by Rabon, Don
The Statutory Mission: The Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime Act of 1984) provides for the development of guidelines that will further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation. The Act delegates broad authority to the Commission to review and rationalize the federal sentencing process.
The Act contains detailed instructions as to how this determination should be made, the most important of which directs the Commission to create categories of offense behavior and offender characteristics. The Commission is required to prescribe guideline ranges that specify an appropriate sentence for each class of convicted persons determined by coordinating the offense behavior categories with the offender characteristic categories”.
The officer will begin a process to discover every facet of Alex’s life. The officer will review the files of the U.S. attorney and the investigating agent’s reports. Additionally, interviews with the federal agents involved in the CEP investigation will be conducted.
In Dante Alighieri’s Inferno, Dante (the character) is guided by the Roman poet Virgil to a great river. The river is named Acheron and it marks the borders of hell. They are carried across the river in a boat. The boat is steered by an old man named Charon. At the top of the gates of hell, there is an inscription that reads, “THROUGH ME YOU ENTER INTO THE CITY OF WOES.” Eventually, they come face to face with a monster named Minos. A long line of sinners stand before Minos. Eventually, each person stands alone before Minos and confesses their sins. Minos, then wraps his tail around himself a specific number of times. The number of times the tail is wrapped, is indicative of the circle of hell to which the sinner is assigned.
In the Inferno, there are nine circles of suffering depicted in hell. Each circle, from one to nine, represents a more reprehensible sin, with the punishment meted accordingly. There are no mitigating circumstances taken into consideration. The eighth circle of hell is for those having committed fraud. The eighth circle is guarded by a beast named Geryon. Representing dishonesty and fraud, Geryon has the head of an innocent man and the body of a serpent.
Alex’s future now came down to the completion of a form by the assigned officer. This form is divided into four segments—A, B, C and D. The prefix to Alex’s name would no longer be “Mister,” but rather “Defendant.” Whatever comprised that which was the essence of Alex as a sentient being would now be reduced to “Docket Number (Year-Sequence-Defendant No.).”
The first segment of the form is titled “Worksheet A – (Offense Level).” The initial instructions bear witness of the intricacies involved:
“For each count of conviction (or stipulated offense), complete a separate Worksheet A. Exception: Use only a single Worksheet A where the offense level for a group of closely related counts is based primarily on aggregate value or quantity (see §3D1.2(d)) or where a count of conspiracy, solicitation, or attempt is grouped with a substantive count that was the sole object of the conspiracy, solicitation, or attempt (see §3D1.2(a) and (b)).”
On this form there are blank spaces to be completed and boxes to be checked. Each blank and box is a determinate of Alex’s future. A stream comprised of blank spaces and boxes carrying Alex to a destination that remains, at this point, too far around the turn to even be speculated.
The next segment is “Worksheet B – (Multiple Counts or Stipulation to Additional Offenses).” The instructions here require:
“Step 1: Determine if any of the counts group. (Note: All, some, or none of the counts may group. Some of the counts may have already been grouped in the application under Worksheet A, specifically, (1) counts grouped under §3D1.2(d), or (2) a count charging conspiracy, solicitation, or attempt that is grouped with the substantive count of conviction (see §3D1.2(a)). Explain the reasons for grouping:
Step 2: Using the box(es) provided below, for each group of closely related counts, enter the highest adjusted offense level from the various “A” Worksheets (Item 5) that comprise the group (see §3D1.3). (Note: A “group” may consist of a single count that has not grouped with any other count. In those instances, the offense level for the group will be the adjusted offense level for the single count.)
Step 3: Enter the number of units to be assigned to each group (see §3D1.4) as follows:
One unit (1) for the group of closely related counts with the highest offense level
An additional unit (1) for each group that is equally serious or 1 to 4 levels less serious
An additional half unit (1/2) for each group that is 5 to 8 levels less serious
No increase in units for groups that are 9 or more levels less serious”.
The process increases in complexity, the formality begins to give way to subjectivity as the officer completing the form must now, “Explain the reasons for . . .” Now, no matter how professionally objective the person completing the form may be, opinions come into play—opinions with which others, including the federal judge that ultimately imposes the sentence upon Alex, may or may not agree. At this point, there are even more hands on the ship’s wheel of Alex’s life. More waters flow in and the stream begins to course just a bit faster.
In the third segment, “Worksheet C (Criminal History),” the officer delves deeply into Alex’s past activities. The appropriate completion of this segment serves as a source of professional pride for the officer. No related detail of Alex’s past is to be overlooked. The extreme detail for this portion involves, among other activities, obtaining letters of verification. The officer seeks to determine, “Who is Alex? What are his characteristics?”
The fourth segment, “Worksheet D (Guideline Worksheet),” is the longest portion, comprising four pages. The “Sentencing Options” portion is divided into zones A through D. Beside each zone is a box that can be checked. A check in a given box is a determinate for the course of Alex’s life. Each zone provides criteria for the selection process. For example:
“Zone A If checked the following options are available (see 5B1.1):
CFine(See 5E1.29a))
C“Straight” Probation
CImprisonment”
Other segments in Worksheet D are: Length of Term of Probation, Conditions of Probation, Supervised Release, Conditions of Supervised Release, Restitution, Fines, Special Assessments and Additional Factors.
The Additional Factors section provides the most opportunity for the officer’s narrative. The instructions for this segment are the most lengthy and involved:
“List any additional applicable guidelines, policy statements, and statutory provisions. Also, list any applicable aggravating and factors that may warrant a sentence at a particular point either within or outside the applicable guideline range. Attach additional sheets as necessary.”
Would the fact that Alex had deceived the federal officials for four years and continued to divert assets to himself after having gone to them in 2006 serve as “applicable, aggravating factors” in the sentencing determination? At some point, because of his continued deception and actions, Alex’s initial deal would be taken off of the table. No longer would the navigation buoy be set at “up to five years,” but rather placed at “up to twenty years.”
In the fullness of time, the form and the examination are completed. Copies are provided to the prosecution and the defense. They have two weeks to file objections. But there is just a bit more to consider—additionally, a “judge’s eyes only” recommendation page is also prepared. On this page, the officer relays his/her “here’s what I think” contribution. The complex and convoluted examination of Alex, his life and his actions all come down to one page. It is a one-page trip sheet playing no small role in the determination as to what would be Alex’s next port-o-call.
THOUGHTS, COMMENTS AND ANALYSIS
What are your impressions, to this point, with regard to this circumstance?
Exactly what d
o you know?
What is it that you know that you don’t know?
What questions would you ask in order to know?
What steps would you take in order to know?
POINTS TO PONDER
In your opinion, should mitigating factors be a consideration in Alex’s sentencing determination?
If your answer to question number one is “yes,” what are those mitigating factors and why should they be a consideration?
If the answer to question number one is “no,” why not?
What questions would you pose to Alex at this point?
CONTENT – CONTEXT APPLICATION
The U.S. Attorney’s Office accused the vice president of a large banking enterprise of embezzling over eleven million dollars though a conspiracy scheme that operated over a nine year period. The fraudulent activities included false billing to the bank for millions of dollars’ worth of home renovations, jet skis, golf carts, jewelry and other assets.
The accused worked as a vice president in utility services. Within that operation, his responsibilities included invoice payments. The invoices were submitted to the bank by contractors who performed worked for the bank. The contractors involved would return a portion of the money paid or provide other goods and services to the defendant. The contractors involved did not know one another, only the defendant.
Having reviewed the pre-sentencing determination, in the reading of this chapter, if you were the officer, how would you proceed?
In your mind, what could serve as mitigating factors in the sentencing determination?
If the vice president were a young woman as opposed to an old man, would that be a determination?
Would you eliminate mitigating factors altogether? Why or why not?
What questions would you pose to this individual?
CHAPTER NINE
UNCHARTED WATERS
Why does the river rest so soon, and dry up,
And
Leave us to languish in the sand?
—FAUST
NAVIGATION POINT AND HEADING Alex has now come to a significant, transitional point in his voyage. It is the day and time for Alex to be sentenced. This is the point wherein the anchor of Alex’s actions is to be weighed, and his ship of fate, set sail. There are a number of effecting dynamics that will function to set his course. The court, attorneys from both sides, a relative, Alex’s wife, Alex himself, and victim representations will all have something to say at this ship’s christening ceremony.
CHANGE: LIFE’S ONLY CONSTANT
Each of us experiences the vicissitudes of life. This is life. Some changes are obviously positive, others painfully negative, while others are not easily determined until later on. But in most instances, life’s transitions do not transpire in a public forum, such as a courtroom with reporters, spectators and others. Not so for Alex. Now, his manipulations of things and people will be hoisted like the flag of a pirate ship, for all to see.
The sentencing hearing will unfold like a Greek play. The play is titled United States of America versus Alexander G. Klosek. On the playbill, we will find the antagonist, protagonists, the aggrieved, the chorus and, implicitly, even Hermes. Hermes was the Greek god of transitions and boundaries. More importantly, he was the protector of thieves.
The transcript of the sentencing hearing reads like the actors’ speaking parts. With the individual monologue, the character will walk onto the stage, speak their part and move to the side. In like manner of a Greek tragedy, it will all begin with the prologue, followed by the unfolding episodes. Throughout it all, only one person—Alex—will remain at center stage.
But this is not a play—this is life. Admittedly, perhaps, this sentencing hearing is life imitating art, but it is life nevertheless. Each actor will take their place on the stage and speak their lines. Some actors will be stage right and other actors will be stage left. The drama will continually build. There will be those who will advocate for Alex and others who will advocate against. Tension, like the strain on a ship’s mooring line in a storm, will grow stronger.
There will be no dimming of the lights, but it will grow enthrallingly quiet. The play begins. We hear the sliding of the four feet under the chair as it is pushed back from the table. Someone stands, faces the court and begins to speak.
THE PROLOGUE: A GOVERNMENTAL REPRESENTATIVE ADDRESSES THE COURT
Your Honor, I won’t add much. I’ll say this. The decision regarding the filing of a 5K motion and then the extent of it in this case was certainly out of the ordinary and, I would suggest, fairly difficult for the government and persons involved in the case to wrestle with. There are certain facts, though, that I believe are quite compelling.
First, when it started to come down, when the house of cards began to topple, we cannot ignore that it was Mr. Klosek that really took the first significant step of bringing it to the attention of federal law enforcement.
I wish I could report to the Court at this time that that resulted in the saving of millions more dollars for purposes of restitution. Unfortunately, that was not the case. However, especially when comparing him to Mr. Noel — the Court even had the opportunity to hear this morning, he still lives in the state of he did nothing wrong — I must credit Mr. Klosek for coming — not only recognizing just how wrong it was, but recognizing the magnitude and bringing it to the attention of the FBI. That was important.
He then, in all fairness, almost undid everything, every bit of good he began, with his years of dancing around the truth — and that’s not even a correct phrase — his utter ignoring of the truth for his part in it and also how it pertained to Mr. Noel. This was very significant because it was during this time that the government was preparing for trial, and Mr. Klosek, by necessity, was a very important witness for the government against Mr. Noel.
The prosecutors at the time, Ms. Rikard and Mr. Martens, both experienced and both very savvy, were relying an awful lot on what Mr. Klosek was saying, and literally right up to the eve of trial.
And Your Honor knows that very well. That had an awful lot of impact in terms of, number one, causing a continuance of the case and, number two, causing a great deal of disarray to the government’s pretrial preparation.
At the end of the day, the foul did not result in enormous harm because Mr. Noel was properly convicted; however, Mr. Klosek’s behavior during this time was significantly damaging.
And then he did testify at trial, and we believe he testified truthfully, we believe he testified effectively, and we believe his testimony has to be credited as substantial assistance for its part in leading to the conviction of Mr. Noel and, in fact, his sentencing today to 300 months.
So putting it all together, Judge, we ultimately had to fashion justice from it, and it is my submission to the Court at this time that we have done our best, and I believe we have made the right decision.
EPISODE ONE: THE COURT SPEAKS
The Court will grant the motion for a reduction for substantial assistance. The government has just described that assistance: that he went to the FBI in June of 2006 unprompted by any government agency; that that was the first indication the government had that a fraud was afoot; the government was able to salvage some of the victims’ investments because of his assistance; and that to that extent it was timely and further enabled the government to build a stronger case against the co-defendant.
That is, of course, undermined to some extent by the fact that he was not totally truthful in the period leading up to the trial, but by the time of the trial, he had evidently come clean and told the truth and did testify.
The diversion of funds fraud was uniquely the scheme of Mr. Noel, albeit this defendant had knowledge of it, or came to have it.
Nevertheless, the stock-trading fund was the primary vehicle of the conspiracy; and in terms of the losses to victims, the diversion of f
unds was the greater producer of losses, and that was more directly assignable to Mr. Noel’s involvement than Mr. Klosek’s, who had little to do with the start-up companies and the diversion of funds to them, and virtually nothing to do with it apart from Mr. Noel’s initiation.
Mr. Klosek’s decisions were unfortunately influenced, that is, his decisions about cooperation, by undue influence from his father, who unfortunately was encouraging the defendant to lie and position his testimony in various ways.
That was, to say the least, unflattering as far as the father is concerned. Nevertheless, the Court mentions that in putting the defendant’s cooperation and its shortcomings in context.
This defendant does pose a lesser risk of reoffending than Mr. Noel. He’s more likely to seek legitimate employment after his release from prison. These are factors the government has cited in terms of evaluating the defendant’s cooperation.
The government further points out that the defendant’s assistance in the context I have cited was extensive and significant and useful. The government has assigned weight and asks for a 120-month sentence, and the Court gives that substantial weight in that the government’s evaluation was not difficult to ascertain, nor is it difficult for the Court. But in the end, his testimony did appear to be complete and reliable.
And there were some risks of his cooperation in the sense that he wore a wire and was threatened by Mr. Noel in terms of the threat that he might become addicted because of some action on the part of Mr. Noel, or otherwise suffer consequences. So the Court evaluates that testimony and will make that a part of the sentence as we proceed.
EPISODE TWO: ALEX’S ATTORNEY ADDRESSES THE COURT
Your Honor, in all candor, the Court’s summary just now has taken the wind out of much of what I was going to say today, so that will even further reduce the time I will have before the Court. But I believe the Court has accurately assessed, as it has articulated already, the nature of Mr. Klosek’s key involvement in this case. There are another few comments I’d like to add.