# Appendix Vol I — Dvorak v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1659%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix Vol I - **Published:** January 1, 2001 - **Citation:** 531 U.S. 1184 ## Text Supreme Court, U.S. @ FILED 11 e 0%1144 JAN 162008 OFFICE OF THE CLERK IN THE Supreme Court of the Mnited States ROBERT F. DVORAK, Petitioner, Vv. UNITED STATES GOVERNMENT, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI (VOLUME ft) Barry P. Steinberg, Esq. Counsel of Record Alan D. Strasser, Esq. Nancy E. Nunan, Esq. Counsel for Petitioner Kutak Rock LLP 1101 Connecticut Avenue, N.W. Suite 1000 Washington, D.C. 20036 202/828-2400 Balmar Legal Publishing Services, Washington, DC 202-682-9300 22Sp¢e* Jo S la UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-4353 UNITED STATES OF AMERICA, Plaintiff-Appellee, Vv. ROBERT F. DVORAK, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CR-99-412-A) Submitted: September 20, 2000 Decided: October 17, 2000 Before WILKINS, LUTTIG, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. COUNSEL Alan D. Strasser, Nancy E. Nunan, KUTAK ROCK, L.L.P., Washington, D.C., for Appellant. Helen F. Fahey, United States Attorney, Stephen P. Learned, Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2a OPINION PER CURIAM: Robert F. Dvorak appeals his convictions and sentences for conspiracy, making false statements, and wire fraud. We affirm. Dvorak owned the Ritz Audio Visual store in Beltsville, Maryland (“Ritz AV”). In that capacity, he sold numerous items to Robert Burchell, who ostensibly purchased these goods for the Drug Enforcement Agency (DEA) but in fact embezzled them. The primary issue at trial was whether Dvorak realized that Burchell was misusing the property bought by the DEA. The jury, apparently believing that Dvorak had the requisite awareness, convicted him of all nineteen counts in the indictment. The district court sentenced Dvorak to concurrent terms of thirty-seven months imprisonment, and this appeal followed. Dvorak’s first claim is that the district court erred by refusing to instruct the jury that good faith is a defense to charges of wire fraud and making false statements. The court’s instructions concerning willfulness and knowledge adequately addressed this issue, however. See United States v. Fowler, 932 F.2d 306, 316-17 (4th Cir. 1991). Dvorak next faults the district court for refusing to strike portions of the prosecutor’s closing argument. This issue relates to hearsay evidence suggesting that Burchell resold goods the DEA bought from Ritz AV. The court did not admit this hearsay as substantive evidence of the resale of goods, but rather to show that Dvorak, who heard the statements in question, was on notice that Burchell was misusing government property. Dvorak contends that the prosecutor blurred this distinction in his closing argument. We have reviewed the prosecutor’s remarks and do not agree that they had such an effect. Furthermore, because Dvorak was not implicated in any resale of property, he would not have been prejudiced by any misconceptions about the purpose for which the hearsay evidence was introduced. See United States 3a v. Wilson, 135 F.3d 291, 297 (4th Cir. 1998) (describing showing required to establish improper closing argument). Finally, Dvorak contends that the district court failed to make the findings necessary to support its imposition of a two-level sentencing enhancement for obstruction of justice. See United States Sentencing Guidelines Manual § 3C1.1 (1998). The court, however, specifically identified the testimony supporting such an enhancement (Dvorak’s denial that he was aware of Burchell’s criminal activities) and expressly found that testimony to be false and material. These findings were sufficient. See United States v. Dunnigan, 507 U.S. 87 (1993). For the foregoing reasons, we affirm Dvorak’s convictions and sentences. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4a AO 245 (Rev. 2/99) (EDVA rev. 1) Sheet 1 - Judgment in a Criminal Case FILED —__ 4, 2000 CLERK, U.S. DISTRICT COURT ALEXANDRIA, VIRGINIA Case Number 1:99CR00412-001 UNITED STATES DISTRICT COURT Eastern District of Virginia Alexandria Division UNITED STATES OF AMERICA v. ROBERT DVORAK, Defendant. AMENDED JUDGMENT IN A CRIMINAL CASE The defendant, ROBERT DVORAK, was represented by Alan D. Strasser, Esquire. The defendant was found guilty on count(s) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19 of the Indictment after a plea of not guilty. Accordingly, the defendant is adjudged guilty of the following count(s), involving the indicated offense(s): Title & Section Nature of Offense Date Offense Count Concluded Number(s) 18 USC 371 Conspiracy to defraud 8/29/97 1 the United States 18 USC 1001 Knowingly and willfully 2/10/95 - 2 thru 15 made a materially false 9/26/97 statement and 5a 18 USC 1343 Fraud by wire 1/17/91 - 16 thru 19 9/26/97 As pronounced on April 28, 2000, the defendant is sentenced as provided in pages 2 through 7 of this Judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. IT IS FURTHER ORDERED that the defendant shall . hotify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address unti! all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. Signed this 4th day of May. 2000. /s/ Albert V. Bryan, Jr. ‘United States District Judge Defendant’s SSN: 579-78-7352 Defendant’s Date of Birth: 9/12/54 Defendant’s address: 8404 Cherry Laurel Court Laurel, MD 20723 6a IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of THIRTY-SEVEN (37) MONTHS as to each Count to be served concurrently with each other. The Court makes the following recommendations to the Bureau of Prisons: That while incarcerated the defendant receive medical treatment for his condition. The defendant shall surrender to the United States Marshal for this district 48 hours after the completion of the appeal process. RETURN I have executed this Judgment as follows: Defendant delivered on to at , with a certified copy of this Judgment. c: P.O. (2) (3) Mshl. (4) (2) U. S.Atty. United States Marshal U.S.Coll. Dft. Cnsl. PTS Deputy Marshal Financial Registrar ob 7a AO 245 S Rev. 2/99) (EDVA rev. 1) Sheet 3 - Supervised Release Defendant: Robert F. Dvorak Case Number: CR 99-412-001 SUPERVISED RELEASE Upon release from imprisonment, the defendant shall be on supervised release for a term of THREE (3) YEARS. The Probation Office shall provide the defendant with a copy of the standard conditions and any special conditions of supervised release. The defendant shall report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. While on supervised release, the defendant shall not commit another federal, state, or local crime. While on supervised release, the defendant shall not possess a firearm or destructive device. If this judgment imposes a fine or a restitution in accordance with the Schedule of Payments set forth in the Criminal Monetary Penalties sheet of this judgment. STANDARD CONDITIONS OF SUPERVISED RELEASE The defendant shall comply with the standard conditions that have been adopted by this court (set forth below): 1) The defendant shall not leave the judicial district without the permission of the court or probation officer. 2) The defendant shall report to the probation officer and shall submit a truthful and complete written report within the first five days of each month. 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) 8a The defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer. The defendant shall support his or her dependents and meet other family responsibilities. The defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons. The defendant shall notify the Probation Officer within 72 hours, or earlier if so directed, of any change in residence. The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by physician. The defendant shall not frequent places where controlled substances are illegally sold, used, distributed or administered. The defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer. The defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer. The defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer. The defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court. 9a 13) As directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement. __ SPECIAL CONDITIONS OF SUPEVISION While on supervised release, pursuant to this Judgment, the defendant shall also comply with the following additional conditions: The mandatory drug testing provisions of 18 U.S.C. § 3563(a(S) are waived upon the courts finding that the offense of conviction is not drug-related, there is no current or past history of substance abuse, and there is a low risk of future substance abuse by the defendant. The defendant shall pay the restitution as ordered. 10a AO 245 S (Rev. 2/99) (EDVA rev.) Sheet 5 - Financial Penalties Defendant: Robert F. Dvorak _ Case Number: CR 99-412-001 CRIMINAL MONETARY PENALTIES The defendant shall pay the following total monetary penalties in accordance with the schedule of payments set out below. Count Special Assessment Fine 1 $100.00 2 $100.00 3 $100.00 | 4 $100.00 | 5 $100.00 | 6 $100.00 | 7 $100.00 8 $100.00 G $100.00 10 $100.00 11 $100.00 12 $100.00 13 $100.00 14 $100.00 15 $100.00 16 $100.00 17 $100.00 18 $100.00 19 $100.00 Total $1,900.00 FINE No fines have been imposed in this case. lla SCHEDULE OF PAYMENTS Payments shall be applied in the following order (1) assessment; (2) restitution; (3) fine principal; (4) cost of prosecution; (5) interest (6) penalties The special assessment is due in full immediately. If not paid immediately, the court authorizes the deduction of appropriate sums from the defendant’s account while in confinement in accordance with the applicable rules and regulations of the Bureau of Prisons. Any special assessment. restitution, or fine payments may be subject to penalties for default and delinquency. If this judgment imposes a period of imprisonment, payment of Criminal Monetary penalties shall be due during the period of imprisonment. All criminal monetary penalty payments are to be made to the Clerk, United States District Court, except those payments made through the Bureau of Prisons’ Inmate Financial Responsibility Program. 12a RESTITUTION AND FORFEITURE RESTITUTION The court. pursuant to the Victim and Witness Restitution Act, finds that the following is/are victim(s) of defendant's criminal conduct and has/have sustained loss in the indicated amounts and orders $1039.93 restitution by the defendant as follows: Name & address of payee(s) Amount General Accounting Unit, DEA $1,039,929.10 700 Army Navy Drive Arlington, VA 22202 Total $1,039,929.10 Payments of restitution are to be made to Clerk, U.S. District Court. Restitution is due and payable at the rate of $300.00 per month commencing 30 days from today. Any amount due a victim to whom restitution is ordered in this order shall be reduced by any amount the victim recovers from the same loss for any co-defendant or any other source. If there are multiple payees, any payment not made directly to a payee shall be divided proportionately among the payees named unless otherwise specified here: FORFEITURE Forfeiture has not been ordered in this case. 13a AO 245 S (Rev. 2/99) (EDVA rev. 1) Sheet 1 - Judgment in a Criminal Case FILED APRIL 28, 2000 CLERK, U.S. DISTRICT COURT ALEXANDRIA, VIRGINIA Case Number 1:99CR00412-001 UNITED STATES DISTRICT COURT Eastern District of Virginia Alexandria Division UNITED STATES OF AMERICA v. ROBERT DVORAK, Defendant. JUDGMENT IN A CRIMINAL CASE The defendant, ROBERT DVORAK, was represented by Alan D. Strasser, Esquire. The defendant was found guilty on count(s) 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19 of the Indictment after a plea of not guilty. Accordingly, the defendant is adjudged guilty of the following count(s), involving the indicated offense(s): Tithe & Section Nature of Offense Date Offense Count Concluded Number(s) 18 USC 371 Conspiracy to defraud 8/29/97 1 the United States 18 USC 1001 Knowingly and willfully 2/10/95 - 2 thru 15 made a materially false 9/26/97 statement and represenation 14a 18 USC 1343 Fraud by wire 1/17/97 - 16 thru 19 9/26/97 As pronounced on April 28, 2000, the defendant is sentenced as provided in pages 2 through 7 of this Judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. IT IS FURTHER ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. Signed this 28th day of April, 2000. /s/ Albert V. Bryan, Jr. United States District Judge Defendant’s SSN: 579-78-7352 A True Copy, Teste: Defendant’s Date of Birth: 9/12/54 Norman H. Meyer, Jr.; Clerk Defendant’s address: By /s/ 8404 Cherry Laurel Court Deputy Clerk Laurel, MD 20723 15a AO 245 S Rev. 2/99) (EDVA rev. 1) Sheet 3 - Supervised Release Defendant: Robert F. Dvorak Case Number: CR 99-412-001 SUPERVISED RELEASE Upon release from imprisonment, the defendant shall be on supervised release for a term of THREE (3) YEARS. The Probation Office shall provide the defendant with a copy of the standard conditions and any special conditions of supervised release. The defendant shall report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. While on supervised release, the defendant shall not commit another federal, state, or local crime. While on supervised release, the defendant shall not possess a firearm or destructive device. If this judgment imposes a fine or a_restitution in accordance with the Schedule of Payments set forth in the Criminal Monetary Penalties sheet of this judgment. STANDARD CONDITIONS OF SUPERVISED RELEASE The defendant shall comply with the standard conditions that have been adopted by this court (set forth below): 1) The defendant shall not leave the judicial district without the permission of the court or probation officer. 2) The defendant shall report-to the probation officer and shall submit a truthful and complete written report within the first five days of each month. 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) l6a The defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer. The defendant shall support his or her dependents and meet other family responsibilities. The defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons. The defendant shall notify the Probation Officer within 72 hours, or earlier if so directed, of any change in residence. The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by physician. The defendant shall not frequent places where controlled substances are illegally sold, used, distributed or aid The defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer. The defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer. The defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer. The defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court. 17a 13) As directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement. SPECIAL CONDITIONS OF SUPEVISION While on supervised release, pursuant to this Judgment, the defendant shall also comply with the following additional conditions: 1) The mandatory drug testing provisions of 18 U.S.C. § 3563(a)(5) are waived upon the courts finding that the offense of conviction is not drug-related, there is no current or past history of substance abuse, and there is a low risk of future substance abuse by the defendant. 2) Pay the restitution as ordered. 18a AO 245 S (Rev. 2/99) (EDVA rev.) Sheet 5 - Financial Penalties Defendant: Robert F. Dvorak Case Number: CR 99-412-001 CRIMINAL MONETARY PENALTIES The defendant shall pay the following total monetary penalties in accordance with the schedule of payments set out below. Count Special Assessment Fine 1 $100.00 : 2 $100.00 ~ 3 $100.00 4 $100.00 # 5 $100.00 6 $100.00 7 $100.00 8 $100.00 9 $100.00 10 $100.00 11 $100.00 12 $100.00 13 $100.00 14 $100.00 _ 15 $100.00 16 $100.00 17 $100.00 18 $100.00 19 $100.00 Total $1,900.00 FINE No fines have been imposed in this case. atelier erties tte rt acer tegen ae = 19a SCHEDULE OF PAYMENTS Payments shall be applied in the following order (1) assessment; (2) restitution; (3) fine principal; (4) cost of prosecution; (5) interest (6) penalties The special assessment is due in full immediately. If not paid immediately, the court authorizes the deduction of appropriate sums from the defendant’s account while in confinement in accordance with the applicable rules and regulations of the Bureau of Prisons. | Any special assessment. restitution, or fine payments may be subject to penalties for default and delinquency. If this judgment imposes a period of imprisonment, payment of Criminal Monetary penalties shall be due during the period of imprisonment. All criminal monetary penalty payments are to be made to the Clerk, United States District Court, except those payments made through the Bureau of Prisons’ Inmate Financial Responsibility Program. 20a RESTITUTION AND FORFEITURE RESTITUTION The court. pursuant to the Victim and Witness Restitution Act, finds that the following is/are victim(s) of defendant's criminal conduct and has/have sustained loss in the indicated amounts and orders $1039.93 restitution by the defendant as follows: Name & address of payee(s) Amount General Accounting Unit, DEA $1,039,929.10 700 Army Navy Drive Arlington, VA 22202 Total $1,039,929.10 Payments of restitution are to be made to Clerk, U.S. District Court. Restitution is due and payable at the rate of $300.00 per month commencing 30 days from today. Any amount due a victim to whom restitution is ordered in this order shall be reduced by any amount the victim recovers from the same loss for any co-defendant or any other source. If there are multiple payees, any payment not made directly to a payee shall be divided proportionately among the payees named unless otherwise specified here: FORFEITURE Forfeiture has not been ordered in this case. 4 1:99-cr-00412 Alan D. Strasser, Esq. agil Kutak Rock 1101 Connecticut Ave NW Suite 1000 Washington, DC 20036-4374 22a IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION CRIMINAL NO. 99-412-A UNITED STATES OF AMERICA V. ROBERT DVORAK, Defendant. ORDER For the reasons stated from the bench, it is hereby ORDERED that the motions of the defendant for a new trial and judgment of acquittal are denied. /s/ Albert V. Bryan, Jr., United States District Judge Alexandria, Virginia April 28th, 2000 y age IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION CRIMINAL NO. 99-412-A UNITED STATES OF AMERICA V. ROBERT DVORAK, Defendant. FINDINGS AND REASONS Pursuant to F. R. Crim. P. 32(c), the defendant alleged the following inaccuracies in the presentence investigation report (PSI): : The defendant controverts the statements regarding the offense conduct in paragraphs 10-13, 15, 17, 18 and 20 of the PSI. The court finds the statements in those paragraphs are correct. The defendant controverts the statement in paragraph 23 as to the amount of loss and restitution. The court finds the amounts set forth in that paragraph are correct as being an amount reasonably foreseeable to the defendant as involved in conspiracy at the time he became a party in the conspiracy. However the amount of restitution should be $1,039,929.10 instead of $1,144,034.07. The defendant controverts the statement in paragraph 29 as to obstruction of justice. The court finds an obstruction of justice enhancement is appropriate for giving false material testimony at trial. 24a The defendant requested a downward departure under U.S.S.G. § 5H1.4. The court finds such a departure is not warranted. aly Pursuant to 18 U.S.C. § 3553, the court sets forth the following findings in connection with the sentence this day imposed: The unadjusted severity level for the offense for which the defendant has been found guilty is 6, increased by 11 because of the amount involved (more than $800,000), increased by 2 for obstruction of justice, increased by 2 for more thaa minimal planning, results in an offense level total of 21 with a criminal history category of I, this results in a range of punishment of 37 to 46 months, a supervised release term of years, and a fine range between $7,500 and $75,000. Restitution was ordered in the amount of $1,039,929.10 to be paid to the Drug Enforcement Administration at the rate of $300 per month, such payment to begin 30 days from this date. The court finds the defendant’s resources and earning Capacity as referenced in the presentence report, taking his own needs and the needs of those dependant upon him, are sufficient to enable him to make these payments. Neither fine, costs of imprisonment, nor costs of supervised release was ordered because the defendant’s resources are such that he can not afford pay them in addition to the restitution. The court adopts paragraphs 8-22, 23 except as to the change in the amount of restitution, 24-28, 29 as amended and 30-61 of the presentence investigation report. The court imposed concurrent sentences of 37 months incarceration and 3 year terms of supervised release on Counts 1-19. The court further imposed a $100 assessment per count for a total of $1,900 due immediately. The court imposed as a condition of the supervised release that defendant pay the restitution as above set forth. The court recommended waiver of substance abuse treatment and testing as a condition of supervised release. ad 25a Is/ Albert V. Bryan, Jr., United States District Judge Alexandria, Virginia April 28th, 2000 26a COPY | IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Alexandria Division CRIMINAL ACTION NO. 99-412-A Friday, April 28, 2000 Alexandria, Virginia UNITED STATES OF AMERICA -VS- ROBERT F. DVORAK, Defendant. Transcript of sentencing proceedings in the above- Captioned matter. BEFORE: The Honorable ALBERT V. BRYAN, JR., Judge United States District Court APPEARANCES: FOR THE UNITED STATES: STEPHEN P. LEARNED, ESQ. DABNEY LANGHORNE, ESQ. UNITED STATES ATTORNEY’S OFFICE 2100 Jamieson Avenue Alexandria, Virginia 22314-5794 27a * * * DON McCOY, RMR OFFICIAL COURT REPORTER (703) 683-3668 APPEARANCES: (Continued) FOR THE DEFENDANT: ALAN D. STRASSER, ESQ. NANCY NUNAN, ESQ. KUTAK ROCK, LLP vache 1101 Connecticut Avenue,.N.W. Washington, D. C. 20036 C-O-N-T-E-N-T-S WITNESS: DIRECT CROSS REDIRECT RECROSS (None) ARGUMENT BY MR. STRASSER PAGE 3, 11, 35 ARGUMENT BY MR. LEARNED PAGE 5, 26 COURT’S RULINGS PAGE 8, 39 28a P-R-O-C-E-E-D-I-N-G-S THE CLERK: Criminal No. 99-412-A, United States vs. Robert F. Dvorak. MR. LEARNED: Good morming, Your Honor; Steve Learned for the United States. Dabney Langhorne may be able to join me later. She’s in Judge Hilton’s court, I believe. MR. STRASSER: Good morming, Your Honor; Alan Strasser for Mr. Dvorak, who is present, and with me is also my colleague, Nancy Nunan. THE COURT: There is before the Court the motion for a new trial, or, in the alternative, for judgment of acquittal. I expect it’s the other way around. But do you want to be heard further on that? It’s been pretty well briefed, but if you want to address it further, now is the time. MR. STRASSER: Your Honor, I am prepared to argue it. I think it might be helpful if I knew whether the Court had questions that it wanted me to address so I could focus my remarks. THE COURT: No. I have considered everything -- at least I have tried to consider everything you have submitted -- and I have to say this, that your motions both in essence boil down to what you assert is the unbelievability of Mr. Burchell. There are other matters, too, the instruction or the failure to give the good-faith instruction and the remarks of 29a Mr. Learned or his co-counsel before the jury. But I know what you are bringing up. I’m not sure I agree with all of them, but I don’t have any questions about them. MR. STRASSER: I think they fit together, Judge. I agree with the Court’s description of our motions, but the points fit together, given what I believe was Mr. Burchell’s _lack.of credibility as a witness. THE COURT: The jury didn’t have any problem with it, obviously, and frankly neither do I, or did I. He was a liar, and he was a thief, but his testimony came across as fairly credible. And it was vigorously attacked and capably attacked by you. But I must say I found it convincing, which I’m sure is a blow to you, but I would be less than candid to look at you and act like I was being convinced that he was unbelievable. Bs MR. STRASSER: I appreciate that, Your Honor. Then our argument boils down to what the Court described as instructional error, and the misstatements by the Government in closing argument. THE COURT: Did you object to those statements at the time? MR. STRASSER: I objected to the comments about McLean Bible Church. The misstatements about Mr. Burchell’s expectations, I do not believe I objected to during closing argument. 30a THE COURT: I didn’t think so, and I knew that you had objected to some, but I couldn’t remember exactly which ones. MR. STRASSER: It was a circumstantial case with accomplice testimony. The Government’s arguments, the Government’s arguments carry a lot of weight simply because they come from the Government. If the jury evaluated the evidence without knowing the that good faith was a defense for Mr. Dvorak, their assessment of Mr. Burchell’s credibility, I think, is hard to determine, and that really is the essence of our request for a new trial. Thank you, sir. THE COURT: Mr. Learned, did you want to respond to any of that? MR. LEARNED: Your Honor, I don’t think it’s necessary. I filed a lemgthy brief. The good-faith instruction, Your Honor, the one he submitted and that he wanted read, I guess, Only dealt with counts 2 through 19. It specifically left out the conspiracy count. So had the Court given that instruction as given, you know, it didn’t apply to the conspiracy count. So, therefore, he can only overturn, the only thing that could be overturned would be counts 2 through 19. THE COURT: Well, that’s a fair number of counts. MR. LEARNED: Well, that’s, but I mean, the bottom line is that we feel the Court’s instruction clearly covered it. 3la Obviously, had the jury believed Mr. Dvorak, they would have been compelled to acquit him on the instructions that Your Honor gave. You told the jury that they could not convict him if what he did was by mistake or accident or words to that effect. I have cited the precise language, and obviously had they believed him, they would have been duty bound on the instruction you gave to acquit him. The same thing with the willful blindness instruction, the instruction specifically said, you know, you cannot convict this man, ladies and gentlemen, on the basis of negligence or carelessness. Had they believed Mr. Dvorak, in his testimony that he was, you know, mistaken, maybe careless, not careful enough, they would have been duty bound. So it’s our view that the instruction was weighed. I don’t need to go into that, but also we feel that it was adequately covered. Ms. Langhome, my colleague, did in rebuttal argument appear to overstate, misstate -- I will say misstate or go beyond what Mr. Burchell had testified to about his own expectations about a reduction in sentence. That was a mistake. That happens to attorneys in final argument. It was not objected to, and that was a significant factor, because when counsel makes an objection to the Government in their opening statement, the Government has the opportunity to rethink. When you are a prosecutor and someone objects to what you are saying, you can step back for a minute, had there been an objection, and Ms. Langhorne could have corrected it, could have told the jury, ladies and gentlemen, your recollection controls and so forth. The Court could have stepped in. There was no objection. Certainly, this doesn’t rise to the area of plain error. As I pointed out in my opening final argument, the very first paragraph of my opening statement was to remind the jury that their recollection of the evidence is what counts, and that attorneys sometimes mistakenly misstate the evidence. 32a So I think we have adequately addressed those issues, and I believe frankly that we haven’t really addressed the specific issue of whether or not a stay is appropriate of sentencing, but I think that any appeal here would be for purposes of delay only. There really is no -- THE COURT: (Interposing) Well, we haven’t reached that point yet. MR. LEARNED: Right. THE COURT: Well, on the motions for a new trial and for judgment of acquittal, the motion for a new trial is a little different standard. It’s whether the evidence, whether the verdict is against the weight of the evidence, and whether the interests of justice require a retrial. And, as I indicated to counsel, a lot of the weight- of-the-evidence argument is the asserted unbelievability of Burchell. The jury found him believable, and so did I. I can’t find that this verdict is against the weight of the evidence or is not in the interest of justice. Insofar as the improper remarks of the Government, they were fairly innocuous, I think. The misrepresentation or misstatement as to Burchell’s expectations of a further reduction of sentence were not objected to. Had they been objected to, I would have instructed the jury that it was their recollection of the evidence that counts. The jury was instructed that statements and argument of counsel are not evidence in the case. And the McLean Bible incident, it seems to me, is trivial and certainly innocuous. 33a As to the good-faith proffered instruction, I don’t think a good-faith instruction is necessary where the Court gives an adequate willfulness instruction as one of the elements the Government must prove. The jury was instructed that in order to convict under any of these offenses, one of the elements that the Government must prove was that the defendant’s activity was willful. - The Court defined willful as being voluntary and intentional and with a specific intent to do something the law forbids, that is, with the bad purpose to either disobey or disregard the law, and not because of mistake or accident or other innocent reason. If they had to find that it was with a bad purpose to disobey or disregard the law, that it seems to me negates any good faith and is adequate even in the absence of a good-faith - instruction. : Motion for judgment of acquittal is a little different standard. It is, of course, whether giving the Government the benefit of ali reasonable inferences, no jury could have convicted the defendant. As I say, some of the same things are addressed in that motion, that is, the good-faith instruction, the failure to give a good-faith instruction, the believability of Burchell and whether literal falsity has been proved, and materiality. It seems to me the argument that literal falsity and materiality has not been proved is a little disingenuous. The whole method of this scheme was to disguise the manner in which the invoices were worded, so that the responsive agency official would be misled into possibly thinking that these were legitimate purchases. But even with that, the boat, the camper -- I mean the trailer, the computers, the laser disks containing pornography, it was false, and clearly false, and the jury was 34a not hoodwinked by that, nor the clever way of wording the invoices. And they were designed so that the — they were > calculated so that they would induce agency action, and that, of course, is the essence of materiality. So I find that neither the motion for a new trial nor the motion for judgment of acquittal should be granted, and those motions will be denied. That brings us to sentencing, and there are several matters that counsel have brought to my attention as far as the asserted errors in the presentence report, but initially, Mr. OO, RNS Fee See ee ee ee ee report with your attorneys? THE DEFENDANT: Yes, Your Honor, I have. THE COURT: Have you seen the errors that they have addressed, the asserted errors? THE DEFENDANT: Yes, sir, we have discussed them. THE COURT: Are there any other matters in the report with which you disagree? THE DEFENDANT: No, sir. a Fax THE COURT: All right, sir. Then, counsel, you want to address the calculation of the loss and the obstruction of justice. 35a You also, of course, disagree with the offense conduct which is, as you point out, the Government’s version which both the jury and apparently the Court accepted, but if you want to address in more detail the calculation of the loss or the obstruction of justice, I’ll hear you on that. MR. STRASSER: Thank you, Your Honor. Your Honor, I also would wish to address the ; restitution issue. THE COURT: Well that’s tied in with the calculation of the loss, and you also request a downward departure under Guideline 5(h)1. MR. STRASSER: Let me begin with the calculation of the loss. My fundamental objection to the calculation of the loss that’s proposed by the Government and accepted by Ms. Blanchard, is that it rests essentially on the word, the post facto word of Mr. Burchell of saying, I stole that, I stole that, I stole that, I stole that, and therefore, Mr. Dvorak is responsible for it. It essentially comes down to what I think is arbitrary, to Burchell saying after the fact those are the things I stole. But the guidelines don’t make the loss calculation turn on the same principal as the principal of criminal liability, but instead require a certain element of foreseeability. I will not talk about the foreseeability on the laser disks or the boat or the camper that the Court just referred to, but on the other items, there are items that are like the ones that Ritz sold to the DEA and sells to other Government agencies, computers, isions, computer monitors, video projectors, standard audiovisual equipment, much of which Ritz sold to DEA, and Burchell, it turned out, stole. 36a Saying that Mr. Dvorak is responsible for all of that is to say that he knew in advance what Mr. Burchell was doing, and that is the point that we contest. But even Burchell’s testimony didn’t suggest that he told Mr. Dvorak as to each item. THE COURT: No, I’m sure he didn’t. Everybody seemed to sort of, don’t ask any questions. MR. STRASSER: That’s it, Judge. That is what swayed the jury is the willful blindness instruction, the conscious avoidance instruction, that the jury looked at this in hindsight and said, Mr. Dvorak should have asked some more questions. He should have done more, and since he didn’t, he is guilty of a crime. But not asking questions is different than knowing. It’s different than foreseeing. THE COURT: But it can be conscious avoidance. MR. STRASSER: Your Honor, I agree that it could support a finding of guilt, but that’s different than reasonable foreseeability, which is the standard under the guidelines. And that is why we have distinguished from the vast majority of that equipment, three-quarters of it, which is audiovisual equipment that we contend was not foreseeable that Mr: Burchell was stealing. It is not the kind of stuff you use in your house. It is commercial equipment. It is used in courtrooms and in corporate presentations. It is just not the sort of equipment that a person takes, and so we suggest that it is unfair under — the guidelines to attribute all of that loss to Mr. Dvorak. On the obstruction question-- 37a THE COURT: (interposing) I might tell you in advance, I’m not as concerned on the obstruction of justice aspect on the failure to, on the document that allegedly was not produced in response to the subpoena. That could go either way. I’m willing to give the defendant the benefit of the doubt on that. But I do think there is a legitimate issue whether he took the stand and lied, and that would be, if I find an obstruction-of-justice enhancement, appropriate, it would be on that prong that is mentioned in the presentence report. pena MR. STRASSER: That is a prong that the Government has not argued. The Government’s sentencing memorandum seeks the enhancement only on the document. THE COURT: But I’m not bound by what the Government does. MR. STRASSER: Of course not. But I think then there is a question of notice to Mr. Dvorak about what precisely was the false testimony that he was supposed to have given. The presentence report is not illuminating on that point. To be sure, Mr. Dvorak said he was not guilty of the offenses. THE COURT: That he didn’t know anything about any of this, what these -- was not aware that these purchases were not legitimate DEA purchases. , MR. STRASSER: That he believed otherwise, I think was his testimony. 38a THE COURT: Yes. MR. STRASSER: And I guess I don’t -- (pause). THE COURT: And that was the issue in the case, really, whether he acted willfully. MR. STRASSER: I agree, Your Honor. THE COURT: There wasn’t any question that these items were stolen by Burchell, and so the real issue in the case was whether the defendant knew that they were being stolen or misinvoiced, or whether he believed to the contrary. MR. STRASSER: And that’s why I think the willful-blindness instruction was so important to the jury’s verdict, because looking at it with the safety of hindsight, the jury could say you should have -- to Mr. Dvorak -- you should have asked for questions. You should have pressed Burchell. When Burchell said, It’s not for you to know, you should have said something to that, or you should have called somebody else. Now, to my mind, the great irony, of course, is had Mr. Dvorak say called Mr. Bucklin or Mr. Whiteside, Mr. Burchell’s supervisors, who were in on the scheme, too, it would have done no good at all. But that also is with hindsight. It’s not something that Mr. Dvorak knew at the time. Put another way, Your Honor, I think Mr. Dvorak’s testimony about what he believed at the time is not even inconsistent with what Burchell said, but I think the jury sized that up and said, You may actually have believed that, but you 39a should have asked more. You should have gone farther than that. There were, I suppose, in the jury’s mind enough red flags so that Mr. Dvorak should have taken affirmative steps to find out what Burchell was doing, but none of that makes any of his testimony false. I suggest his testimony, or put another way, his testimony could have been true, and the jury could have said, Well, even if we believed every word you said, under the instruction as given, we can find you guilty for your conscious avoidance of knowledge. And that, that says to me there is nothing here -- I have overstated -- there is an inadequate basis for an enhancement for obstruction of justice for perjury, no particular false statement, no statement made with the intent of interfering with the proceedings. Mr. Dvorak testified to what he believed. The jury said, That wasn’t enough, what you believed. So, I suggest to the Court that an enhancement for perjurious testimony in this case is little different than an enhancement for a denial of guilt. It is different than the cases where someone testifies a transaction didn’t happen. The police didn’t take the drugs off me. I didn’t sign that document. Those kinds of cases where the perjury is clear, it is provable, this wouldn’t be a provable perjury case, just a conflict in testimony between two witnesses. So I don’t think that an enhancement for obstruction is warranted. Does the Court wish me to address the restitution issues now? THE COURT: To the extent you think it’s different from the amount of the loss, yes. ————————————— 40a MR. STRASSER: Only two points on that, Your Honor: One is I believe there is an ex post facto issue here in the application of the Mandatory Victims Restitution Act to conduct that occurred before the effective date of the act. THE COURT: I suggest that the law on conspiracy is that if the conspiracy straddles the effective date that its post effective date is applicable without any ex post facto problem. You disagree with that? \ MR. STRASSER: Your Honor, I would agree that the conduct after the effective date would be subject to the statute, just as the conduct that’s in the false statements count that occur after the effective date of the statute is subject to that statute. But the conduct before -- well, I guess my answer on that is there isn’t binding precedent in this circuit that holds that the conspiracy count does, that the act does apply to a conspiracy that straddles it. I think other courts, including the D.C. Circuit, have suggested that there is an ex post facto issue there. The second issue on restitution is the extent of the Government’s recovery of the identical items. We suggested in our objections to the presentence report, and again in our submission to this Court, that the Government had recovered pretty much everything. The Government responded to that by saying, We did not, that there was recovery of only a certain amount of property as a, quote unquote, administrative forfeiture. But the Government’s valuation of that property is undertaken at Mr. Dvorak’s detriment. That is, some of the property recovered both from Burchell and from Michael Hendrix is the identical property that Ritz sold to Burchell, which, when the DEA bought it, was valued at one level; but 4la when the DEA recovered the identical property, it was valued at about a third of that. The Government suggests that there is no basis to credit Mr. Dvorak for restitution purposes for property that is recovered through administrative forfeiture. And Mr. Learned handed to me this morning the Fourth Circuit’s decision in United States vs. Alalade, A-L-A- _L-A-D-E, which is at 204 F 3d 536, which is a case in which the defendant forfeited property administratively and then argued that he ought to be credited for it in the calculation of restitution. What the Court said is he would not be credited for that recovery when there was no evidence that the victims had actually received it. In that case the victims were banks. Footnote five of the opinion carefully states that the Court reserves the question of what effect it would have if the administrative recovery had actually gone to the victim. In the case before this Court it is the same institution that forfeited the property and recovered it; that is, it is the Justice Department. So all of that has gone exactly to the victim of the offense, and I suggest ought to be credited and not at the value that the Government attributed to it based on an undisclosed standard. THE COURT: What does your calculation of that do to the restitution amount that the presentence report recommends? By how much does it reduce it? MR. STRASSER: Your Honor, I don’t have a calculation of it since I just saw the Government’s answer on this in the last couple of days. I would say the difference is some hundreds of thousands of dollars. The Government's submission -- if I may have the Court’s indulgence one 42a moment -- the Government’s submission on Wednesday reported a number. THE COURT: $1,039,000? MR. STRASSER: But not as the value of the property recovered. What the Government reports is the value of the property recovered is $476,000 and some odd. That $476,000, some fraction of that, probably half, is undervalued, I would say, by two-thirds. The Government also says that electronic equipment valued at $33,000 was obtained from Hendrix. Now, I have not had the chance to go back to Mr. Hendrix’s plea agreement and figure out how the Government derived the number of $33,000. What I can tell from looking at Mr. Hendrix’s plea agreement is that there’s a column on it that lists the invoice cost of the property, which totals about a half million dollars and then a column that lists the value of the property, which has it at about $200,000, a little bit less than $200,000. That’s where I get the figure that is understated by approximately two-thirds. This is a rough calculation, to be sure, but that suggests to me that the Government recovered about $100,000 worth of property from Hendrix and somewhere around $800,000 or $900,000 worth from Burchell. I did not see on the plea agreement for Burchell some valuation of other property that he had forfeited to the Government. He testified that he had forfeited his DEA pension. THE COURT: He’s been ordered to make restitution in a substantial amount. It’s in one of your_ pleadings, but I can’t remember which. 43a MR. STRASSER: I think it’s $2.6 million, Your Honor, and the Government represents that he has made restitution of $79,000. It is impossible to tell from what the Government has provided whether that includes the present value of the annuity that represents his pension for his expected life span. He is a man in his fifties. I would expect that that annuity would be worth some substantial amount of money. None of that is -- that is recovered by the Government, but not credited to Mr. Dvorak. And that’s why we said in rough terms the Government has recovered everything already from Mr. Burchell and from Hendrix. The Government has also forfeited, and I believe Mr. Burchell testified that he lost his houses to the Government. I frankly do not remember seeing that valued in the plea agreement either. That is my argument on the restitution point. THE COURT: Do you want to be heard on the downward departure? MR. STRASSER: I do want to be heard on that, Your Honor. We seek a downward departure for Mr. Dvorak for two reasons. The primary reason is an extraordinary physical impairment, but that first reason links to the second reason, which is that he would be unusually vulnerable in prison. And let me talk briefly about that second one first. He is not a large man. He is not a tall man or heavy man, and he is by no means a strong man. He is hampered by having to carry around with him this breathing apparatus that he has with him in court. And I suggest that that alone would make him vulnerable in prison. 44a But the more compelling reason to my mind is the difficulty that he has in breathing, which he has felt the Symptoms of it over the last months, but having the reluctance that I think is not unknown among certain males, he didn’t go to the doctor to find out what it is about. And having gone to the doctor after the trial to learn about his health, he learned that he had a serious breathing problem that has gotten worse through his life and could be expected to continue to get worse. It comes from the scoliosis that he has, which has the effect of compressing his lungs. It means that he can’t walk any substantial distance. It means he can’t carry things. During the trial even, he was unable to carry -- we had notebooks galore during the trial filled with all manner of documents, and Mr. Dvorak was unable even to carry one of those. During the trial when we decided to leave the courthouse for lunch and go to the carryout that’s just one block away, Mr. Dvorak was unable to walk that distance. It affects his life, and this was even before he went to the doctor. He just knew he couldn’t walk that distance. He now has with him when he’s at work this portable breathing apparatus. He has at home an oxygen generator, which is a stationary device that has a very long hose on it. Even that has not proved adequate for him to be able to breathe adequately at night. And when Dr. Elson saw Mr. Dvorak again yesterday, he prescribed for him what is called a noninvasive ventilator for use at night. I have spoken to the respiratory therapist about this, who tells me that it is a mask that fits over, that’s strapped to one’s face and then attached to a device that generates oxygen, and that would permit Mr. Dvorak to breathe at night. The implication of this impairment for Mr. Dvorak is there is basically nothing that he can do in prison. He can’t 45a walk. He can’t carry. He can’t climb. There is virtually no activities that he could undertake. We spoke to Mr. Hicks in the Bureau of Prisons, apparently the same person that Mr. Learned spoke to, about what prisons in the Federal system could accommodate Mr. Dvorak with this medical problem. Mr. Hicks told us there were two, the one in Lexington, Kentucky, and the one in Rochester, Minnesota. He said that he expected that there would be another one open in Massachusetts, but that wouldn’t be ready until the end of the year. What strikes me about it, though, is that sentencing Mr. Dvorak to one of those prisons would mean essentially putting him in the cell, either in his bed or in his chair, for the entire duration of whatever sentence the Court would impose, because there would not be anything else that he would be _able to do in the prison. I wonder whether that is really a wise use of the taxpayers’ money. I wonder, given the nature of the offense here, whether that is something that is required for punishment of Mr. Dvorak. He has not had anything to do with the Government or Government customers in a year, something that Ritz undertook as a precautionary measure, not knowing what would happen in this case. He obviously poses no danger to anyone. When I say that, I don’t mean to minimize the offense. The jury found him guilty, and the Court has made clear its view of the evidence. I do not mean to suggest that Mr. Dvorak’s conduct is de minimis. But I do mean to suggest that the guidelines permit recognition of the extraordinary impact that the service of a sentence would have, and this would be. This would be in essence solitary confinement. This would be basically sitting in a jail cell for the entire duration of the sentence. 46a I suggest that the public would be better served, and the issues of deterrence would be better served by not forcing the taxpayers to bear that burden, but instead sentencing Mr. Dvorak either to a halfway house or to home detention, with other appropriate requirements. So we would ask the Court to depart downward to a sentence that would permit that. When we spoke to Mr. Hicks in the Bureau of Prisons, and should the Court disagree with me, let me ask then as to the next step. Mr. Hicks said it was important that Mr. Dvorak be permitted to surrender voluntarily to the prison, because he said it would take some time to arrange for suitable transportation. So that frankly was his suggestion and not ours. In any event, should the Court disagree with our recommended sentence, and we would ask the Court first to release Mr. Dvorak pending an appeal, as we do intend to note an appeal, and if the Court is unwilling to do that then to order that he surrender voluntarily to the Bureau of Prisons upon notification from the marshals. But I hope we don’t get to that point. I hope the Court agrees that a more suitable sentence would be one in a halfway house or home detention, and that is the sentence that we ask the Court to impose. THE COURT: All right. Mr. Learned, on the presentence report objections, an item that concerns me is whether or to what extent there ought to be credited against the restitution directive the value of recovered assets. You have a fairly minimal figure on that. MR. LEARNED: Yes, Your Honor. THE COURT: And counsel suggests it ought to be 47a MR. LEARNED: Yes, let me address that. Your Honor, if I may submit to the Court, and I apologize, I came across this Fourth Circuit case that came down in late February of this year, U.S. vs. Alalade, which backs up the Seventh Circuit opinion, Emerson, on specific administrative forfeiture is not an offset. I believe on page three of that opinion, Your Honor, if you look at the second column, on page three, the bottom, the first full paragraph, page three, on the right-hand side, you can see it: We fully agree with the Government that the plain language of the MVRA did not grant the District Court discretion to reduce the amount of restitution required of the order by an amount equal to the value of the property seized from the defendant here and retained by the Government in administrative forfeiture. In other words, I mean forfeiture is an entirely different remedy. It’s not mutually exclusive. Now, that’s the law. I apologize for not bumping into that case until just the very last minute. But again, dealing with this issue of the value of the property now, to give the Court historical perspective. Mr. Burchell pleaded guilty to a major conspiracy to defraud the United States. He was involved with other people. He was involved with another vendor who had nothing to do with Mr. Dvorak. What the department did with him when he was debriefed was to lay out on the table all the invoices that he was involved with, and he identified the items which he embezzled, and those items were paid for by the Drug Enforcement Administration to the tune of $2.68 million. Now, at the time of the search warrant the Government seized all kinds of things, seized a host of movies and music, equipment and so forth, bank accounts, Cars. 48a As I understand it, the forfeiture unit has valued what it seized from him at $476,000. Now this is not inflated dollar figures. This is not what DEA paid — this is the value. The Government has valued, and I don’t know exactly how they do it, the forfeiture unit. They take a big-screen television set, and I don’t know whether it’s still in the box or not, but they put a dollar on it. Obviously, the bank accounts they seized, but everything they seized from him and administratively forfeited, which simply means that he did not contest, that’s what that means, was valued at $476,000. Now what did all that include? I don’t really know, Your Honor. I know that it includes some bank accounts. It included, I think, at least two cars. You cannot administratively forfeit a house. That's real estate. That has to be done differently. The financial litigation told me that he has paid or he’s credited with $79,000 payment on his $2.6 million restitution, and I do know that he lost his pension, not his military pension. He’s a retired military guy, and he is still apparently eligible for that, but his Government pension, because he had like 25 years in or 20 years in with the Drug Enforcement Administration. He gave that up. I don’t know exactly where that fits. I don’t know whether that would be deemed to be administratively forfeited. That might be where it is, or it might be in the $79,000. But that’s all the Government has to show for Mr. Burchell, $476,000, and then $79,000. He’s admitted to $2.6 million worth of fraud. Now, this Mr. Hendrix was a coconspirator on the Dvorak matter as well as some other things. When they went in, and we actually didn’t do a search warrant on his house, but he pleaded guilty. He had a lot of equipment. Now he had been selling equipment. He had a lot of equipment. We administratively forfeited $33,000 of his stuff. 49a And then Jean Burchell, who to a minor degree, played a role in this case. She was the ex-wife of Burchell. She worked at DEA. We forfeited her Jeep Cherokee because Burchell told us that money he used from embezzling the equipment he bought her the car. So we embezzled (sic) her car. So the Government has collected, you know, add the figures up. We are talking about maybe $600,000 or something out of the $2.68 million loss. So that’s where the Government is, and, you know, I don’t know how else to explain it other than that. The law is clear in my opinion, particularly with this Fourth Circuit opinion. I mean, you know, you don’t get credit. Even Burchell himself didn’t get credit for his forfeitures. He got stuck with the full restitution, and all this equipment and bank accounts and cars and everything went. He didn’t get credit for that. I hope that addresses that issue, Your Honor, if I might move on to some other issues. THE COURT: All right. MR. LEARNED: I want to address this allegation that I misrepresented to the Court my conversation with Dr. Elson. When I read counsel’s sentencing memorandum, the whole thrust of this memorandum is that the defendant is so severely limited, is such in bad physical shape that he can do nothing useful virtually, and that, you know, he can’t do any menial jobs. He can’t even do his own laundry. He can’t put -- he’s in such bad shape he can’t put clothing into a laundry machine and push a button and pour some cleaning fluid in it. But, in any event, the key thing that counsel said was that the Court would be sentencing Mr. Dvorak to a prison hospital bed. Now that to me was a gross distortion, and what that implied was that medical professionals at the 50a FCI would look at Mr. Dvorak and say, Well, you know, you are in such bad shape you belong in a wheelchair or a bed. That’s it. And Dr. Elson specifically rejects that conclusion, and I stand by that. Even in his counteraffidavit he says confinement to a bed is completely inappropriate for this man. And that was the conversation I had with him. I mentioned a wheelchair. I said, Does Mr. Dvorak belong in a wheelchair or a bed? He says, No. At that point, he said to me, the kind of activities he’s had for the past six months, he should be able to continue-with his ambulatory oxygen. Now, counsel says he can’t walk anywhere. Well, he came into this courthouse for three days in the trial. It’s more than -- you know, he says he can’t walk more than 50 feet. It’s more than that to the elevators. He got up and testified unassisted. He can walk around. I realize he’s severely limited in terms of, you know, the length of time for him to walk places and so forth. We don’t deny that. Obviously, he needs ambulatory oxygen, but to say that the Court would be sentencing this man, as counsel just said a minute ago, to solitary confinement, to a hospital bed is absolutely rejected by the medical advice of his doctor, who says that is not the appropriate medical determination. THE COURT: I don’t need to hear any more about that. MR. LEARNED: In any event, Your Honor. So, let me just address a couple of other things. The calculation of loss, obviously, as we pointed out in our piece, the standard items, a lot of standard items were sold, but this is not dependent upon Mr. Dvorak’s testimony. 5la Government’s Exhibit 160, which was prepared by the FBI Agent Steven D’ Antuono, he did a careful analysis of the description on these items that are in the internal records of Ritz versus the description on the invoice going to DEA, and he showed on that exhibit about $900,000 worth of items which were, you know, it was clear that there was a misdescription or an inaccurate description or some sort of incomplete description, which is inherently deceptive, Your Honor. And clearly, you know, Mr. Dvorak realized that while he was selling a car stereo, that’s standard for him to sell, but it’s not standard for him to call it an electronic box. It’s standard for him to sell a digital camera, but it’s not standard for him to sell it as an optical device. So those descriptions in the calculation of loss is really based upon the analysis of the documents, as much as anything else. Also, we do not abandon, Your Honor, the idea that there should not be obstruction because counsel lied. The fact that I didn’t argue that in my sentencing memo means that I was not going to argue what I felt to be was obvious. The Court sat through the testimony. Mr. Dvorak _testified about some specific documents. I wanted to lay the foundation for documentary obstruction, and I pointed out in my brief this specific document here where he wrote, Copy of purchase order never received, and then produced the document. We have established, and he testified on the stand, that he did not create that writing later on at another point in time. In fact, here is the purchase order number, and on this very document it says, See purchase order. We have established that there were 35 times his order form had that documentation, yet only one time, only once does it occur that the purchase order is not available. 52a This Exhibit 18, as I pointed out at trial, Your Honor, was a very significant document. He took the position that Burchell somehow created this document, he had nothing to do with this document. And yet there are very suspicious circumstances just looking at the documents, which we have laid out and explained in Agent D’ Antuono’s deposition. There’s all these unusual coincidences that all intersect with this one transaction which he disavows, claims he had nothing to do with that invoice. That’s clearly lying. But we didn’t abandon that as a theory of obstruction. We felt the Court should see the significant obstruction at the investigative level, and we laid out in very detailed form why you could conclude that and why the nature of the documents themselves and the circumstances gave very powerful corroboration to Mr. Burchell’s testimony. Obviously, he lied about, there was one conversation that Burchell testified that after he got the camper, he showed him the camper, and he testified that Mr. Dvorak came out and opened up the back and looked in the camper. , Mr. Dvorak testified he never saw the camper, never saw it, never went in and looked at it. He didn’t even realize that the camper that he happened to see, you know, at some point, never went and looked at it, never made the connection, never made the connection at all. He had trailers on the back of his cars. Never made the connection. He testified that, I mean there are numerous instances, Your Honor, that was just direct testimony, you know, in direct contradiction to what Mr. Burchell said. So we think that obstruction, this is a clear case of it. Of all the cases that I have tried, I can’t think of a better case really. So, again the conspiracy straddles this mandatory act, and again, I think the forfeiture item is just a separate remedy. 53a I can’t think of any other matter, Your Honor. I think I have addressed those, unless the Court has a question. THE COURT: Mr. Strasser, do you want to respond to any of that? MR. STRASSER: I do, Your Honor. Let me start with the obstruction. I don’t think the contradiction between two witnesses’ testimony is enough to support an obstruction enhancement. Mr. Learned has advanced the proposition that the uncorroborated testimony of Mr. Burchell about the camper or the trailer or seeing some document would be enough for an obstruction peamanconient as against Mr. Dvorak. I don’t think the guidelines are intended to heap additional punishment on a defendant who contradicts a Government witness. The jury didn’t have to accept a word of that testimony from Burchell to have found Mr. Dvorak guilty. So there is no way to tell what the jury found on that question. I don’t think it could turn on-who the Government finds more believable. On the restitution issue, the Government correctly quoted from the decision that it provided to me this morning and to the Court this morning, but it omits any reference to the last footnote in the case, which reserves precisely the issue in this case, that is, once the victim receives the value of the forfeiture, should the District Court credit that toward the restitution? And, of course, the victim has in this case. It is the same entity that is receiving the restitution and the administrative forfeiture. The statute provides that once the Court has set a restitutionary amount, it should then reduce the restitutionary amount by any amount the victim has recovered through civil litigation. setae ieee 54a It seems to me that it would be the height of irrationality for the DEA to be able to recover these items through administrative forfeiture. Mr. Dvorak does not get credit for that. As to the DEA recovering it through civil litigation, then Mr. Dvorak does get credit for that. As to the evaluation of the items, I can't tell on what basis the forfeiture unit valued them either. I know from the discovery that the Government provided in this case that, when the FBI came to Mr. Burchell’s house in October of ’97, it seized a variety of items. And to suggest that those items -- then the Government had them from that point forward. Then to suggest that they ought to be -- THE COURT: (interposing) Going back to your restitution issue just a minute, was anything forfeited that was seized from the defendant? MR. STRASSER: No. THE COURT: Do you sense a problem with giving him any advantage from things that were seized from somebody else? Why should he get -- (pause)? MR. STRASSER: It’s the same, well, the fundamental problem, of course, is Mr. Dvorak didn’t get anything to begin with. It all went to his company, not to him. He literally could not pay it back, because he didn’t get it to begin with, and that’s really the problem that I think I’m addressing first. But, secondly, how many times can the Government recover for the same loss? The statute provides that the Court could order the return of the property itself. Well, Mr. Dvorak doesn’t have control of that, but the Government has control of it. It seized a lot of it from Mr. Burchell back in October of TT 55a "97 and has had it ever since. And if that would satisfy Mr. Dvorak’s restitution obligation, that is the return of the _ property itself, I don’t see why he should not get credit for it. THE COURT: Okay. MR. STRASSER: I don’t think the statute also puts a limit on who the recovery should be from in the civil litigation. Again, it’s a question of how many times should the Government recover for it? As to the point about sentencing Mr. Dvorak to a hospital bed, I did not mean to suggest in my sentencing memorandum that he would be sentenced to bed rest. His doctor says that is not appropriate. What I do suggest, though, is that the range of activities that’s available in prison is pretty limited. THE COURT: It is for everybody. MR. STRASSER: Yes, sir, but when you take Mr. Dvorak, with his physical limitations, and put him into that facility with that limited range, it’s going to mean that there’s nothing he can do. It is not just a question of saying he could do the same things he could do at Ritz. He can’t. Those things won't be available to him in the prison, so that would be essentially sentencing him to sit in a jail cell for whatever length of time the Court would impose. THE COURT: All right. MR. STRASSER: Thank you. 56a THE COURT: Well, addressing the objections made under Rule 32, as far as the amount of the loss is concerned in paragraph 23 of the report, I find that the calculation of the amount of that loss, as well as the restitution order in the amount of $1,039,929.10 is appropriate. I find that that amount of loss as a result of the conspiracy was an amount, and the items lost which go to make up that amount, was reasonably foreseeable to this defendant on and after February 14th when his participation in the conspiracy began; and I think it’s appropriate to hold him accountable and require his restitution of that amount. He will, of course, be held jointly responsible with Burchell for that amount, but that is an appropriate amount. To the extent that there is any ex post facto problem involved, and I don’t believe there is, the only difference is that following the amendment of the Victims Protection Act, or whatever it was, the act that made restitution mandatory, prior to that time the only inquiry the Court was to make was to whether the defendant’s resources were such that he could make the payments, taking into account his own needs and the needs of those dependent upon him, he has the capability of making these payments at the rate that I will order, whether the restitution is mandatory or not. Insofar as the other objections to the report, that is the offense conduct in paragraphs 4 through 7, 10 through 13, 15, 17, 18, and 20, I find that the findings and statements in the presentence report are correct. Obviously, as counsel for the defendant points out, it’s the Government’s version of the things, but the jury accepted the Government’s version of the things, as do I. And those statements are correct. The obstruction of justice enhancement in my opinion is warranted, because I find that the defendant's statement that he was not only unaware of the deviousness and culpability of Burchell, but indeed he thought, to the contrary, that these were perfectly legitimate purchases for the DEA is both false and material. 57a This is not just the defendant against the word of Burchell. This was false testimony, and it was the testimony which centered around the real issue in the case. There wasn’t any question there had been embezzlement. The only real question as far as this defendant was concerned is whether he knew of it and participated in it, and in my opinion his statement that he did not know it was false and was material in that it was the basis upon which the jury, or could have been the basis upon which the jury acquitted him. So that enhancement is justified. As far as downward departure is concerned, while there is no legal prohibition against the Court granting such a downward departure, I do not think that it is justified under these circumstances. Guideline 5(h)1.4 entitles the defendant or permits the Court to make a downward departure where there’s an extraordinary physical impairment. ; There is a physical impairment. The defendant is limited, but his medical condition is not such that it cannot be handled adequately by the Bureau of Prisons, making him have accessible to him whenever needed, and indeed at all times if needed, the ambulatory oxygen cannister. He may be vulnerable in prison, but that vulnerability is no different from any other slight, elderly person that is there. So the motion for a downward departure is denied. I find, therefore, that for guideline purposes, the base level for this offense is six, increased by 11 because of the amount involved, that is, more than $800,000, indeed $1,039,929.10, increased by two for the obstruction of justice, increased by two for more than minimal planning results in an adjusted level of 21. With a criminal-history category of Roman numeral I, this results in a range of 37 to 46 months, or 36 to 46 months, a two- to three-year term of supervised release, and a fine of between $7500 and $75,000. 58a With that background, Mr. Strasser, Ill hear any further statement you want to make on the defendant’s behalf or any other information you want to bring to the attention of the Court. MR. STRASSER: Your Honor, I would ask you to sentence him at the bottom of the range. Mr. Burchell is serving a sentence only of 40 months, and he was the mastermind of this scheme and the person who brought in a much wider variety of people, and caused the -- THE COURT: (interposing) Did he get a Rule 35 reduction in his sentence. MR. STRASSER: Yes. He began with a sentence of 48, then it was reduced to 40. THE COURT: All right. MR. STRASSER: As to the fine, I don’t think Mr. Dvorak has the resources to pay any sort of fine. I would ask the Court to be mindful of the limitation on his resources in establishing a repayment schedule. His resources are limited, as shown by the presentence report. Other than that, I don’t think I -- well, I would ask again the Court to release Mr. Dvorak first of all pending an appeal. I understand it is not the Court’s practice to do that. I would ask. THE COURT: It’s not my practice to allow voluntary surrender, but I don’t have any particular practice -- maybe the Bar thinks I do, and they may have a better read on 59a it -- but I don’t have any preconceptions about stay pending appeal. I will address that after I impose sentence. MR. STRASSER: Very well. THE COURT: Will the defendant come forward. Mr. Dvorak, is there any statement you want to make on your own behalf, sir? THE DEFENDANT: Well, Your Honor, I’m very very sorry that I was in any way connected to these crimes. And contrary to your belief, sir, 1 was tricked and fooled by Robert Burchell into believing that the items purchased were for the DEA. I did not knowingly and willfully conspire with this man to defraud the U.S. Government. The people who know me know that I would never do anything like that. There are other things to say here, but, Your Honor, I realize that the jury has found me guilty, and I must accept the consequences. I profoundly regret that the embezzlement scheme was not obvious to me at the time it was being carried out, and I’m sorry; and I hope you will show me some compassion. THE COURT: All right, sir. Anything further you want to say to the Court? THE DEFENDANT: No, Your Honor. SRI a 60a THE COURT: Any reason why the Court should not now impose its sentence? THE DEFENDANT: No, Your Honor. THE COURT: Any statement the United States Attorney wants to make? MR. LEARNED: None, Your Honor. THE COURT: Well, it will be the sentence of the Court that the defendant be committed to the custody of the Attorney General or her authorized representative for imprisonment for a term of 37 months on each of the counts 1 through 19, those sentences to run concurrently. There will be a three-year term of supervised release on each count, also to run concurrently. There will be restitution ordered in the amount of $1,039,929.10, owed jointly with his co-defendants, payable at the rate of $300 per month, beginning 60 days after his release. I find that his resources are such that taking into account his own needs and the needs of those dependent upon him, he is well capable of making that. I will impose as conditions of the supervised release that he pay the restitution, and I will waive the substance abuse testing and treatment general requirement of all supervised-release defendants. Because the defendant did not plead guilty, he is advised he has the right to appeal. If he’s unable to pay the cost of an appeal, an attorney will be appointed for him for that purpose. If he desires to take an appeal, notice of that fact must be given the clerk within ten days. 6la We now have the issue of whether the execution of the sentence ought to be suspended pending appeal, and I take it there will be an appeal. MR. STRASSER: Yes. THE COURT: Mr. Learned, you oppose release on bond pending appeal. Do you really think this defendant is going anywhere? MR. LEARNED: No, but I mean I know how long appeals last, Your Honor, and I also know that, if I might add, the restitution order that the Court has fashioned that he doesn’t have to pay anything until 60 days after his release, I wonder if the Court could modify that. He has stock in a company that’s worth $150,000 by his own account. aed THE COURT: Well, I will consider whether, when that 60 days begins to run, depending on whether he is out on bond pending appeal or whatever. If he’s incarcerated, I’m not going to require it. MR. LEARNED: Your Honor, the problem I have, obviously, if there were a substantial question here, but I mean it’s the perception of the public that’s at stake here. I mean this man is well known in this community. I realize there wasn’t much press on this case, but among people who sell audiovisual equipment who do business with the Government, this case is well known. This is a big case. A lot of people know about this. A man gets convicted, and then, you know, he is still there in the community. I mean, months go by, and, you 62a know, didn’t I hear, I thought this guy was convicted months ago. What's going on? The perception of someone who's been convicted and then hasn’t gone to jail, hasn’t been sentenced for months on end, I think it just is very detrimental to the public perception of justice. I know how long these appeals take. I mean, you know, counsel, he is not going to push it along very fast, and the Court of Appeals has got a lot of things. I mean, it’s sometimes a year, more than a year, I have had cases of that sort. And it just, obviously, if there were a matter here, a close legal issue where there might be case law going different ways, but I mean everything is clear in this circumstance. I pointed out that good-faith instruction, even if he wins on that point, he is not contesting the conspiracy count, so let’s assume he wins that count, or wins that argument in the Court of Appeals, he still comes back. He’s convicted of conspiracy. The conspiracy covers the whole time frame. He's still stuck with everything the court has sentenced. The only other thing, I mean, we have got a plain error problem with a prosecutor who misstated some evidence. It was such an isolated, harmless thing. I mean, it’s really a completely harmless error. So, I don’t see any issue there. 1 do feel that there’s a significant perception. I mean, people, poor people all the time get convicted, and they are sent out, and in this particular courtroom, boom, they go right away. And the perception is, you know, you got a lawyer, you are wealthy, you can do these somehow, when do you go to jail? Well, months go by. So I think it really is detrimental to the perception, the public perception of justice in this Eastern District for that to happen. THE COURT: We will deal with the perception, and if we are criticized for it, so be it, but I’m convinced the 63a defendant is not at risk of flight nor will he be a danger to the community. I neglected in my sentence to impose a special assessment of $100 on each count, which will be part of the sentence, for $1900. I do, however, revise the timetable for the beginning of the payments and let the $300 per month begin 30 days from today instead of 60 days from his release from confinement. He is continued on bond pending appeal, and he shall continue to abide by the pretrial release requirements if there are any. Mr. Strasser, is he under supervision of pretrial services? MR. STRASSER: No, Your Honor. I think he’s on his own recognizance in this case. THE COURT: I don’t have any problem with the continuation of the bond. He shall, however, remain on bond to abide the judgment of the Fourth Circuit. If the Fourth Circuit affirms the convictions and sentences, then he shall within 48 hours report to the Bureau of Prisons for designation. Now if there is any problem with that, there will be plenty of time to work that out between now and then. He is continued on bond. MR. STRASSER: Thank you, Your Honor. THE COURT: And we will deal with the perception the best way we can, Mr. Learned, your office and mine. 64a Court will stand adjourned. (Whereupon, at 10:36 o'clock a.m., the above- captioned proceedings were concluded, and court stood adjourned. ) 65a COMMONWEALTH OF VIRGINIA ) CITY OF ALEXANDRIA ) I, EDWARD DONOVAN McCOY, Registered Professional Reporter and Official Court Reporter for the United States District Court for the Eastern District of Virginia, appointed pursuant to the provisions of Title 28, United States Code, Section ‘753, do hereby certify that I was authorized to report, and did so report in Stenotype, the foregoing proceedings; THEREAFTER, my Stenotype notes were reduced to typewriting under my supervision; and I further certify that the pages herein numbered contain a true and correct transcription of my Stenotype notes taken herein. DONE and signed, this day of » 19_, in the City of Alexandria, Commonwealth of Virginia. COPY EDWARD DONOVAN McCOY, RPR Official Court Reporter U.S. Const. amend. V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 67a 18 U.S.C. § 1621. Perjury generally Whoever - (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States. (June 25, 1948, ch. 645, 62 Stat. 773; Pub.L. 88-619, Sec. 1, Oct. 3, 1964, 78 Stat. 995; Pub.L. 94-550, Sec. 2, Oct. 18, 1976, 90 Stat. 2534; Pub.L. 103-322, title XXXII, Sec. 330016(1)(1), Sept. 13, 1994, 108 Stat. 2147.) 68a 18 U.S.C. § 3552. Presentence reports (a) Presentence Investigation and Report by Probation Officer. - A United States probation officer shall make a presentence investigation of a defendant that is required pursuant to the provisions of Rule 32(c) of the Federal Rules of Criminal Procedure, and shall, before the imposition of sentence, report the results of the investigation to the court. (b) Presentence Study and Report by Bureau of Prisons. - If the court, before or after its receipt of a report specified in subsection (a) or (c), desires more information than is otherwise available to it as a basis for determining the sentence to be imposed on a defendant found guilty of a misdemeanor or felony, it may order a study of the defendant. The study shall be conducted in the local community by qualified consultants unless the sentencing judge finds that there is a compelling reason for the study to be done by the Bureau of Prisons or there are no adequate professional resources available in the local community to perform the study. The period of the study shall be no more than sixty days. The order shall specify the additional information that the court needs before determining the sentence to be imposed. Such an order shall be treated for administrative purposes as a provisional sentence of imprisonment for the maximum term authorized by section 3581(b) for the offense committed. The study shall inquire into such matters as are specified by the court and any other matters that the Bureau of Prisons or the professional consultants believe are pertinent to the factors set forth in section 3553(a). The period of the study may, in the discretion of the court, be extended for an additional period of not more than sixty days. By the expiration of the period of the study, or by the expiration of any extension granted by the court, the United States marshal shall, if the defendant is in custody, return the defendant to the court for final sentencing. The Bureau of Prisons or the professional consultants shall provide the court with a written 69a report of the pertinent results of the study and make to the court whatever recommendations the Bureau or the consultants believe will be helpful to a proper resolution of the case. The report shall include recommendations of the Bureau or the consultants conceming the guidelines and policy statements, promulgated by the Sentencing Commission pursuant to 28 U.S.C. § 994(a), that they believe are applicable to the defendant’s case. After receiving the report and the recommendations, the court shall proceed finally to sentence the defendant in accordance with the sentencing alternatives and procedures available under this chapter. -- (c) Presentence Examination and Report by Psychiatric or Psychological Examiners. - If the court, before or after its receipt of a report specified in subsection (a) or (b) desires more information than is otherwise available to it as a basis for determining the mental condition of the defendant, the court may order the same psychiatric or psychological examination and report thereon as may be ordered under section 4244(b) of this title. (d) Disclosure of Presentence Reports - The court shall assure that a report filed pursuant to this section is disclosed to the defendant, the counsel for the defendant, and the attorney for the Government at least ten days prior to the date set for sentencing, unless this minimum period is waived by the defendant. The court shall provide a copy of the presentence report to the attorney for the Government to use in collecting an assessment, criminal fine, forfeiture or restitution imposed. (Added Pub.L. 98-473, title II, Sec. 212(a)(2), Oct. 12, 1984, 98 Stat. 1988; amended Pub.L. 99-646, Sec. 7(a), Nov. 10, 1986, 100 Stat. 3593; Pub.L. 101-647, title XXXVI, Sec. 3625, Nov. 29, 1990, 104 Stat. 4965.) 70a Federal Rules of Criminal Procedure, Rule 32 (Sentence and Judgment) (a) In General; Time for Sentencing. When a presentence investigation and report are made under subdivision (b)(1), sentence should be imposed without unnecessary delay following completion of the process prescribed by subdivision (b)(6). The time limits prescribed in subdivision (b)(6) may be either shortened or lengthened for good cause. (b) Presentence Investigation and Report. (1) When Made. The probation officer must make a presentence investigation and submit a report to the court before the sentence is imposed, unless: (A) _ the court finds that the information in the record enables it to exercise its sentencing authority meaningfully under 18 U.S.C. § 3553; and (B) the court explains this finding on the record. Notwithstanding the preceding sentence, a presentence investigation and report, or other report containing information sufficient for the court to enter an order of restitution, as the court may direct, shall be required in any case in which restitution is required to be ordered. (2) Presence of Counsel. On request, the defendant’s counsel is entitled to notice and a reasonable opportunity to attend any interview of the defendant by a probation officer in the course of a presentence investigation. (3) Nondisclosure. The report must not be submitted to the court or its contents disclosed to anyone unless the defendant has consented in writing, has Tla pleaded guilty or nolo contendere, or has been found guilty. (4) Contents of the Presentence Report. The presentence report must contain-- (A) information about the defendant’s history and characteristics, including any prior criminal record, financial condition, and any circumstances that, because they affect the defendant’s behavior, may be helpful in imposing sentence or in correctional treatment; (B) _ the classification of the offense and of the defendant under the categories established by the Sentencing Commission under 28 U.S.C. § 994(a), as the probation officer beliéves to be applicable to the defendant’s case; the kinds of sentence and the sentencing range suggested for such a category of offense committed by such a category of defendant as set forth in the guidelines issued by the Sentencing Commission under 28 U.S.C. § 994(a)(1); and the probation officer’s explanation of any factors that may suggest a different sentence--within or withcut the applicable guideline--that would be more appropriate, given all the circumstances; (C) a reference to any pertinent policy Statement issued by the Sentencing Commission under 28 U.S.C. § 994(a)(2); (D) verified information, stated in a nonargumentative style, containing an assessment of the financial, social, psychological, and medical impact on any individual against whom the offense has been committed; (E) in appropriate cases, information about the nature and extent of nonprison programs and resources available for the defendant; Ee 72a (F) in appropriate cases, information sufficient for the court to enter an order of restitution; (G) any report and recommendation resulting from a study ordered by the court under 18 U.S.C. § 3552(b); and (H) any other information required by the court. (5) Exclusions. The presentence report must exclude: (A) any diagnostic opinions that, if disclosed, might seriously disrupt a program of rehabilitation; (B) __ sources of information obtained upon a promise of confidentiality; or (C) any other information that, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons. (6) Disclosure and Objections. (A) Not less than 35 days before the sentencing hearing--unless the defendant waives this minimum period--the probation officer must furnish the presentence report to the defendant, the defendant’s counsel, and the attorney for the Government. The court may, by local rule or in individual cases, direct that the probation officer not disclose the probation officer’s recommendation, if any, on the sentence. (B) Within 14 days after receiving the presentence report, the parties shall communicate in writing to the probation officer, and to each other, any objections to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or 73a omitted from the presentence report. After receiving objections, the probation officer may meet with the defendant, the defendant’s counsel, and the attorney for the Government to discuss those objections. The probation officer may also conduct a further investigation and revise the presentence report as appropriate. (C) Not later than 7 days before the sentencing hearing, the probation officer must submit the presentence report to the court, together with an addendum setting forth any unresolved objections, the grounds for those objections, and the probation officer’s comments on the objections. At the same time, the probation officer must furnish the revisions of the presentence report and the addendum to the defendant, the defendant’s counsel, and the attorney for the Government. (D) Except for any unresolved objection under subdivision (b)(6)(B), the court may, at the hearing, accept the presentence report as its findings of fact. For good cause shown, the court may allow a new objection to be raised at any time before imposing sentence. (c) Sentence. (1) Sentencing Hearing. At the sentencing hearing, the court must afford counsel for the defendant and for the Government an opportunity to comment on the probation officer’s determinations and on other matters relating to the appropriate sentence, and must rule on any unresolved objections to the presentence report. The court may, in its discretion, permit the parties to introduce testimony or other evidence on the objections. For each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, 74a sentencing. A written record of these findings and determinations must be appended to any copy of the presentence report made available to the Bureau of Prisons. (2) Production of Statements at Sentencing Hearing. Rule 26.2(a)-(d) and (f) applies at a sentencing hearing under this rule. If a party elects not to comply with an order under Rule 26.2(a) to deliver a statement to the movant, the court may not consider the affidavit or testimony of the witness whose statement is withheld. 7 (3) Imposition of Sentence. Before imposing sentence, the court must: (A) verify that the defendant and defendant’s counsel have read and discussed the presentence report made available under subdivision (b)(6)(A). If the court has received information excluded from the presentence report under subdivision (b)(5) the court--in lieu of making that information available--must summarize it in writing, if the information will be relied on in determining sentence. The court must also give the defendant and the defendant’s counsel a reasonable opportunity to comment on that information; (B) afford defendant’s counsel an opportunity to speak on behalf of the defendant; (C) address the defendant personally and determine whether the defendant wishes to make a statement and to present any information in mitigation of the sentence; (D) afford the attorney for the Government an opportunity equivalent to that of the defendant’s counsel to speak to the court; and (E) if sentence is to be imposed for a crime of violence or sexual abuse, address the victim personally if the victim is present at the sentencing 75a hearing and determine if the victim wishes to make a statement or present any information in relation to the sentence. (4) In Camera Proceedings. The court’s s of information under subdivision (c)(3)(A) may be in camera. Upon joint motion by the defendant and by the attorney for the Government, the court may hear in camera the statements--made under subdivision (c(3)(B), (C), (D), and (E)-by the defendant, the defendant’s counsel, the victim, or the attorney for the Government. (5) Notification of Right to Appeal. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court must advise the defendant of the right to appeal. After imposing sentence in any case, the court must advise the defendant of any right to appeal the sentence, and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. If the defendant so requests, the clerk of the court must immediately prepare and file a notice of appeal on behalf of the defendant. (d) Judgment. (1) In General. A judgment of conviction must set forth the plea, the verdict or findings, the adjudication, and the sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment must be entered accordingly. The judgment must be signed by the judge and entered by the clerk. (2) Criminal Forfeiture. If a verdict contains a finding that property is subject to a criminal forfeiture, or if a defendant enters a guilty plea subjecting property to such forfeiture, the court may enter a preliminary order of forfeiture after providing notice to the defendant and a reasonable opportunity to be heard on the timing and form of the order. The order of forfeiture shall authorize the Attomey General to seize the property subject to 76a forfeiture, to conduct any discovery that the court considers proper to help identify, locate, or dispose of the property, and to begin proceedings consistent with any statutory requirements pertaining to ancillary hearings and the rights of third parties. At sentencing, a final order of forfeiture shall be made part of the sentence and included in the judgment. The court may include in the final order such conditions as may be reasonably necessary to preserve the value of the property pending any appeal. (e) Plea Withdrawal. If a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255. (f) Definitions. For purposes of this rule (1) “victim” means any individual against whom an offense has been committed for which a sentence is to be imposed, but the right of allocution under subdivision (c3)E) may be exercised instead by—- (A) a parent or legal guardian if the victim is below the age of eighteen years or incompetent; or (B) one or more family members or relatives designated by the court if the victim is deceased or incapacitated; if such person or persons are present at the sentencing hearing, regardless of whether the victim is present; and (2) “crime of violence or sexual abuse” means a crime that involved the use or attempted or threatened use of physical force against the person or property of another, or a crime under chapter 109A of title 18, United States Code. during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct: or (ii) a closely related offense, increase the offense level by 2 levels. Commentary tpplication Notes: 1. This adjustment applies if the defendant’s obstructive conduct (A) occurred during the course of the investigation, prosecution, or sentencing of the defendant’s instant Offense of conviction, and (B) related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) an otherwise closely related case, such as that of a co-defendant. 2. This provision is not intended to punish a defendant for 3. Obstructive conduct can vary widely in nature, degree of planning, and seriousness. Application Note 4 sets forth 78a examples of the types of conduct to which this adjustment is intended to apply. Application Note 5 sets forth examples of less serious forms of conduct to which this enhancement is not intended to apply, but that ordinarily can appropriately be sanctioned by the determination of the particular sentence within the otherwise applicable guideline range. Although the conduct to which this adjustment applies is not subject to precise definition, comparison of the examples set forth in Application Notes 4 and 5 should assist the court in determining whether application of this adjustment is warranted in a particular case. 4. The following is a non-exhaustive list of examples of the types of conduct to which this adjustment applies: (a) threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so; (b) committing, suborning, or attempting to suborn perjury; (c) producing or attempting to produce a false, altered, or counterfeit document or record during an official investigation or judicial proceeding; (d) destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding (¢.g. shredding a document or destroying ledgers upon learning that an official investigation has commenced or is about to commence), or attempting to do so; however, if such conduct occurred contemporaneously with arrest (€.g., attempting to swallow or throw away a controlled substance), it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it resulted in a material hindrance to the official investigation or prosecution of the instant offense or the sentencing of the offender; (e) escaping or attempting to escape from custody before trial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding; 79a (f) providing materially false information to a judge or magistrate; (8) providing a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense; (h) providing materially false information to a probation officer in respect to a presentence or other investigation for _ the court; (i) other conduct prohibited by obstruction of Justice provisions under Title 18, United States Code (e.g., 18 U.S.C. $§ 1510, 1511). This adjustment also applies to any other obstructive conduct in respect to the official investigation, prosecution, or sentencing of the instant offense where there is a separate count of conviction for such conduct. 5. Some types of conduct ordinarily do not warrant application of this adjustment but may warrant a greater sentence within the otherwise applicable guideline range or affect the determination of whether other guideline adjustments apply (e.g. §3EI.] (Acceptance of Responsibility)). However, if the defendant is convicted of a separate count for such conduct, this adjustment will apply and increase the offense level for the underlying offense (i.e., the offense with respect to which the obstructive conduct occurred). See Application Note 8, below. The following is a non-exhaustive list of examples of the types of conduct to which this application note applies: (a) providing a false name or identification document at arrest, except where such conduct actually resulted in a significant hindrance to the investigation or prosecution of the instant offense; (b) making false statements, not under oath, to law enforcement officers, unless Application Note 3(g) [sic] above applies; 80a (c) providing incomplete or misleading information, not amounting to a material falsehood, in respect to a presentence investigation; (d) avoiding or fleeing from arrest (see, however, §3C1.2 (Reckless Endangerment During Flight)); (e) lying to a probation or pretrial services officer about defendant's drug use while on pre-trial release, although such conduct may be a factor in determining whether to reduce the defendant’s sentence under §3E1.1 (Acceptance of Responsibility). i 6. “Material” evidence, fact, statement, or information, as used in this section, means evidence, fact, statement, or information that, if believed, would tend to influence or affect the issue under determination. 7. If the defendant is convicted of an offense covered by §2J1.1 (Contempt), §2J1.2 (Obstruction of Justice), §2J1.3 (Perjury or Subornation of Perjury; Bribery of Witness), §2J1.5 (Failure to Appear by Material Witness), §2J1.6 (Failure to Appear by Defendant), §2J1.9 (Payment to Witness), §2X3.1 (Accessory After the Fact), or §2X4.1 (Misprision of Felony), this adjustment is not to be applied to the offense level for that offense except if a significant further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself (e.g. if the defendant threatened a witness during the course of the prosecution for the obstruction offense). 8. If the defendant is convicted both of an obstruction offense (e.g., 18 U.S.C. § 3146 (Penalty for failure to appear); 18 U.S.C. § 1621 (Perjury generally)) and an underlying offense (the offense with respect to which the obstructive conduct occurred), the count for the obstruction offense will be grouped with the count for the underlying offense under subsection (c) of §3D1.2 (Groups of Closely Related Counts). The offense level for that group of closely related counts will be the offense level for the underlying offense increased by the 8la 2-level adjustment specified by this section, or the offense level for the obstruction offense, whichever is greater. 9. Under this section, the defendant is accountable for his own conduct and for conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused. Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendments 251 and 252); November 1, 1990 (see Appendix C, amendment 347); November 1, 1991 (see Appendix C, amendment 415); November 1, 1992 (see Appendix C, amendment 457); November 1, 1993 (see Appendix C, amendment 496); November 1, 1997 (see Appendix C, amendment 566); November 1, 1998 (see Appendix C, amendments 579, 581, and 582). 82a 1999 Federal Sentencing Guidelines §6A1.1. Presentence Report (Policy Statement) A probation officer shall conduct a presentence investigation and report to the court before the imposition of sentence unless the court finds that there is information in the record sufficient to enable the meaningful exercise of sentencing authority pursuant to 18 U.S.C. § 3553, and the court explains this finding on the record. Rule 32(b)(1), Fed. R. Crim. P. The defendant may not waive preparation of the presentence report. Commentary A thorough presentence investigation is essential in determining the facts relevant to sentencing. In order to ensure that the sentencing judge will have information sufficient to determine the appropriate sentence, Congress deleted provisions of Rule 32(c), Fed. R. Crim. P., which previously permitted the defendant to waive the presentence report. Rule 32(bX1) permits the judge to dispense with a presentence report, but only after explaining, on the record, why sufficient information is already available. i - Effective November 1, 1987. Amended effective June 15, 1988 (see Appendix C, amendment 58); November 1, 1989 (see Appendix C, amendment 293); November 1, 1997 (see Appendix C, amendment 574). 83a 1999 Federal Sentencing Guidelines Pome : sentenc: Courts should adopt procedures to provide for the timely disclosure of the presentence report; the narrowing and resolution, where feasible, of issues in dispute in advance of the sentencing hearing; and the identification for the court of issues remaining in dispute. Rule 32(b)(6), Fed. R. Crim. P. Commentary ey 1. Under Rule 32, Fed. R. Crim. P., if the court intends to consider a sentence outside the applicable guideline range on '‘@ ground not identified as a ground for departure either in the presentence report or a pre-hearing submission, it shall provide reasonable notice that it is contemplating such ruling, specifically identifying the grounds for the departure. Burns v. United States, 501 U.S. 129, 135-39 (1991). Background: In order to focus the issues prior to sentencing, the parties are required to respond in writing to the presentence report and to identify any issues in dispute. Rule 32(b)(6)(B), Fed. R. Crim. P. Historical Note: Effective November 1, 1987. Amended effective June 15, 1988 (see Appendix C, amendment 59); November 1, 1991 (see Appendix C, amendment 425); November 1, 1997 (see Appendix C, amendment 574). 84a 1999 Federal Sentencing Guidelines §6A1.3. Resolution of ors (Policy Statement) (a) When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. (b) The court shall resolve disputed sentencing factors at a sentencing hearing in accordance with Rule 32(c)(1), Fed. R. Crim. P. Commentary In pre-guidelines practice, factors relevant to sentencing were often determined in an informal fashion. The informality was to some extent explained by the fact that particular offense and offender characteristics rarely had a highly specific or required sentencing consequence. This situation no longer exists under sentencing guidelines. The court’s resolution of disputed sentencing factors usually has a measurable effect on the applicable punis . More formality is therefore unavoidable if the sentencing process is to be accurate and fair. Although lengthy sentencing hearings seldom should be necessary, disputes about sentencing factors must be resolved with care. When a dispute exists about any factor important to the sentencing determination, the court must ensure that the parties have an adequate opportunity to present relevant information. Written statements of counsel or affidavits of witnesses may be adequate under many circumstances. See, e.g., Uni 924 F.2d 427 (2d Cir. 1991). An evidentiary hearing may sometimes be the only reliable way 85a to resolve disputed issues. See, e.g., United States v. Jimenez Martinez, 83 F.3d 488, 494-95 (Ist Cir. 1996) (finding error in district court’s denial of defendant’s motion for evidentiary hearing given questionable reliability of affidavit on which the district court relied at sentencing); United States vy. Roberts, 14 F.3d 502, 521 (10th Cir. 1993) (remanding because district court did not hold evidentiary. hearing to address defendants’ objections to drug quantity determination or make requisite findings of fact regarding drug quantity); see also, United States v. Fatico, 603 F.2d 1053, 1057 n.9 (2d Cir. 1979), cert. denied, 444 U.S. 1073 (1980). The sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law. In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. See 18 U.S.C. § 3661; see also United States v. Watts, 117 S. Ct. 633, 635 (1997) (holding that lower evidentiary standard at sentencing permits sentencing court’s consideration of acquitted conduct); Witte v. United States, 515 U.S. 389, 399- 401 (1995) (noting that sentencing courts have traditionally considered wide range of information without the procedural protections of a criminal trial, including information concerning criminal conduct that may be the subject of a subsequent prosecution); Nichols v. United States, 511 U.S. 738, 747-48 (1994) (noting that district courts have traditionally considered defendant’s prior criminal conduct even when the conduct did not result in a conviction). Any information may be considered, so long as it has sufficient indicia of reliability to support its probable accuracy. Watts, 117 S. Ct. at 637; Nichols, 511 U.S. at 748; United States v. Zuleta-Alvarez, 922 F.2d 33 (1st Cir. 1990), cert. denied, 500 U.S. 927 (1991); United States v. Beaulieu, 893 F.2d 1177 (10th Cir.), cert. denied, 497 U.S. 1038 (1990). Reliable hearsay evidence may be considered. United States v. Petty, 982 F.2d 1365 (9th Cir. 1993), cert. denied, 510 U.S. 1040 (1994); United States v. Sciarrino, 884 F.2d 95 (3d Cir.), cert. denied, 493 U.S. 997 (1989). Out-of-court declarations by an 86a unidentified informant may be considered where there is good cause for the non-disclosure of the informant’s identity and there is sufficient corroboration by other means. United States v. Rogers, 1 F.3d 341 (5th Cir. 1993); see also United States v. Young, 981 F.2d 180 (Sth Cir.), cert. denied, 508 U.S. 980 (1993); United States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978), cert. denied, 444 U.S. 1073 (1980). Unreliable allegations shall not be considered. United States v. Ortiz, 993 F.2d 204 (10th Cir. 1993). The Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case. Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 294); November 1, 1991 (see Appendix C, amendment 387); November 1, 1997 (see Appendix C, amendment 574); November 1, 1998 (see Appendix C, amendment 586). 87a Defendant’s Requested Jury Instruction No. 37 defendant is simply inconsistent with a finding of knowingly and willfully making false, fictitious or fraudulent statements; and is inconsistent with the intent to defraud or to obtain money or property by means of false or fraudulent pretenses, representations or promises alleged in those charges. A person who acts on a belief or an opinion honestly held is not punishable under either of these statutes merely because the belief or opinion turns out to be inaccurate, incorrect, or wrong. An honest mistake in judgement or an error in management does not arise to the level of knowledge and willfulness required by these statutes. This law prohibiting false statements is intended to subject to criminal punishment only those people who knowingly and willfully attempt to deceive. Similarly, the wire fraud statute is written to subject to criminal punishment only those people who knowingly defraud or knowingly obtain money or property by means of false or fraudulent pretenses, representations, or promises. With respect to the false claims charges, in determining whether or not the government has proven beyond a reasonable doubt that the defendant acted in good faith or acted knowingly and willfully in making false, fictitious or fraudulent statements, the jury must consider all of the | Rl GONE sais a ns as, 88a evidence in the case bearing on the defendant’s state of mind. Similarly, with respect to the wire fraud charges, in determining whether or not the government has proven beyond a reasonable doubt that the defendant acted with an intent to defraud or to obtain money or property by means of false or fraudulent pretenses, representations, or promises or whether the defendant acted in good faith, the jury must consider all the evidence in the case bearing on the defendant’s state of mind. Keep in mind as you make your decisions that the Defendant, Bob Dvorak, does not have an obligation to prove that he acted in good faith because the defendant in a criminal case does not have an obligation to prove anything. It is the government’s burden to prove to you, beyond a reasonable doubt, that the defendant Bob Dvorak acted knowingly and willfully to make false, fictitious or fraudulent statements. Similarly, it is the government’s burden to show beyond a reasonable doubt that Bob Dvorak acted with the intent to defraud or to obtain money or property. If you find that the defendant Bob Dvorak did not act with the specific intent to commit a crime, but instead acted in good faith, that is, in the good faith belief that he was doing nothing wrong, then that is a defense to both the false statement charges and the wire fraud charges in this case and you must acquit Bob Dvorak of these charges. Authority: E. Devitt, C. Blackmar & K. O’Malley, Federal j § 27.16 (1992) (modified); Sand, Siffert, Loughlin & Reiss, Modem Federal Jury Instructions, Instruction § 8-1 (1992) (modified). MR. STRASSER: Could I inquire of the Court, I think the Government has suggested, but I don’t believe I have seen a draft of a willful blindness instruction? THE COURT: I have got a willful blindness instruction. I have got a conspiracy instruction, an aiding and abetting instruction that I have been giving for years, but I think willful blindness is particularly appropriate in this case. MR. STRASSER: That was the charge I was objecting to. THE COURT: Yow have offered a good-faith instruction. It seems to me an appropriate instruction on willfulness and requirement of willfulness and knowingly is adequate for this. MR. STRASSER: The Court will not give a separate good-faith instruction? THE COURT: No. You get a pretty strong willfulness, although the Government suggested this bad purpose. I don’t know if a bad purpose was part of willfulness, except maybe in a tax case. I'll give it, because the Government -- MR. STRASSER: They asked for it. We didn’t object to that. 90a THE COURT: Pick it up and run with it. MR. LEARNED: There’s one concern I have. ** * * * 9la *_*s+ *+ *¢ & a matter within the jurisdiction of the Drug Enforcement Administration, to knowingly and willfully make materially false, fraudulent, fictitious -- materially false, fictitious, and fraudulent statements. Count one then goes to allege certain manner and means by which the conspiracy allegedly was carried out and lists a number of overt acts; that is, acts allegedly performed in furtherance of the conspiracy. Count one is drawn pursuant to a provision of the United States Code that provides that if two or more persons conspire either to commit any offense against the United States or to defraud the United States or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each is guilty of an offense against the laws of the United States. Certain terms will be used throughout these instructions, and I'll define them for you now. The term willfully is used. To act willfully is to act voluntarily and intentionally and with a specific intent to do something the law forbids; that is, with a bad purpose, to either disobey or disregard the law. To act knowingly is to act voluntarily and intentionally and not because of mistake or accident or other innocent reason. Knowingly is used as an element in all of the offenses charged, and the Government may prove that a defendant acted knowingly by proving beyond a reasonable doubt that this defendant deliberat [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1659%3A2. Public record. Not legal advice.