow up.
18
grandchildren are now teenagers.
19
answers your Honor's question, to be perfectly candid.
20
wish I was quick enough when you asked me that question to
21
include this quote at the time.
22
was part of his job but because it was part of who he is."
23
He is here.
His
And his comment really

And I
"He helped me not because it
Your Honor, that's who you're sentencing today, not
24
just a politician who will help constituents on occasion
25
because it is expected of him if he wants to be reelected.

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This is not the work of a politician; this is the work of
someone who is a human being who sees another human being's
life hang in the balance, and takes on the FDA and succeeds.
have dealt with bureaucracies.
bureaucracies.
we deal so much with federal bureaucracies and trying to get
them to change.
moving a bureaucracy to approve a drug for use on an
experimental basis for just an ordinary man who wanted to see
10
Your Honor has dealt with
I guess that part of our gray hair is because
We could build this building easier than
his grandchildren grow up.
11
I think that's a good thing, Judge.
I think that's
12
something that your Honor has a right to consider.
13
Serafini Court -- and we cite that case, it is a Third Circuit
14
case -- it is a very interesting observation.
15
impressed by people who give money to charities, write checks.
16
What they were so intrigued about was a political person who
17
did three acts of kindness, that took some of his time, some of
18
his effort, and they commended him for that that there was a
19
downward departure in that case for extraordinary public
20
service.
21
And the
They are not
This is, by itself, just this case involving Mr.
22
Martello, is much more significant than all of the issues in
23
that case.
24
am not going to do it, but there are 50 good stories in the
25
materials that we have submitted and that we have respectfully
And that's really just the tip of the iceberg.

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focused your Honor's attention on.
Mr. Kruger's office in Brooklyn, for the past 17
years, has screened thousands of people for cancer, has given
out free flu shots, has tested people for high cholesterol.
This is not something you could get in any state senate office,
in any assembly office.
assemblyman 35 years.
have people stuffing envelopes.
filled with, people stuffing envelopes for the next campaign.
I worked in Brooklyn for an

I know those streets.
Those streets
That's what those offices are
10
You don't have doctors and clinicians showing up to give people
11
free mammograms and free blood tests.
12
the public agencies because of his diverse elderly population,
13
and that's something I want your Honor to focus on just for a
14
minute.
15
He demanded that with
Mr. Kruger dealt with people who are vulnerable.
He
16
dealt with people who are old.
17
English as a first language.
18
at all.
19
of Elections to publish its materials and voting explanatory
20
material in Russian so that the people from Brighton, who don't
21
speak English and don't read English, could understand what it
22
means to vote in the United States of America that many of them
23
fought for 25 years to finally get to.
24
25
Many of them don't speak
Many of them don't speak English
He's the only public official who required the Board
He has an Asian-American population in his district.

Many of those people are ignored when it comes to the Board of

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Elections.
people into the democracy.
Mr. Kruger went out of his way to invite those
And, you know, there is a letter from a woman whose
restaurant burned down in Brighton, and it is a very popular,
important restaurant.
on the bench in front of the restaurant with her the night it
burned down consoling her and helping her and promising her
that he will help her rebuild and that there will be people
coming there again.
And she writes about how Mr. Kruger sat
And today that restaurant is rebuilt and
10
people come there and it's a very, very important statement.
11
And, you know, there is a letter from Marc Aronson,
12
who is a lawyer.
13
are various quotes in there.
14
who could not speak for themselves.
15
vulnerable, for the disenfranchised.
16
senator, not like many politicians."
17
It is Exhibit 1 in our submission.
And there
"Carl Kruger gave voice to those

He advocated for the
He was a full-time
Your Honor, today Senator Kruger is vulnerable.
He is
18
vulnerable.
He is a politician charged with political
19
corruption.
I don't know how you could be more vulnerable in
20
this type of a case than to have that going in.
21
vulnerable.
22
one, he has a very good record up to when he becomes a flawed
23
person.
24
25
So he's
What he has going for him I think, and I hope, is,
That matters.
He also has, I think, an advocate, quite frankly, who
I think gets it and cares about it and who I think is trying

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his best to explain to the Court that if he is vulnerable, he
needs me, but, more importantly, I think he needs you, and he
doesn't need you as an advocate; but I think what he needs from
you is -- what I am hopeful that your Honor will find -- is
understanding.
think that's more important than anything else for a court that
has the type of power that a district court has today.
8
9
Punishment, yes, but also understanding.
I don't know what the perfect sentence is.

that in my letter.
We say that in our memo.
And I
We say
I would never
10
have the temerity to suggest to the Court I think 18 months or
11
three years or six years or two years is the right sentence.
12
don't know how you get to a perfect sentence, your Honor.
13
have studied this case.
14
justice system for 37 years.
15
justice system.
16
sentence in this case, and, clearly, I could never imagine how
17
you determine a perfect sentence in this case.
18
there is a perfect sentence in this case.
19
is a sentence that anyone is going to be completely happy with
20
regardless of what the Court does.
I have been a student in the criminal

I think I know this criminal
I don't know how you determine an appropriate
I don't think
I don't think there
21
There are going to be some who are going to think it
22
is going to be too severe, some who will think it is going to
23
be too light.
24
guts and the integrity to do what you think is right, and I've
25
seen you do that in many cases where you do what you think is
And I know you have the independence and the

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right and that you don't really pay attention to what anyone
else says after the fact because you live with your conscience
of knowing that you are an honest, wise man, and I don't say
that to just be presumptuous.
through at the time of imposing sentence.
I know what your Honor goes
Here's what I would like to suggest.
I looked at the
3553 factors, as you are required to do, sir, as I am required
to do, and I understand that today a court in this position has
vast discretion.
The only person, as a practical matter, who
10
it's really going to matter to on a personal level in terms of
11
what the sentence is that your Honor imposes is to Carl Kruger
12
and those who love him.
13
or four-year sentence or something in between, or higher or
14
lower, it is really going to matter to Mr. Kruger.
15
Whether you impose a six-year sentence
I understand under 3553 that you have to consider a
16
number of issues.
17
who we have to be worried about in terms of potential
18
recidivist behavior.
19
someone in a political office.
20
political office, and I don't think there is any indication
21
that he had been dishonest in any other way his entire life.
22
There is no dispute that this is not someone
This crime is uniquely attached to

He will never again hold
Second, I don't believe anyone feels that there is a
23
danger to the community that Mr. Kruger has to be put away for
24
many, many years to protect people, because he's not a violent
25
man, there is no danger.

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There is no reason to think that he needs to receive
special educational treatment in a facility.
factor in this case.
That's not a
He doesn't need drug treatment or alcohol treatment.
Half of 3553 goes right off the chart when you look at
6
7
8
9
it.
So another question is punishment and I think the
question is deterrence.
And I think when you look at punishment, Judge, to be
10
perfectly candid with you, yes, prison is more severe
11
punishment than no prison; no question about it.
12
Mr. Kruger understands that punishment is coming his way.
13
be candid with you, I'm stunned that he has made it this far
14
because the personal punishment that he has imposed on himself,
15
the sadness that has overwhelmed his life from the moment he
16
pled guilty until now, from the moment he was indicted until
17
now -- we've lived with him.
18
office, he has nowhere else to go.
19
He's punished.
20
punished.
And
To
He has spent so many hours in our

And we see a broken man.
He has been punished.
He is going to be
He will be punished for the rest of his life.
21
Whatever sentence you impose, your Honor, there is
22
going to be a consecutive portion to that sentence that has
23
nothing to do with the sentence you impose.
24
to be able to work again in public office, the only thing he
25
really know how to do, and he's going to go throughout his life
He is never going

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living in Brooklyn as someone who has compromised and destroyed
his career, the career of people that he cares about.
never get away from that.
He is 62 years old.
You
By the time he comes out of jail,
even if there is a modest sentence imposed, he's pretty much
unemployable, as a practical matter.
economy, where someone is a convicted felon and in their 60s,
it is not exactly on the top of the list of people who are
looking to hire some young, eager person to run their company.
10
11
Certainly in today's
So he is going to be punished and he has been punished.

Then the question is has he learned anything, has he
12
accepted responsibility.
13
was because we thought there was an important distinction to be
14
drawn between the other public officials who were sentenced in
15
this building and clearly indicated to the court who is about
16
to sentence them that they did not yet get it.
17
Mr. Seminerio required a Fatico hearing that Judge Buchwald was
18
required to go through.
19
before Judge Pauley, tried to withdraw his plea, was
20
interviewed, who essentially denied his guilt.
21
years of bothersome litigation for the court after he pled
22
guilty, clearly indicating that he did not accept
23
responsibility.
24
25
And when we put in our reply memo, it
Both
Mr. Martinez -- Mr. Gonzalez was
Went through
In both of those cases there were sentences imposed

substantially below the guidelines, in one case 25 percent

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below and in one case almost 50 percent below.
case -- in the Martinez case, after he pled, having begun on
day one of his career being a corrupt politician stealing from
a not-for-profit agency, after he pled guilty he gave an
interview to a Spanish-speaking newspaper in which he indicated
that he didn't think he did anything wrong.
This defendant was the first defendant in this case to
plead guilty.
This case was resolved.
10
In the Martinez
Soon after he pled guilty everyone pled guilty.
Now, we don't have a global point adjustment in our
11
plea agreement, and it wouldn't matter anyway because I think
12
your Honor is correct, you are looking at the guidelines as
13
skewed by the numbers.
14
going to change this Court's sentence.
15
that not only was his acceptance of responsibility sincere,
16
clear, it was, and already has, stunning impact, because all of
17
the other defendants in this case, I think looking to
18
Mr. Kruger to defend this conduct, eventually quickly pled
19
guilty prior to the trial.
20
resources that this defendant I think is directly or indirectly
21
responsible for.
22
A point here or there for global isn't

But what you do have is
So there was enormous saving of
And his remorse was sincere and it was continuous and
23
it was never for one second less than complete.
24
Probation, they confirmed to the Court that his remorse was
25
serious and is severe and was absolutely truthful.

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Both at
In his
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letter to the Court, I don't know that you could read a letter
that I think more cogently but very compellingly indicates that
this defendant understands that he did something really wrong
and he hangs his head in shame.
And his last letter to the Court was quite remarkable.
He asks your Honor -- and he doesn't understand whether
something gets sealed or not.
letter into the public record, because he wants other people to
understand that he did something wrong and that he pled guilty
10
He asks your Honor to put his
and he has accepted responsibility.
11
So now we get to the issue of deterrence.
We get to
12
the issue of in a public corruption case, what is the
13
appropriate sentence, because how does that impact on other
14
people?
15
don't know, and I'm not certain anybody does.
16
To be perfectly honest with you, I don't know.
I just
In a case I had with Judge Glasser in the Eastern
17
District, who I think both of us greatly respect -- he is a
18
very experienced, very thoughtful and very smart man -- he said
19
something once in a case that was quite interesting.
20
in the case, the government got up and said we don't think what
21
this man personally did merits a very severe prison sentence,
22
but we want other people to see his sentence and to think twice
23
about committing a crime.
24
25
Because
And I remember Judge Glasser looked at the assistant

and said what you're suggesting is that I give this person a

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sentence that's more severe than is required in the hope that
that sentence will one day keep a person who may not yet even
be committing a crime from committing the crime.
can't do that.
He said, I
Sentencing is an individualized process.
Now, part of the process is a sentence that's
sufficient but not greater than necessary to promote respect
for the law.
agree that a court is supposed to do.
what does that mean?
That's the mandate I think that all of us will

Then the question is
And, you know, I have concluded that I
10
have to leave that to you.
11
I have faith that you will think about this and have thought
12
about this and will impose a sentence that is sufficient but
13
not greater than necessary.
14
I have faith that you will be fair.
But here's what I would like to say as I wrap this up,
15
and I really appreciate the patience, Judge.
16
read a lot of what I've said already and I'm being repetitive.
17
But here's where I come out, Judge.
18
I know you have
I cannot believe -- I cannot believe that there is any
19
person in public office today that will say to themselves in
20
the quiet of their mind I'm going to continue this corrupt act
21
or undertake this corrupt act because if I get caught I'm only
22
going to get four years or three years or five years.
23
has those conversations.
24
conversations.
25
Nobody
I don't believe they have those
And with a man like Mr. Kruger, any sentence you

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impose that puts him in a federal prison is a serious
punishment.
give him community service.
integrity of this process and too much respect for your Honor
to propose something that in my heart I would be delighted if
you could do, but I can't say it.
is I don't know what number, and how you get to that number,
that is the magic number, that says to someone else I'm
treating this seriously.
I'm not here asking you to give him a pass, to

I have too much respect for the
So instead what I'm saying
What I do know is that any sentence
10
you impose can be justified as reasonable given what we have
11
provided your Honor with, that is undisputed, concerning the
12
personal characteristics and background of this defendant.
13
Crime?
Yes.
Serious crime?
Yes.
But look at the
14
life he led up 'til now.
15
endure after that.
And look at what he has done with the life
16
he has been given.
And when you look at his record of public
17
service, from his volunteering for a community board up through
18
the end of his career, you got a lot of really good stuff
19
there.
Look at the punishment he's going to
20
And I go back to what you said earlier because I hope
21
I've persuaded you that this is just not a politician who went
22
through the motions of being a good man.
23
who went through the real hard work of being a very good man,
24
and that the people he has saved and the people he has helped
25
are real people, and that really counts and it should count for
This is a good man

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a lot.
You know, I look at his -- he had a tough childhood.
He was a good son.
friend.
He was a good public official.
resigns in disgrace.
He was a good brother.
He was a good man.
He was a good
He was a good community activist.

At the end of the day he
And here's how I would like to end.
This I wrote down
because I don't want to forget this, and when I wrote it I
thought it resonates well, and I hope you agree.
10
Carl Kruger's legacy is now unfortunately very bad.
11
But his life wasn't.
12
good, and that's -- and that must count for something today.
13
And to be perfectly candid, Judge, I think it should count for
14
a lot.
15
It's not all bad.
He did a world of
So I ask your Honor to consider everything we've said.
16
I know what the government is going to say; they've said it in
17
their memo.
18
public official, he is a public official and he deserves to be
19
punished severely because it is a serious crime.
I think what they are going to say is he is a
20
Yes.
21
really don't.
22
don't dispute that he has done extraordinary things.
23
does Probation.
24
25
And they don't address anything I've said; they

They don't dispute that he is a good man.
They
Neither
So on that issue what we disagree about really isn't

any disagreement.
They say he should be punished severely.

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say he should be punished not severely.
stuff everybody agrees; he is really a good man, he has done
extraordinary stuff.
stuff.
5
6
And the rest of the
According to Probation, immeasurable
So I am done.
I will answer any questions your Honor
obviously directs to my attention.
And thank you very much.
THE COURT:
I am ready to hear from the government.
MR. BOSWORTH:
10
Thank you very much.
Before I begin, I just want to alert the Court, I had
11
passed out copies of the consent orders of forfeiture as well
12
as proposed orders of restitution.
13
THE COURT:
Yes.
14
MR. BOSWORTH:
I have them.
Mr. Brafman ended by talking about the
15
lack of agreement and the existence of agreement between the
16
government and defendant on certain matters.
17
begin by noting on one point there certainly is agreement
18
between the government and the defense, and that is that this
19
is a tragic case.
20
I would like to
It is tragic that we are here.
Why are we here?
We are here at a time when the
21
public's faith in its government has been shaken, at a time
22
when the public fears the outsized influence of lobbyists and
23
money in Albany.
24
most powerful legislators in the New York State Senate, year
25
after year after year accepted hundreds of thousands of bribes.
We are here because Carl Kruger, one of the

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From who?
in Brooklyn and New York City.
executives.
year, check after check after check.
the Turano family?
the trust that had been placed in him, to help the Turano
family?
8
9
From a lobbyist, one of the most prominent lobbyists

From powerful hospital
From a rich consultant.
Year after year after

And for what?
To help
Carl Kruger leveraged his public office,
They weren't paupers.

Far from it.
They didn't need the money.
Michael and Gerard Turano were
successful physicians, each of whom earned over $100,000 a
10
year.
11
Bentley.
12
penny because of Carl Kruger's bribes, they lived in a
13
million-dollar waterfront mansion in Brooklyn with a movie
14
theater and a swimming pool and an elevator and sculptures and
15
marble floors and wood walls and all the works.
16
Michael Turano drove a Mercedes.

They had a boat.
THE COURT:
Gerard Turano drove a
Before either of them received one
So my question, though -- and I agree that
17
the issue of motivation, while it is not in any way, shape, or
18
form an element of the crime, is in this case puzzling.
19
Is it your view that Mr. Kruger performed these acts
20
out of greed, or is it your view that he performed these acts
21
because of ungovernable emotions?
22
23
MR. BOSWORTH:
I think the honest answer is our view
is that he did them for both reasons.
24
THE COURT:
All right.
25
MR. BOSWORTH:
You know, one of the central themes in

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Mr. Brafman's submission, and also at today's proceeding, was
the notion that Kruger didn't benefit.
he did benefit, and the Court addressed that issue and I don't
think there is a great need to belabor it.
And the short answer is
One point I would make is that it is not as though the
Turanos were an adopted family but alien from him.
began his day with the Turanos.
the Turanos.
He slept in his meager apartment, that is true.
Mr. Kruger
He ended his day speaking to
He did all of his holiday meals with the Turanos.

But in all
10
other respects the Turano multi-story, million-dollar,
11
waterfront mansion, with all its lavish accouterments, was
12
Kruger's home, and that cannot be disputed.
13
that they had were benefits that he enjoyed.
All the benefits
14
In his letter, for example, Mr. Kruger mentioned that
15
there is a fourth chair at the Turano family table that is now
16
empty because he stands to be sentenced.
17
baccarat table and chairs that were bought with the bribe
18
proceeds.
19
one of the family albums that was seized with all of them
20
sitting there together.
21
The table was a
There is a picture of Mr. Kruger and the Turanos in
And if there is any doubt about whether Mr. Kruger saw
22
himself as benefiting from this scheme, consider Mr. Kruger's
23
own words.
24
But in one of the intercepted calls, Mr. Kruger is discussing,
25
first with Michael Turano and then with Dorothy Turano, Gerald
And we address this in our sentencing submission.

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Turano's threat to move out of the house and to distance
himself from the family but keep a portion of the consulting
fees that Olympian and Bassett were earning through
Mr. Kruger's work.
Mr. Kruger's response was indignation.
"This whole
world was built around shares."
thundered, it was supposed to be that we were going to all
share in the benefits.
9
10
11
That's what he said.
And he asked, with respect to Mr. Gerard Turano:

What?
He's going to be the beneficiary of my work.

It is clear that Kruger psychologically placed himself
12
in the Turano family, in the Turano home.
13
they reaped were benefits accrued to Mr. Kruger.
14
He
All the benefits
So whether it was greed alone or emotion alone, who
15
can say, and how to parse out the percentage due to each?
16
the fact remains, Mr. Kruger benefited, and he saw himself as
17
benefiting from this scheme.
18
But
Why else would he do it?
Second, the Court focused early on in this proceeding
19
on how hard it is to calculate an appropriate sentence, and
20
noted that the guidelines are based in large part on loss
21
because that is something that can be measured.
22
pointed to the immeasurable good that Mr. Kruger has done.
23
there is no question that the defendant has committed many acts
24
of public service.
25
how they continue to get elected.
Mr. Brafman
That's what elected officials do.

We don't dispute it.

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there can also be no dispute that Mr. Kruger used all those
opportunities and leveraged them for his very private gain.
And how do you measure the harm that is done in a case
like this?
Mr. Brafman quoted from one letter a moment ago
from a constituent, I believe, who said when we couldn't speak,
he spoke for us.
Mr. Kruger's conduct, his district has been without a
representative for well over a year.
of the past year, it was because Mr. Kruger was focused on
Who speaks for them now?
Because of
For the first nine months
10
defending himself in this criminal case.
11
months, not due to Mr. Kruger, there has been indeterminate, a
12
special election, but the fact remains, no one -- no one speaks
13
for the people of his district, the people that he betrayed
14
even as he helped them.
15
For the past few
And there is immeasurable harm that extends well
16
beyond the boundaries of this district.
Mr. Kruger is not
17
charged and doesn't stand convicted of having betrayed the
18
honest services that he owed to the people of his district.
19
is convicted of having betrayed the honest services that he
20
owes to all the citizens of New York State, who he was elected
21
to serve, and who he did serve.
22
functioning assemblyman, like Seminerio, who may have had some
23
local influence but no great stage to work from on a statewide
24
level, Mr. Kruger was the Chair of the Senate Finance
25
Committee, where he controlled the purse strings of New York
He
Not just as a meager

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State's budget.
part to help people that needed help and in part to help people
that were bribing him.
And he played with those purse strings, in
For example, the Court is aware Mr. Kruger was
receiving bribes from Mr. Lipsky.
Mr. Kruger sent over
$400,000 to a nonprofit because the nonprofit agreed to hire
Lipsky's wife.
hospital and said, listen, Carl Kruger can get you money but
you have to hire my wife.
Prior to that, Lipsky himself had gone to a
They worked in tandem.
And because
10
they worked in tandem in a corrupt way, a lobbyist and a public
11
official conspiring together to use the funds of New York
12
State, because they did that Mrs. Lipsky got a job.
13
certainly qualified for it, but she wouldn't have gotten it if
14
Carl Kruger wasn't getting bribes at a time when he was Finance
15
Chair.
16
She was
And the Court is aware from the David Rosen trial, Mr.
17
Kruger pulled the purse strings to help David Rosen.
He sent
18
over 300 -- or he tried to -- ultimately it didn't go through
19
because Anthony Seminerio was arrested because he was receiving
20
bribes from David Rosen, but over $300,000 Mr. Kruger went
21
offering to Jamaica Hospital or to Brookdale Hospital first,
22
and then offered well over a hundred thousand dollars to
23
Jamaica Hospital.
24
He had never supported them before.
25
had set foot in those hospitals before, but he sure became
That wouldn't have happened without bribes.

There is no evidence he

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their best friend real quickly.
Mr. Kruger received bribes from Robert Aquino, the CEO
of Parkway Hospital, and Mr. Kruger lobbied intensely on behalf
of Dr. Aquino to help keep Parkway Hospital open.
Hospital wasn't in Carl Kruger's district.
his borough.
Parkway
It wasn't even in
So the harm in this case, which cannot be measured, is
harm that extends and spilled all over New York State.
people are cynical about their government, and when they have
10
When
to, they're desperate to have faith in their leaders.
11
I'd also like to respond very briefly to this notion
12
that Senator Kruger has experienced personal punishment because
13
of the shame that he has endured as a result of pleading
14
guilty.
15
that that remorse is genuine.
16
He got caught.
17
fought the charges, as is his right, for many months, and when
18
he finally realized the odds were stacked against him he pled
19
guilty.
20
something that every public official who finally gets caught
21
and who are held to account for their corruption experiences.
22
There is no question that Kruger is remorseful and

That's not all that persuasive.
The evidence against him was overwhelming.
So of course he has experienced shame now.
He
But that's
The notion that a public official because of their
23
public station suffers some extra burden of shame and
24
punishment because of their fall from grace is not persuasive.
25
That is tantamount to an argument that white-collar criminals

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who are public officials should be treated less leniently than
white-collar criminals who commit crimes, financial crimes,
would otherwise be treated.
be true.
crimes, they are doing it at the expense of the public trust.
That is a significantly enhanced harm and one that cannot be
measured.
officials who disgrace themselves and betray the people some
sort of break.
10
If anything, the converse should
Public officials don't just commit the financial
And there is no compelling reason to give public
Now, Carl Kruger faces a significant sentence.
11
Mr. Brafman suggested we would stand up and say serious crime
12
and deterrence.
13
within the guidelines of 108 to 135 months is appropriate.
14
crime was certainly serious.
15
Those are some of the reasons why a sentence

The
Probation, in recommending in its independent analysis
16
a sentence of 108 months, called the crime here egregious, and
17
it is.
18
particularly repugnant.
19
multiple.
20
to detect.
21
assuming Senator Kruger had been charged, that he would have
22
pled guilty.
23
sophisticated design.
24
companies that were at least in large part shams, with an
25
obvious and easy cover story:
The facts and circumstances of this offense are

The crimes were sustained.
They were lucrative.
They were secret.
They were
It is hard
Without the wiretaps I doubt very seriously, even
This was a sophisticated crime with a

Bribes funneled through consulting
Anyone that approaches these

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individuals, they're doing consulting work.
that that's the line that at one point in time Aquino, Kalish,
Lipsky, Rosen, all of them were peddling.
Honest work.
It is no accident
Honest work here.
Now, there is a ridiculousness to it that these
consultants, who are trained gynecologists, are doing
consulting work for lobbyists and real estate developers and
healthcare management facilities, but it was a cover story and
it is not one that is easily penetrated.
10
And the question of deterrence I think is an important
11
one.
12
that the Court could assign to a sentence that would have a
13
deterrent effect.
14
that we stressed in the sentencing memo, is consider the
15
sentences that were imposed.
16
cases are certainly not all the same -- between Assemblyman
17
McLaughlin, Assemblyman Seminerio and Senator Gonzalez and
18
Councilman Martinez, there are important differences -- some of
19
them involve more money, some of them involve less, some of
20
them involve bribes, some of them involve embezzlement -- none
21
of them was as powerful a politician, none of them had as much
22
influence as Senator Kruger.
23
their sentences.
24
25
It is true, it is difficult to imagine what the number is
But one thing of note, and it is something
Whatever the difference is -- the
But that aside, consider alone
In sequence -- well, at various times between 2009 and

2010, Assemblyman McLaughlin was sentenced to 10 years in

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prison.
older than Senator Kruger -- 12 years older -- received six
years in prison.
prison.
those sentences imposed at a time when Senator Kruger was
continuing to commit the very crimes of which he now is
convicted.
of which was five years -- stopped Senator Kruger.
difficult to imagine what sentence could be imposed that will
10
Assemblyman Seminerio, dying at the time and 10 years
Efrain Gonzalez received seven years in
Miguel Martinez received five years in prison.
All of
None of those significant sentences -- the lowest

So it is
send the appropriate deterrent message to others.
11
But it is certainly true that the elected officials in
12
this state are watching.
Senator Kruger was watching, was
13
monitoring the criminal cases, at least some of them.
14
wiretaps alone, when Seminerio died, he talks about it.
When
15
Seminerio's conviction is thrown out, he talks about it.
Of
16
course, public officials are aware when other corrupt public
17
officials are caught and they're aware of the consequences.
18
And if it's there has been a lot of shame here and here is a
19
very lenient sentence, that's something of note for them, too.
20
At the end of the day, the Court does have to fashion
On the
21
a sentence that takes into account all the factors that
22
Mr. Brafman outlined.
23
life.
24
for many defendants.
25
There is some good in Carl Kruger's
There is a lot of bad in Carl Kruger's life, as is true
The facts and circumstances of these serious offenses

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are quite venal.
extraordinary in a case like this, that went on year after year
after year at the highest levels of government, in a scheme
that involved a corrupt lobbyist.
alliance of corruption that would disturb hordes of cynicism in
the public more than that one.
The need to impose just punishment is
And it's hard to imagine an
There is the need for specific deterrence.
In part,
it is true, it is unlikely Senator Kruger will ever be an
elected official again, but it is noteworthy that a significant
10
sentence in the past didn't deter him.
11
there is an important need to deter other elected officials who
12
might be engaging in conduct that, general deterrence aside,
13
warrants serious significant punishment in this case.
14
courts do have a role in aggressively policing the honesty and
15
integrity of the political process.
16
At the end of the day,
And the
The government in this case respectfully asks the
17
Court to exercise that role aggressively, because the people of
18
the State of New York deserve nothing less.
19
Thank you.
20
THE COURT:
21
Let me hear from Mr. Kruger, if he wishes to be heard.
22
THE DEFENDANT:
23
All right.
Your Honor, I'm going to read this
verbatim because I am a little bit emotional.
24
THE COURT:
That's fine.
25
THE DEFENDANT:
Your Honor, I want to thank you

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for giving me the opportunity to address the Court.
is simple:
My message
I am sorry.
I am sorry for bringing discredit to New York State
Legislature.
I'm sorry for abandoning my constituents who
elected me to serve them.
18 years as State Senator and for 10 years prior to that as the
unpaid Chair of Community Board 18.
it my special mission to fight the average New Yorker's
battles.
I worked hard for my community for
During these years I made
Now, thanks to my own actions, those battles are all
10
over.
11
managed to achieve.
12
down -- excuse me.
13
myself that very question, but going down that path, I don't
14
believe I would ever arrive at an answer.
15
My actions will forever overshadow whatever legacy I

I could spend the rest of my life going
I could spend the rest of my life asking
But worst of all, in my mind, my eyes, and my heart,
16
I've destroyed the brilliant medical career of Michael Turano.
17
I've destroyed a career that your Honor realizes, through our
18
writings, I helped to build, and in the process of doing that
19
I've destroyed the lives of the people that I love.
20
My community is essentially a small one.
So my
21
downfall and disgrace has been lived publicly.
My prison
22
sentence hasn't yet started, but my punishment is well
23
underway.
24
but myself to blame, and that reality will haunt me for the
25
rest of my life.
I am broken, destroyed, and disgraced; I have no one
I ask you to consider my whole life when you

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sentence me.
Thank you.
THE COURT:
Well, I accept Mr. Brafman's assertion that there is a
great deal of good in Mr. Kruger's character and in the way he
has conducted much of his life.
of this, in the many letters that the Court has received and in
the evidence of his activities over many years inside and
outside New York government, is substantial.
The evidence before the Court
And to be frank,
10
I find particularly persuasive Mr. Brafman's own letter not
11
only because of the respect that I have for Mr. Brafman but
12
also because he has seen a very wide range of defendants over
13
the course of his extensive career and has a good base to
14
assess character.
15
deserves some credit on this day of judgment for his many good
16
deeds that went beyond what one would have anticipated of a
17
state senator, and he will receive a nonguidelines' sentence,
18
below the nine to eleven years that the guideline recommends.
19
And, therefore, I do believe that Mr. Kruger
However, such credit must be tempered by the fact, the
20
glaring fact, that without any need to do so, Mr. Kruger
21
entered into extensive, long-lasting, substantial bribery
22
schemes that, frankly, were like daggers at the heart of honest
23
government.
24
are wrought when a government official comes to bribery, let
25
alone one of Mr. Kruger's power and province.
It's really difficult to overstate the evils that
We have only to

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look at other countries to see that once corruption takes hold,
democracy itself becomes a charade, justice becomes a mere
slogan camouflaging a cesspool of self-interest.
legislator accepts bribes, he not only betrays his
constituents' trust, he strikes a blow against every principle
on which a democracy is founded.
When a
Therefore, whatever credit is due Mr. Kruger for his
good deeds and whatever sympathy one might feel, as I do feel,
for a fellow human being who, in the Court's view, feels
10
genuine remorse must be balanced against the huge harm that
11
Mr. Kruger has done that make this country, and the principles
12
for which it stands, the last best hope of democracy.
13
think that balance weighs heavily in favor of a substantial
14
sentence.
And I
15
So the sentence of the Court is that the defendant is
16
sentenced to seven years in prison; that is to say, 84 months.
17
That's on Counts One and Three concurrently.
18
be imposed on Counts Two and Four 60 months concurrent with the
19
sentence on Counts One and Three.
20
months.
21
There will also
So the total sentence is 84
This will be followed by two years of supervised
22
release on each count, again concurrent, for a total of two
23
years' supervised release.
24
25
No fine will be imposed because the Court makes the

finding that given the substantial restitution and forfeiture

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that has now been agreed to by the parties, and I have signed
the two orders that were presented today for restitution and
forfeiture, that in light of that it would be unreasonable to
expect Mr. Kruger to pay a fine on top of all of that.
5
6
There is, however, a $400 mandatory special assessment

that must be paid.
In terms of supervised release, first, the mandatory
conditions that defendant shall not commit any other federal,
state, or local crime; that the defendant shall not illegally
10
possess a controlled substance; that the defendant shall not
11
possess a firearm or destructive device; and that the defendant
12
shall cooperate in the collection of DNA.
13
The fifth mandatory condition, the drug testing
14
condition, is suspended based on the Court's determination that
15
the defendant poses a low risk of future substance abuse.
16
There will also be imposed the standard conditions of
17
supervision 1 through 13.
18
judgment and will be gone over with the defendant by the
19
probation officer when he reports to begin his period of
20
supervised release.
21
They appear on the face of the
And, finally, there are the special conditions, first,
22
that the defendant shall provide the probation officer with
23
access to any requested financial information, and, second,
24
that the defendant within 72 hours of his release from custody
25
will report to the nearest probation office to begin his period

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of supervised release, and he will be supervised by the
district of his residence.
Now, before I advise the defendant with respect to
appeal, let's see what else is open.
or anything like that from the government?
6
7
MR. BOSWORTH:
Yes.
Are there any open counts
The government moves to dismiss I
believe there are several open counts.
THE COURT:
Mr. Brafman, in terms of any recommendations you want
10
the Court to make and in terms of voluntary surrender, what do
11
you propose?
12
MR. BRAFMAN:
All right.
All open counts are dismissed.
Your Honor, we have agreed with the
13
government, subject to your Honor's approval, that they would
14
not oppose voluntary surrender.
15
June 26th.
16
properly designated.
17
June 26, 2012, we would ask your Honor to recommend the
18
defendant be able to serve his sentence at the Otisville prison
19
camp for religious and dietary needs that will be met and
20
because there are elderly people in his extended family who it
21
would make it easier for them to be able to visit.
22
23
24
25
That requires six to eight weeks today to be
THE COURT:
appropriate.
We ask for the date of
So if the defendant could surrender on
So I agree that the voluntary surrender is
June 26 at 2 p.m. is the surrender time.
I will recommend Otisville camp.
However, as I'm sure
you've already advised your client, I can only recommend; the

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1
2
Bureau of Prisons makes the final determination.

Mr. Kruger, under your agreement with the government
you agreed not to appeal or otherwise attack the sentence.
However, you should go over that with your counsel to be
absolutely sure, because if there were any basis for appeal,
you would need to file that appeal within 10 days.
Do you understand that?
THE DEFENDANT:
THE COURT:
Yes.
And if you do file an appeal and you can't
10
afford counsel for the appeal, the Court will appoint one for
11
you free of charge.
Do you understand that?
12
THE DEFENDANT:
Yes, I do.
13
THE COURT:
14
We will take a short break.
15
It is voluntary surrender to the institution.
Very good.
Thanks a lot.
16
17
18
19
20
21
22
23
24
25

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------------------------------x
v.
MALCOLM A. SMITH
6
7
13 Cr. 297 KMK
Defendant.
------------------------------x
July 1, 2015
10:05 a.m.
White Plains, N.Y.
9
10
11
Before:
HON. KENNETH M. KARAS,
12
13
14
15
16
17
18
19
District Judge
APPEARANCES
PREET BHARARA
DOUGLAS B. BLOOM
PERRY CARBONE
JUSTIN ANDERSON
WINSTON & STRAWN
Attorney for Defendant Smith
GERALD L. SHARGEL
EVAN LIPTON
20
21
SENTENCE
22
23
24
25
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THE COURTROOM DEPUTY:
Malcolm Smith, 13 Cr. 297.
appearances?
4
5
MR. BLOOM:
Counsel please state your
Good morning, your Honor, Douglas Bloom,
MR. SHARGEL:
Good morning your Honor, Gerald Shargel
and Evan Lipton, Winston and Strawn, for Mr. Smith.
8
9
United States of America v.
Justin Anderson and Perry Carbone for the government.
6
7
THE COURT:
seated.
Good morning to you all.
We're here for Mr. Smith's sentence.
10
report I've read is dated May 4, 2015.
11
report?
12
MR. BLOOM:
13
MR. SHARGEL:
14
15
Please be
The presentence
Is that the most recent
That's the report that we have, Judge.

Yes, that's the report that we have
which contains the last addendum.

THE COURT:
Yes.
And then Mr. Shargel I've read your
16
sentencing memorandum with all the exhibits.
17
else I should have read on your client's behalf?
18
MR. SHARGEL:
19
THE COURT:
No, sir.
Is there anything
I think you have everything.
And the government's letter is dated June
20
26th addressed to both Mr. Smith's and Mr. Tabone's arguments.
21
Is there anything else I should have read from the government?
22
MR. BLOOM:
No, your Honor.
23
THE COURT:
Mr. Shargel, I'll hear from you first, and
24
then the government, you can reply to anything they have said
25
and then I'll give your client the opportunity to have the last
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word if there's anything he'd like to say.

MR. SHARGEL:
Your Honor, I understand that this
morning we must respect the verdict and obviously the sentence
is based upon the verdict.
mitigating circumstances, not only contained in the very heavy
submission that I put before your Honor, that I must go over
them, even out of respect for the jury's verdict if I may.
THE COURT:
MR. SHARGEL:
10
But I think that there are so many
Sure.
You know, there are more than a hundred
letters, as I think you acknowledged, in our memorandum.
11
THE COURT:
12
MR. SHARGEL:
13
question in my mind about that.
14
But I think that the most eloquent character reference is not
15
among those letters.
16
go immediately back to the point in time when then Senator
17
Smith was introduced to Mr. Stern at a luncheon meeting.
18
Honor will recall it.
19
of occasions.
20
And I read them all.

I'm sure that you did.
There's no
There are over 100 letters.
Because when I think about this case, I
Your
You heard testimony about it on a number
I know you know the record full well.
I point to that to say that it is not only temporally
21
the beginning of this case against Mr. Smith, but it's also
22
highly significant.
23
a character reference, because there are statements made by
24
Rabbi Beck, the introducing party as you'll recall, there are
25
statements made about Smith not only in his presence as the
It's highly significant to the extent it's

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meeting went on but outside his presence.
little snippet of conversation as Rabbi Beck and Moses Stern
are entering the building.
about recordings or there's nothing in the record to suggest
that Rabbi Beck knew of the recordings and knew the fact that
Stern was cooperating and if he knew that he was cooperating
about something, there's nothing about the extent to which he
knew, or as I said before or a moment ago, that the
conversation, a genuine conversation, Rabbi Beck says to Stern
10
in Yiddish, very, very short, that Malcolm Smith is a very good
11
man.
12
reference when he knew nothing about a court proceeding, knew
13
nothing about a sentencing date, knew nothing about the
14
government's investigation, at least as far as this record is
15
concerned, if I know no more and I know nothing outside of the
16
record.
17
said, a snippet, that Malcolm Smith is a very good man who has
18
been responsive in the past, who has been a good political
19
figure, who has been good for the community, but not only the
20
community, that he served the State of New York in an exemplary
21
fashion, he was easy to work with, he went by his word.
22
Because there's a
And not knowing anything whatever
Malcolm Smith, essentially he was writing a character
And Rabbi Beck said, it was very, very short as I
This continues, they enter the restaurant, this
23
continues in the conversation where Rabbi Beck is heaping
24
praise upon Malcolm Smith.
25
because he's corrupt.
Not because he's on the take.
Not because he violated the law.

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rather speaking about Malcolm Smith as a very, very good
responsive, selfless politician that could get things done,
that was able to work on behalf of the people not only in his
Queens district but on behalf of the people of the State of New
York.
That to me speaks volumes about who Malcolm Smith is
because this was so early on in the investigation.
Stern said, I've heard so much about you from Rabbi Beck and
again and again, the asset that was praised, the asset that was
10
praised was his ability to get things done for his constituents
11
as he saw it, the people of the State of New York.
12
In fact
So I hark back to this conversation because I can't
13
help but think, I can't help but think that if it were not for
14
the fact that that scoundrel, and I may call him a scoundrel
15
because he testified to it himself, Moses Stern, so desperate
16
because he had stolen so much money from CitiGroup, that he
17
defrauded so many others, that he lived a life of crime,
18
obviously facing life under the guidelines beyond any question,
19
beyond any doubt, if he had not come to Malcolm Smith with his
20
plans and his ideas that evolved not at the first meeting but
21
that evolved into what the jury found to be a criminal
22
conspiracy, if he had not come to Malcolm Smith we would not be
23
here today, there would have been no case.
24
did with Malcolm Smith was very very artful, "they" being the
25
undercover FBI agent and Mr. Stern.
Because what they
It was very, very artful.

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It was an eloquent package to lead him down that path.

Now, I urged an entrapment defense in this case but
that entrapment defense failed.
I respectfully submit that
your Honor can still consider the way that this case came
about, the way that the genesis of this case was injected, and
I think under all of those circumstances you may say, and I
think there's case law, Ninth Circuit and Second Circuit case
law to support it, and I respectfully submit that this is
something that should be considered in support of our
10
application for the most lenient sentence that your Honor may
11
impose under the circumstances.
12
I think something else.
I think that a lifetime of
13
good deeds, a lifetime of good deeds, selfless good deeds that
14
are reflected in the the letters that you received, if there's
15
a common theme in each one of those letters again and again you
16
hear that Malcolm Smith went out of his way, Malcolm Smith,
17
when our son was murdered, Malcolm Smith became involved
18
because we didn't think that the District Attorney's Office,
19
the state District Attorney's Office was being as effective in
20
investigating the case.
21
And one of the points that was stressed in each one of
22
the letters, because I think there is a common denominator
23
there, and the common denominator there is that Malcolm Smith
24
did all that he did, helped in the way that he could help, not
25
just simply by making a phone call but by being there, any time
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of day or night.
when a family member was taken to the hospital the first call
that was made, it was the middle of the night, it was Malcolm
Smith and he was there; the tragedy at the World Trade Center,
he didn't simply make telephone calls, he was there; when there
were people who were in times of stress, in times of great
difficulty, in times of hopelessness again and again you see in
those letters he asked for nothing in return.
You heard testimony about someone saying that
I don't want to place names only the record at this
10
time but I think it's in our Exhibit LL, the letter that I
11
referenced a moment ago with the parents who had a son that was
12
murdered.
I thought it --
13
THE COURT:
14
MR. SHARGEL:
15
one.
It was a stray bullet, as I recall.

No, the stray bullet was MM, the next
There were two situations.
16
THE COURT:
Right.
17
MR. SHARGEL:
Under the circumstances of all of those
18
letters, one of the most those eloquent things that I read was
19
that the person referenced in LL, where the young man was
20
murdered intentionally, that under those circumstances the
21
writer says, the parent says he wanted nothing in return.
22
didn't ask for our vote.
23
contribution.
24
help.
25
throughout these letters.
He
He didn't ask for a political
He didn't ask for anything.
He just wanted to
And that's the common denominator that's found

They speak eloquently of a man who

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wanted to help.
moment ago, it's worth saying again, selfless good deeds.
years old and a lifetime of selfless good deeds is a powerful
offset and should be considered as a powerful offset against
the offenses for which Mr. Smith has been convicted.
And I respectfully submit and I said it a
And there's something else I have to note.
52
You heard
it from me in opening statement.
Actually you heard it from
Mr. Lipton in opening statement.
You heard from me in closing
argument.
You knew it was a theme throughout the trial.
It
10
surfaced in pretrial motions.
You heard it again and again.
11
No one could be more familiar with the case than you're
12
familiar with this case, I understand that.
13
annals of political corruption, where in the history of the
14
State of New York, where in the history of the United States
15
has there been a prosecution, because I've found none, I have
16
not found a single case in all the research that can be done,
17
where the idea of the politically corrupt act had nothing to do
18
with Malcolm Smith putting a quarter in his pocket.
19
where an FBI agent sat in front of Sparks Steakhouse in an
20
automobile when people were stuffing their pockets with cash,
21
he spoke not a word of receiving cash or wanting cash.
22
Remember the testimony, remember the recorded conversations?
23
My money is doing good for the people, I say to you in
24
substance.
25
wanting my people to be served, my constituents to be served.
Where in the
My greed is a different kind of greed.

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And I submit that the government, no matter how cynical they
might be, I say that with all respect, there is no question
about the fact as later conversations developed, there's no
question about the fact that he never sought to make any money
for his own pockets.
For his own pockets.
You know there were opportunities.
Never.
I have to respect
not only the verdict but I do respect the FBI agent, the
undercover FBI agent for the work that he was able to do.
he was very, very careful and subtle in some of his
But
10
suggestions.
11
community center was being built, and the agent said would you
12
like to choose the builder, and he said it a couple of times,
13
that was a very, very subtle suggestion that do you want to
14
make money on this deal.
15
know this from the annals of political corruption cases, if you
16
choose the builder, you may have an opportunity to earn some
17
money, a kickback from the builder for getting the work.
18
Malcolm Smith said no, I don't want to do that.
19
agent said in words or substance, I'd like to see you earn here
20
and he said no, I don't want to earn here.
21
Remember when the facility was being built, the
Because if you choose the builder, we
And
The undercover
That's what led, that was the segue to the statements
22
about my money and my greed.
He didn't want any part of that.
23
The government points to the notion that well, when he came out
24
of office, if he was mayor four years later, eight years later,
25
he'd have a soft landing with the agent, they could go on and
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make money together.
idea, but who is talking seriously about what's going to be
happening four or eight years down the road, and that shows
that he's corrupt and wants money?
not.
they're throwing out at you.
corruption?
8
9
He was saying yes, it sounds like a great
I suggest to you absolutely
I suggest to you that that's just some faint reed that

That that's corruption?
That's
There is, and I'll say it again, there is no case that

I know of where the benefit, the benefit to the politician has
10
nothing to do with personal greed.
11
this plain, I think he made this clear, he obviously, obviously
12
was extremely interested in becoming the Mayor of the City of
13
New York and he explains why.
14
had just been burned by the politics, the so-called coup and
15
the politics in Albany.
16
disgusted by what occurred, he was melancholy by what he heard,
17
he was depressed by what he heard or what was done in the state
18
capitol, in the legislature, with the majority minority shift.
19
They called it the coup.
20
He wanted to, and he's made
Because he wants to do good.
He
The word is appropriate, he was
But his interest in getting Wilson-Pakulas had
21
everything to do, everything to do with the opportunity to
22
become a mayoral candidate.
23
wasn't like in Chicago, buying a seat, buying a senate seat.
24
But in a situation like this he was just buying the
25
opportunity, as you well know, the opportunity to run.
He wasn't buying an office.

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So under the circumstances, recognizing the good deeds
that he has done, recognizing the letters that have been put
before you and their very important content, and they are quite
readable and they are quite interesting, there's no question
about that, I ask you, your Honor, I ask you most respectfully
to impose a just sentence.
The government, I want to say a word about this, the
government suggests that there be a sentence within the
guideline range.
That's their default position.
Outside of a
10
5K1 environment, that's always their default position.
11
respectfully submit that that's not very helpful.
12
the notion of having a guidelines sentence in this case, given
13
the 3553(a) factors which have been essentially covered in our
14
submissions, I needn't go factor by factor, but I think that
15
under all of the factors, your Honor, a lenient sentence as
16
suggested by the defense in this case, a year and a day, is
17
most appropriate.
18
19
THE COURT:
your submission.
Thank you, Mr. Shargel.
I think that
Thank you for
Thank you to you and your team.
20
Mr. Bloom.
21
MR. BLOOM:
Your Honor, what I
22
think gets lost in all of the noise about this case and the
23
pretrial motions, in the arguments at trial and the arguments
24
now at sentencing, is that the corruption in this case, the
25
corruption that was practiced by this defendant at the head of

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the scheme -- and make no doubt, he was at the head of the
scheme, it wasn't Halloran, it wasn't the others below him and
it certainly wasn't the government, it was his scheme -- the
corruption practiced by this defendant is the most invidious
form of corruption.
Was he trying to line his own pockets by taking cash
and stuffing them in his pockets?
No.
We agree.
What he was
trying to do was corrupt the democratic process to his own
benefit.
He was trying to manipulate others through having
10
them be bribed in order to gain himself power at the expense of
11
the voters of New York City and New York State.
12
this case is about.
13
That is what
And I think, I represent on behalf of the government,
14
that the most telling of character references of the letters
15
that Mr. Shargel presents to the Court is not LL or some
16
character reference from Rabbi Beck -- and I'll get back to
17
him -- but the letter from Malcolm Smith himself.
18
that letter says underneath it all, and there's a varnish of
19
acceptance of responsibility there, but what that letter truly
20
says is, and it comes through in the submission itself, is the
21
government did this to me.
22
his presentation effectively just said.
23
the genesis of this case and look at how this case came about.
24
You should look at other cases and say I've never seen a public
25
corruption case where this was the crime.
That's what it says.
Because what
That's what
You should go back to
The message being

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sent to this Court is I'm not responsible.
And Judge in the face of that fact, and given what the
defendant did, what he tried to do to the democratic system in
this state, he does deserve a guideline sentence.
Now, Mr. Shargel says oh, there are a lot of
mitigating circumstances.
Look at all the good deeds, look at
the great deeds that Mr. Malcolm Smith did.
in our letter, is something you hear repeatedly in public
corruption cases, because the good deeds are what he's supposed
This, as we said
10
to do.
He was an elected official elected by the people of his
11
district to do good deeds for them and he did them.
12
But that's what he's supposed to do.
He did.
13
What he's not supposed to do is, in a second meeting
14
with an undercover FBI agent say, hey, I want you to go bribe
15
some other state senators, give them jobs so I can become
16
majority leader again.
17
third or fourth meeting with that same undercover agent is say:
18
I wouldn't pay them more than ten thousand dollars to start
19
out.
20
another frigging dime they're going to have to stand on top of
21
the Empire State Building, drop everyone they've endorsed, and
22
hold me up as sliced bread.
23
What he's not supposed to do in his
What he's not supposed to do is say:
If they want
Yet that is what he's done.
What seems to be forgotten in everything involved in
24
this case is that everything here is on tape.
There is no
25
mystery about how this case started, about who did what and who
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said what.
closed doors, in rooms where people thought there was nothing
being recorded, in the State Senate office building, his
office, what you find is a portrayal of a heart of corruption.
And if you go through those tapes what you find in
That is what this case shows.
So yes, he did good
deeds, in public he did good deeds for his constituents.
Behind closed doors there was a very different Malcolm Smith.
And the fact that he's able to generate so many letters on his
behalf, and he did wonderful things for the people who wrote
10
him letters, really I don't see that as a mitigating
11
circumstance.
12
politician.
13
rose to the top of state government.
14
men in the room.
15
a acting Lieutenant Governor.
16
of the State Senate.
17
meant to represent the people of this state and he betrayed
18
that.
19
Because what it says is he was a very good
You know he was a very good politician because he

He was one of the three
He was the head of the State Senate.
He was
He was the president pro tempore
He rose to the top.
He knew what it
And for doing that, whether he stuffs cash in his
20
pocket or not, he deserves a sentence within the guidelines
21
range, not just for himself but to deter others who would
22
follow behind him and do the same thing.
23
unfortunately we all know well now, there are others and there
24
will continue to be others.
25
Because as
And as we said in our sentencing submission, what you

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see from Malcolm Smith's sentencing submission, from Vincent
Tabone's sentencing submission, is they pay attention.
pay attention to what this Court does and what the courts that
came before it did.
activities is.
here, the next person who comes along may think twice if the
Court gives a guideline sentence.
8
9
They
And they know what the costs of their
While Malcolm Smith may deny responsibility
So let's talk a minute about the mitigating

circumstances of Rabbi Beck, because I think that is telling, I
10
agree with Mr. Shargel in that in terms of character
11
references.
12
how this case began, the introduction of Rabbi Beck, what you
13
find is that Rabbi Beck didn't introduce Mark Stern by
14
accident.
15
really great guy, Mark Stern, here's a really great politician,
16
Malcolm Smith.
17
checks.
18
tape.
19
is a great guy.
20
If you go back to those tapes and you listen to
He wasn't brought in there because oh, here's a
Rabbi Beck is the guy who got the straw donor
He's the guy who went out and got them.
That's on
And he's the one who is saying to Stern, Malcolm Smith
Judge, think about that for a minute.
What is Rabbi
21
Beck, a man whose character we don't know other than the acts
22
we have on tape, saying about Malcolm Smith?
So yes, he did do
23
good deeds.
But he was also
24
phenomenally corrupt.
25
stuffing tens of thousands of dollars in his pocket or even
He was a phenomenal politician.
And this case is not a case of some guy

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hundreds of thousands of dollars in his pocket like other
cases.
whatsoever, because that's also on tape, no hesitation
whatsoever, willingly proposed that an undercover FBI agent who
he thought was a wealthy benefactor asked him to corrupt other
politicians on his behalf.
This is a case about a man who without any hesitation
This case is more serious than the others, Judge.
This is a case of a man who is willing to undermine our entire
system of government for his own personal benefit.
And for
10
that, Judge, I propose that a guideline sentence is reasonable.
11
It is not a default position here.
12
the guidelines, that the guidelines were meant to punish, the
13
case that really gets to the bottom of it all, so we would ask
14
the Court to impose that sentence.
Here this is the case where
15
THE COURT:
Thank you, Mr. Bloom.
16
Anything else, Mr. Shargel?
17
MR. SHARGEL:
The only thing I would like to say very
18
briefly is this.
Again and again throughout this case we've
19
heard about the straw donors.
20
true that the case is on the tapes, there's no question about
21
that.
22
obviously it was not submitted to the jury as an issue, in fact
23
it was excluded as an issue from the jury's consideration of
24
entrapment as you'll recall.
25
And I'm not going, we're not here to retry the case and I'm not
I don't believe -- yes, it's
But I don't believe that there is any basis to --
But we know what a bundler is.

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retrying the case -- but I suggest that there is simply no
basis for, whether you as a sentencing court or the jury when
they considered entrapment, hear about that issue, there is
plainly insufficient evidence that Malcolm Smith ever knew that
he was getting money other than money that was bundled.
THE COURT:
Thank you, Mr. Shargel.
Mr. Smith, as I promised you at the outset, you have
the opportunity for the last word.
like to say, now is that time.
10
THE DEFENDANT:
11
THE COURT:
12
THE DEFENDANT:
If there's something you'd
Yes, thank you, your Honor.
Good morning.
Good morning.
I will rely on the
13
submissions and arguments of my counsel as well as the letter
14
that I submitted to you.
15
THE COURT:
Okay.
Thank you, Mr. Smith.
And I did
16
read your letter and as I read said, I read the entire
17
submission that was filed by your very able attorney.
18
All right, the Court's task is to determine what
19
sentence is sufficient but no more than necessary to achieve
20
the goals of the sentencing laws as they apply to Mr. Smith and
21
to this case.
22
of the factors set forth in 18 U.S.C. 3553(a).
23
read the written submissions from both sides and I've
24
considered the arguments contained therein as well as the
25
statements of counsel here today.
To do that I have considered, as required, all

As I said I've

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Among the factors and indeed the starting point we're
told by higher courts is what the sentencing guideline
calculation yields.
paragraphs 29 through 39 of the presentence report without
objection.
6
7
18
That calculation is set forth at
And I guess I didn't ask that, but you did go over the
presentence report with your client?
MR. SHARGEL:
THE COURT:
Certainly.
There are no objections?
10
MR. SHARGEL:
No.
11
THE COURT:
Same with the government?
12
MR. BLOOM:
Of course, Judge.
13
THE COURT:
The base offense level is 14.
That is
14
found in Section 2C1.1(a)(1) of the guidelines which covers the
15
offenses set forth in 18 U.S.C. Section 1343.
16
fraud offense involved bribery and because Mr. Smith is a
17
public official, that's why the base offense level is 14.
18
Because the offense conduct involved more than one bribe,
19
there's a two-level increase pursuant to 2C1.1(b)(1).
20
the total amount of the bribe to be paid or agreed to be paid
21
was $185,000, there's a ten-level increase pursuant to Sections
22
2C1.1(b)(2) and 2B1.1(b)(1)(F).
23
elected official in a high-level decision-making position at
24
the time of the offense conduct, in particular a State of New
25
York Senator, the level is increased by four levels pursuant to
Because the
Because
Because Mr. Smith was an

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Section 2C1.1(b)(3).
total offense level of 30.
whatsoever so he is in Criminal History Category I.
All of that results in an adjusted and a

Mr. Smith has no criminal history
So at a total offense level of 30 and a Criminal
History Category of I, the guideline range is 97 to 121 months,
although Counts 1 and 3 have a maximum of sixty months.
that's the math.
8
9
So
In terms of the other factors under 3553(a), as I said

I've considered all of them.
The one that I think we should
10
always start off with is the personal history and
11
characteristics of the person being sentenced.
12
here by Mr. Shargel today and it's clearly the theme of the
13
sentencing submissions that Mr. Smith should not be judged just
14
by the conduct that the jury found that he committed.
15
agree with that.
16
Mr. Smith has had a life of public service.
17
about that in a minute.
18
speak to Mr. Smith as a husband, they speak to Mr. Smith as a
19
father, adoptive father, as a community member, as a very
20
significant member of his religious community, and all of that
21
I think of course should be considered.
22
And it was said
And I
We're all a product of our life's work.
And
And I'll talk
But I also think that the letters
Now, in terms of the sort of battle of the good deeds,
23
the selfless good deeds, I talked a little about this with
24
respect to Mr. Halloran.
25
to the extent that somebody who is an elected official or an
I think the government is right that

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appointed official, when that person does his or her job and
the job is public service the public has the right to expect to
have done their job.
So a legislator will legislate.
sponsor legislation.
He'll try to get presumably good laws
passed.
He'll
But I also think that even public servants, like any
of us there is a spectrum of people who are exemplary public
servants and those who just go through the motions.
know elected officials who we never hear anything about after
10
they're elected.
11
not show up for votes.
12
others.
13
We all
Think might show up for votes or they might

But some are more proactive than
In Mr. Smith's context, I think that his proactive
14
service goes way beyond what he might have done on the Senate
15
floor.
16
about Mr. Smith's personal connection to people in his
17
constituency or even others who were not in his district where
18
he took a very strong and consistent personal interest.
19
stories about what he was doing both before, during and after
20
Sandy.
21
funds for his constituents.
22
what we expect them to do, we expect them when our communities
23
are ravaged by hurricanes or acts of war, whatever it is, we
24
expect them to represent our interests.
25
many letters, speak to Mr. Smith going beyond that and almost
And what I was struck by was the letters that talked
Not just passing legislation.
The
Not just trying to get
Because elected officials, that's
But the letters, the

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literally going door to door and making sure that people were
taken care of way beyond what he would do through legislation.
Mr. Smith's wife talked about how their house was
basically a freeway for people to come through and vent and
look for support, people could call.
they went on vacation and there were 70 some odd messages on
the machine.
voting yea or nay or sponsoring legislation and I think they do
need to be considered and I think they are a mitigating factor.
10
There's the time that
Those are deeds that go beyond just somebody
Again getting back to what Mr. Bloom said here today,
11
I think it's important to distinguish those good deeds from the
12
mere fact that somebody was an elected official.
13
of the expectation we have of our elected officials is that not
14
only will they look out for the interest of those who elected
15
them, but that they will dedicate their service to giving their
16
constituents their honest services.
17
corruption cases there is that tension where presumably the
18
person who has been elected or appointed to some sort of public
19
service position is engaged in public service but if they have
20
taken a bribe or offered a bribe or done something that
21
corrupts the process, then the law takes into consideration the
22
fact that they're public servants.
23
so serious.
24
officials to only engage in selfless good deeds and to only
25
legislate in the best interests of their constituents and to
Because part
And in any of these public
That's what makes the crime
It is that we are entitled to expect our public

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22
SENTENCE
act in a way that is exemplary.
Mr. Smith talked about in his letter that at a very
early age he looked up to elected officials.
we want all of our children to do.
to aspire to a career or even part of a career in selfless good
deeds, to be the good neighbor, to be the contributing
community member, to be a leader in the Senate or the Assembly
or whatever it is that they do.
side of the coin here, and I'm segueing a little bit to some of
10
the other factors, the need to impose a sentence that promotes
11
respect for the law and takes into account the seriousness of
12
the criminal conduct, and yes to account for general and
13
specific deterrence and the need to avoid unwarranted
14
disparity.
15
And that's what
We want all of our children
And I think that's the other
This was a very serious crime.
And one of you, I
16
think it was Mr. Bloom, talked about how there's been a lot of
17
noise.
18
as a forum for some to pontificate.
19
you made the point in a written submission, this case is not
20
the forum for people to start going off about Albany.
21
not for me or you or anybody else to solve Albany's problems.
22
This is a case of an individual who is charged with crimes,
23
there is an individual determination made by the jury, and my
24
job here is to decide what sentence is sufficient but no more
25
than necessary for this individual.
And there's no doubt that cases like this, they serve

And I think, Mr. Shargel,
And it's
And in doing that I've

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taken into consideration the point that Mr. Smith didn't line
his pockets, that he wasn't going to immediately profit from
this.
Mr. Smith talking about a soft landing.
Mr. Shargel's point.
eight years hence after being elected mayor, I don't think we
should root for our public servants when they retire to take a
vow of poverty.
serving with the public's interest in mind.
There was some evidence on the recordings about
10
But I accept
What Mr. Smith might have done four or
They should continue to serve while they are
Mr. Bloom is absolutely right that what makes this
11
case different than the others is the corruption of the process
12
and that's the heart of Mr. Smith's role in this case.
13
there were others in this case who were participants in that
14
scheme but who also were seeking to profit, line their pockets.
15
And I think that's why some of the argument about disparate
16
impact, comparing this case to others is really an apples to
17
oranges comparison.
Yes,
18
Just because Mr. Smith wasn't lining his pockets
19
doesn't mean that what he did here was good old-fashioned
20
bribery.
21
Mr. Smith was the main beneficiary.
22
He decided that he was going to try to run as a Republican.
23
And the way that New York State by law has set this up is he
24
needed a Wilson-Pakula certificate.
25
if it's greed for power, even if it's power motivated by the
What makes it different in a bad way is that

He wanted to be the mayor.
There is a process.

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desire to be a public servant, there is a process that has to
be respected.
24
So the fact that other people might have been
sentenced to a certain amount of time because they received X
thousands of dollars, that's relevant, but it's not
dispositive.
It has to be respected, most of all by our elected officials.
If they're going to invoke selfless good deeds then they have
to be selfless in their respect of the process.
The corruption of the process is really serious.
And of all the
10
people in this scheme who were going to benefit the most it was
11
the person who wanted to be the mayor, even if he wanted to be
12
a good mayor.
13
doesn't get to be a good mayor if he gets there by using
14
corruption to achieve the office.
15
Because somebody who wants to be a good mayor
I have to say, Mr. Shargel, I don't accept the notion
16
that if it weren't for the scoundrel, Mr. Stern, we wouldn't be
17
here today.
18
had just said no to the scoundrel, which would have been so
19
easy, this is crazy, I'm not going to buy my way to getting a
20
Wilson-Pakula certificate, even if I think I'm going to be the
21
best mayor in the history of New York City I'm not going to to
22
it, I'm going to respect the process, then we wouldn't be here.
23
That's in some part true.
But also if Mr. Smith
So I accept that the entrapment defense not only was
24
properly before the jury but it's something that should be
25
considered at sentencing and I have considered it.

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SENTENCE
the evidence showed was that Mr. Smith was all too willing to
go along with the scheme using other people's money to buy the
Wilson-Pakula certificate.
overwhelmingly shows.
That's what the evidence
And that's why we're here.
So I think I've spoken a little bit about the
disparate impact.
that is a factor and there is even a stronger case for general
deterrence in this context because there is a more limited
universe of people who are in Mr. Smith's position who may be
10
in his position going forward who have to say to themselves I
11
don't want to face the consequences of not giving my
12
constituents or the people of the State of New York my honest
13
services.
14
get to be the mayor I'm not going to corruptly try to pursue
15
the mayoralty, I'm not going to do it.
16
In terms of general deterrence, you know,
That's what I owe them.
Even if it means I won't
So general deterrence is a factor.
Specific
17
deterrence, there's no risk here of Mr. Smith doing anything
18
like this again.
19
including the loss of his office alone are enough to convince
20
him not to do anything like that this again.
21
All of the impact that he has suffered
Where I come out on this is that the crime was
22
serious, Mr. Smith committed it willingly, and it's a very
23
serious crime.
24
has made an impact on people's lives way beyond the sort of job
25
responsibility description of being a state senator.
On the other hand, Mr. Smith is somebody who

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for that reason I don't think a guideline sentence is
appropriate.
But where I come out is that it's the sentence of the
Court that Mr. Smith be sentenced to the custody of the
Attorney General for a period of 84 months in connection with
Counts 2 and 4, 60 months in connection with Counts 1 and 3
because there's a 60 month maximum.
two years, that's to run concurrent with all the counts.
not going to impose a fine because Mr. Smith can't afford one.
10
The supervised release is

I'm
With respect to restitution, we didn't talk about
11
this.
12
forfeit his salary.
13
talk about how the person, the elected physician, the public
14
servant has been paid to do a job and when they engage in
15
corruption they don't do the job.
16
government cites didn't say it's appropriate to take away all
17
of his salary.
18
The government wants me to basically have Mr. Smith

And the cases that the government cites
Even in the cases that the
My view of this is that this was a scheme that lasted
19
what it did, the record is clear on that, and I think there's
20
an argument to be made that that maybe some percentage of
21
Mr. Smith's salary is something he should be forced to give
22
back.
23
evidence certainly didn't suggest that he stopped doing his job
24
while the scheme was going on.
25
it's easier to quantify and say 10 percent or 20 percent.
But I don't know how to quantify that here.
The
So there may be a case where

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SENTENCE
in this case I just don't think I can do that, particularly
given the evidence as I said that Mr. Smith was very active in
doing his job.
understand the request.
it's appropriate.
I don't make light of the request.
But I just don't think in this case
What the PSR says about forfeiture is it's to be
provided by the government, but I don't think that other than
the salary you're seeking any, am I right?
MR. BLOOM:
No, we're not.
10
THE COURT:
The special assessment is four hundred
11
dollars, one hundred dollars for each count, that I have to
12
impose.
13
In terms of the conditions of supervised release
14
Mr. Smith is not to commit another federal, state or local
15
crime, he's not to illegally possess a controlled substance, a
16
firearm or destructive device.
17
drug-testing conditions.
18
Mr. Smith poses a risk of any substance abuse of any kind.
19
He's to cooperate in the collection of DNA as directed by the
20
Probation Office.
21
are imposed.
22
Office within 72 hours of release from custody and he can be
23
supervised by the district of residence.
I'm going to suspend the
There's just no basis to think that
The standard conditions of supervision 1-13
Mr. Smith is to report to the nearest Probation
24
There are no open counts?
25
MR. BLOOM:
The initial indictment in this case,

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1
13 Cr. 297.
2
3
28
SENTENCE
The government moves to dismiss those open counts.
THE COURT:
That's granted.
With respect to the
surrender date...
MR. LIPTON:
I would ask for a surrender date of
September 8th.
And I would also request a recommendation for
designation to Otisville.
THE COURT:
I'll put that in there.
Any objection to
the surrender date?
MR. BLOOM:
No, Judge.
10
THE COURT:
Mr. Smith is not a risk of flight.
11
Mr. Smith you do have a right to appeal the sentence.
12
You have to file a notice of appeal within 14 days of when the
13
judgment is entered.
14
MR. LIPTON:
Did you want to say anything else?

I would ask to set a briefing schedule to
15
submit a motion for bail pending appeal.
And that motion will
16
be submitted by Marc Fernich who will be taking over as defense
17
counsel.
18
THE COURT:
How long to respond?
19
MR. BLOOM:
Two weeks, Judge.
20
THE COURT:
August 1st is a Saturday so we'll set
21
August 3rd for Mr. Smith's submission.
22
government's response.
August 17 for the
And then reply, how long, Mr. Lipton?
23
MR. LIPTON:
Two weeks after that.
24
THE COURT:
25
(Counsel confer)
August 31st.

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MR. LIPTON:
THE COURT:
MR. LIPTON:
THE COURT:
I know that Mr. Shargel had asked the Court to impose
One week.
We can move the surrender date back.
I would prefer that option.
September 21st for the surrender date.
a year and a day and the government asked the Court to impose a
sentence within the guideline range and I considered very
seriously both those requests.
sentence that I've imposed.
And I've also considered the
Mr. Halloran wasn't the main
10
beneficiary of the scheme but he got a much higher sentence, he
11
got a ten-year sentence.
12
completely different bribery scheme in his role as a City
13
Council member and he took the stand and lied which is why he
14
got a higher sentence.
15
it were not for Mr. Smith's good deeds.
16
lower would not take into consideration just how serious the
17
offense conduct was.
18
sufficient but no more than necessary.
However, he also was involved in a
This sentence would have been higher if

But I think anything
So that's the sentence I think is
19
Anything else, Mr. Bloom?
20
MR. BLOOM:
Not on behalf of the government, Judge.
21
THE COURT:
Mr. Shargel?
22
MR. SHARGEL:
23
THE COURT:
24
(Record closed)
No, Judge.
Then we are adjourned.
Thank you all.
25
(212) 805-0300

Sentence
024AASEMS

------------------------------x
v.
08 CR 1238 (NRB)
ANTHONY SEMINERIO,
Defendant.
6
7
------------------------------x
New York, N.Y.
February 4, 2010
11:00 a.m.
8
9
10
Before:
11
HON. NAOMI REICE BUCHWALD,

12
District Judge
13
14
APPEARANCES
15
PREET BHARARA
WILLIAM HARRINGTON
Assistant United States Attorney
16
17
18
19
LAW OFFICES OF MICHAEL ROSS

Attorneys for Defendant Seminerio
MICHAEL ROSS
PERY KRINSKY
20
21
22
23
24
25
(212) 805-0300
024AASEMS
Sentence
(Case called)
THE COURT:
MR. HARRINGTON:
Please, be seated.
Bill Harrington, for the United
States.
Good morning, your Honor.
THE COURT:
MR. ROSS:
Good morning.
Michael Ross and Pery Krinsky and Joes E.
Paz, our legal assistant.

THE COURT:
10
All right.
Mr. Ross, is theEe any reason
that sentencing.ought not to proceed at this time?
11
MR. ROSS:
12
THE COURT:
No, your Honor.

All right.
Let me begin as I always do by
13
confirming the documents that I have received in connection
14
with the sentence to be certain that I have everything.
15
Although, given the amount of material that I have it's almost
16
inconceivable that I don't have it all.
17
First, as certainly counsel and others may be aware or
18
are aware, the parties had a disagreement. about the appropriate
19
sentencing guidelines range and we had a hearing in October
20
over three days which resulted in a decision on January 14th
21
and there were submissions both before and after that hearing.
22
So there was a sentencing memorandum submitted on October 13th
23
w~th
24
defendant, as well as a post hearing submission by the
25
defendant and there was a prehearing submission by the
these three volumes of letters and other exhibits from the
(212) 805-0300
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024AASEMS
1
government as well as a moving memorandum and a reply
memorandum.
the government enclosing a letter from the Bureau of Prisons
concerning its ability to provide medical care for
Mr. Seminerio in custody, and, obviously, there's the
transcript of the hearing.
There was also a letter dated December 2nd from
Have I left out anything?
Oh, in addition, there's the presentence report.
have the draft before the hearing and got the final copy
yesterday or the day before since none of us had notified
We
10
Pretrial or -- excuse me -- notified probation about the
11
hearing they didn't realize that it was trigger timed to do the
12
final version of the presentence report.

MR. ROSS:
13
document~
Judge Buchwald, I believe there is one
14
other
a December 18, 2009 letter which we wrote which
15
addresses some of the PSR issues of December 18, 2009.
16
THE COURT:
17
MR. ROSS:
18
Addressed to me?
It was submitted to probation and to the
government.
19
THE COURT:
.Not to me?
20
MR. ROSS:
Not to your Honor.
21
THE COURT:
22
Let me just confirm for the record that both parties
Okay.
That's everything.
Very good.
23
have received the final version of the presentence report which
24
has a cover memo dated February 3rd.
25
MR. ROSS:
We have.
SOUTHERN DISTRICT. REPORTERS, P.C.
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024AASEMS
Sentence
MR. HARRINGTON:
THE COURT:
The government has as well.
All right.
Are will think objections to
the final report?
the defendant does not agree with the guidelines calculation
but I consider that the guidelines issue is resolved.
from that, are there any objections?

MR. ROSS:
And in asking that I fully understand that
No objections.
Aside
All of our other objections
have been included and subsumed in prior submissions and in
your Honor's decision.

MR. HARRINGTON:
10
11
Aside from the recommendation of the
probation office the government has no objections.
12
13
THE COURT:
Okay.
Mr. Ross, judging from where you
are sitting I assume you are speaking.
14
MR. ROSS:
I am.
Thank you.
15
After submitting a 231 page memorandum that represents
16
the-three volumes that you have in front of you and
17
understanding that both you and your staff have very carefully
18
reviewed these materials which are obvious from our
19
conversations in the courtroom and from every other aspect of
~0
this case, I.thought I would get down to brass tacks because
21
sometimes 231 pages is too much to represent the decision that
22
you have to make today.
23
or not an appropriate sentence, a range of sentence is
24
sufficient to take into consideration the factors under Section
25
3553 (A) .
I am only going to talk about whether
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024AASEMS
Sentence
You've heard some things about Mr. Seminerio's
background and in order to understand whether or not a sentence
is sufficient for issues of deterrence and retribution and in
measuring this sort of matrix decision, this existential
decision that you have to make about where to sentence
Mr. Seminerio you measure the good against the bad, I thought I
would in just two of my own minutes, not in 20 minutes, not in
five minute, but in two of my own minutes tell you how I think
you can summarize the good things of Mr. Seminerio's life
10
because you certainly had a hearing where you heard many
11
negative things about him.
12
Born in abject poverty in a large family with only a
13
cold heater, working to help support his family, placing family
14
above all else throughout his entire life, going from the
15
military, to odd jobs, to the Department of Corrections, to
16
college at night and ultimately through the greatest of flukes
17
to the Department of Correction where I suppose somewhat
18
unwillingly he became a union rep and, ultimately, that led to
19
his role as a public official, the beginnings of Mr. Seminerio
20
have to be considered to be very different than our own.
21
don't know about your background.
22
THE COURT:
23
MR. ROSS:
That's right.
I know about my own background, but I can
24
say that as the child of immigrants as poor as my parents were
25
I don't think they were as poor as Mr. Seminerio's background.

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I say that only because when you consider the things that the
government has introduced into evidence in this courtroom,
there is on one hand evidence of the bad things that are done
in someone's life.
ask you to consider the good things.
But, fortunately, we are now permitted to
One the things that sort of struck me about the
hearing that we had and I am going to be a little bit assertive
about this one is that was there a notion that everything that
Mr. Seminerio did in his life was for money or for greed?
10
11
And
ultimately only you can make that decision.

In some respects I suppose when my office submitted
12
the three volumes that you have in front of you which have more
13
than 300 letters --
14
THE COURT:
15
. every one of them.
16
MR. ROSS:
Which I want to make it clear I have read
Your Honor, I have known you for a number
17
of years but I had no doubt of that before this day was
18
arranged, before we even got to the sentencing hearing, I had
19
not the slightest doubt of that and I am sure you know I don't
20
doubt that all.
21
22
That's why I am prepared to state the
following:
You can take all of those 300 letters and, obviously,
23
in 300 letters there are going to be some that are just as a
24
normal person you read them and you say, well, this is a good
25
letter and this letter you always wonder how these letters are
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written.
Are they written from the heart?
Are they genuine
letters?
Of the 300 there were 30 or 40 or 50 of these letters
struck me as painting a convincing picture -- I am going to go
out on a limb and say this, your Honor
of public official who when he helped the people in his life
was not just doing it for a vote, to curry favor, to try to get
support, whether it was an elderly woman in an apartment that
Mr. Seminerio rented for, literally, dollars, whether it was
friends who described him as someone who is always there and
a convincing picture
10
never asking for anything in return.
As I started reading
11
these letters again this last week to prepare for today because
12
I figured, what am I going to say that you don't know?
13
So I thought I would just speak from my heart and tell
14
you what I think is important which is that I would like you to
15
at least accept the proposition that within the 300 letters
16
there is an essence of a man who whatever he has done is wrong
17
has lived trying to help people.
18
issues in this case have been on a personal level dealing with
19
people day in and day out he has placed family and friends and
20
helping others first.
21
And whatever the monetary
And if you look at these 300 letters and you rip them
22
out of those binders and you said, well, okay.
23
an A letter, this is a B letter, I think you would come away
24
from our submissions and say there are a lot of people who
25
really believe that he is a good man, a good person and has not
This letter is
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been driven his whole life by money or greed but by a more
fundamental value that his father taught him.
To represent Mr. Seminerio is to represent his family
because they have always been there with him, not like other
family members in different cases over the years who are there
to protect reputations, to protect themselves.
Mr. Seminerio are there because they generally love him and
they are bound to him the way I suppose only a mother and a
child could be bound.
10
11
The family of
It's really hard to appreciate unless
you see it in the more than a year that we represented him.

At the end of the day if there's only one thing I ask
12
you to consider it's the very language of 3553(A) and that is
13
imposing a sentence no more harsh than is necessary to satisfy
14
the factors.
15
government has a genuine and important need to prevent public
16
corruption that there is a tremendous temptation and a need to
17
send a message.
18
prosecutor, my years as a citizen and even being a defense
19
attorney, there is a legitimate purpose to be served by sending
20
a message and I want to validate that concern that you have to
21
have as a judge.
22
We understand in this environment where the
I absolutely accept that.
My years as a
The nice, I guess, I'd say the word "nice", the
23
favorable thing about 3553(A) is that it says, impose a
24
sentence no harsher than necessary to satisfy the issues and
25
true it is that we have the issue of deterrence, the question

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is, is there any likelihood of recurrence of criminal conduct?
Again, it's always hard to understand what's in the judge's
mind sitting, as you do, presiding over this case.
letters that you received paint a picture of a person and even
the Department of Probation I think suggested clearly that
there is not an issue of flight risk or him committing crimes.
So if we look at the purpose to be served by
I think the
incarcerating him, I take it that there are issues that are
valid for you to consider sending a public message on one hand.
10
But other on the other hand there is the question of what he
11
has done in his life, his age and all of the other factors and
12
the favorable things about his life.
13
concededly long sentencing memorandum where we cite all these
14
cases at the end of the day the case law says more than that it
15
says it represents the humanity of law.
16
law is that you measure the entire person, the good and the
17
bad.
18
And in a our long,
The humanity of the
And if a sentencing judge wants to take a look at
19
Cases and say, well, this person got this sentence and this
20
person got that sentence there's always a way to sort of
21
germander result.
22
based upon your conscience and intellect.
23
that part of this process has been a recognition that at least
24
I am going to come up and recognize one valid and important
25
concern about sending a message to the public and of course a
Whatever sentence you impose will be the one
But I am hopeful
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10
deterrence message but also taking his life.
So what does that mean in terms of what I think a fair
sentence is for Mr. Seminerio?
And I am not going to recommend
a number.
familiar are gratified that the Department of Probation
recommended a 60 month sentence after receiving all of the
evidence, looking at everything and taking into consideration
the factors under 3553.
following, Mr. Seminerio will be 75 in a month or two.
10
suffers from a variety of illnesses, none of which are
11
immediate.
12
mere act of incarceration is going to kill him.
I am gratified and I think Mr. Seminerio and his
I would ask you to consider the

He
This is not a case where if he goes to prison the
13
THE COURT:
14
MR. ROSS:
I agree
Your doctor did manage to say that.

Well, Judge Buchwald, what I am saying to
15
you, what I am saying to you and I think that as I looked at
16
the letter of the doctor I think what he said was that any
17
incarceration is going to, he is going to die in prison or
18
something.like that.
19
recognize and I think the government does too, that a level two
20
facility -- you know you learn a little bit about the Bureau of
21
Prisons over the course of the years -- a level two facility is
22
a facility that if somebody with cardiac and pulmonary problems
23
does an initial review, they manage. his meds and he is reviewed
24
on a quarterly basis and I think this is also supported by the
25
letter submitted by the government.
Intellectually, intellectually, I
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1
11
Sentence
I recognize that some lawyers would stand up and to
please the family, to please the defendant, to please some
other interests, maybe to hear their own voice, they say based
upon Mr. Seminerio's life sentence him to home confinement.
Sentence him to three months.

THE COURT:
memorandum.
MR. ROSS:
That was what you did say in your initial
I understand that.
But what I am also
saying to your Honor is that you've presided over a Fatico
10
hearing and in that Fatico hearing you heard a certain amount
11
of evidence.
12
case.
13
all that of you've heard, in other words, my requests based
14
upon I think a fair reading of the evidence and something that
15
you would feel comfortable doing is to simply impose a sentence
16
~hat
17
sentence he would at least be able to spend whatever short
18
period of time he has remaining in his life with his family and
19
with his wife of 50 years.
20
Much of that evidence was developed late in the
And what my message to the Court, my request based upon
gives Mr. Seminerio the hope that at the end of his
We, of course, had hopes and expectations at some
21
point in this case that when we appeared at sentencing, you
22
know, your Honor would see only the man Mr. Seminerio is and
23
all the wonderful things he's done in his life shaded by an
24
obviously darkened by some evidence relating to his plea.
25
You've now presided over a hearing and I know that sitting in

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1
this courtroom and I want to be very honest about it, this
evidence upset your Honor and I think it was understandable
that when I use word "upset" that the evidence of misconduct
was not pleasant and it raised questions of public corruption
and it raised questions that are reflected in your Honor's
decision.
clear what happened in that courtroom and what is reflected in
your decision.
out to be and we are now today where we are after a Fatico
10
I am not afraid to repeat what I think is pretty
Obviously, that is what this case has turned
hearing.
11
But notwithstanding Mr. Seminerio's plea and
12
notwithstanding the evidence that you heard at his hearing and
13
notwithstanding your Honor's decision, I respectfully submit
14
that there's a basis first for you to impose a sentence far
15
below the guideline range and a sentence which gives
16
Mr. Seminerio the hope that at the end of that sentence he will
17
be able to spend time, at least some time, some short amount of
18
time with his wife and h~~ family.
19
THE COURT:
Mr. Harrington.
20
MR. HARRINGTON:
Your Honor has heard from the
21
government at length about its view of the facts of the case
22
and at the end of that process sent a very potent message about
23
society's view of what Mr. Seminerio did, his betrayal of the
24
public trust, his decision at some point ten years ago to begin
25
extorting his close friends, Robert Richards Arlene Pedone, of

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1
soliciting bribe from his constituents and from entities that
served his constituents.
The Court also sent a powerful warning to others who,
like Mr. Seminerio, had great authority, have great power,
power to do good and power to do bad and warn them not to
violate the law, not to betray the public trust.
The Court is now in the unenviable position of
deciding a number, an amount of time that Mr. Seminerio should
serve as a result of his crimes and I recognize that in doing
10
11
so the Court needs to consider all these factors.

The one request that the government makes is that in
12
imposing a sentence the Court not undermine the unmistakable
13
message that was sent in your Honor's January 14 position.
14
in doing so I'll note again the case of Brian McLaughlin which
15
he was the cooperator who provided, who really began in some
16
ways parts of the case against Mr. Seminerio, and I provided
17
your Honor with the transcript of his sentencing.
18
someone who, like Mr. Seminerio, committed terrible crimes,
19
abused his position of trust, was able to arrive at sentencing
20
with hundreds of letters because he had such power to do such
21
good, cooperated with the government, leading to substantial
22
cases, and, nonetheless, is serving ten years in jail.
And
Here is
23
There's also the case that happened after submissions
24
to the Court of Miguel Martinez, a councilman who between 2002
25
and 2008 stole approximately $100,000.

Before he was charged

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1
agreed to plead guilty pursuant to a plea agreement.
sentenced for that $100,000 to 60 months by Judge Crotty in
December of last year.
14
He was
So the government's concern is that a sentence along
the lines of what probation recommends sends a message that
Mr. McLaughlin for his cooperation ended up getting punished
more severely.
plead with a plea agreement eliminating a need for any Fatico
hearing, got his five years.
Mr. Martinez, despite his immediate decision to
And that a sentence like what
10
probation recommends sends a message that Mr. Seminerio's
11
continued betrayal of the public trust through his denial of
12
the crimes is not being recognized.
13
Having said that, I recognize that the Court has a
14
terrible decision to make.
For many years it appears that
15
Mr. Seminerio did do good services.
16
a puzzle to may of the people that the government interviewed
17
and may of the people that the Court heard from, Mr. Seminerio
18
changed that.
19
would no longer be just a public servant but he would start
20
looking out for his own pocketbook, that he would extort very
21
close friends, that he would demand payments from his
22
constituents and then he continued on doing that for about ten
23
years.
24
merits a serious sentence, one that re-enforces and highlights
25
everything that the Court found in its January 14th decision.
And at some point and it's
He decided sometime in the late '90s that he
It's a serious crime as the Court recognizes and it
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024AASEMS
THE COURT:
15
Mr. Seminerio, would you like to say
something?
THE DEFENDANT:
THE COURT:
No.
Mr. Seminerio, having presided at a two
and a half day hearing to determine the appropriate sentencing
guidelines range for your crime and having read the volumes of
letters that were submitted on your behalf, I believe I have a
lot of information about you.
I learned and the portrait of you that you would prefer I see.
There is a contrast.between what
10
Let me say right at the outset that I do not doubt that you
11
have been a loving husband, father, grandfather, sibling,
12
relative and friend to the many people who wrote on your
13
behalf.
14
position to aid the individuals who wrote to me about your
15
assistance and that your assistance did often go above and
16
beyond.
17
I have received that you have not been honest with your family,
18
friepds or former constituents about the breadth and depth of
19
your criminal.conduct.
20
references to unintentional transgressions or his anomaly or
21
his apparent minor aberration or his one mistake.
22
this observation I in no way suggest that family, friends and
23
others who benefited from your assistance, support and love
24
should not want you to receive the lowest possible sentence
25
that is natural and I would not expect otherwise.
Nor do I question that you used the power of your
But at the same time it is clear from the letters that
If you had there would have been rio
In making
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1
Sentence
However, my role in the justice system requires that I
have a broader perspective.
defendant.
and it is about the crime itself.
evidence of your conduct which was established at a two and a
half day hearing that was held after you decided to challenge
the government's sentencing guidelines calculation.
evidence is recited in a 45 page decision which I issued on
January 14th.
10
16
Sentencing is not just about the
It is about the defendant's commission of the crime

I have already detailed the
The
It describes the multiple examples of wrongful
conduct by you over a period of at least eight years.
11
You received consulting fees, from among others, a
12
hospital, college and a business lobbying organization for
13
which there was no evidence that you performed any work beyond
14
that which could be expected of a diligent public servant.
15
Indeed in one of the taped conversations you acknowledged "And
16
we don't have to do nothing.
17
nothing".
18
audience to read.
19
I mean, I don't have to do
That opinion is publicly available for anyone in the
It was not my intent to repeat here what I said there,
20
that your persistent refusal to acknowledge the breadth and
21
depth of your criminal conduct has led your family, friends and
22
former constituents to have a picture of you which are less
23
clarified would lead them to believe that any serious sentenced
24
you received would be wholly unwarranted.
25
The side of you which I came to know because your

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1
words were recorded on tape undermines the image of you that
your supporters have.
examples.
Let me explain by citing to a couple of
First, a theme that appears in many of the letters
submitted was how much you value education and how you urged
and assisted the office to go to school.
came to shove between funding for education and for the
hospitals that which were paying you consulting fees, here is
what you said to Sheldon Silver, Speaker of the State Assembly,
However, when push
10
when you inquired about the status of hospital funding.
11
I quote:
12
the language here is a little salty but it's not what I said.
13
Let me start again:
14
Again
I'm mean, Shelly -- and by the way at certain points
"I mean, Shelly, for Christ sake, you, you know
15
something?
16
wrong.
17
If you are not in good health what good is it going to do you?
18
You know, people's education my ass.
19
street a cripple and you are not being treated.
20
about your education."
21
Ho~est
to God if I am wrong say, Tony, you are
You know it.
I don't give a fuck how educated you are.
You, you, you walk in the

Go tell me
The next day in a called to Jamaica Hospital's lawyer
22
Mr. Seminerio revealed that his concern was actually far
23
narrower than healthcare in general when he reported "And I
24
told him, Shelly -- again referring to his call with Sheldon
25
Silver -- I don't give a fuck.
You close every hospital in the
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1
city.
18
Sentence
You leave my hospitals alone."
Principle versus pocketbook, which one won out?
Second, there is an image of the devoted public
servant who fought for the little guy, but here is how you
described your entry into the consulting business ..
"And I was doing, I was doing favors for those sons of
bitches there in the healthcare field, you know, and they were
making thousands.
consultant.
Screw you.
From now on you know, I am a
The day I leave the assembly I'll lose maybe 60
10
percent of my business but I don't give a shit.
11
I've got a pension.
12
13
By that time
I've got my Social Security."
Bottom line you just decided to get paid extra for

doing your job.
14
You decided to take a piece of the action.
Mr. Seminerio, I don't know why you strayed from the
15
values you had been brought up with and had apparently lived
16
under for many .years.
17
suggest or did you rationalize your behavior in some way?
18
don't know the answer.
19
that no acceptable justification has been tendered.
20
Was it simply greed as the above quotes

I
All that matters from my perspective is
Part of the function of a sentence is to send a
21
message.
The person sentenced serves as the messenger.
22
Mr. Seminerio, your stubborn refusal to acknowledge the extent
23
and nature of your wrongdoing enhanced the message of your
24
prosecution because it provided an opportunity for a public
25
record to be made often from your own words of your betrayal of

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1
the public trust and of your office.
and the 45 page decision which I just referenced, as well as
press and Internet coverage.
understand why you requested such a public hearing of your
criminal activities but it is there for all to see.
wrongful conduct is clearly established and I note that our
opinion gave you the benefit of the doubt in arriving at the
proper guidelines for sentencing.
19
There is now a transcript
I don't think I will ever
The
When you were elected you were given a great privilege
10
to be in a position in which you could really help.
You abused
11
the trust that was placed in you.
12
you put in doubt your actions as a state assemblyman.
13
real motivation?
14
Citizens are entitled to trust in the integrity of their
15
government.
16
message that such conduct is unacceptable because it destroys
17
the fabric of our society.
18
have who a choice, who have options.
19
message to other public officials who see easy money and a
20
setting in which the ethics rules do little to prevent
21
temptation.
22
sufficient, but not greater than necessary to comply with the
23
purposes of sentencing, to reflect the seriousness of the
24
offense, promote respect for.the law, provide just punishment,
25
afford general deterrence and specific deterrence.
By taking consulting fees

Was your
Your interests or the public interests?
Now is the time to impose a sentence which sends a
This is message to people like you

This sentence must be a
I recognize the mandate to impose a sentence
Those
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1
considerations are woven into the remarks I've already made.
It is important as well that I consider the history and
characteristics of the person to be sentenced.
I have read the letters submitted and I presided at the Fatico
hearing.
circumstances.
be able to treat the medical issues that you present.
8
9
As I have said,
I've considered your health, your age and family

I am satisfied that the Bureau of Prisons will
As you know I am and the probation department have

found that the sentencing guidelines in this case is 135 to 168
10
months.
11
concluded that a sentence of six years is sufficient but not
12
greater than necessary.
13
the guidelines because I recognize that you've done much good
14
in your life and I've considered your age and your physical
15
condition.
16
17
18
19
20
21
Nonetheless, considering all the factors I have
I've sentenced you to far less than
You are also ordered to forfeit to the United States

$1 million and to pay the- mandatory special assessment of $l00.
You are ordered to report to the facility designated
by the Bureau of Prisons 30 days from today.
You have the right to appeal the sentence I have
imposed within ten days.
22
Is there anything else?
23
MR. ROSS:
Yes, your Honor.
Section 3621 gives us, a
24
sentencing court the option of recommending to the Bureau of
25
Prisons a facility.
That section also provides that, of
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1
course, it is the Bureau of Prisons' decision.
Mr. Seminerio's family and the age of his wife, a
recommendation to the Otisville camp which we understand is a
level two medical facility which will be able to care for him
if accepted by the Bureau of Prisons would at least allow his
wife Katherine to see him and I therefore would ask that you
make a recommendation to the Otisville camp.
THE COURT:
the medical needs.
10
MR. ROSS.:
11
12
13
14
15
16
17
21
In light of
I have no problem doing that if it meets
And I represent to your Honor it's a level
two facility.
THE COURT:
I take your word for it.
Is there
anything else?
MR. HARRINGTON:
No, your Honor.
I'll provide the
Court with a forfeiture order.

THE COURT:
Very good.
Thank you.
(Adjourned)
18
19
20
21
22
23
24
25
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05P8GONS
1
2

------------------------------x
4
5
v.
EFRAIN GONZALEZ,
6
7
06 Cr. 726 (WHP)
Defendant.
------------------------------x
May 25, 2010

3:10 p.m.
9
Before:
10
HON. WILLIAM H. PAULEY III
11
District Judge
12
APPEARANCES
13
14
15
16
17
18
PREET BHARARA
MICHAEL LEVY
PABLO QUINONES
LINKLATERS LLP
LANCE CROFFOOT-SUEDE
PATRICK ASHBY
19
20
21
22
23
24
25
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2
05P8GONS
(Case called)
THE DEPUTY CLERK:
3
4
5
please give their appearance.

MR. LEVY:
THE COURT:
THE DEPUTY CLERK:
9
10
Michael Levy
and Pablo Quinones for the government.
Would counsel for the government
Good afternoon, Mr. Levy.

Would counsel for the defendant
please give their appearance.

MR. CROFFOOT-SUEDE:
Lance Croffoot-Suede and Patrick
Ashby for Mr. Gonzalez.
11
THE COURT:
12
I note the presence of the defendant, Efrain Gonzalez,
13
14
15
Good afternoon, Mr. Croffoot-Suede.
at counsel table.
This matter is on for sentencing.
ready to proceed?
16
MR. LEVY:
17
MR. CROFFOOT-SUEDE:
18
THE COURT:
19
Yes, your Honor.
your client the presentence investigation report?

MR. CROFFOOT-SUEDE:
21
THE COURT:
23
24
25
Yes, your Honor.
Mr. Croffoot-Suede, have you reviewed with
20
22
Are the parties
Yes, your Honor.
Are there any factual matters set forth in
the report that you believe warrant modification or correction?

MR. CROFFOOT-SUEDE:
Other than what has been noted in
the addendum about the title to various sections, no.

THE COURT:
Very well.
Do you wish to be heard?
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3
05P8GONS
MR. CROFFOOT-SUEDE:
Yes, your Honor.
THE COURT:
MR. CROFFOOT-SUEDE:
We will try to be brief, your Honor.
First and foremost, actually, Mr. Gonzalez wanted me
I will hear from you now.

to thank his sons Efrain and Carlos for being here today, as
well as his other relatives and friends, for supporting him and
for their continued support in the days and years ahead.
Your Honor, I actually think what makes the most sense
10
in terms of framing the argument is something that the Court
11
has already heard recently in connection with another
12
sentencing in this matter.
13
Mr. Baum repeated to the Court a quote from Judge Rakoff's
14
decision in United States v. Adelson, and I actually think that
15
Mr. Baum hit it head on with that quote, and I do think it's
16
appropriate to reiterate it today.
17
In Mr. Castanos' sentencing,
In the context of another sentencing, Judge Rakoff
18
said, "Surely, if ever a man is to receive credit for the good
19
he has done, and his immediate misconduct assessed in the
20
context of his overall life hitherto, it should be at the
21
moment of sentencing, when his very future hangs in the
22
balance.
23
bad, which is basic to all the great religions, moral
24
philosophies and systems of justice, was plainly part of what
25
Congress had in mind when it directed courts to consider as a
This elementary principle, weighing the good with the
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necessary sentencing factor the history and characteristics of
the defendant."
Your Honor, we are not here today to ignore what Mr.
Gonzalez has done that has violated the laws, breached the
trusts of many, and done significant damage.
however, also to discuss what Mr. Gonzalez has done with the
life that he has been afforded up until this time.
the Court will indulge me for a few moments to provide the
proper context for the sentencing of Mr. Gonzalez for the
We are here,
And so if
10
violations of federal law that he has pled guilty to, we would
11
just like to review with the Court some of the highlights,
12
shall we say, of Mr. Gonzalez's life.
13
At five years old, Mr. Gonzalez and the rest of his
14
family was abandoned by his father.
15
suffer difficulties.
16
one of them.
17
disadvantaged, and as a minority in our country, as well as in
18
Puerto Rico.
19
Many families in our midst
Mr. Gonzalez and his family was surely
Mr. Gonzalez grew up poor and he grew up
At 16, he married his 14-year-old girlfriend, Janet
20
Palomano, with the necessary consent that their parents had to
21
give.
22
years of age, and henceforth, Mr. Gonzalez embarked on a career
23
to provide for his family.
24
he worked in succession as a stock person for a grocery store,
25
as a bus driver, as a maintenance worker, as a truck driver for
Four children resulted from that marriage, and at 16
Necessarily dropping out of school,
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Wonder bread.
he got his GED, his diploma, and he got his security guard
license and founded his own security business, Unlimited
Security Services, Inc.
approximately 600 people and it was a successful business for a
number of years.
He did this for more than five years, and then
At its height, it employed
In 1984, Mr. Gonzalez began working with Senator
Israel Ruiz, and at that point in his life he was able to begin
to practice what he already knew he loved, which was working
10
for the public good in the public eye.
11
In 1989, Mr. Gonzalez became a state senator for New
12
York, which I think we are all aware of, and in his time as a
13
state senator, his chief priorities were fostering local
14
business, bringing together diverse ethnic groups, improving
15
family's access to medical care and government services, and in
16
these regards, among many other things, he established separate
17
industrial development agencies in each borough to help
18
stimulate job creation in a more efficient and productive
19
manner.
20
Legislators, a national advocacy organization.
21
the Housing and Urban Development agency, raise almost $3
22
million in relief funding.
23
of minority health to address minority health issues and
24
provide minorities with better access to medical resources.
25
And he individually helped his constituents resolve health care
He helped create the National Hispanic Caucus of State

He helped HUD,
He helped establish a state office
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problems with agencies like the Department of Social Services
and Medicaid.
I did say I was going to be brief, your Honor, and I
am.
This Court is diligent.
We are referring the Court, of
course, to all the submissions we have made in connection with
the sentencing, including the many letters of support provided
to the Court by family, friends and constituents of Mr.
Gonzalez attesting to his tireless efforts on behalf of the
communities, both in New York and in the Dominican Republic,
10
which is very close to the heart, shall we say, of his
11
constituency, his former constituency.
12
And I do think the Court will recognize, as has the
13
probation office, your Honor, that Mr. Gonzalez has used his
14
life in part to help others.
15
many of us can say.
16
with the law, not many of us have devoted our lives, even in
17
part, to help others.
18
Honor, who would not attest to the fact that Mr. Gonzalez has
19
been inspired by politics in a positive way, and he has worked
20
tirelessly to better the lives and the situations of those
21
around him, and especially those in a district which he was
22
formerly the state senator of.
23
And that really is not something
Whether we have been in or not in trouble
I don't know that there is anyone, your
It is an American story, your Honor.
It is a story of
24
incredible grit, determination, success despite the odds, and
25
it is a story that we wish we could celebrate without blemish,
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05P8GONS
but we cannot.
should not be a story that is celebrated in an appropriate way
nonetheless.
But that does not mean, your Honor, that it
Your Honor, there has been much talk about Mr.
Gonzalez's motion to withdraw his guilty plea.
There may be
more talk about that today.
state once and potentially for all that his motion to withdraw
his guilty plea was his effort to try to stand trial with an
attorney whom he believed would work tirelessly and would not
Mr. Gonzalez had wanted me to
10
be conflicted in terms of bringing his case to trial.
Many
11
things have been said about that motion by the government, by
12
the Court.
13
his motivation was.
14
did not believe his former attorney would do that.
15
by the Court he could not have another attorney.
16
what that meant, and he chose at the very last moment to plead
17
guilty with his former attorney because he did not think he
18
could go to trial with anyone else.
Today is Mr. Gonzalez's opportunity to state what

He wanted to take his case to trial.
He
He was told
He understood
19
It is what it is, your Honor, but it is something
20
which actually is close to Mr. Gonzalez's heart and on his
21
conscience, and it's important to note that, your Honor, as we
22
proceed in this sentencing, only for purposes of putting things
23
in context.
24
25
The probation office talked about the fact that it

might have been the case that some of the money taken by the
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05P8GONS
defendant was considered by him to be reimbursement for
expenses he incurred on behalf of his constituents or their
families in the Dominican Republic.
substitute, your Honor, for a trial proceeding, and we are not
trying to make it such.
has been about Mr. Gonzalez's motivation, I would point out
that even the probation office saw a glimmer of what it was
that Mr. Gonzalez ended up being desperate to bring forth into
the public realm at potentially significant costs to himself.
The sentencing is not a
But given how much discussion there
10
The probation office couched that statement, I assure you, but
11
the probation office saw the glimmer of what it was that Mr.
12
Gonzalez was passionate about bringing forth, and that was his
13
understanding of what he was doing when certain expenses were
14
incurred on his credit card and were paid with moneys from WBNA
15
specifically.
16
Your Honor, there has been an event in the public
17
realm that has occurred since Mr. Gonzalez's sentencing was
18
scheduled.
19
the Northern District.
20
mail fraud, your Honor, of secreting away, shall we say, moneys
21
that were inappropriately given to him, in connection with
22
influence over his duties in the state legislature,
23
approximately $200,000.
24
of two years, your Honor.
25
we believe that Mr. Bruno is a similarly situated defendant,
It is, of course, the sentencing of Mr. Bruno in

Mr. Bruno was convicted at trial of
He was given a nonguideline sentence

We have submitted to the Court that
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05P8GONS
and as such, Mr. Gonzalez's sentence and Mr. Bruno's sentence,
very arguably, your Honor, should be similar.
In connection with that, your Honor, we did try to get
the transcript of the sentencing.
We are not trying to hide
the ball on that I want to reiterate right now.
that the stenographer who attended the sentencing has been busy
all week, shall we say, and as such, we don't have that
transcript.
more light on the Court's reasoning for giving that
We were told
I do not know that that transcript will shed any
10
nonguideline sentence, but we did provide the Court with the
11
sentencing minutes.
12
of us who practice in the Southern District of New York,
13
because it's not the transcript of the proceeding, but rather,
14
it's just a form that gets filled out letting everyone know
15
what it was that the sentence for Mr. Bruno entailed.
16
A misleading term, shall we say, for those
In the context of the sentences that have been handed
17
down in this matter, your Honor, a similar sentence to that
18
which Mr. Bruno received for Mr. Gonzalez would also not be out
19
of line here.
20
sentence of 10 months' imprisonment, and, therefore, a sentence
21
like Mr. Bruno's of 24 months' imprisonment would also be in
22
line with what has happened in this case thus far.
23
As I understand it, Mr. Castanos received a
So we would ask the Court to very seriously consider
24
the fact that two members of our state legislature, who have
25
been convicted of similar crimes at similar times, and
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05P8GONS
relatively speaking, your Honor, in similar amounts, one who
went to trial, the other who pled guilty but then did move to
withdraw his guilty plea, why they should not receive similar
sentences.
fortunate to be able to bring to the Court's attention today,
but I didn't create luck.
Honor.
at a minimum, your Honor, we feel it's compelling.
It is something that we, I have to admit, are very
I just take it where I can, your
And we do think that it is, if not a persuasive fact,
The other things I would like to mention today, your
10
Honor, have to do with the enhancements that the government is
11
requesting to Mr. Gonzalez's guidelines calculation.
12
very aware that if the Court decides to enter a nonguideline
13
sentence, to a certain extent, the Court is doing away with an
14
analysis of the enhancements.
15
as we all know.
16
them over on a nonguideline sentence side of the ledger and
17
factor that in.
18
to give a nonguideline sentence, that the Court is sentencing
19
in accordance with 3553(a) and its factors.
20
We are
It doesn't have to be that way,
The Court can take the enhancements and put
But it is the case that once the Court decides
And so while I am going to spend a little bit of time
21
on the enhancements, your Honor, I wanted to remind the Court
22
that in the context of a nonguideline sentence, it is my
23
understanding, and I could be incorrect, that the enhancements
24
are not something that need to enter into the Court's
25
calculation of the sentence.
As such, if the Court decides to
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05P8GONS
enter a nonguideline sentence, without consideration of the
enhancements, my arguments regarding the enhancements obviously
are not applicable.
With regard to the enhancements, your Honor, there is
a basic problem with what is going on, and this extends to the
order of forfeiture that was faxed to my office literally as I
was trying to get out of my office to come to this sentencing.
8
9
Mr. Gonzalez did not plead guilty to anything other

than having converted moneys of WBNA and ULAF for his personal
10
use.
11
regarding the member items process.
12
program fraud.
13
He did not plead guilty to other counts in the indictment

He did not plead guilty to
As your Honor is well aware from the government's
14
presentation in connection with a motion to withdraw the guilty
15
plea, it is the government's contention that the principal
16
reason why Mr. Gonzalez did decide to plead guilty, in fact,
17
was because the government produced to Mr. Gonzalez a Pimentel
18
letter a day or two before the actual plea, which notified him
19
that, in effect, they would accept a plea to the counts of mail
20
fraud and conspiracy to commit mail fraud, and he would not be
21
required to plead guilty to the member items process count or
22
the program fraud count.
23
Honor, that's the reason why Mr. Gonzalez pled guilty.
24
25
According to the government, your
The government now wishes to increase Mr. Gonzalez's

sentence by four levels based on the fact that there were more
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05P8GONS
than 50 victims and would like to increase his sentence by an
additional two levels based on the fact that he abused his
position of public trust, in significant part, your Honor,
because of the fact that they maintain he committed program
fraud and he misused the member item process.
in their submission, your Honor, they make reference to moneys
that were directed to Pathways, with they argue Mr. Gonzalez's
involvement, and they make reference to the fact that these
moneys were used by Mr. Gonzalez.
10
On and on and on
Well, that's not what he pled guilty to, and we are
11
all well aware of the fact that there are such things as Fatico
12
hearings, and we are well aware of the fact that the Court may
13
or may not necessarily decide that such a hearing is necessary
14
for it to make determinations about whether or not the
15
government has adduced sufficient evidence for an enhancement
16
like this to apply.
17
of this case, Mr. Gonzalez did not plead guilty to any of that,
18
and what the government is now trying to do through the
19
backdoor is heap on the Court document after document about
20
member item process and document after document about credit
21
cards that were paid by WBNA and ULAF and just saying there,
22
your Honor, it's all bad, it's all money that was
23
misappropriated, it's all money that was misused by Mr.
24
Gonzalez.
25
But we are also well aware, in the context
The government even goes so far as to admit that it's
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05P8GONS
quite possible, in fact, that WBNA and/or ULAF did engage in
some appropriate and legitimate charitable work, but the Court
should just take the government's representation that, even if
that is the case, it's in a trivial amount.
The government wants it both ways.
They want Mr.
Gonzalez to have pled guilty because he didn't have to plead
guilty to the member item process, as far as they were
concerned, which he did not plead guilty to because he
maintains he was not guilty of that, of misusing that process.
10
They told Mr. Gonzalez that they wouldn't require him to plead
11
guilty to program fraud.
12
because he was not guilty of it.
13
sentence increased very significantly on the basis of them
14
giving the Court a lot of paperwork that they don't bother to
15
do a diligent, thorough and levelheaded analysis of.
16
He did not plead guilty to that

And now they would like his
If the government wants to assert to this Court that
17
every dollar that WBNA received or that ULAF received was
18
misappropriated by Mr. Gonzalez, well, they need to do that
19
work.
20
them to the Court, and say, Mr. Gonzalez converted all these
21
moneys.
22
more victims of what Mr. Gonzalez pled guilty to, as per
23
circuit case law, it needs to trace moneys that the
24
contributors gave to the organizations back to Mr. Gonzalez and
25
Mr. Gonzalez's misuse of those moneys.
They can't just compile all the moneys received, give
If the government wants to say that there were 50 or
It's not enough to say
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05P8GONS
more than 50 people donated money to WBNA, and Mr. Gonzalez
pled guilty to misappropriating some amount of money from WBNA,
ipso facto, we have 50 victims here.
It's not enough.
It would be one thing, your Honor, if they tried this
once, but they are really trying to shove lock through this
process at this juncture, including the forfeiture order, which
I noted I received two hours ago on my way to court.
the forfeiture order to be entered by this Court even though
over two-thirds of the amounts specified in the forfeiture
They want
10
order relate to what would be abuse of the member item process.
11
Only $122,000 of the forfeiture order that they would like this
12
Court to enter is in respect to the donations of individuals
13
and entities made to WBNA.
14
paid to Pathways which goes back to member item process.
15
600,000 of it relates to moneys
That's the fundamental problem we have, your Honor.
16
And again, with the 50 victims enhancement they have not tied
17
specific moneys to specific contributors, which moneys were
18
misused by Mr. Gonzalez.
19
In terms of the abuse of position of public trust, in
20
addition to the fact that Mr. Gonzalez did not plead guilty to
21
any misuse of the member item process, which the government
22
uses as a justification for that enhancement, the conduct which
23
Mr. Gonzalez pled guilty to is the same conduct that he would
24
have participated in for purposes of the enhancement of the
25
abuse of public trust being added on, namely, he converted
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05P8GONS
moneys that WBNA and/or ULAF had received for his personal
gain.
hasn't been established which moneys he misused and how they
were procured and from whom.
Those moneys have been procured by those agencies.
It
But the point is it is that single act that he has
pled guilty to which serves as the enhancement, the proposal
for the enhancement for the abuse of public trust and also
serves already as the enhancement for misrepresentations in
connection with the charitable organizations.
It is the same
10
conduct.
11
sentencing guidelines for him to have an additional enhancement
12
for the abuse of the position of public trust based on the same
13
conduct.
14
And it would not be fair to Mr. Gonzalez under the
THE COURT:
Let me ask you a question.
15
every individual who contributed to one of these
16
not-for-profits a victim?
17
MR. CROFFOOT-SUEDE:
Why isn't
Because it's not necessarily the
18
case, your Honor, that each of the moneys that that individual
19
contributed was misused by Mr. Gonzalez.
20
THE COURT:
But money is fungible, and if a
21
contributor gives $100 for a charitable purpose and your client
22
uses $50 to pay for an apartment, that couldn't have been what
23
the contributor intended, could it?
24
25
MR. CROFFOOT-SUEDE:
Potentially not, your Honor.
am not disagreeing with the Court.
But the main point is that
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05P8GONS
there hasn't been the proper analysis, and it's the
government's burden to do this analysis, that these are the
$100 that this contributor gave and those $100 were misused by
Mr. Gonzalez.
THE COURT:
there for that proposition?
7
8
What authority in the Second Circuit is
MR. CROFFOOT-SUEDE:
There is a persuasive case out of
the Seventh Circuit.
THE COURT:
10
papers.
11
Circuit.
12
The Seventh Circuit doesn't grade my
I asked you what authority there is in the Second
MR. CROFFOOT-SUEDE:
I am answering the question.
We
13
do rest on the submissions in our brief.
14
authority on this in the Second Circuit, and we do rest on what
15
is in our papers.
16
circuits have recognized this very specific point, and that we
17
think that the specific point is very valid, and specifically
18
here, your Honor, where the government has to admit that there
19
might have been moneys indeed spent on legitimate functions at
20
WBNA and the same for ULAF, but then they just assert
21
willy-nilly it was in a trivial amount, the government is
22
taking it a step further.
23
THE COURT:
There is no direct
We are making the argument that other
Assume even that it wasn't in a trivial
24
amount.
But your client has acknowledged to misappropriating
25
moneys for his own personal gain.
Therefore, those moneys
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05P8GONS
could not be used by the charities to help the people in need.
How is that not a victim?
MR. CROFFOOT-SUEDE:
Again, your Honor, the theory
behind the 50 victim enhancement of four levels, which is very
considerable, is that there were 50 or more victims.
of the fact that that's a very considerable enhancement, which
I am sure the Court and the government would agree --
8
9
THE COURT:
Because
There were more than 50 contributors based
upon the lists submitted.
10
MR. CROFFOOT-SUEDE:
We submit it's not sufficient
11
just to say that there were more than 50 contributors, and
12
therefore there were more than 50 victims, that the government
13
is required to ascertain who the specific victims were.
14
why there is an enhancement of four levels once you have --
15
THE COURT:
That's
How about everybody who made a
16
contribution thought that 100 percent of their money was going
17
for a charitable purpose?
18
to be taken by Mr. Gonzalez for his own personal use.
19
None of them knew that it was going
MR. CROFFOOT-SUEDE:
There were contributors like
20
Pathways, for example, and potentially others, who contributed
21
far more than small amounts, and to the extent that the
22
government wants to lump Pathways in, which they are saying was
23
more than $200,000, you don't necessarily get to the 50 victim
24
number.
25
seize on one factual point and then are allowed to get a
We argue it's just not enough for the government to
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18
05P8GONS
1
2
significant enhancement of four levels for 50 victims.

THE COURT:
There is exhibit after exhibit attached
here of birthday fund-raisers with contributors, corporate and
otherwise, page after page.
5
6
7
8
9
MR. CROFFOOT-SUEDE:
We are not arguing that there
were more than 50 contributors to WBNA.

THE COURT:
I thought you did a few moments ago but
all right.
MR. CROFFOOT-SUEDE:
We did not argue there were more
10
than 50 contributors.
We argued it is the government's burden
11
to determine which moneys were misused, and it's potentially
12
possible that moneys that were misused, according to the
13
government, do not amount to 50 victims because certain donors,
14
as it were, such as Pathways, contributed very significant
15
chunks of money.
16
order for the government to be able to avail itself of this
17
very significant enhancement, it should be put to the test of
18
actually tying specific moneys that were given to misuse by Mr.
19
Gonzalez.
20
far too easily.
And that even if that wasn't the case, in
Otherwise a four-level enhancement could be added

That's our argument.
21
Moving on to the acceptance of responsibility issue,
22
in terms of deducting two levels, shall we say, or adding two
23
levels to the sentence recalculation as a result of the motion
24
to withdraw his guilty plea, and adding two levels for
25
obstruction of justice, again, as a result of Mr. Gonzalez
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19
05P8GONS
submitting his affidavit in connection with the motion to
withdraw his guilty plea, I have already previewed this
argument.
affidavit to alert the Court and the government to the reasons
why he pled guilty.
It is the case that Mr. Gonzalez submitted his
The thrust of the affidavit, by anyone's read of it, I
believe, is a recounting of the mental impressions and the
thought processes and the judgments that Mr. Gonzalez was
making in and around the time that he pled guilty.
The
10
affidavit was crafted very specifically in that regard because
11
that was what was the basis of the motion to withdraw the
12
guilty plea, his inability to be assigned a new lawyer and his
13
decision at the last moment to plead guilty with his then
14
present lawyer because he didn't believe he could get a new
15
one.
16
put before the Court.
17
sufficient grounds for him to have his guilty plea withdrawn,
18
and we are here today at sentencing.
19
That's what the affidavit is about.
And that's what he
And the Court deemed that that was not
For the Court to increase his sentence four levels, in
20
effect, by taking away his acceptance of responsibility points
21
and adding obstruction of justice points because Mr. Gonzalez
22
availed himself of a conventional means of apprising the Court
23
of what was going on in his mind, so that he could submit to
24
the Court that his plea was not voluntary, would seem to us to
25
be undue punishment for him availing himself of a conventional
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20
05P8GONS
means of bringing his concerns to the Court.
He genuinely
believed that he was forced to plead guilty because he could
not go to trial with another lawyer.
affidavit.
because he brought that to the Court seems to us punitive, and
we would respectfully request that the Court consider carefully
what was the thrust of the affidavit.
That is the thrust of the
For his sentence to be increased four levels
I made my remarks earlier about what the probation
office mentioned in terms of Mr. Gonzalez's intentions with
10
regard to seeking reimbursement for expenses incurred on behalf
11
of his constituents because a lot of talk about legal innocence
12
versus factual innocence, the doctrine of legal innocence is
13
not fully developed in this circuit, or anywhere in the
14
context, I don't believe it is, in the context of making
15
motions to withdraw guilty pleas, and it remains the case that
16
Mr. Gonzalez was not intending to dispute the fact that certain
17
charges incurred on his credit cards were paid by WBNA or ULAF.
18
He wanted his opportunity to bring to the public his
19
explanation for why those charges were charges in which he
20
incurred in connection with his duties as a state senator.
21
can parse legal innocence versus factual innocence from now
22
until Monday, but that was the motivation.
23
disputed that he incurred charges that the government complains
24
of on his credit cards.
25
to dispute, whether or not in fact this mail fraud statute
One
He never has
He has disputed, and continues to want
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21
05P8GONS
applies to those charges.
You know, your Honor, it is an unusual case, for the
reasons which I have discussed, an exceptional person found now
in, unfortunately for many of us who practice in this area of
the law, unexceptional circumstances.
sentencing at an advanced age, not in the best of health.
man who faces an advisory guidelines range by any calculation
that seems highly excessive.
A man who faces

A
The probation office recommended a nonguideline
10
sentence, out of respect for the fact that Mr. Gonzalez is of
11
an advanced age and that he will never be in a position to
12
perpetrate the crimes that he has pled guilty to, and that he
13
did perpetrate here, in the future.
14
issue, and as such, the guidelines have become advisory,
15
hopefully, so that the personal history and characteristics of
16
any given defendant can be taken into account.
17
has devoted his life in part to help others.
18
very serious mistake, and one can argue a series of very
19
serious mistakes.
20
time.
Recidivism is not the
Mr. Gonzalez
He has made a
This went on for a significant period of
21
We would ask the Court to consider very seriously
22
everything that we have put in our sentencing submissions.
23
the extent the Court is inclined to proffer a nonguideline
24
sentence, we would ask the Court very seriously to consider
25
Mr. Bruno's sentence as well as Mr. Castanos's sentence.
To
To
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22
05P8GONS
the extent that the Court does wish to engage in an analysis of
the enhancements, we would ask the Court very seriously to
consider how the government is trying to increase Mr.
Gonzalez's sentence based on conduct he did not plead guilty to
and that they have not done sufficient work to warrant the
imposition of significant enhancements.
Court to consider the thrust of Mr. Gonzalez's affidavit and
why it was that he did submit that affidavit and what it
actually says.
10
And we would ask the
Finally, your Honor, Mr. Gonzalez is interested in
11
appealing the Court's sentence potentially.
12
course, request that Mr. Gonzalez not be remanded pending the
13
consideration of an appeal.
14
would request that Mr. Gonzalez be allowed to surrender
15
voluntarily after he is designated to an appropriate facility,
16
hopefully as close to the New York metropolitan area as
17
possible.
18
We would, of
In the alternative, your Honor, we
The probation office also, your Honor, specified that
19
Mr. Gonzalez is a good candidate for voluntary surrender.
20
There have been no issues in terms of flight risks, failures to
21
report to court, and we would at a minimum, your Honor, beseech
22
the Court to permit Mr. Gonzalez to surrender voluntarily once
23
he is designated to an appropriate facility within the New York
24
metropolitan area or as close to it as possible if the Court is
25
not inclined to allow him to be out on his own recognizance
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05P8GONS
until an appeal is lodged and decided.
Finally, your Honor, of course, we would request that
the open counts on the underlying indictment and the
superseding indictment be dismissed after sentencing.
THE COURT:
Mr. Levy, does the government wish to be heard?
MR. LEVY:
I would like to take up the guidelines enhancements
Thank you, Mr. Croffoot-Suede.
Yes.
first.
10
With respect to the multiple victim enhancement, your
11
Honor has it exactly right.
12
in this room gave a dollar to Mr. Gonzalez's charity, and he
13
took $25 of that, whose dollar did he take?
14
trace money in that way.
15
binding on this Court, doesn't say otherwise.
16
your Honor has looked over the Arnaout case that the defendant
17
relies so heavily on.
18
when $17 million was brought into a charity, 300,000 was
19
misapplied, and the government made no effort to identify who
20
the donors were other than to say $300,000 must have been the
21
result of at least 50 victims.
22
Money is fungible.
If 50 people
There is no way to
The Seventh Circuit, which is not

I am certain
In that case, over a seven year period,
The government has done nothing like that here.
The
23
government has identified specific victims, well over 50 of
24
them, who gave specific amounts of money that went to West
25
Bronx.
The defendant's theft during that period of time was
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05P8GONS
continuous.
To the extent your Honor is interested in seeing it, I
have prepared binders that we could go through during the
periods of time right around those gala benefits, in
particular, around 2001 and 2003, when the vast majority of the
donors gave.
instead put into Senator Gonzalez's campaign account.
during 2001 and 2003, the off years, they went to West Bronx.
And if your Honor looks, and may well have looked, at the
10
credit card statements during those periods of time, Mr.
11
Gonzalez was taking cash advances, was paying for hotels in
12
Albany, was paying for plane tickets to the Dominican Republic,
13
was taking numerous cash advances in the Dominican Republic,
14
during the period of time right around those benefits and
15
during the entire period throughout the years of the charged
16
conspiracy.
17
2002 and 2004, it appears that donations were
That is the best that can be done.
But
The Seventh
18
Circuit doesn't say otherwise.
To the extent one stray
19
sentence in that Seventh Circuit opinion suggests that you have
20
to follow the dollar back to a specific donor, I believe that's
21
taken out of context, and if it's not, it's just wrong, and
22
your Honor shouldn't follow it.
23
right.
24
percent of their money will go to charitable causes, and Mr.
25
Gonzalez takes that money, either entirely, in large part and
I think your Honor was exactly
If donors are putting in with the expectation that 100
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05P8GONS
significant part, it doesn't matter.
victimized.
3
4
Those people have been
So for that reason, the government believes the

enhancement for multiple victims applies.
With respect to abuse of trust, the government is not
arguing that this is a case where the defendant has been
convicted of honest services fraud.
honest services fraud.
his plea that it was prepared to accept a plea that didn't
He has not pled guilty to
The government let him know prior to
10
involve honest services fraud.
11
services fraud, the guidelines would be calculated under
12
Section 2C1.1 of the sentencing guidelines, which are much more
13
severe.
14
Had he pled guilty to honest
Nobody is arguing for that.

The point the government is making is that it is
15
impossible to ignore that Mr. Gonzalez was able to commit this
16
crime precisely because he was a New York State senator.
17
frankly, even Mr. Gonzalez in his sentencing submission and
18
here today has acknowledged as much.
19
submission, and then again here today, he asked for leniency
20
under the 3553(a) factors because he says he will never be in a
21
position to commit this crime again.
22
What does he mean by that?
Quite
In his sentencing
What he means by that is
23
he will never be a New York State senator again.
24
have the juice, the influence to establish a charity to get a
25
significant nonprofit in the Bronx, Pathways, to contribute to
He will never
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05P8GONS
that charity, to cause his own employees, senate employees, to
work for West Bronx, cutting checks wherever he told them to
cut them, to get donors in the district to give money to his
charity.
because he will not be a New York State senator again.
what he is saying, which is an acknowledgement that this crime
turned on the fact that he was a senator.
8
9
He will never be able to do that again precisely

That's
It simply ignores reality to suggest that this crime

did not involve his office as a New York State senator.
He
10
could not have done it without that.
11
suggesting that 2C1.1 applies, that he should get a 14 base
12
offense level under that guideline.
13
We are just saying that there is an abuse of trust of his
14
office here that was a significant component and was separate
15
and apart from the charitable misrepresentations that he made.
16
The government is not
We are not saying that.
With respect to acceptance of responsibility, in the
17
first place, the motion to withdraw the guilty plea effectively
18
forfeits any claim to acceptance of responsibility.
19
Circuit has been clear on that.
20
of innocence that was legal in nature as opposed to factual, he
21
has completely failed to articulate it.
22
akin to a motion to dismiss based on statute of limitations
23
grounds, which frankly would be factual, based on
24
constitutional grounds.
25
has ever advanced that would be a defense.
The Second
If Mr. Gonzalez had some claim
There is no argument
There is no motion like that that he
He is saying he
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05P8GONS
didn't do it.
this crime, I didn't have the intent to steal.
of factual innocence, and as a result, he has effectively
forfeited his acceptance points.
He is saying I am not guilty, I didn't commit

That's a claim
Even if that were not the case, as we sit here today,
he continues to deny that he has done anything wrong.
His
attorney has mentioned again and again how Senator Gonzalez
believes in his heart that he wanted a trial, that he wanted to
be acquitted, that he didn't do this, and that he thinks that a
10
jury would not have convicted him.
11
responsibility, particularly where it is the defendant's burden
12
to show clearly that he has accepted responsibility.
13
That is not acceptance of
In his reply brief, Mr. Gonzalez admits only that,
14
quote, on occasion WBNA and ULAF made payments towards the
15
balance on credit cards held in Efrain Gonzalez, Jr.'s name.
16
The facts just don't support that.
17
your Honor looks at the chart that we included in our
18
sentencing submission at pages 4 and 5, it was, including the
19
credit cards and a couple of the miscellaneous expenses,
20
$594,000 that was paid for by West Bronx.
21
occasion.
22
crime.
23
It wasn't on occasion.
If
That's not on
The defendant is just denying that he committed this
In his reply brief, he said that the government has
24
shown no more than that "Mr. Gonzalez failed to appropriately
25
distinguish between separate legal entities."
The government
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05P8GONS
submits that that is a complete denial of what the senator did.
The senator started a charity, funded it with money from
nonprofits and from donors who believed they were giving to
nonprofits, and stole that money and spent it on himself.
claim that he failed to distinguish between separate legal
entities is just a denial of his responsibility for this
offense.
To
The same is true of the quotation from the presentence
report where the probation office simply reports Mr. Gonzalez's
10
denial of responsibility, that Mr. Gonzalez believes that he
11
had some justification for taking some of the money.
12
probation office isn't saying that's true.
13
that Mr. Gonzalez is claiming that.
14
responsibility.
15
The
It's just saying
He is denying
With respect to obstruction of justice.
This
16
defendant lied in a submission to this Court.
17
couple of explanations for why he shouldn't get an obstruction
18
enhancement as a result of that.
19
within the guideline, that it's not obstructing or impeding the
20
administration of justice with respect to the investigation,
21
prosecution or sentencing of the instant offense of conviction
22
to lie in a motion to withdraw a guilty plea.
23
so.
24
points in exactly that context of withdrawing a plea.
25
Now, he has a
First he says that it is not
That's just not
The Second Circuit has imposed or has affirmed obstruction
He also relies heavily on Juncal where the Second
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05P8GONS
Circuit said in that case the defendant had spoken of coercion,
but the details that he supplied in support of that were not
false; they were characterizations that were not of any legal
significance to allow him to withdraw the plea, but were not in
and of themselves lies.
that the Court needs to look to the statements of coercion in
light of the accompanying details submitted by the defendant.
8
9
The Second Circuit said specifically
Well, in this case, the accompanying details were

flat-out lies.
The defendant claimed that he had not decided
10
to plead guilty until coerced in the cafeteria of this building
11
moments before his plea.
12
called his lawyer and his lawyer scheduled the plea, and when
13
he showed up for the plea that morning he had clearly decided.
14
Yes, it is true that we need circumstantial evidence to look
15
inside the defendant's head and conclude that he decided to
16
plead guilty prior to when he said.
17
we can't tell.
18
objective fact.
19
In fact, he had decided back when he
But that doesn't mean that
That doesn't make it something other than an
The same is true of the other false statements in the
20
defendant's affidavit.
He claims he didn't understand when he
21
confessed to this crime in front of your Honor.
22
The circumstantial evidence shows, and that's frankly the fact,
23
that anybody can understand a simple four sentence allocution.
24
The circumstantial evidence showed that he understood it
25
perfectly well.
That's a lie.
He then answered questions from your Honor
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30
05P8GONS
about it.
affidavit when he said otherwise, and he lied in his affidavit
when he claimed that he was innocent.
He understood what he was saying.
So those are the enhancements.
He lied in his
The government
believes that leads to a guidelines range of 135 to 168 months,
and the government respectfully submits that a sentence within
that range is completely appropriate in this case.
8
9
Now, the defendant talks about how his story is an

American story, and sadly that's all too true.
It's an
10
American crime story, an American corruption story.
It is one
11
that does get played out over and over again.
12
it's an American corruption story that this defendant refuses
13
to hear.
14
he stands here having stolen more than $500,000 worth of money,
15
not just from anyone, but from charities and from people who
16
were making contributions to charities.
Unfortunately,
He continues to deny that he did anything wrong, as
17
If Mr. Gonzalez had directly swindled the poor and
18
working class residents of the Bronx, any of his claims for
19
leniency would fall entirely flat.
20
here.
21
charity Pathways that was devoted to their cause.
22
dozens of donors whose money otherwise would have gone to
23
legitimate causes.
24
directly, and in that sense a guideline sentence is perfectly
25
appropriate.
He did nothing different
He didn't swindle them directly, but he swindled a

He swindled
It is no different from if he swindled them
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05P8GONS
The defendant points to the sentence for Senator
Bruno.
This case has absolutely nothing to do with Senator
Bruno's case.
interest.
The comparison to Senator Bruno is really worse than just a red
herring because at its core what Senator Gonzalez is claiming
is, I'm a senator, Joe Bruno was a senator, anybody who looks
at our crimes will see that they couldn't be more different.
Nonetheless, Joe Bruno got a discount from the guidelines.
That case involved concealed conflicts of
This case involved simple swindling of charities.
10
Senators get discounts from the guidelines.
11
Bruno discount.
12
from the guidelines.
13
man had swindled people throughout the Bronx, senator or not.
14
I was able to commit it because I was a senator, but ultimately
15
I took people's money.
16
different, but we are both senators, and senators get a break.
17
That's the argument that he is making.
18
I want the Joe
I want the senatorial discount that you get

My offense was no different from if a con
Joe Bruno did something completely
Being a senator is not a mitigating factor as Mr.
19
Gonzalez sits here as a defendant in front of this Court.
20
an aggravating factor.
21
It's
Mr. Gonzalez claims that there is no need for specific
22
deterrence, and he claims that there is limited need for
23
general deterrence because the media attention to this case has
24
already shown to anyone paying attention that there will be an
25
investigation and there will be a prosecution.
That cuts
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05P8GONS
exactly the other way.
demonstrates that if Mr. Gonzalez gets a lenient sentence, it
will send a message far and wide that this activity is OK, that
it's OK to be a senator and use your position of influence to
facilitate a fraud and to steal from the neediest members of
your constituency.
The media attention to this case
Absent a serious sentence in this case, the media
attention will do no more than encourage precisely this type of
activity, activity that even as he sits here today Mr. Gonzalez
10
continues to believe was nothing other than a clerical mistake.
11
For all those reasons, the government believes that a
12
sentence within the guidelines range of 135 to 168 months is
13
appropriate.
14
THE COURT:
Thank you, Mr. Levy.
15
MR. CROFFOOT-SUEDE:
16
We have the transcript to show for anyone who takes
Just two minutes.
17
the time to read it that there was nothing suggested about
18
anything like what the government has coined in its
19
overzealousness as a senatorial discount.
20
discussed as a Joe Bruno discount, as the government has termed
21
it in its overzealousness.
22
issues we have with the government's sentencing submissions.
23
It's all a bit overzealous.
24
25
There was nothing
Indeed, that is one of the chief
I informed the Court at the outset we do not have a

transcript of the sentencing for Mr. Bruno.
We do not know
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33
05P8GONS
exactly why the sentence was reduced.
Mr. Gonzalez's career as a person and the good works he did.
I, in fact, didn't mention at all anything about his office as
a senator other than to note the fact that he became a state
senator.
I spoke at length about
The government, once again being a bit overzealous,
stood up and talked about the fact that he couldn't have
committed this crime without being a senator.
full well his sentence is already being enhanced two points for
Your Honor knows
10
making a misrepresentation in connection with a charitable
11
organization.
12
same conduct, your Honor, that would be the basis of an abuse
13
of public trust enhancement.
14
have both enhancements.
15
That was done while he was a senator.
It's the
All we are saying is you can't
In addition, your Honor, I don't think that a
16
convicted felon will be able to head up a charitable
17
organization and raise money for that charitable organization
18
after released from prison.
19
And that clarifies that statement.
Mr. Bruno was convicted for mail fraud.
He was
20
convicted for taking moneys that he shouldn't have taken in
21
connection with his position as a senator.
22
your Honor, to talk about them as similarly situated
23
defendants.
24
25
It's not a stretch,
What is a serious sentence here, your Honor?

a serious sentence?
What is
One takes into account all the factors:
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05P8GONS
Personal history, characteristics, recidivism, deterrence,
punishment.
to prison many people would argue, your Honor, is a serious
sentence.
would submit is a serious sentence.
6
7
Sending a man of Mr. Gonzalez's years and history
Sending him for any term of years, your Honor, many
THE COURT:
Mr. Croffoot-Suede, does your client wish
to address the Court before sentence is imposed?
MR. CROFFOOT-SUEDE:
THE COURT:
10
Yes.
I will hear from Mr. Gonzalez now.
THE DEFENDANT:
Yes, your Honor.
I want to take this
11
opportunity to apologize to my family, to my friends, and to my
12
communities.
13
Thank you.
14
THE COURT:
The defendant, Efrain Gonzalez, Jr., comes
15
before this Court having pled guilty on May 8, 2009, to two
16
separate conspiracies to commit mail fraud and two substantive
17
counts of mail fraud.
18
manipulation of two not-for-profit corporations, West Bronx
19
Neighborhood Association and the United Latin American
20
Foundation.
21
investigation report and will cause it to be docketed and filed
22
under seal as part of the record in this case.
23
adopts the findings of fact in that report as the Court's own.
24
Turning first to the guidelines calculation.
25
Because these offenses sound in fraud, a base offense
These charges arise out of his
This Court has reviewed the presentence
This Court
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35
05P8GONS
level of 7 applies for the defendant's crimes, all of which are
grouped together.
Because the loss amount here exceeds $400,000 but is
not more than $1 million, a 14 level increase is applied under
the guidelines.
In addition, it's undisputed under the guidelines that
a two-level increase is warranted because Mr. Gonzalez was the
organizer, leader, manager and supervisor of the fraud.
There is a dispute between the parties concerning a
10
four level increase for an offense involving 50 or more
11
victims.
12
With respect to the number of victims, a sentencing
13
court should consider only persons who sustained any part of
14
the actual loss determined under the guidelines.
15
v. Abiodun, 536 F.3d 162 (2d Cir. 2008) (quoting from the
16
guidelines commentary notes at Section 2B1.1).
17
judge is not restricted to information that would be admissible
18
at trial, so long as it has a sufficient indicia of reliability
19
to support its probable accuracy.
20
commentaries to the guidelines, and United States v. Simmons,
21
164 F.3d 76 (2d Cir. 1988).
22
enhancement must be established by a preponderance of the
23
evidence.
24
2008).
25
United States
A sentencing
See Section 6A1.3 and the
The facts establishing this
United States v. Vaughn, 430 F.3d 518 (2d Cir.
Applying this standard, the government's submissions
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36
05P8GONS
clearly demonstrate that more than 50 people made charitable
donations to West Bronx and the United Latin American
Foundation.
these charities made hundreds of thousands of dollars in
payments toward Mr. Gonzalez's personal expenses, including
rent on a luxury apartment in the Dominican Republic and a
summer home in Monroe, New York.
accounts of these charities as if they belonged to him.
Undoubtedly, when people made charitable contributions, it was
10
reasonable for them to expect that their contributions would be
11
used to help the communities in the West Bronx and the
12
Dominican Republic.
13
contributions could not be used for their intended purpose.
14
Accordingly, in this Court's view, a four-level increase is
15
warranted.
16
The record before this Court also reveals that
Gonzalez treated the bank
By paying his personal bills, the
Now, Mr. Gonzalez also argues that he should not
17
receive a two-level increase for abusing a position of public
18
trust on top of the two-level increase for an offense involving
19
a misrepresentation that the defendant was acting on behalf of
20
a charitable organization.
21
determining an abuse of trust enhancement, a sentencing court
22
must consider "a defendant's role in the offense on the basis
23
of relevant conduct, which is not limited to the elements and
24
acts cited in the count of conviction."
25
Friedberg, 558 F.3d 131 (2d Cir. 2009) (quoting from the
This Court disagrees.
In
United States v.
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37
05P8GONS
sentencing guidelines and introductory comments).
Second Circuit noted, "Relevant conduct includes all acts and
omissions committed by the defendant that occurred during the
commission of the offense of conviction, in preparation for
that offense, or in the course of attempting to avoid detection
or responsibility for that offense."
133-34.
the abuse of a position of public trust when it is based solely
on the conduct supporting a charitable organization
10
11
As the
Friedberg, 558 F.3d at
However, a court should not apply the enhancement for
enhancement.
Here, an enhancement for abusing a position of public
12
trust punishes distinct conduct not accounted for by the
13
charitable organization enhancement.
14
fraud, the defendant directed state moneys to Pathways, which
15
in turn funneled money to West Bronx and United Latin American
16
Foundation, he employed his senate staff in furtherance of the
17
fraud, naming them to these charitable organizations, and
18
raised money using his position as a state senator.
19
of public trust enhancement punishes those kinds of
20
exploitations of public office, while the charitable
21
organization enhancement addresses the defendant's
22
misrepresentations to contributors that their donations would
23
be used for charitable purposes.
24
516 F.3d 473 (6th Cir. 2008).
25
that an enhancement for abusing a position of public trust is
In perpetrating his
The abuse
See United States v. Smith,
Accordingly, this Court finds
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38
05P8GONS
1
2
warranted.
Now, the government argues that Mr. Gonzalez should
receive a two-level enhancement for obstruction of justice.
The sentencing guidelines provide for a two-level enhancement
"if the defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice during the
course of the investigation, prosecution, or sentencing of the
instant offense."
based on perjury may be imposed where the defendant willfully
An enhancement for obstruction of justice
10
and materially committed perjury, which is the intentional
11
giving of false testimony as to a material matter.
12
States v. Ben-Shimon, 249 F.3d 98 (2d Cir. 2001).
13
United
More than a year ago the defendant pled guilty.
14
Thereafter, he reaffirmed his guilt in September of 2009.
15
Despite repeated representations to this Court under oath, the
16
defendant moved to withdraw his plea of guilty in February
17
2010, asserting that he never wished to plead guilty, and that
18
he "did not fully understand the import of his words" when
19
admitting his crimes.
20
Court is not persuaded that Gonzalez's attempt to withdraw his
21
plea constituted obstruction of justice.
22
decline to impose a two-level enhancement for obstruction.
23
Although it is a close question, this
Accordingly, I
But now that his motion to withdraw his plea has been
24
denied, Mr. Gonzalez contends that he is entitled to a
25
two-level reduction for acceptance of responsibility.
"In
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39
05P8GONS
order for a defendant to maintain his entitlement to an
acceptance of responsibility adjustment while attempting to
withdraw a guilty plea, his reason for demanding a trial must
be designed to assert and preserve issues that do not relate to
factual guilt."
2001).
2002).
8
9
United States v. Hirsch, 239 F.3d 221 (2d Cir.
See also United States v. Cox, 299 F.3d 143 (2d Cir.
Although the defendant argues that he is entitled to

an acceptance of responsibility reduction because he challenged
10
only his legal innocence rather than his factual innocence,
11
this is a distinction without a difference.
12
presents no constitutional challenge to the laws under which he
13
was charged, and offers only the conclusory statement that he
14
seeks to challenge the law's applicability to his conduct.
15
light of the defendant's assertion that he did not understand
16
the import of his words in his allocution, this Court can only
17
conclude that, by seeking to withdraw his plea, the defendant
18
sought to challenge the charges against him, including the
19
factual predicates underlying his crimes.
20
his brief remarks today to the Court he has not demonstrated
21
acceptance of responsibility for his crimes or shown any
22
remorse for his actions.
23
undeserving of a reduction for acceptance of responsibility.
24
25
The defendant
In
Moreover, even in
Accordingly, Mr. Gonzalez is entirely
Therefore, under the guidelines, I find that Mr.

Gonzalez's total offense level is 31.
While this is not his
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40
05P8GONS
first criminal conviction, his criminal history category is a
I.
is 108 to 135 months.
Therefore, in this Court's calculation, his guideline range
Now, turning to the Section 3553(a) factors, because
at the end of the day, a sentencing is an individualized
assessment of the person before the Court.
characterized Mr. Gonzalez's story as an American story.
part it was, but in larger part, it's also an American tragedy.
It is the story of a man who came from very humble beginnings,
Mr. Croffoot-Suede
10
who recognized and came to enjoy a wonderful life in this
11
country, and who then somehow lost his way.
12
In
Mr. Gonzalez is a 62 year old with no significant
13
prior criminal history and several physical ailments.
14
lost his high public office as a New York State senator with a
15
large staff, and he is unlikely to ever hold public office
16
again.
17
performed some good and generous acts throughout his life and
18
as a senator, as many of the letters that were submitted to the
19
Court attest, he has brought public disgrace onto himself and
20
the New York State Senate.
21
in future criminal conduct is remote.
22
His reputation has been ruined.
He has
While he undoubtedly
The possibility that he will engage
Now, while other members of the conspiracy received
23
lesser sentences, Mr. Gonzalez was the architect and the
24
conductor of this elaborate fraud, and he is also the
25
principal, if not the exclusive beneficiary of the fraud.
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41
05P8GONS
Thus, there is a compelling need to punish him for his venal
acts and to ensure general deterrence among those who would try
to use their public offices for personal gain.
Court concludes that a lengthy term of imprisonment is
necessary to punish Mr. Gonzalez's serious crimes, a sentence
within the guideline range would be greater than necessary to
address the factors set forth in 18 U.S.C. 3553(a).
against this backdrop that the Court is prepared to impose
sentence on Mr. Gonzalez.
While this
And it is
10
I would ask, sir, that you stand.
11
Mr. Gonzalez, in my remarks this afternoon, I have
12
tried to make clear to you the seriousness of the crimes you
13
have committed and the harm that you have caused to the people
14
of the State of New York.
15
period of time and were calculated to enrich you at the expense
16
of the public.
17
understand better than anybody else in this courtroom that what
18
you did was wrong.
19
personal gain, and charitable funds for your personal gain, you
20
have deprived your constituents of the scarce resources that
21
could be allocated to help those in need.
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decided that you should not continue in office, there are more
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serious consequences for the theft of funds.
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undermined the public's confidence in the integrity and
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altruism of their elected officials, and in this respect you
Your crimes occurred over a long
As an elected official for so many years, you
By misdirecting public funds for your own
While the electorate
In the end, you
(212) 805-0300
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05P8GONS
have done incalculable damage.
It is my judgment, Mr. Gonzalez, that you be sentenced
to a term of 84 months of imprisonment, 60 months to run on
Counts Two and Three and 84 months on each of Counts Six and
Eight, all to run concurrently.
year term of supervised release subject to all of the standard
conditions of supervised release, and the special condition
that you provide your probation officer with access to any
requested financial information during the term of your
I am going to impose a two
10
supervised release.
11
case, but I am going to enter an order of forfeiture in this
12
case, and I am imposing the mandatory $400 special assessment
13
in this case.
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I am not going to impose any fine in this
Now, this, Mr. Gonzalez, constitutes the sentence of
15
this Court.
I advise you that you have the right to appeal.
16
further advise you that if you cannot afford counsel, counsel
17
will be provided to you free of charge in connection with your
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appeal.
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I am also prepared to enter as part of the judgment a
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direction that you be housed at a facility as close to the New
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York metropolitan area as possible.
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You may be seated, Mr. Gonzalez.
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Are there any further applications from the
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government?
MR. LEVY:
With respect to restitution, the government
(212) 805-0300
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05P8GONS
would ask for the 90-day period that is allowed under the
statute.
relatively certain, Pathways is one of the victims.
believes it can make a case that it should stand in the shoes
of Pathways which no longer exists.
would ask for the 90 days so that the city can show the flow of
money and show that it's a direct victim in this case.
8
9
The reason for that is that although the amount is
THE COURT:
MR. LEVY:
And so the government
This sentencing has been delayed for a
very long period of time.
10
The city
When did Pathways cease to exist?
A while ago.
To be fair to the city, I
11
don't think our office made clear to them early enough that
12
they might have this argument available to them.
13
make that clear, I think they are working on showing the money
14
trail.
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THE COURT:
Since we did
Well, look, I will put over any
16
determination on restitution for 30 days, but that's it.
17
Because if a hearing is necessary on that, we are going to have
18
it, because I am going to allow Mr. Gonzalez to voluntarily
19
surrender to a facility to be designated by the Bureau of
20
Prisons.
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I am going to fix his surrender date right now.
He
22
can surrender to a facility to be designated by the Bureau of
23
Prisons by June 30.
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MR. CROFFOOT-SUEDE:
The same issue that was brought
up in Mr. Castanos's sentencing is it is potentially more
(212) 805-0300
44
05P8GONS
prudent to have him voluntarily surrender within 72 hours of
designation given the difficulties that are often encountered.
THE COURT:
They have six weeks.
If they have not
designated a facility by June 30, send me a one sentence
letter, and I will grant him an extension of his time to
surrender.
MR. CROFFOOT-SUEDE:
THE COURT:
MR. LEVY:
Yes, your Honor.
Is there anything further?

With respect to forfeiture, your Honor, I
10
don't think you specified an amount.
11
in the government's submission?
12
THE COURT:
13
MR. LEVY:
14
Is it the amount that's
I am going to sign the government's order.

Other than that, the government moves to
dismiss the open counts.
15
THE COURT:
The government's application to dismiss
16
the open counts is granted.
17
Anything further, Mr. Croffoot-Suede?
18
MR. CROFFOOT-SUEDE:
19
THE COURT:
20
No, your Honor.
This matter is concluded.

oOo
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EASTERN DISTRICT OF NEW YORK
- - - - - - - - - - - -
Plaintiff ,
-against-
WILLIAM BOYLAND, JR.,

Defendant.
- - - - - - - - - - - -
KELLY T. CURRIE
United States Attorney
BY: ROBERT L. CAPERS
LAN NGUYEN
MARISA M. SEIFAN
TANYA Y. HILL
271 Cadman Plaza East
Brooklyn, New York
For the Defendant:
STUART J. GROSSMAN, ESQ.

108-18 Queens Boulevard
Forest Hills, NY 11375
Court Reporter:
Charleane M. Heading
225 Cadman Plaza East
Brooklyn, New York
(718) 613-2643
20
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For the Government:
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24
September 17, 2015

11:00 o'clock a.m.
APPEARANCES:
17
22
United States Courthouse

Brooklyn, New York
TRANSCRIPT OF SENTENCING
BEFORE THE HONORABLE SANDRA L. TOWNES
UNITED STATES DISTRICT JUDGE.
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:
:
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11-CR-850(SLT)
Proceedings recorded by mechanical stenography, transcript

produced by computer-aided transcription.
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THE CLERK:
number 11-CR-850.
Boyland.
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Criminal cause for sentencing.
Docket
The United States of America versus William
Counsel, please state your names for the record

beginning with the government.
MS. NGUYEN:
Good morning, Your Honor.
Lan Nguyen,
Marisa Seifan, Robert Capers and Tanya Hill for the United
States.
Melissa Bennett, Special Agent Vanessa Tibbits with the
Also at counsel table are paralegal specialist
10
Federal Bureau of Investigation and Patricia Sullivan from the
11
Probation Department.
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THE COURT:
13
Who is going to speak for the government this
14
15
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Good morning.
morning?
MS. NGUYEN:
Your Honor, Marisa Seifan and I will be
speaking for the government.

MR. GROSSMAN:
Good morning, Your Honor.
Grossman for Mr. Boyland.
19
THE COURT:
20
THE DEFENDANT:
21
THE COURT:
Stuart
Yes.
I'll be speaking for Mr. Boyland.

Good morning.
Good morning.
Before we get to the actual sentencing,
22
I have received certain documents, one of which was a
23
sentencing letter from the defense and included in that was an
24
objection to the presentence report.
25
objections, the first with regard to paragraph 61.
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Actually, there were two
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It is my understanding that the defendant has
withdrawn his objection to the double counting objection in
paragraph 61.
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MR. GROSSMAN:
Paragraph 61, Judge, is an adjustment
for role in the offense.
THE COURT:
Right.
MR. GROSSMAN:
That was a mistake on my part.
never intended to make an objection as to that.
wrong section of the Probation report in my letter and I
I cited the
10
apologize to the Court.
11
and I told her that it was an incorrect situation and she
12
responded only as to the double counting aspect objection.
13
THE COURT:
Ms. Seifan had called me about that
All right.
So, the objection is to
14
paragraph 59 of the presentence report and the defendant
15
objects to the four level enhancement because it was found
16
that he was an elected public official and the defense argues
17
that that finding or the enhancements were found because of
18
double counting.
Is that correct?
19
MR. GROSSMAN:
20
THE COURT:
21
That's correct, Judge.
All right.
Is there anything else you
would like to say about your argument?
22
MR. GROSSMAN:
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THE COURT:
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MS. SEIFAN:
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THE COURT:
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No, Your Honor.
Anything else from the government?

No, Your Honor.
All right.
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The objection is denied.
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He argues that increased the base offense level of
14 because the defendant was found to be a public official,
resulting in double counting when the four levels were added
because he was an elected public official.
The Second Circuit has held that, "Impermissible
double counting occurs when one part of the guidelines is
applied to increase a defendant's sentence to reflect the kind
of harm that has already been fully accounted for by another
part of the guidelines."
10
United States versus Napoli,
179 F.3d, page 1, and the quote is on page 12, note 9.
11
That is not the case here.
As noted in application
12
note 1 to the United States Sentencing Guidelines, section
13
2C1.1, a public official, as defined by that guideline that
14
resulted in the 14, includes a wide variety of individuals
15
including those not necessarily elected.
16
represents an additional increase due to the offense involving
17
a certain class of officials and here, that is elected
18
officials.
19
20
The enhancement
So, I do find that there was no double counting in

this case.
21
So that objection is denied.

Now, let me state for the record -- well, let me say
22
this.
23
been convicted of the following crimes by a jury in this
24
court.
25
The defendant appears for a sentencing after having
There are 21 counts.

Count One:
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Extortion conspiracy, which is a class C
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felony, with a statutory maximum sentence of imprisonment of
20 years.
with a statutory maximum of 20 years.
and Travel Act conspiracy, a class D felony, with a statutory
maximum term of imprisonment of five years.
Bribery, a class C felony, with a statutory maximum sentence
of imprisonment of 10 years.
fraud conspiracy which is a class C felony with a statutory
maximum term of imprisonment of 20 years.
10
Count Two:
Attempted extortion, a class C felony,

Count Three:
Count Five:
Counts Six through Fifteen:
Bribery
Count Four:
Honest services
Honest services fraud,
11
all class C felonies, with a statutory maximum term of
12
imprisonment of 20 years.
13
Count Sixteen:
Extortion conspiracy, a class C
14
felony, with a statutory maximum term of imprisonment set at
15
20 years.
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felony, with a statutory maximum term of imprisonment of five
17
years.
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felony, with a statutory maximum term of imprisonment possible
19
of 20 years.
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a statutory maximum term of imprisonment of 10 years.
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Count Twenty:
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maximum term of imprisonment of 10 years.
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Count Twenty-One:
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which also has a statutory maximum term of imprisonment of 20
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years.
Count Seventeen:
Count Eighteen:
Bribery conspiracy, a class D
Attempted extortion, a class C
Count Nineteen:
Bribery, a class C felony, with
Theft, a class C felony with a statutory
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And
Mail fraud conspiracy, a class C felony,
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So he appears for sentencing as a result of his
convictions.
list for the record.
have received and reviewed everything.
I have received documents which I am going to

Please listen to them and make certain I
The presentence report dated July 29, 2014; the
addendum to the presentence report dated December 5, 2014; a
letter from Kathleen Cashin dated March 21, 2015; a letter
from Reverend Earl Jones, Jr., dated April 1, 2015; a letter
from Walter J. Edwards dated April 14, 2015; the defendant's
10
sentencing memorandum dated July 17, 2015; a letter from F.P.
11
Reid dated June 26, 2015; a second addendum to the presentence
12
report dated July 27, 2015; and the government's sentencing
13
letter dated August 20, 2015.
14
Have I missed anything submitted by the government?
15
MS. SEIFAN:
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MS. TIBBITS:
17
THE COURT:
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19
20
No, Your Honor.

Wait.
Wait.
Talk to each other if you are going to
talk, not loudly, and then tell me what it is you want it say.
MS. HILL:
The government's letter referencing
forfeiture dated February 6, 2015.
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THE COURT:
22
Anything that I have missed from the defense,
23
Oh, yes.
Mr. Grossman?
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MR. GROSSMAN:
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THE COURT:
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No, Your Honor.
Okay.
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So, we have these counts and we
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have these documents.
Mr. Grossman, before I impose sentence, is there
anything you would like to say to the Court?
to Mr. Boyland last.

Sure.
And I will get
MR. GROSSMAN:
Thank you, Judge.
This is a man who's led a life of serving his
community.
He started out at a very early age as a volunteer
for an organization called Urban Strategies that was involved
in mentoring and nurturing young men and women from the, who
10
didn't have the same advantages in life that a lot of other
11
people did.
12
and eventually worked for them for a number of years prior to
13
the time he became a legislator.
He volunteered for that when he was a teenager
14
He was involved in his church at a very early age as
15
a member of the church choir and he still considers himself to
16
be a member of the church choir even though he's been
17
incarcerated for the last 18, 19, 18 months.
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volunteered through his church as a mentor of young men who
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were on the path of, on a path in life that wasn't going to
20
make them a productive member of society.
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life.
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nothing to do with his work as an Assemblyman.
He also
He did that all his
He continues to do that after he became an Assemblyman,
23
He also taught a bible studies class on a weekly
24
basis after he became an Assemblyman, again, nothing to do
25
with his work as an Assemblyman.
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And, finally, he taught a
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computer class to senior citizens.
his work as an Assemblyman.
Again, nothing to do with
All of this is given to the Court to illustrate the
fact that he's worked his entire life to help his community
prior and during the time he was an Assemblyman.
while he was an Assemblyman, in my submission I provided a
list of approximately 120-plus pieces of legislation that he
sponsored or co-sponsored.
the position that, well, that's his job, he's supposed to
10
legislate, he's a legislator, but as the Court is probably
11
well aware, there are legislators who work not that hard,
12
shall we say, back benchers, so to speak, and there are
13
legislators who work tirelessly for their community.
14
Mr. Boyland was the latter.
15
Of course,
I know the government is taking
Just one illustration was his work to combat
16
domestic violence which he organized a march for and not only
17
that, he went beyond that when victims of domestic violence
18
were in shelters and before they even left the shelter, he
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helped to find them housing and a job.
20
legislative responsibilities.
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because he cared about the community and people of the
22
community.
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That's not part of his
That was something he did
By all accounts, although he's separated and
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divorced from his wife for a number of years, he remained a
25
loving, caring father, spent just about every weekend with his
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son, and supported him to the best of his ability financially.
I also provided to the Court a small list, unfortunately, of
legislators who have been convicted in New York State in the
last five to eight, ten years, and the sentences they got for
the crimes that they were convicted of.
THE COURT:
Let me ask you this.
I don't see in
that list you provided me any evidence that the defendant is
similarly situated to these other defendants, that is, other
defendants with similar records, personal and criminal, who
10
have been found guilty of similar crimes.
11
anything of anyone who had gone to trial and been convicted of
12
21 counts of the indictment, so the comparison there strikes
13
me as hollow unless you have something more.
14
MR. GROSSMAN:
I didn't see
Well, most respectfully, Judge, I
15
disagree with the Court.
16
information to the Court was to show what X Legislator did in
17
terms of the criminal conduct he or she was involved in and
18
what their sentence was.
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The purpose of providing that
Now, I understand that every defendant is situated
20
differently.
21
Mr. X Legislator and to show the Court what he did compared to
22
what Mr. Boyland has done and what kind of sentence that he
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got.
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25
What I was trying to contrast the conduct of X,
THE COURT:
I didn't see a comparison there.
is what I am telling you.
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That

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MR. GROSSMAN:
THE COURT:
Well --
The only thing that I saw that was
similar, even as far as the crimes for which the other
legislators were found guilty, is that they were
ex-legislators.
MR. GROSSMAN:
Well, there's at least four or five
legislators, Mr. Espada, Mr. Gonzales, Mr. Seabrook,
Mr. Stevenson, those four who funneled money into nonprofit
organizations that they were connected with or had relatives
10
or friends connected with, substantial amounts of money, much
11
more money than the defendant was convicted of attempting to
12
extort in this particular case.
13
indicated.
14
THE COURT:
Okay.
They received sentences as
But you see, I am trying to
15
understand you.
16
defendant was part of four schemes, not just what you have
17
just discussed, but then when you finish that, there are three
18
others.
19
Here, the government alleged that the
MR. GROSSMAN:
No, I understand that, Judge.
I'm
20
not naive about that fact and just to finish what I was
21
saying, in Mr. Stevenson's case, he even introduced
22
legislation calling for a moratorium on the opening of
23
competing adult care centers which to me is egregious,
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egregious conduct, to use his legislative ability to create
25
legislation so that the people he was being bribed from would
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not have to worry about a competitor in the neighborhood.
The other thing I wanted to say to the Court was
this.
Court's guideline calculation in this case of level 38 with a
bottom end of the guideline of 235 months and the top end of
262 months.
The Court, Probation and the Court has adopted the
I would just point out to the Court that off the top
of my head, somebody who's a career offender who points a gun
in the face of a bodega owner and robs that bodega owner, as a
10
career offender convicted of a Hobbs Act robbery and a 924(c)
11
count, faces 262 to 325 months on the guideline, a little bit
12
more, about two years more than Mr. Boyland faces.
13
to me that his guideline calculation, when compared to
14
somebody who's a violent felon three times over or drug felon
15
three times over is totally skewed.
16
17
I've also attached a number of letters.
It seems
I know the
Court has read all of those letters.
18
THE COURT:
Yes.
19
MR. GROSSMAN:
And some of the people in those
20
letters were quite candid, that even though he was convicted,
21
they still were able to write a letter in support of him and
22
detailing their connection to him.
23
each of them individually.
24
25
I don't need to go through
I just think that even though he was convicted of

four schemes, as the Court is well aware, that a sentence of,
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a guideline sentence of 235 months is grossly egregious in
this particular case given the nature and circumstances of his
background, charity work, his work as a legislator, lack of
criminal record, and based on all of those factors, I would
ask the Court to sentence him below, downwardly depart or have
a variance to whatever the guideline range is.
7
8
THE COURT:
Okay.
Who is going to speak, if anyone,
for the government?
MS. SEIFAN:
10
I am, Your Honor.
Your Honor, beginning in 2003, the people living in
11
the 55th Assembly District here in Brooklyn voted William
12
Boyland, Sr. into office.
13
Hill, Crown Heights, Bed Sty and Bushwick trusted William
14
Boyland, Jr. to be their voice in Albany and right here in
15
Brooklyn.
16
the lives of his constituents and what did William
17
Boyland, Jr. do with all of this power?
18
highest bidder.
19
The people of Brownsville, Ocean
William Boyland, Jr. was given the power to change
He sold it to the
As the government noted in its papers, the scope of
20
the defendant's arrogance and the breadth of his criminal
21
conduct is staggering and the defendant has shown over and
22
over that he cannot be deterred.
23
subsequent incarceration of numerous public officials in
24
recent years did not deter Boyland from committing crimes.
25
The conviction and
Being under indictment in the Southern District of
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New York and being on pretrial release did not deter Boyland
from committing crimes.
that the defendant committed crimes and engaged in misconduct
almost every day during the time period while under
investigation by the FBI, while under indictment in the
Southern District and this District, and only concluded upon
his conviction in this case when the Court remanded him into
custody.
In fact, the evidence at trial proved
As we said in our papers, simply put, William
10
Boyland was a lawmaker who simply believed the law did not
11
apply to him.
12
who violated the public trust, abused the power of his office
13
and solicited bribes while under criminal indictment in
14
another district.
15
damage to the public confidence in New York State government
16
and he has refused to accept any responsibility for his
17
criminal conduct.
18
William Boyland was a corrupt elected official
William Boyland, Jr. has inflicted serious
William Boyland, Jr. has an endless capacity to
19
cheat, steal and lie.
And what makes it even worse is that he
20
is shameless about it.
He is a threat to the public's faith
21
in our institutions and the public's faith in our elected
22
officials.
23
Unfortunately, his actions have fueled the cynicism and
24
disappointment of so many New Yorkers who believe, sadly, that
25
politicians are only out to serve themselves.
He is the perfect storm of corruption.
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As we quoted in our papers and as the Court stated,
in U.S. v. Spano, public corruption demoralizes and unfairly
stigmatizes the dedicated work of honest public servants.
undermines the essential confidence in our democracy and must
be deterred if our country and district is ever to achieve the
point where the rule of law applies to all, not only to the
average citizen, but to all elected and appointed officials.
8
9
Based on all the 3553(a) factors, William

Boyland, Jr. should be sentenced to a guideline sentence as
10
such a sentence would be sufficient, but not greater than
11
necessary, in the instant case.
12
THE COURT:
13
It
Mr. Boyland, would you like to be heard
before I impose sentence?
14
THE DEFENDANT:
15
THE COURT:
16
THE DEFENDANT:
Yes, ma'am.
All right.
Yes, Your Honor.
Go ahead.
Since my introduction to public
17
service at a very young age, I have always, it has always been
18
a passion for me, from walking into a corner bodega in a
19
neighborhood and being approached by a widow who was being
20
attacked, if you will, by some unscrupulous developers and
21
they had her sign her home over unbeknownst to her, of course.
22
Through help with both State and City offices, we were able to
23
get that home back and, again, it wasn't about the work.
24
was about the fact that this woman would come by our house and
25
we, we developed a relationship after that and we were able to
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help her to have some, some, some hope in, in the elective
process.
neighborhood who also undertook some unscrupulous behaviors
and she needed some character witnesses to go before the bar.
Noting that our neighborhood needs examples and also, you
know, role models, we were able to go and help her to, by
being a character witness.
from, you know, having her to come and volunteer in our
office, we were able to get to know that defendant and today
10
she's an attorney in that same neighborhood has a role model.
11
To the young man who came into our offices with a gun because
12
it was the only way he knew how to deal with his conflicts.
13
We were able to talk -- from knowing his character and from
14
getting to know the young man who also volunteered in our
15
offices, we were able to, to diffuse that, that circumstance
16
and turn the gun in and turn this same man around as well.
17
To a young lady, a young law student in our
From getting to know her family,
It has always been a passion, the people have always
18
been a passion in that district, and ever since a young age,
19
it's always been something that I think I thank God for, Your
20
Honor, just to give me the opportunity to be able to help.
21
That's it, Your Honor.
Thank you.
22
THE COURT:
23
Now, with regard to the advisory guideline range, I
All right.
24
do find that the defendant's total offense level is 38,
25
criminal history category is I.
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The imprisonment range is 235
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months to 293 months, however, if sentenced concurrently on
all of these counts, which I intend to do, the upper guideline
becomes 240 months.
count is one to three years.
$250,000.
The supervised release range for each

The fine range is $25,000 to
In addition to the advisory guideline range, I have
also considered the factors pursuant to 18 U.S.C. 3553(a) and
I have considered those factors including the circumstances of
the offenses and the history and characteristics of the
10
defendant.
11
very, very serious, that this defendant violated the trust of
12
his office and his constituents.
13
Based upon that, I find that the offenses are
Frankly, after sitting through this trial and
14
hearing Mr. Boyland on those audiotapes knowing nothing about
15
him other than what I had heard during the proof the trial, I
16
started out not seeing any redeeming characteristics of the
17
defendant.
18
submitted by defense counsel which told me more about the
19
defendant and the letters that were submitted on his behalf
20
and I do believe that he committed these crimes, he also did
21
some good and he also did the work, some of the work that he
22
was elected to do.
23
going to impose that it must reflect the seriousness of these
24
offenses, promote respect for the law and provide just
25
punishment for the offenses.
I did consider, however, the sentencing letter
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I find that in the sentence that I am
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This defendant clearly had no respect for the law.
There was overwhelming evidence of his guilt of these charges
presented at trial and the jury found that to be true also.
As I said before, the defendant betrayed the trust of the
office for which he was elected and betrayed the trust of his
constituents.
He violated his ethical duties as an Assemblyman.
This is especially egregious in light of the fact that the
defendant was charged in the Southern District of New York
10
with similar type criminal activity and he was arrested on
11
March 10, 2011 and released.
12
back to the undercover and began his bribery and solicitations
13
of money indicating at one point in time that he was willing
14
to sell his influence and official actions in support of the
15
schemes, real estate development schemes for money to pay for
16
a lawyer.
17
Without skipping a beat, he went
He was arrested in the Southern District March 10th.
18
On March 25th, 2011, the undercover paid $7,000 in bribes at
19
the defendant's district office in Brooklyn in exchange for
20
obtaining New York State grant money to finance the
21
undercover's real estate development projects in his district.
22
Further, there were other schemes that the defendant
23
was convicted of.
24
defendant took the undercover on a tour and bragged,
25
"Everything we've seen here I'm in control of.
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The real estate scheme.
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On recordings, the
You know, I'm
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18
1
the politician.
this end so we know the folks that can pull the sort of
triggers we're looking for."
I'm the guy who can make that move over on
Then on April 29th in New Jersey, the defendant
proposed a scheme where the undercovers could purchase a
former hospital in the district for $8,000,000, then obtain,
with his help, state grant money to renovate the hospital and
then resell it to one of these nonprofit organizations that
the defendant bragged that he controlled for $15,000,000.
He
10
assured the undercovers he would use his influence as an
11
Assemblyman to secure that state grant money and handle any
12
zoning issues that arose if he was paid $250,000.
13
Then there was the carnival scheme, again, where the
14
defendant was soliciting bribes for his work to promote the
15
carnival scheme which he received.
16
about this, the defendant sought to conceal his involvement in
17
these, in these actions.
18
During a conversation
At a meeting, the defendant stated, "I got a middle
19
guy, by the way.
20
he explained that he no longer talked on the telephone, but
21
preferred in-person meetings so they could discuss openly the
22
illegal schemes without worrying about being overheard or
23
having their calls recorded, and he stated, "I stopped talking
24
on the phone a while ago.
25
conversation you can have that, you know, especially with what
CMH
I gotta stay clean.
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I got a bag man."
And
I'm just saying there's no real
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19
1
2
we're talking about."

And, again, in asking for $250,000, the undercovers
offered to pay $5,000 for an introduction to other public
officials who could help the scheme, schemes work.
defendant rejected that offer stating that his introductions
were worth more than $5,000.
The fraudulent voucher scheme.
The
The defendant
falsely claimed to be in Albany on legislative business when,
in fact, he was not in Albany, including days when the
10
defendant was in North Carolina, another, Virginia, and even
11
Istanbul, Turkey, for personal matters, and at a time when he
12
was in New York City meeting with the undercover agents in
13
furtherance of these schemes in.
14
vouchers, the State paid the defendant $71,339.66 in
15
fraudulent mileage expense and per diem payments.
16
In reliance on these
And the not-for-profit scheme involving Wayside
17
Outreach Development, a nonprofit organization.
The defendant
18
took steps to ensure that state funds would be allocated to
19
Wayside Outreach Development and then to ensure that, to
20
Wayside that the particular funds from the defendant directed
21
to Wayside, which were administered by the New York State
22
Office for the Aging, be used to pay for political events from
23
him even though he knew that in getting this money, it was not
24
to be used for him or any other political or partisan
25
opportunity.
Wayside submitted vouchers and grants for
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1
$235,535.
$84,270.48 from that $235,535 amount in funds were
used by the defendant to fund events to promote himself
politically.
As I said, most egregious I think in this case is
the fact that Mr. Boyland was released to Pretrial Services
charged by complaint and by an indictment during the time that
he was engaging in the carnival and real estate scheme and the
fraudulent voucher scheme, and I just that egregious.
So, I have considered those facts.
10
I have also considered the need to afford adequate
11
deterrence to criminal conduct.
12
acquitted, and I find in the Probation report that Probation
13
says that the defendant was acquitted, I say it is egregious
14
because while those charges were pending, he continued to
15
commit criminal conduct.
16
must be deterred, but also others who would act in the way
17
that he did and so I have taken that into consideration as
18
well as all of the other factors pursuant to 18 U.S.C.
19
3553(a).
20
Even though the defendant was
And deterrence, not only Mr. Boyland
I have considered everything that was submitted to
21
me from the government, from the defense as well as the trial
22
which was actually conducted over which I presided and in
23
which there was overwhelming evidence of the defendant's
24
guilt, so all of those things were considered.
25
considered the argument made by Mr. Grossman with regard to
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1
the sentencing guidelines as they are here and the very high
guidelines.
I find that based on everything that has been
submitted to me, that a sentence outside of the advisory
guideline range, that is, a variance to the advisory guideline
range is called for here and before I go through the
sentencing, let me say that after considering all of this, I
find that the sentence that I am about to impose is
sufficient, but not greater than necessary to address the need
10
for punishment and to protect the public and to comply with
11
the sentencing purposes set forth in 18 U.S.C. 3553(a).
12
All sentences of imprisonment which I am about to
13
impose are to run concurrently and be followed by supervised
14
release for a period of three years on each count, however,
15
they will, pursuant to statute, run concurrently also.
16
For Count One, Mr. Boyland is sentenced to serve 168
17
months in the custody of the Attorney General.
Count Two, 168
18
Count Three,
19
60 months' imprisonment.
20
through Sixteen, 168 months.
21
the custody of the Attorney General.
22
23
Nineteen, 120 months in the custody of the Attorney General.
24
Count Twenty, 120 months custody, plus restitution
25
Count Four, 120 months.
Counts Five
Count Seventeen, 60 months in

Count Eighteen, 168
Count
in the amount of $71,339.66 paid to New York State Department
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1
of Taxation and Finance, Division of the Treasury, due
immediately and payable to the Clerk of Court at the quarterly
rate of $25 while the defendant is in custody and at a monthly
rate of 10 percent of the defendant's gross monthly income
during supervised release.
Count Twenty-One, the defendant is sentenced to
custody for a period of 168 months with an order of
restitution in the amount of $84,270.48 owed to the New York
State Office for the Aging due immediately and payable to the
10
Clerk of the Court at a quarterly rate of $25 while the
11
defendant is in custody and at a monthly rate of 10 percent of
12
the defendant's gross monthly income during supervised
13
release.
14
As I indicated, Counts One through Twenty-One, the
15
sentences of imprisonment imposed are all to run concurrently
16
with one another and each is to be followed by three years
17
supervised release and, of course, they will also be served
18
concurrently.
19
20
The special conditions of supervision are as

follows.
21
The defendant shall comply with the restitution.
22
Let me ask you, Mr. Grossman, I have a forfeiture
23
order that has been presented by the government and I have not
24
heard anything from the defendant with regard to that.
25
MR. GROSSMAN:
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I have no objection to it.
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THE COURT:
All right.
I will sign that today.
So, a condition of supervised release is that the
defendant shall comply with the restitution and forfeiture
orders.
The defendant shall make full financial disclosure
to the Probation Department.
The defendant is prohibited from
incurring any new credit charges or opening any additional
lines of credit without the prior approval of the Probation
Officer.
The defendant shall notify all third parties of
10
risks that may be occasioned by his criminal record and shall
11
permit the Probation Officer to make such notifications and to
12
confirm the defendant's compliance with such notification
13
requirements.
14
15
16
Finally, the defendant shall not possess a firearm,

ammunition or destructive device.
I find that based upon the information provided to
17
the Court, that Mr. Boyland is unable to pay a fine so that
18
the fine is waived.
19
assessment due and payable for each count of conviction for a
20
total of $2,100.
There is, however, a $100 special
21
Have I missed anything, from the government?
22
MS. NGUYEN:
23
24
25
Your Honor, I believe that you will
advise the defendant that he has a right to appeal.

THE COURT:
Oh, yes, that is the last thing, his
rights to appeal.
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1
MS. NGUYEN:
Yes.
THE COURT:
Did I miss anything as far as sentencing?
MR. GROSSMAN:
THE COURT:
Of course I am going to tell him that.
No, Judge.
Mr. Boyland, you have the right to
appeal.
In order to do so, you must file a notice with the
Court within 14 days from today's date.
Let me sign the order of forfeiture.
All right.
10
We are adjourned.
(Matter concluded.)
11
12
13
14
15
16
17
18
19
I certify that the foregoing is a correct transcript from the

record of proceedings in the above-entitled matter.
/s/ Charleane M. Heading
_________________________________
CHARLEANE M. HEADING
March 24, 2016

________________
DATE
20
21
22
23
24
25
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1
2

---------------------------------x
v.
13 CR 161(LAP)
ERIC STEVENSON,
6
7
Defendant.
---------------------------------x
New York, N.Y.

May 21, 2014
3:15 p.m.
9
10
11
12
Before:
LORETTA A. PRESKA
13
District Judge
14
15
16
17
18
19
APPEARANCES
PREET BHARARA
BY: BRIAN A. JACOBS
PAUL M. KRIEGER
PISHOY YACOUB
Special Assistant United States Attorney
20
21
22
LAW OFFICES OF MURRAY RICHMAN

BY: MURRAY RICHMAN
BRIAN JACOBS
23
24
25
ALSO PRESENT
John Barry, Criminal Investigator
Stephanie DeAngelis, Intern, Law Offices of Murray Richman
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THE COURT:
Is the government ready?
MR. BRIAN A. JACOBS:
Brian Jacobs and Paul Krieger for the government.
We are with Special AUSA Pishoy Yacoub and Criminal
United States against Eric Stevenson.
Yes, your Honor.
Investigator John Barry.
THE COURT:
Is the defense ready?
MR. RICHMAN:
10
Good afternoon, gentlemen.
Murray Richman for the defendant, assisted by my
11
associate, also, Brian Jacobs -- not to be confused with the
12
government's Brian Jacobs -- and Stephanie DeAngelis, my
13
intern.
14
THE COURT:
15
Won't you be seated.
16
Mr. Richman, have you and your client had adequate
17
Excellent.
time to review the presentence report?
18
MR. RICHMAN:
19
THE COURT:
20
part of the record?
I have, your Honor.
Is there any reason it should not be made
21
MR. RICHMAN:
It should not -- there is no reason.
22
THE COURT:
23
I know that there was a lot of back-and-forth with the
Thank you.
24
probation department about the various objections by the
25
government and by the defense.
Are there any objections that

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you wish to discuss here on the record now, anyone?
MR. RICHMAN:
No, your Honor.
THE COURT:
With respect then to the offense level computation, I
Thank you.
accept the findings of the presentence report set forth at
paragraphs 118 through 130 which conclude that a total offense
level of 24 is appropriate.
With respect to the defendant's criminal history, I
accept the findings of the presentence report set forth at
10
paragraphs 131 through 141 which conclude that a criminal
11
history category of I is appropriate.
12
Counsel, I have Mr. Richman's sentencing submission
13
dated May 7 with its various attachments and the government's
14
sentencing memorandum received May 19.
15
16
17
18
Are there any additional written materials I should be

looking at?
sentencing memorandum is a preliminary order of forfeiture.
19
THE COURT:
20
21
THE COURT:
22
MR. RICHMAN:
23
THE COURT:
24
25
Judge, attached to our
Yes, sir.
Anything else written, Mr. Richman?

No, your Honor.
Sir, would you like to speak on behalf of
Mr. Stevenson?
MR. RICHMAN:
I would.

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THE COURT:
MR. RICHMAN:
Yes, sir.
If the Court pleases, I have not been
involved in this case during the course of this trial.
I have known the Stevenson family for better than 50
years.
I have known his father.
I have known his grandfather
and in fact was active in the grandfather's campaign in 1962.
It may be amazing to you that I am that old.
THE COURT:
MR. RICHMAN:
I couldn't tell, Mr. Richman.

10
May you show the same concern for my client.
11
I originally handled the surrender of Eric when he
12
came in, and I have been familiar with the facts and
13
circumstances up to a point.
14
withdrew from the case for financial reasons and he was
15
assigned counsel, Andrew Patel.
16
THE COURT:
17
MR. RICHMAN:
There came a point when I
Yes, sir.
That was subsequently changed, and we
18
had another attorney who, apparently, tried the case.
I am
19
told -- and everything is now secondhand -- that there was no
20
discussion of a negotiated disposition with my client and that
21
he knew of no offer by the prosecution.
22
that is the absolute fact.
23
the minutes were not available.
24
case within the less than 45 days.
25
time we have gathered the letters, put together a memorandum,
I don't know whether
I have not seen the minutes because

I have only come into this
And during that period of

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did everything I possibly could to be ready for here today.
You may recall that I asked for an adjournment of the
sentencing, but the Court felt that the sentencing should go
forward, and we submitted what we have here.
I have known the family intimately, literally.
worked with his father.
is basically a sturdy and solid family, and Eric Stevenson is
as good a person as I have ever met in the political realm, and
that is saying something because I have represented so many
10
11
I worked with his grandfather.
I
This
people in this area that it is beyond number.

And here is a young man who wanted to do well, who
12
made every effort to do well.
13
the probation report, they make special reference to the fact
14
on paragraph 33, that they offered money to him.
15
I don't want anything.
16
it for the community.
17
April 27th of 2012.
18
And I would point out, even in
I don't need the money.
He said, no,
I want to do
And this is paragraph 33 and that was
Subsequently, they bought tickets for his political
19
affair which the government says, that was bribery because they
20
paid 2,000 for a ticket to a political affair.
21
case, there is a lot of money owed to me by many people over
22
the years that I bought tickets for political affairs, but it
23
is not bribery, apparently, though, the government says it is.
24
25
If that is the
Paragraph 41, again in July 25, 2012, they make an

effort to give him the money and he refuses it.
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He says that
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the area needs a daycare center.
And on paragraph 43 -- I'm sorry -- in paragraph 44 at
the end of the paragraph Stevenson says:
this.
and provide services for the seniors in this community, and it
is here in the probation report.
an offer of the bribe, do we have one assemblyman talking to
him:
work here said:
10
I don't need this.
Take the money.
for you.
11
You don't need to do
He wanted to do it to help the guys
Only subsequently do we have
I'm taking it.
Another one who used to
Look, give me a piece of it and I will get it
I will handle it for you.

It is never an easy situation when you do wrong, you
12
are all wrong.
13
people in a totally different perspective.
14
make a scandal of one man.
15
what's right.
16
does not live beyond his means.
17
living.
18
You see people at their worst moments.
I see
The papers want to
And I can tell you, this is not
You've looked at his financial status.
This man
This man barely makes a
This man's total net assets of $3,000 -- total.

The Bible tells us in Leviticus 19:14:
"You shall not
19
curse a deaf man nor place a stumbling block before a blind
20
man."
21
What are we talking about when we say that?
We are
22
saying that a blind man or a poor man should not be tempted.
23
The good man is not here who has not been tempted, but he who
24
has been tempted and resisted temptation.
25
that, in the final analysis, he did not resist temptation.
And I recognize

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The government makes reference in their letter that he
now for the first time is arguing some kind of entrapment.
was shocked when I saw that in the government's letter because
that was the only argument that I saw for his defense
throughout.
communicated with me, never made any efforts to send me any of
the documents, never sent me the minutes to this day and, to
the best of my knowledge -- and I spoke to Mr. Jacobs about
that, the government's Brian Jacobs -- I spoke to him about it
But had his lawyer who, by the way, never
10
and I said, weren't motions made after the completion of the
11
trial?
12
He said no, they were not made.

Mr. Stevenson was under the belief that they had been
13
made and he came to me, and I called Mr. Jacobs, and he said it
14
is past the time limit.
15
these things.
16
You cannot do that.
You cannot do
So here is a man who had struggled to do the right
17
thing, but his will has been overborne.
18
things for the wrong reasons.
19
Poor people do silly
I can't argue that.
I know we give him a higher responsibility because he
20
is an elected official.
21
elected and therefore he assumes a new mantle?
22
is.
23
What does that really mean?
He got
He is what he
He came from poverty and he lives in poverty.

And the people in his community love him, just by the
24
sheer number of people here present and it is indicative of the
25
fact -- in fact, the overflow is actually downstairs in another

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part.
How do we measure him?
Probation recommends below the guidelines.
says in their probation report, quite succinctly, that he is
committed to the people of his community, that he is really a
good man -- Judge, recommends 39 as the guideline range, I
submit that is even too high.
8
9
Probation
You know, you have four people who did the bribing.
They just didn't bribe one man, they bribed two assemblymen and
10
some other public official and they got a sentence of 24
11
months, 20 months, 9 months or 8 months or thereabouts.
12
government responds by saying, they don't have the same
13
responsibility.
14
white and that is one of the realities that you don't --
15
The
In other words, they were rich and they were
THE COURT:
I don't know that I can let that go, Mr.
16
Richman.
17
was to point out that the base offense level for
18
Mr. Stevenson's offense of conviction was higher because he was
19
a public official.
20
So to compare the sentences of the bribing parties to the
21
sentence of the public official who was bribed is apples and
22
oranges.
23
My understanding of the government's response to that
That is a decision made by the Congress.
I really cannot let that last statement go by.

MR. RICHMAN:
I can understand that, your Honor.
24
Having said that, what message is being sent by just that.
25
know that you are bound by what Congress says.
I know you are.

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I am not questioning that.
is conveyed is that, here are the parties that were wealthy and
they were able to bribe two different public officials and they
received this particular sentence, and here we have a public
official, based on his dire circumstances, based upon twice
rejected and having his will overborne is now faced with a
greater sentence.
8
9
I am saying that the message that
This same argument.

Rakoff 10 years ago.
I got a memorandum from Judge
I tried a case in which the issue was
10
crack cocaine.
And I argued that it was unlawfully or unfairly
11
being applied under the circumstances and we had a long dispute
12
over the subject.
13
hands.
14
that that sentence is being reconsidered because of that, and I
15
have the quote over here that uses the very argument that I
16
used for that particular client.
He agreed with me.
He said Congress tied my
And we just got a memorandum just today in the mail
17
I am not suggesting that Congress doesn't know what
18
they are doing.
19
apply the law the same way they did to these persons.
20
only suggesting, in the concept of fairness -- maybe I am
21
foolish enough to believe that without fairness you cannot have
22
justice.
23
and is the balance of equities correct or is it not correct?
24
25
I am not suggesting to you that you have to

I am
Bottom line, there has to be a balance of equities
I wish I had the wisdom or the ability to tell you I

know the answer -- I don't know the answer.
That's why you are

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10
the judge and I am not.
And the reality is, I urge you to take
into consideration all of these factors that I brought to your
attention.
I have a complete probation report before me.
Probation has gone out of their way to recommend that this man
not be sentenced to the guidelines.
Do we not depart and give the good man a chance?
really very few -- there is virtually no evil thing that he has
done except the stupid act, his foolishness.
10
11
This is really a good man.

There is
I ask you to take this into consideration when you are

applying the law.
12
I thank you for the opportunity.
13
THE COURT:
14
Mr. Stevenson, would you like to speak on your own
15
Thank you, Mr. Richman.
behalf?
16
THE DEFENDANT:
17
THE COURT:
18
THE DEFENDANT:
Good afternoon, sir.

I just want to say to you, it's been a
19
lot of hurt for me and for my community.
20
happened.
21
nothing too harsh.
22
couldn't even be here today because he couldn't watch me be
23
sentenced.
24
25
I am sorry it ever
All I can say to you is plead to you to grant me

I have my family.
My son broke down and
I never see my son to ever break down in his life.
Over 20 years ago I walked out to Washington, D.C. one

day -- and I will be brief -- and I ran into Senator Patrick
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Moynihan who was a friend of my grandfather's and I knew who he
was and I stopped him and said hello to him and told him about
my grandfather and he said, I know him very well.
me, maybe one day if you keep working hard, you will go through
the job of serving the people.
And he told
And, your Honor, that was my only intention, was to be
my grandfather, see my life, to be able to serve my people.
tried my best.
didn't have to go beyond my duty.
10
11
I worked hard.
I went beyond my duty when I

I did for the elderly.
have done for the poor.

I have done for people regardless of religious, race
12
or color.
13
servicing people.
14
we all have faults.
15
improve myself and my life.
16
mercy on me, to consider a fair sentence for me.
17
and what the government and them is asking just seems so beyond
18
what I think I deserve.
19
I never use that as a factor, your Honor, in

Does that make me the best of a man?
I say
Yes, I need correction and yes, I need to

But I ask you, please, to have
The harshness
And in all honesty, your Honor, I ask you from my
20
heart to please take into consideration what is being said.
21
really ask you, please, your Honor.
22
Thank you.
23
THE COURT:
24
Does the government wish to be heard?
25
Yes, sir.
Thank you.
Yes, your Honor, just briefly;

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in large part, we will rest on our submission.
Even taking what Mr. Richman and Mr. Stevenson said at
their word, that Mr. Stevenson has done good for the community,
even crediting that, it doesn't outweigh the betrayal of that
same community which takes place when a lawmaker sells his core
function of making laws in exchange for money, and that is
simply what happened here and, for that reason, the
government's position is that a guideline sentence is
appropriate.
10
Mr. Richman made a number of arguments about economic
11
hardship.
12
are absurd.
13
Mr. Stevenson grew up in what he described as a middle class
14
household.
15
In the circumstances of this case, those arguments

The presentence report makes clear that
He made clear that his needs were met.
And Mr. Richman's own sentencing submission makes
16
clear that Mr. Stevenson earned more than $72,000 a year, which
17
is not an insubstantial salary.
18
Mr. Stevenson suffered dire economic circumstances and to say
19
that poor men should not be tempted, that simply does not
20
square with the reality of the situation here and doesn't
21
square with the reality of the sentencing of other defendants
22
that the Court encounters every day in this courthouse of
23
people who have had it far worse.
24
25
For Mr. Richman to claim that
Mr. Richman also made arguments about how it was the

money that enticed Mr. Stevenson to do what he did and,
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otherwise, he would have simply sought to serve the community,
the evidence at trial showed the opposite.
Stephenson repeatedly asked for money.
going to put together a nice little package for me," he said.
5
6
7
8
It showed that Mr.
"Are Igor and them
He proposed blessing the senate co-sponsor of the

bill -- that was his proposal, to bribe the senate co-sponsor.
He told the cooperator, I have my inauguration, I want
a blessing in place.
These were Mr. Stevenson's own requests for money.
10
His decision to commit the crime was the product of his own
11
choice and not any persuasion and not any coercion on the part
12
of the government or the cooperating witness.
13
And entrapment was not raised the as a defense at
14
trial and would have had no traction had it been raised.
15
Mr. Bashir, Stevenson's former counsel stood right here in this
16
courtroom with Mr. Stevenson present and said right before
17
trial that entrapment is not a defense; the defense is that
18
Mr. Stevenson did not take any money.
19
showed otherwise.
20
several months.
21
times -- these were not isolated occurrences.
22
Of course the evidence
It showed he took $22,000 over the course of
It showed that he requested bribes multiple
For all of these reasons, even crediting that on the
23
other side of the balance, Mr. Stevenson has done good and does
24
have people in his life who support him, nevertheless, in all
25
of these circumstances, a guideline sentence is appropriate.

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Thank you, Judge.
THE COURT:
Mr. Richman, is there anything that you wanted to add?
MR. RICHMAN:
Thank you.
Your Honor, respectfully, not knowing
what went on during the course of the trial and not having the
opportunity to review the records, I would only point out that
the probation report clearly establishes, as I indicated
before, that the attempt to bribe was made by the one who was
working with the government.
And it was rejected on two prior
10
occasions, how many times do you have to reject it until they
11
stop it?
That's the question that I have.
12
Thank you.
13
THE COURT:
14
Thank you, counsel, for your presentations and for
15
16
17
18
Thank you.
your very helpful submissions.

Of course, I have calculated the guidelines and taken
them into account.
With respect to the nature and circumstances of the
19
offense, I find that the guidelines do adequately describe the
20
nature and circumstances of the offense.
21
I note, in light of the arguments here today that the
22
fact that the guidelines range for Mr. Stephenson is higher
23
than that of the individuals who bribed him is dictated by the
24
sentencing guidelines.
25
determination that the public official who participates in a
Congress, in so dictating, made a

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bribery offense is more culpable and poses a greater threat to
his community than those paying the bribe.
ranges here are dictated by Congress after its findings.
has nothing to do with the matters that Mr. Richman referred
to.
So the guideline
It
With respect to the history and characteristics of the
defendant, of course, I take into account everything that
Mr. Richman has said about Mr. Stevenson's life, and I take
into account the good works that he had done as reflected by
10
the submission that Mr. Richman made.
11
I also take into account, however, that the crime of
12
conviction was that of selling an assemblyman's core function
13
for money.
14
an elected official by his constituents for his own
15
self-aggrandizement and not in the service of his constituents.
16
I certainly take that into account in this sentence.
It was a betrayal of the responsibility bestowed on
17
With respect to the argument that Mr. Stevenson's will
18
was overcome, elsewhere in the papers it is presented as having
19
been the government's idea to accept this bribe.
20
quotations from the evidence that the government has noted
21
which certainly demonstrate that it was Mr. Stevenson who was
22
asking for these bribes.
23
I do note the
And I will just note again the quotation from
24
Mr. Stevenson with reference to the bribing parties:
25
and them putting together a nice little package for me?"

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Another quotation from the record quoting Assemblyman
Stevenson used the word "blessed" in the context of bestowing
money on it.
That quote was.
sponsor too.
He got to get a cha-ching, you know."
"I want to bless it to the
And then in another point, when they are discussing
the amount of the bribe, Mr. Stevenson said:
inauguration.
8
9
10
11
"I got the
I want a blessing in place."
The evidence indicated that that quotation referred to

Mr. Stevenson having to pay for his inauguration festivities
and, again, was a request for money.
With respect to the paragraph 2 factors, there is a
12
need for an incarceratory sentence here to reflect the
13
seriousness of the offense, particularly the betrayal of an
14
elected official's core function.
15
There is certainly a need for an incarceratory
16
sentence to provide general deterrence to others who might be
17
so minded.
18
19
20
16
I do note, however, that there is less of a need to

protect the public from further crimes of this defendant.
I do take into account Mr. Stevenson's sentiment which
21
he has repeated on many occasions, that his desire was to help
22
his community.
23
24
25
Paragraph (d) factors of education and training and

the like are not really relevant here.
I take into account the paragraph 3, 4 and 5 factors.
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And at the risk of repeating myself, with respect to
paragraph 6, the need to avoid unwarranted sentencing
disparities, in light of the differing guidelines levels
enacted by Congress to reflect the seriousness of a public
official's corruption, I do not believe that there will be any
disparities perceived.
level of duty required of a public official.
If there are, it is because of the high
Finally, restitution is not an issue here.
Taking into account all of these factors, counsel, it
10
is my intention to impose a sentence of 36 months'
11
incarceration, followed by a period of two years of supervised
12
release.
Both of these are on each count to run concurrently.
13
I do not intend to impose a fine.
14
I do intend to impose the order of forfeiture
15
16
17
18
19
presented by the government in the amount of $22,000.

It is also my intention to impose the $400 special
assessment.
Counsel, is there any legal reason such a sentence
should not be imposed?
20
MR. RICHMAN:
No, your Honor.
21
22
THE COURT:
23
Mr. Stevenson.
24
THE DEFENDANT:
25
THE COURT:
No, your Honor.
Very well.
Yes, your Honor.
You are sentenced, sir, to a period of 36

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months' incarceration.
THE DEFENDANT:
THE COURT:
4
5
Yes, ma'am.
That is on each count to run concurrently
for a total of 36 months.

Following that time, you will spend a period of two
years on supervised release on each count to run concurrently
for a total of two years.
18
During that time you will comply with all of the
standard terms and conditions of supervised release, among them
10
are that you not commit another state, federal or local crime,
11
you not illegally possess a controlled substance and you not
12
possess a firearm or other destructive device.
13
Counsel, I neglected to say earlier that it is my
14
intention to waive the drug testing requirement on the finding
15
that Mr. Stevenson does not pose a risk.
16
Is there any objection to that?
17
MR. RICHMAN:
18
19
THE COURT:
20
Forfeiture in the amount of $22,000 will be imposed,
21
No, your Honor.

No, your Honor.
The drug testing requirement is waived.
according to the order submitted.
22
And, finally, I must impose and do impose the
23
mandatory $100 special assessment for a total of $400 and that
24
should be paid promptly.
25
Sir, it is my duty to inform you that unless you

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19
waived it, you have the right to appeal this sentence and you
might have the right to appeal in forma pauperis which means as
a poor person with the waiver of certain fees and expenses.
Mr. Richman, did you wish a recommendation?
MR. RICHMAN:
Yes, your Honor.
Most respectfully, I
had spoken to my client concerning recommendation.
I would ask
for Schuylkill in Pennsylvania as the primary possibility with
a secondary in Danbury, if possible.
I am also submitting to you, your Honor, an
10
application for the Court to request counsel pursuant to an in
11
forma pauperis.
12
now.
I have the application filled out here and
13
THE COURT:
And the financial affidavit?
14
MR. RICHMAN:
Yes.
He has previously been approved
15
under that basis, but I have the financial affidavit from last
16
year.
17
THE COURT:
Yes.
18
MR. RICHMAN:
I would most respectfully further
19
request that we have an adequate period of surrender, so that
20
he can have counsel and determine what course of action to
21
take.
22
THE COURT:
23
MR. RICHMAN:
24
September, if at all possible.
25
THE COURT:
Yes, sir.
I respectfully request the first week of
Mr. Stevenson, you will surrender to the

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1
2
20
facility no later than September 2, 2014.

It is the Court's recommendation that Mr. Stevenson be
designated to the Schuylkill facility in Pennsylvania or, if
that is not appropriate, to the Danbury facility in
Connecticut.
Is there anything else today, counsel?
Your Honor, we would ask that
the Court dismiss the open counts in the underlying
indictments.
10
MR. RICHMAN:
I have no objection.
11
THE COURT:
12
Mr. Stevenson, you are a very young man.
So ordered.
You have a
13
lot of history in your family of public service, and you have a
14
lot to give to your community.
15
that upon your release and continue to give back to your
16
community.
17
THE DEFENDANT:
18
THE COURT:
I am certain that you will do
Thank you.
Counsel, thank you again.
19
20
21
22
23
24
25
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Bharara Silver

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Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 1 of 35

UNITED STATES DISTRICT COURT

S1 15 Cr. 093 (VEC)

THE GOVERNMENTS SENTENCING MEMORANDUM

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 2 of 35

PRELIMINARY STATEMENT ........................................................................................... 1

THE OFFENSE CONDUCT IN THIS CASE ....................................................................... 4

The Asbestos Scheme ......................................................................................................... 4

IV. SENTENCES IN OTHER FEDERAL PUBLIC CORRUPTION PROSECUTIONS

Sentences of New York Public Officials for Corruption Offenses ................................... 14

The Nature and the Circumstances of the Offense ........................................................... 22

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 3 of 35

UNITED STATES DISTRICT COURT

S1 15 Cr. 093 (VEC)

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 4 of 35

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 5 of 35

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 6 of 35

THE OFFENSE CONDUCT IN THIS CASE

The Asbestos Scheme

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Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 8 of 35

proclamation honoring Dr. Taub.

The Real Estate Scheme

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 9 of 35

for hundreds of thousands of dollars in kickbacks paid to him by that firm.

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 10 of 35

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 11 of 35

The Money Laundering Scheme

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 12 of 35

from the schemes.

THE GUIDELINES CALCULATION

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 13 of 35

Pursuant to U.S.S.G. 2C1.1(b)(2) and 2B1.1(b)(1)(J), because the defendant

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 14 of 35

Pursuant to U.S.S.G. 2S1.1(b)(2)(A), because the defendant was convicted under

(PSR 61-64). Based on a total offense

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 15 of 35

Commissions conclusion that, in general, public corruption

SENTENCES IN OTHER FEDERAL PUBLIC CORRUPTION PROSECUTIONS

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 16 of 35

Indeed, averaging all the sentences on Exhibit A together,

Sentences of New York Public Officials for Corruption Offenses

United States v. Carl Kruger, 11 Cr. 300 (JSR)

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 17 of 35

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 18 of 35

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 19 of 35

United States v. Malcolm Smith, 13 Cr. 397 (KMK)

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 20 of 35

United States v. Anthony Seminerio, 08 Cr. 1239 (NRB)

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 21 of 35

United States v. Efrain Gonzalez, 06 Cr. 726 (WHP)

United States v. William Boyland, Jr., 11 Cr. 850 (SLT) (E.D.N.Y.)

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 22 of 35

his constituents. He violated his ethical duties as an Assemblyman. (Sentencing transcript,

Silvers Offenses Indisputably Were Among the Most Serious of Public

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 23 of 35

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 24 of 35

APPLICATION OF THE RELEVANT SECTION 3553(A) FACTORS

The Nature and the Circumstances of the Offense

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 25 of 35

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 26 of 35

The History and Characteristics of the Defendant

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 27 of 35

Case 1:15-cr-00093-VEC Document 264 Filed 04/20/16 Page 28 of 35