Joint Appendix — Wasman v. United States

No. 83-173

a

In The

Supreme Court of the United States

October Term, 1983

ray

Vv

MILTON R. WASMAN,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

ny

Ww

On Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

ww!

JOINT APPENDIX

ry

vw

JAY R. MOSKOWITZ REX E, LEE

Sanps & Moskowitz, P.A. Solicitor General

Suite 501 STEPHEN 8S. TROTT

200 S.E. First Street Asst. Attorney General

Miami, Florida 33131 BARBARA E. ETKIND

(305) 371-6777 Asst. Solicitor General

ROBERT J. ERICKSON

Attorney for Petitioner Attorney

U.S. Department of Justice

Washington, D.C, 20530

(202) 633-2214

Attorneys for Respondent

—

——_——

Petition for Writ of Certiorari filed August 1, 1983

Certiorari Granted October 31, 1983

COCKLE PRINTING CO., 231i Douglas St., Omaha 68102

TABLE OF CONTENTS

Page

CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES 2. 1

JUDGMENT AND PROBATION/COMMIT-

MENT ORDER (October 18, 1979) £ ied re

JUDGMENT AND PROBATION/COMMIT-

MENT ORDER (August 31, 1981) wee «=O +

TRANSCRIPT OF FIRST SENTENCING

OP hy Ae |. | ee ae 6

NOTE: TRANSCRIPT OF SECOND SENTENCING

HEARING (August 31, 1981) IS CONTAINED

IN THE APPENDIX TO THE PETITION-

ER’S PETITION FOR WRIT OF CERTIO-

RARI AT pp. A-33 to A-66

CHRONOLOGICAL LIST OF RELEVANT

DOCKET ENTRIES

Date Proceedings

August 9, 1978— Indictment returned by Federal

Grand Jury charging the Defendant

with obtaining a passport using a

false name.

September 10, 1979—Jury returns verdict of guilty.

October 18, 1979— First Sentencing. hearing at which

Defendant was sentenced to two

years but pursuant to split sentene-

ing provision whereby he is to serve

six months inearceration and then be

placed on probation for three years.

October 19, 1979— Notice of Appeal filed.

April 2, 1981— United States Court of Appeals for

the Fifth Circuit reverses conviction

and remands for a new trial (report-

ed at 641 F. 2d 326).

July 17, 1981— Jury verdict of guilty at second trial.

August 31, 1981— Second sentencing hearing at which

Defendant was sentenced to a straight

two years incarceration.

2

UNITED STATES DISTRICT COURT

for the Southern District of Florida

United States of America vs.

Defendant Milton Wasman

Docket No. 78-253-CR-NCR

JUDGMENT AND PROBATION/COMMITMENT

ORDER

In the presence of the attorney for the government the

defendant appeared in person on this date—Oct. 18, 1979,

X WITH COUNSEL James Russ, 441 Ist Fed.

Bldg., 109 East Church St., Orlando, Fla. 32801,

PLEA:*** @ NOT GUILTY.

There being a finding/verdict of * * * @ GUILTY.

FINDING & JUDGMENT: Defendant has been con-

victed as charged of the offense(s) of False Statement on

an Application for a U.S. passport, in violation of Title

18, USC Section 1542. .

SENTENCE OR PROBATION ORDER: The court

asked whether defendant had anything to say why judg-

ment should not be pronounced. Because no sufficient

cause to the contrary was shown, or appeared to the court,

the court adjudged the defendant guilty as charged and

convicted and ordered that: The defendant is hereby

committed to the custody of the Attorney General or his

authorized representative for imprisonment for a period

of TWO (2) YEARS or until otherwise discharged by due

process of law, it being further

ORDERED AND ADJUDGED, pursuant to the split-

sentence provision of Title 18 USC, Chapter 231, Section

3

3651, that the defendant be confined to a jail-type institu-

tion for a period of SIX (6) MONTHS, thereafter execu-

tion of the remainder of sentence of confinement be sus-

pended and, commencing immediately upon discharge from

incarceration, the defendant shall be placed on probation

for a period of THREE (3) YEARS under the Standing

Conditions of Probation as defined by the Court’s Order

entered August 1, 1964. It is further

SPECIAL CONDITIONS OF PROBATION: OR-

DERED AND ADJUDGED that execution of sentence of

confinement shall be deferred until November 23, 1979 at

10 A. M., at which time the defendant shall surrender him-

self to the institution designated by the Bureau of Prisons,

at his own expense, or in the alternative, to the United

States Marshal in Miami, Florida.

ADDITIONAL CONDITIONS OF PROBATION: In

addition to the special conditions of probation imposed

above, it is hereby ordered that the genera! conditions of

probation set out on the reverse side of this judgment be

imposed. The Court may change the conditions of proba-

tion, reduce or extend the period of probation, and at any

time during the probation period or within a maximum

probation period of five years permitted by law, may issue

a warrant and revoke probation for a violation occurring

during the probation period.

COMMITMENT RECOMMENDATION: The court

orders commitment to the custody of the Attorney General

and recommends, Eglin Air Force Base, Florida.

It is ordered that the Clerk deliver a certified copy of

this judgment and commitment to the U. S. Marshal or

other qualified officer.

Signed by ©@ U.S. District Judge /s/ Norman C.

Roettger, Jr., 19 Oct. 1979.

UNITED STATES DISTRICT COURT

for the Southern District of Florida

United States of America vs.

Defendant MILTON WASMAN

Docket No, 78-253-CR-NCR

JUDGMENT AND PROBATION/COMMITMENT

ORDER

In the presence of the attorney for the government

the defendant appeared in person on this date—August

=, ne °* * WITH COUNSEL Jay Moskowitz,

Peninsula Fed. Bldg., Rm. 501, 200 SE Ist St., Miami, Fl.

PLEA:*** @ NOT GUILTY.

There being a finding/verdict of * * * GUILTY.

FINDING & JUDGMENT: Defendant has been econ-

victed as charged of the offense(s) of False Statement on

an Application for a U.S. passport, in violation of Title

18, USC Section 1542.

SENTENCE OR PROBATION ORDER: The court

asked whether defendant had anything to say why judg-

ment should not be pronounced. Because no sufficient

cause to the contrary was shown, or appeared to the court,

the court adjudged the defendant guilty as charged and

convicted aud ordered that: The defendant is hereby com-

mitted to the custody of the Attorney General or his author-

ized representative for imprisonment for a period of TWO

(2) YEARS, or until otherwise discharged by due process

of law. It is further

ORDERED that the execution of the sentence of con-

finement be deferred until September 30, 1981 at 10 A. M.

or

at which time the defendant shall report to the institution

designated by the Bureau of Prisons at his own expense,

or in the alternative, to the U.S. Marshal in Miami, Flor-

ida.

COMMITMENT RECOMMENDATION: The court

orders commitment to the custody of the Attorney Gener-

al and recommends,—

It is ordered that the Clerk deliver a certified copy

of this judgment and commitment to the U.S. Marshal or

other qualified officer.

SIGNED BY ® U.S. District Judge /s/Norman C.

Roettger, Jr., Aug. 31, 1981.

6

[3SR1]*

IN THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT

OF FLORIDA

Case No 78-253-Cr-NCR

UNITED STATES OF AMERICA,

vs.

MILTON WASMAN

United States District Court

299 East Broward Boulevard

Fort Lauderdale, Florida

October 18, 1979

The above-entitled matter came on for sentencing

before the Honorable NORMAN C. ROETTGER, JR.,

United States District Judge, pursuant to Notice, com-

mencing at 9:30 o'clock a. m.

APPEARANCES:

KEVIN MOORE, ESQUIRE

Assistant United States Attorney

On behalf of the Government

JAMES RUSS, ESQUIRE

On behalf of the Defendant

*Bracketed number refers to page

location in 3rd Supplemental Record

on appeal 3SR—.

[3SR2] INDEX

WITNESS COLLOQUY

Mrs. Mildred Wasman 8

Milton Wasman 12

[38SR3] The Court: Good morning, lady and gentle-

men.

I received some last minute matters, Two or three

things have come up in what was scheduled this morn-

ing that required some time to review before we could

begin. However, we are ready to begin now in the case

of United States versus Wasman.

The Deputy Clerk: State your appearances for the

record.

Mr. Moore: Kevin Moore for the Government.

Mr. Russ: James M. Russ, on behalf of Mr. Wasman.

The Court: Mr. Russ.

Mr. Russ: Morning, Judge Roettger. Mr. Wasman

is here.

The Court: I have reviewed the Presentence Report,

Mr. Russ, together with all the enclosures, attachinents

to it.

Have you had a chance to review the P.S.L, sir?

Mr. Russ: Your Honor, the Presentence Report dated

the 9th of October was forwarded to Orlando and I had

the opportunity on Monday morning of this week to read

it, and after reading it, I prepared a supplement contain-

ing my thoughts and [3SR4] observations which I for-

warded to the Court which the Court should have received

yesterday.

The Court: Well, I have not receiv ed them. Have you

a copy, Mr. Russ?

9

Mr. Russ: Your Honor, you should have received

the package yesterday which contained the original of

that and also a piece of correspondence.

The Court: Alas, the mails are—

Mr. Russ: No. This was sent by courier.

The Court: Does anyone on the staff know?

Mr. Russ: I am holding a receipt in my hand that

says you got it.

The Deputy Clerk: Who signed it?

Mr. Russ: It doesn’t say.

The Court: I hate to delay it but I hate worse to

review extensive material on the bench and feel any tiie

constraint, even subconsciously, by doing that. I am going

to take a recess and review your copy, if I may.

Mr. Russ: I would appreciate that, Your Honor.

The Court: I think it’s much better to do this in the

relaxation of chambers than out here. A brief scanning,

I see some duplication with what I have already read.

So it should not take me all [38SR5] that long. And I

ouglit to be able to read it rather rapidly. Certain areas

just to refresh my memory.

Court is in recess.

(Thereupon, a recess was taken, after which, the

following proceedings were had) :

The Court: Apparently, Mr. Russ, it’s down in the

Clerk’s Office.

Mr. Russ, for the record, to take care of some house-

keeping matters while counsel are present, and also the

10

Defendant is present, judgment of acquittal, motion for

new trial. I also want to make sure the record reflects

that I am amplifying the rulings I made in connection

with the Government’s motion to exclude certain testi-

mony as irrelevant and I don’t have that in final form

yet, but specifically reserving the right to enter that on

® nune pro tune basis and expect to have it done within

a week or ten days.

Before we get back to the P.S.I. and enclosures, I

have a motion also for protective order, Maleolin Williams

and Sentinel Star Company, who apparently is the pub-

lishing company for the Orlando Sentinel, Orlando Star,

I’m not sure which, or both.

[3SR6] Mr. Russ: Your Honor, I treated that mat-

ter in the letter that is contained in that supplement that

| handed up to you.

The Court: The article is in here and it’s also at-

tached to this motion for protective order.

Mr. Russ: As I explained to you in the supplement

to the Presentence Investigation Report, the newspaper

urticle I felt gave support and corroboration to what I

had represented to you and to the jury in the course of

the trial. And when I noted the news article in our local

paper, I caused a subpoena to be placed on the writer

of the article which in turn brought about the motion

for protective order filed by the news reporter and by

the publisher. As I stated to you, I felt that the record is

clear enough, that it wasn’t necessary to get off on a col-

lateral First Amendment, Sixth Amendment controversy,

so based on that I made the decision to withdraw the

11

subpoena and so advised the attorney for the news re-

porter.

The Court: Very well. The matter is moot then as

to the subpoena issued to the reporter [3SR7] of the

Orlando papers.

What is the status now on the material? My under-

standing is my secretary did sign for a parcel yesterday.

Mr. Russ: It would appear that in all likelihood it is

in your office someplace but it’s simply the original of

which you have before you. There is one other item

which was a letter, a personal letter from Mrs. Wasman

to you, which I did not know the contents of. However,

Mrs. Wasinan is here and I do desire to have her ad-

dress the Court at the appropriate time in the course of

the sentencing, Your Honor.

The Court: Very well.

It’s always a source of some embarrassment when

papers are mislaid somewhere in chambers or offices of

the Court or the Clerk.

If we can proceed without it, let’s do so.

Mr. Russ: All right. May I at this time cal) Mrs.

Mildred Wasman.

The Court: Very well.

Mr. Russ: Mrs. Wasman, will you come forward.

The Court: Mrs. Wasman, I apologize that I haven’t

had the chance to read the letter.

Debiie, will you please administer the oath, [83SR8]

please.

(Witness sworn.)

12

Mrs. Wasman: The letter you didn’t receive took a

great deal of emotional effort because it made it neces-

sary for me to sit down and review some terrible years.

In that letter, I told you that when vou sentenced Milton

Wasman, you really are sentencing two people because I

have been party to everything that’s ever happened to

him. I have been part of his life and I have been made

a part of this nightmare we have gone through for the

past five years.

I have been used as a lever by the people who started

this whole horrible nightmare and it all started because

greedy people didn’t get enough. It involved land that

had come in part to my children and me as a result of

money that was left by my mother-in-law. It’s land that

my hushand worked for years to hold onto and to develop.

And when he met with these people with whom he beeame

involved, it was with a goal in mind of developing some-

thing wonderful.

These people became our friends. They were in my

home. I beeame friendly with their wives. But then,

when things began to go bad, [3SR9] circumstances be-

yond our control, the world money situation, the reces-

sion, and ny husband wanted to call a halt, they wouldn’t

do it because they had a good thing. And then my hus-

band began to suffer consequences of being gullible and

having poor business judgment. And that’s his crime.

We handed over hundreds and hundreds and hun-

dreds of acres of developed land with the understanding

that they would leave us in peace and not continue to

threaten and pressure. It was pressure that I had seen

cause my husband to have a stroke. I, at one time, told

them if they didn’t stop trying to use me, if necessary,

13

I wonld leave my husband in order to not be used against

him. But [ guess they knew me very well. They agreed

that if I did this, that would be it, they would help to

satisfy the claims of the people who had invested. But

they didn’t do that. They took that land and used the

proceeds to line their own pockets and then came back

and I have been faced with jlawsuit after lawsuit after

lawsuit aimed against me. And they were just for the

purpose of creating pressure. They kept getting thrown

out and new ones came.

[3SR10] These are people who have used blackmail

and threats. I’ve received a telephone call one Sunday

morning at 7:00 o’clock from Mr. Connolly in England

who threatened that this very thing would happen unless

we paid them $50,000 for himself. I couldn’t believe it.

T couldn’t believe that this system that was supposed to

protect us would be used against a good man, a perfectly

respectable good man, who’s guilty of not being able to

know what’s best for himself. None of this need to have

happened if he had been as greedy as the others because

he would be vulnerable. I have been party to listening

to the threats to feeling pressure.

At the age of sixty-one, we have lost five years out

of our lives. It’s been torture. Lost the future. I had

to go to work. I took the day off because we have no

income. My husband has lost his practice, his reputation,

his health. How much more punishment, how much more

punishment do we have while the people who openly

admit what they have done and why they have done it

are protected?

I have grandchildren who—That man is the [3SR11]

most wonderful, warm, loving human being who’s ever

14

been. We are stable people. We have lived in the same

house for thirty-nine years. We have lived in the same

community. We are the people the system is supposed to

be for and we have been made victims of it. And I

find myself completely lost as to how such things could

be. The newspapers. The newspapers. We have had no

way to combat it. It’s like something out of a bad story.

We have been stymied at every turn because we just had

to struggle to survive.

I think T said it better and less emotionally in my

letter. I’m sorry vou didn’t get it.

The Court: You need not apologize at all.

Mrs. Wasman: But it’s like everything else that’s

happened.

Please, Your Honor, I beg you, look at the whole

picture, look at the people.

The Court: Thank you, Mrs. Wasman. You are,

indeed, a lovely lady. I doubt the letter could be nearly

as dramatic, effective as your able presentation.

Mr. Russ, are you ready to proceed?

Mr. Russ: Yes, Your Honor. Mr. Wasman would like

to address the Court.

{[3SR12] The Court: Very well.

Mr. Russ: Mr. Wasman.

The Court: Mr. Wasman, you may say anything you

like in your own behalf, anything at all in mitigation of

punishment.

(Defendant sworn.)

—

vl

Mr. Wasman: I guess my wife has sort of expressed

in a broad sense what has been for us an ordeal. My

wife didn’t go into great details of what probably would

be the interesting story that Your Honor missed at trial,

hut it would not really add much to that aspect.

| guess the best thing I can tell you is that I have

lived here all but seven years of my life, and, as Mildred

pointed out, we built our house in 1941 and we have

lived in it ever since, and I have been active in the com-

munity, have enjoyed and relished and reveled the friend-

ship and respect that I have had in the community, and I

am frank to tell you that it has remained to a great extent.

I have received letters from people, I have reecived

requests from people who wanted to write letters on this

matter but I felt that in discussing the matter with Mr.

Schwartz, that enough [8SR13] was enough and too many

would be just redundant. So that it has in a way paid off.

I realize that I am here before you as a result of a

stupid situation in which I entered into to try to alleviate

the problems we had. Not done with the purpose of taking

anything from anybody or doing anything to anybody,

but done only for a commission which was promised me.

I was assured if I would cooperate with Mr. Comninos, he

would like to cooperate with me because he felt that lis

associates over here were defrauding him. I now recog-

nize that Mr. Comninos feels that everyone with whom

he does business, if they don’t give him iull participation,

is defrauding him. I accepted his invitation initially to

go see him for that purpose and that purpose alone. Had

no other business interest involved. When I invited him

to come back—And I had arranged to bring Mr. William

Loucks, an attorney in Daytona, along for the purpose of

16

discussing the matters he was interested in because Mr.

Loucks was familiar with it and I felt that between us we

could eliminate this four-and-a-half, five years of harrass-

ment, extortion and blackmail.

[3SR14] Several times, I received phone ealls, not

from thugs, not from gangsters, but from members of

the bar, who were hired by these people, threatening to

kill ime, and my wife was ealled, told the same thing,

unless we capitulated and turned over more land.

They filed innumerable lawsuits alleging fraudulent

conduct, couldn't support it and the case—

The Court: Who filed these lawsuits?

Mr. Wasman: A gentleman in Orlando.

The Court: Against you?

Mr. Wasman: Against me and my wife and every-

body that ever worked for me or with me or they knew.

None of which he could support, and the cases were dis-

missed. They would’ refile them. But what he did was

he made them so lurid that the newspapers and Mr. Wil-

liams, who has written that article, had a field day. And,

as a result of that field day, he kept pressing apd insist-

ing that state agencies take some action. They finally did.

They filed charges. Mr. Russ filed a number of motions

to dismiss and they granted the first one. There are

several more which are valid that were not necessary

to grant, but there is no basis [8SR15] whatsoever to

grant except that they were under pressure, and you

know, when you’re in a political office and a newspaper,

that is very powerful throughout the state is pressuring

you, you better do something or you're going to get some

17

Static. And I say this to you as a fact not a feeling.

I tell you how I feel when I feel, but I tell you this is

not a feeling.

These are the reasons I went to meet Mr. Comninos,

and then he induced me to help him, and if I would help

him, he would come over, and I felt that I would have

somebody who could verify some of the things that he

claimed had been frauds perpetrated on him and his

people since we had turned the property over to them for

the purpose of having them develop it. He was upset

because his associates immediately thereafter put mort-

gages on everything they could and kept the money and

put him in the picture. So he was a very frustrated gen-

tleman and I thought it would be mutually advantageous

if we put what we knew together. And that was my pur-

pose in going to see him. Had nothing to do with land

or Arabs or anything like that. And then I agreed to

help him because that was [3SR16] the one point which

he would come and participate and work with Mr. Loucks.

And then, after that, I got nothing. They started the ex-

tortion, blackmail.

I was kidnapped. I was induced to go, invited to go

to Marbella, Spain, told I was to meet somebody. I went

to the house with them and then they bound me, hand

and foot, and kept me there and made all sorts of threats.

They were going to—when I think of this, I am amused

because it must have come from Mr. Manning, who is

referred to in my experience as Mr. Connolly. Mr.

Manning was the man with whom three other people

from Curran’s office in New York arranged the kidnap-

ping. He told me that if I didn’t produce a million-and-

a-half dollars for him, that they were going to have some

18

fishermen pick me up in a boat, put me under the floor-

boards, take me out to sea, keelhaul me, and then if I

didn’t suceumb to their wishes, they would tie an anchor

to me and throw me overboard. I smile at that because

keelhauling, I though, had been abolished as a technique

in the revolutionary days.

Anyhow, I was interested in that article [8SR17]

which I think Your Honor has seen because he said |

was stubborn. I guess that’s a good word to describe

someone whe cannot comply. He might as well asked

me for the moon and insist that I deliver it immediately

because I couldn’t, and I told him so but he didn’t be-

lieve me. And they negotiated and they promised me—

They made me a deal. I did not make them a deal. They

oftered me a deal that if I would give them some land,

and I believe the amount was three quarters of a million

dollars in land, free and clear, good title, put it in a Swiss

corporation who had a registered name or something |

couldn’t trace or something like that, they would let me

free, if I promised to do it; and if I didn’t do it within

thirty days, they would put out a contract on me. He

was very insistent asking if I knew what a contract meant.

I told him I had been to a number of gangster movies in

my lifetime and | understood perfectly well what it meant.

He said **Well, you have that.’’ I received innumerable

phone calls concerning that, plus concerning the fact that

he wanted $25,000 from me to begin with for himself,

And then when he found out that I had called the hotel

and told them what had [8SR18] happened and asked

them to please send the bill to me, I would pay it, and

they should then send my clothes and things, he wasn’t

able to get those things as he—I don’t know what he

19

thought they were worth—he then raised the ante to

$50,000.

I talked to Mr. Putz at the FBI about it, what inr-

struction I should follow. He said ‘Tape the conver-

sations,’’ which I did, ‘‘and we'll see if we can get juris-

diction to do something.’’ I endeavored to call him sub-

sequently. And, for a long time, I had to have somebody

go with me wherever I went or follow me so that I would

be protected, at least. I thaught that they meant it.

As a result, the newspaper publicity effectively de-

stroyed my practice. I am going to have to close the

office in the next two weeks and do something working

for somebody, if I can, or whatever.

As you can well imagine, I have a health problem

which I am trying to overcome. I am not going to permit

it to incapacitate me. I just don’t believe—

The Court: I’m sorry, your voice dropped.

[3SR19] Mr. Wasman: I am not going to let it,

permit it to incapacitate me. I am going to do what I

ean. And I am working with a doctor now who says that

if I am very careful and eat exactly what he prescribes

and take the proper medication and take a special exer-

cise series, that I have to follow rigorously—I shouldn't

say rigorously, but continuously, that will alleviate what-

ever the problems are, somewhat. So I do it and I must

say I have noticed some improvement and I am, you

know—Anyhow, that’s where I am, sir.

The Court: Very well, Mr. Wasiman.

Mr. Wasman: Thank you.

20

The Court: Let me ask you one question. Who is

Barbara Bucci? Is she a frien! or employee or what

was her station?

Mr. Wasman: No. She’s a lady that I have known

for a few years. She owned a half interest in a pizza

restaurant and I handled soine matters there for them

until recently when she had a flare-up with her partner

and quit there.

She helps me in one item of some real estate man-

agement that we had set up some years ago or had been

helping me. She doesn’t anyinore.

The Court: She was not an employee?

[3SR20} Mr. Wasman: No, sir. She is not and she

never has been.

The Court: Thank you, sir.

Mr. Russ: Judge Roettger, that’s all I have. If

you have any questions of me. I realize this is somewhat

of a complex, as we deseribed earlier, bizarre fact pattern.

The Court: It is bizarre.

Mr. Russ: Is there anything that’s in doubt in your

mind that 1 can answer? I'd be pleased to do it.

Thank you.

The Court: No, I have nothing. No questions.

Anything from the Government, Mr. Moore?

Mr. Moore: Yes, Your Honor.

Your Honor, I had prepared some comments here at

the beginning, primarily for the sake of Mrs. Wasman,

but I think they are appropriate in any event.

21

My comments here are an obligation to another in-

terest, and my comments cannot be cast in the emotion

that Mrs. Wasman displayed, and yet I think that they

carry equal weight. We take no satisfaction in the suf-

fering of either Mrs. [8SR21] Wasman or, for that mat-

ter, the victims of the fraud that caused the false state-

inent to be made in the first place.

There is no such thing as a typical case. When it

comes to sentencing, I think that’s particularly so where

there is an attorney involved. I believe that there are

substantial facets in this case which dictate, I believe, a

substantial period of incarceration.

Mr. Wasman has cast himself in a certain image that

he would like this Court to believe which I believe is false.

And that is the image of a victim of a fraud and of a

man who is gullible in business affairs and who has been

caught up in an isolated instance of a minor transgression

of the law. And I think that on each of these counts, the

facts belie the image that he would like this Court to

believe.

Mr. Wasman is before the Court as an attorney, an

attorney of some years of practice in this arcva, and 1

think with any attorney, there is an expectation of a

knowledge of law, particularly the criminal law that we

do not automatically assume with other individuals. I

think we hold them to a higher standard. I think that,

as a [3SR22] profession, they ask for certain privileges

and are accorded certain privileges and they must also

individually and collectively bear the responsibilities and

duties of the profession. The reputation of the profession

suffers when individuals such as Mr. Wasman who bear

the cloak of attorneys use their position and commit the

violations or whatever they may be of law. I think for

that reason alone, incarceration is warranted because it

alerts to the public that there is an awareness on the

part of the judiciary that when one of their own commits

a violation he will not be treated lightly.

The suggestion of a poor business judgment is, I

believe, another characterization of what is really his

disregard for what the law is. Mr. Wasman is not new.

He’s been before the Court on criminal matters. I think

it is a matter of importance in assessing in whether this

is an isolated instance, whether there is the character

of the individual that extends beyond the isolated in-

stance to suggest that Mr. Wasiman has had a continuing

disregard for the law: and I refer to his prior convie-

tion on a tax inatter. Mr. Wasiman was convicted there.

At that time, it is my [38SR23] understanding that the

medical issues were raised as they were in this case,

pretrial, as they have been now. I believe Mr. Wasman’s

knowledge of the law has given him the insight that see-

ing the benefits from a litigating standpoint to raise the

medical issues. | am not suggesting that they do not

exist but I do not believe that they have impaired his

ability to act in a daily routine. They have served his

interest in avoiding responsibility for answering to the

charges that he has faced in the past and I do not believe

that they should be used as an opportunity to avoid an-

swering for the charges that he stands before the Court

today.

It is my understanding that at the time of his past

sentencing, he was only one of a number of individuals

that the Internal Revenue Service directed their efforts

at, that did not receive a period of incarceration. Your

23

Honor, again with respect to the medical, before I move

on to another point, this matter was again raised, and I

alluded to the indictment that is still pending in front of

Judge Gonzalez in this District, the medical problems

were raised there,

I think that the charges there, while not [3SR24]

resolved, again point to the question of the context of

Mr. Wasman’s own participation in the fraud scheme

Where a lot has been said as to how Mr. Wasman got

involved in the scheme. Suffice it to say that a grand

jury, at least, has seen fit to dishelieve Mr. Wasman’s

own version at least at this point.

Your Honor, the suggestion that this is an isolated

act, I think, when we look ut the facts of this case, we

see a very sophisticated individual having a disregard for

the law, willing to engage in a number of separate acts

in order to further his own interest in that in making

a false statement on the application, he saw fit to obtain

a birth certificate in the name of another, obtain a driv-

er’s license in the name of another, have another jin-

dividual assist him in the participation of the offense,

All of these facts and cireumstances, I think, suggest that

there was some premeditation in the offense he was com-

mitting. Moreover, by the time the offense was charged,

the passport in the name of Hendrick was not in the pos.

session of the Government, we subsequently obtained it.

And hearing the other facts in the case, I think we

[3SR25] can see now that there were other offenses com-

mitted, as well, in furtherance of the scheme to defraud

certain Arab investors or so-called Arab investors, which

Mr. Wasman was apparently willing to engage in. And

that was the use of the passport which was a separate

24

offense, as well as the obtaining of the passport after

having made the false statement on the application.

Briefly, Your Honor, I don’t think that Mr. Wasman

has demonstrated anything that entitles him to the merey

of the Court. I believe a substantial period of incarcera-

tion is warranted both on the basis of Mr. Wasman’s

conduct in this ease, his prior conviction and the deter-

rent effect it would serve on other attorneys, as well as

other individuals.

Thank you, Your Honor.

The Court: Thank you, Mr. Moore.

It doesn’t have any effect upon the sentencing but

it is my understanding that Mr. Comninos was killed

after the trial, driving to the airport.

Mr. Moore: Your Honor, there’s been a number of

personal hardships that I did not bring up [3SR26]

which I know the Court does not want to consider them

in sentencing.

The Court: I don’t consider them but I am curious.

This case seems replete with colorful facets.

Mr. Moore: Mr. Sergeant from the Carlton Tower

Hotel came to the United States and while here suffered

a heart attack on Saturday during the trial.

Mr. Comninos and Mr. Manning, while returning to

Miami, were in an accident. Mr. Commninos was fatally

killed in that accident and Mr. Manning fortunately suf-

fered a concussion and was released a few days after

his hospitalization and now is back in Europe.

The Court: Very well.

bo

or

Mr. Russ.

Mr. Russ: Your Honor, may I reply to two points?

The Court: Yes, sir.

Mr. Russ: I failed to clarify in my supplement to

the Presentence Investigation that the tax matter that

Mr. Wasman was convicted on in the early 1970’s in-

volved the misdemeanor offense of failing to file a tax

return, and that was [8SR27] before Judge Scott in Jack-

sonville. And he was one of a number of professionals

in Southern Florida who were charged as part of an In-

ternal Revenue Service campaign and he was before the

Court and entered a plea of guilty to that charge and he

received a sentence of probation. Failure to file the in-

come tax return flowed from the situation where the

person who had prepared the tax return had represented

to Mr. Wasman that the tax return had, in fact, been

filed. He believed that it had been filed but, in fact,

it had not been.

Second point I’d like to respond or rebut is that

the suggestion on the part of the prosecuting attorney

that Mr. Wasiman is involved or has been involved in a

large scheme involving fraud. The Government has

brought an Indictment to that effect more than a year ago

in this Court. The Government has not seen fit in more

than a year, despite the Speedy Trial Act, despite pro-

tections et the Sixth Amendment, has not seen fit to

bring Mr. Wasman to trial on that charge.

The Court: Didn’t you file a motion for continu-

ance, citing health reasons of Mr. Wasman?

Mr. Russ: No, sir. First of all, I don’t [8SR28]

represent Mr. Wasinan in the mail fraud case.

The Court: Are you aware of whether or not he has

filed a motion for continuance on that basis?

Mr. Russ: I don’t know. And if the prosecutor rep-

resents that, I do not challenge that because I do not

know. But I am simply making the point that the Gov-

ernment attempts to paint with a broad black brush here

and suggests that somehow Mr. Wasman comes before

this Court tainted by virtue of a grand jury indictment

where Mr. Wasinan was not before the grand jury. Mr.

Wasman has never had his opportunity to tell that grand

jury or a Court or a jury or anybody else in a position

to make a decision on this matter what his position and

his version is of that matter.

So I, in rebuttal, respectfully suggest it’s not appro-

priate for the Government to be arguing that Mr. Was-

inan is entitled to some sort of enhanced punishment in

this passport case by virtue of the fact that there is a

pending grand jury indictment for mail fraud.

The Court: | don’t consider pending cases in deter-

mining sentence because my theory of [3SR29]_ sen-

tencing is simply that one can consider prior convic-

tions, and each judge who has somebody with more than

one conviction should consider it, not only may, but

should consider prior convictions, give whatever weight

that judge feels is appropriate, but if judges at the time

of considering prior convictions also consider pending

cases, and then if that pending case resulted in a con-

viction, one of the sentences would inevitably have been

a pyramided sentence. Consequently, I don’t consider

pending cases on that basis.

27

I think it is proper that they be in the Presentence

Report and the appellate courts have upheld the eon-

sideration of pending matters as I understand them.

Mr. Russ: That is all I have.

Mr. Wasman is prepared for sentencing at this time.

The Court: I have considered a number of factors

here and many things to consider in this particular case.

The Defendant's age and health is, of course, a mitigating

factor. His status as a member of the bar is, of course,

an aggrevating factor. I know that sounds Calvinistic

[8SR30] but I think it’s more or less an accepted prin-

ciple in this country. We all hear the complaint voiced

that people with possessions receive more lenient sen-

tences than people without means, and they can point

to examples that seem to indicate that. There are other

examples, of course, that indicate the opposite, in that a

plumber will receive probation for the same offense for

which a lawyer will receive jail time.

There is, of course, the matter of prior conviction.

The conviction is within ten years. And the P.S.I. does

not reflect whether there were such mitigating factors

us suggested by counsel.

The actual offense, itself, is a classic example of

criminal bad judgment. Not something that occurs on

the spur of the moment but took some individual dili-

gence and effort to obtain the driver's license that’s false

and the knowing talse passport application. Somehow

there is some revulsion inherent in a situation where

someone utilizes the name of a dead acquaintance. Per-

haps it’s ghoulish conduct. It’s not as reprehensible to

my way of thinking as utilizing the [8SR31] name of a

dead relative which I have had before me, too.

28

And I must consider the purpose, the motivation.

Although that is not relevant at the time of trial, it is

relevant at the time of sentencing. If the motivation

were to get a clean passport, as that phrase is used in

order to facilitate importatian of narcotics because one

had made too many trips to a source country on his own

passport, that type of imotivation, I think, merits sub-

stantial inearceration. And although there is some repre-

hensible aspect about the bigotry involved and trying to

dupe Arab investors, perhaps there is some mitigating

factor because the clear bigotry involved is on the part

of Arabs towards people of Jewish background. I am

not condoning it by that conduct. I am certainly not con-

doning bigotry either way. But the motivation for ob-

taining this passport is not as heinous as many other

situations that do come before federal courts.

I inquired as to whether the corroborating witness

was an employee. Some curiosity about that because I

have no use for people who take advantage of an em-

ployee and involve them in [388R32] conduct tor which

the witness could have been indicted. That wasn’t the

case. It’s still reprehensible. When it involves a friend,

it is not as reprehensible.

I am going to impose a split sentence in this case,

maximum period of incarceration.

In the case of United States of America vs. Milton

Wasman, the Defendant having been adjudicated guilty

pursuant to the jury verdict of guilty, it is adjudged

that the Defendant is hereby committed to the custody of

the Attorney General or his authorized representative

for imprisonment for a term of two years, and on con-

dition that the Defendant be confined in a jail-type or

29

treatment institution for a period of six months. The

execution of the remainder of imprisonment is hereby

suspended and the Defendant is placed on probation for

a period of three years to commence upon the Defend-

ant’s release from confinement.

You have a right of appeal, Mi. Wasman. Your ap-

pear should be filed within ten days. You may file a

notice of appeal even if you don’t have the funds to pay

for it, prosecute an appeal along that basis.

[3SR33] The Clerk may be directed to file a notice

of appeal in your behall.

Mr. Russ, you are instructed to remain as his coun-

sel and advise him of his rights as to an appeal if he

desires to take an appeal.

Mr. Russ: Yes, Your Honor.

The Court: | am going to defer the reporting tine

until November 23, 1979, at 10:00 o’clock in the morning,

at which time you should report to the institution desig-

nated by the Bureau of Prisons at your own expense, or

if you do not elect to do so at your own expense, you

should report by that hour and date to the Marshal's

Office in Miami, Florida, 300 Northeast First Avenue.

Bond continued on the same terms and conditions

until the time of reporting.

Mr. Russ: Judge Roettger, may I make several re-

quests of you?

First, as regards the matter of the Court suggest-

ing to the Attorney General as to a suitable place of in-

carceration.

30

The Court: I would recommend Eglin Air Base,

Which seems most appropriate under the circumstances.

Mr. Russ: Thank you.

[8SR34] And assuming Mr. Wasinan wants to take

an appeal, and we will have to discuss that after this

court session, I would respectfully ask the Court to stay

the execution of the sentence in the event a notice of

appeal is timely filed.

The Court: I have stayed the execution until No-

vember 23rd for reporting.

Mr. Russ: But I'd like vou to, in the event the

notice of appeal is filed, to allow him to continue on his

same bail he is out on.

The Court: Can’t be on the same bond but I will

set a supersedeas if that’s what you're asking—

Mr. Russ: That’s what I’m asking, yes, Your Honor.

The Court: What bond is the Defendant on now?

Mr. Russ: $50,000 personal surety, Your Honor?

The Court: Mr. Moore? Anything from the Gov-

ernment?

Mr. Moore: Your Honor, the Government would

oppose it.

The Court: Pardon?

Mr. Moore: The Government would oppose it.

The Court: Do you have any reason to believe that

he is involved in some kind of bildking [8SR35] opera-

tions or scams?

Mr. Moore: No, Your Honor.

31

The Court: I don’t think he is likely to flee. Man

lives in the same house for thirty-nine years is not likely

to leave it. And I don’t know that he is a threat to the

community in view of the fact that you cannot advise

me of any such operations. I cannot, from the nature

of things, make that finding: therefore, I will set a su-

persedeas bond. I will set it in the amount of $5,000

corporate surety and an additional $50,000 personal re-

cognizance. That, of course, is a supersedeas bond.

Mr. Russ: Yes, Your Honor.

The Court: Present bond continues in full force and

effect on the same terms and conditions until the time

of reporting. Notice of appeal is filed, $5,000 personal

surety and $50,000 personal recognizance.

Mr. Russ: Yes, sir.

The Court: Anything further to come before the

Court?

Mr. Russ: I have nothing further, Your Honor.

Thank you.

The Court: Good luck to you, Mr. Wasman.

[3SR36] Court is in recess.

(Thereupon, the foregoing proceedings were con-

cluded.)

CERTIFICATE

STATE OF FLORIDA

COUNTY OF BROWARD

I, RUDY E. FOX, Official Court Reporter, do here-

by certify that the foregoing transcript, consisting of

32

pages numbered from 1 to 35, inclusive, contains a true

and correct transcript of my shorthand notes as taken

by me from a recording of the proceedings that took

place and the time and place aforesaid.

DATED at Fort Landerdale, Florida, this 24th day

of March, 1980.

/s/ Rupy E. Fox

Official Court Reporter