UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------X
UNITED STATES OF AMERICA,
v. Crim. Dkt. No. S1 08-CR-1238 (NRB) ANTHONY SEMINERIO,
Defendant.
------X
SENTENCING MEMORANDUM SUBMITTED ON BEHALF OF DEFENDANT ANTHONY SEMINERIO
LAW OFFICES OF MICHAEL S. ROSS THE LINCOLN BUILDING 60 EAST 42ND STREET FORTY-SEVENTH FLOOR NEW YORK, NEW YORK 10165 (212) 505-5200 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...... vi
I. PRELIMINARY STATEMENT ...... 1
II. BACKGROUND AND PERSONAL HISTORY OF MR. SEMINERIO ...... 7
A. MR. SEMINERIO’S FAMILY ...... 7
B. MR. SEMINERIO’S CORRECTIONS AND UNION WORK ...... 15
C. MR. SEMINERIO’S POLITICAL CAREER ...... 19
1. THE CIRCUMSTANCES LEADING TO MR. SEMINERIO’S DECISION TO RUN FOR THE NEW YORK STATE ASSEMBLY IN 1978 ...... 19
2. MR. SEMINERIO’S 30 YEARS OF DEDICATED SERVICE TO THE PUBLIC AS A NEW YORK STATE ASSEMBLYMAN ...... 21
D. MR. SEMINERIO’S EXTRAORDINARY MEDICAL CONDITIONS HAVE FORCED HIM TO FACE HIS OWN MORTALITY WITH A DEEPER UNDERSTANDING OF, AND GENUINE CONTRITION FOR, HIS CRIMINAL CONDUCT ...... 55
III. THE LETTERS SUBMITTED TO THIS COURT BY, AND ON BEHALF OF, MR. SEMINERIO, REFLECT MR. SEMINERIO’S GENUINE REMORSE AND CONTRITION, AND DEMONSTRATE THAT MR. SEMINERIO IS A FUNDAMENTALLY GOOD AND DECENT PERSON ...... 59
A. INTRODUCTION ...... 59
B. MR. SEMINERIO’S LETTER TO THIS COURT REFLECTS HIS GENUINE REMORSE AND CONTRITION ...... 59
C. LETTERS SUBMITTED BY MR. SEMINERIO’S FAMILY ...... 63
D. LETTERS SUBMITTED BY MR. SEMINERIO’S FRIENDS, CONSTITUENTS AND COLLEAGUES ...... 81 LEGAL ANALYSIS ...... 125
IV. BASED UPON THE NATURE OF MR. SEMINERIO’S CRIMINAL CONDUCT, HIS BACKGROUND AND HIS EXTRAORDINARY PERSONAL CIRCUMSTANCES, A SOUND BASIS EXISTS FOR THIS COURT TO IMPOSE A SENTENCE OF HOME DETENTION ...... 125
A. OVERVIEW OF THE STATE OF THE LAW AND THE RELEVANT SENTENCING FACTORS, WHICH COMPEL THE CONCLUSION THAT A SENTENCE OF HOME DETENTION IS WARRANTED IN THE CASE OF MR. SEMINERIO ...... 125
B. MR. SEMINERIO’S CRIMINAL CONDUCT ...... 129
1. INTRODUCTION ...... 129
2. MR. SEMINERIO’S VERY RELEVANT TRAINING, KNOWLEDGE AND EXPERIENCE WHICH SERVED AS THE FOUNDATION FOR HIS CONSULTING BUSINESS ...... 132
3. MR. SEMINERIO’S POLITICAL AND BUSINESS RELATIONSHIP WITH ARLENE PEDONE ...... 135
4. THE FALLING OUT BETWEEN MR. SEMINERIO AND MS. PEDONE – AS A DIRECT RESULT OF MS. PEDONE’S DISHONEST AND UNETHICAL CONDUCT – AND MR. SEMINERIO’S FORMATION OF HIS OWN COMPANY, MARC CONSULTANTS ...... 137
5. MR. SEMINERIO’S SINGLE, ISOLATED CRIMINAL ACT – WHICH HE FULLY ACKNOWLEDGES WAS WRONG – STANDS IN STARK CONTRAST TO MR. SEMINERIO’S OTHERWISE FUNDAMENTALLY GOOD, DECENT AND LAW-ABIDING LIFE AS AN HONEST PUBLIC SERVANT ...... 143
C. A SENTENCE OF HOME DETENTION FALLS WITHIN THE ADVISORY GUIDELINES RANGE OF MR. SEMINERIO’S CASE – 0 TO 6 MONTHS, BASED UPON AN ADJUSTED OFFENSE LEVEL OF 4...... 147
1. OVERVIEW OF THE DEFENSE’S GUIDELINES CALCULATION ...... 147
ii 2. BASED UPON THE ACTUAL AND ONLY CRIME THAT MR. SEMINERIO COMMITTED, THE GUIDELINES CALCULATION IN THIS CASE SHOULD BE DETERMINED UNDER U.S.S.G. SECTION 2C1.3 – AND NOT U.S.S.G. SECTION 2C1.1 ...... 148
3. CONCLUSION AS TO THE DEFENSE’S CALCULATION OF MR. SEMINERIO’S ADVISORY GUIDELINES, UNDER U.S.S.G. SECTION 2C1.3 ...... 158
D. IN THE EVENT THAT THIS COURT DETERMINES THAT THE ADJUSTED OFFENSE LEVEL IS GREATER THAN LEVEL 4, THE FACTORS TO BE CONSIDERED AT SENTENCING, PURSUANT TO 18 U.S.C. SECTION 3553(A) AND OTHER PROVISIONS OF THE GUIDELINES, COMPEL THE CONCLUSION THAT A SENTENCE TO HOME DETENTION IS WARRANTED ...... 159
1. INTRODUCTION ...... 159
2. THE FACTORS TO BE CONSIDERED AT SENTENCING, PURSUANT TO 18 U.S.C. SECTION 3553(A) AND OTHER PROVISIONS OF THE GUIDELINES, THAT COMPEL THE CONCLUSION THAT A SENTENCE OF HOME DETENTION IS WARRANTED IN THE CASE OF MR. SEMINERIO ...... 160
a. INTRODUCTION ...... 160
b. THE SENTENCING FACTORS SET FORTH IN 18 U.S.C. SECTION 3553(A) ...... 161
c. AN INDEPENDENT BASIS EXISTS TO DEPART FROM THE ADVISORY GUIDELINES BECAUSE MR. SEMINERIO’S CRIMINAL CONDUCT WAS “ABERRANT BEHAVIOR.”...... 169
d. MR. SEMINERIO’S EXTRAORDINARY MEDICAL CONDITIONS ...... 171
e. MR. SEMINERIO’S EXCEPTIONAL GOOD WORKS AND ACTS OF CHARITY IN HIS COMMUNITY ...... 183
3. A SENTENCE OF HOME DETENTION WOULD BE SUFFICIENT AND NOT GREATER THAN NECESSARY, TO ENSURE THAT THE PURPOSES OF SENTENCING HAVE BEEN SATISFIED ...... 198
iii E. THE GOVERNMENT’S LOSS CALCULATION IS ILL-CONCEIVED AND IS NOT SUPPORTED BY THE LAW OR THE EVIDENCE ...... 202
1. INTRODUCTION ...... 202
2. THE GOVERNMENT HAS UNFAIRLY AND ERRONEOUSLY ATTEMPTED TO REMOVE MR. SEMINERIO’S CASE FROM THE “HEARTLAND” OF THE ADVISORY GUIDELINES APPLICABLE TO NON-BRIBERY HONEST SERVICES FRAUD CASES ...... 204
3. THIS COURT DOES NOT NEED TO ULTIMATELY DETERMINE THE LOSS AMOUNT IN THE CASE OF MR. SEMINERIO ...... 210
4. THE GOVERNMENT’S STRAINED AND UNREALISTIC THEORY OF PROSECUTION IS NOT SUPPORTED BY CREDIBLE EVIDENCE AND CANNOT BE SQUARED WITH THE NOW-HISTORICAL FACTS UNDERLYING THIS CASE ...... 213
a. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MARC CONSULTANTS’ BANK RECORDS PROVE FRAUD – IS WITHOUT MERIT ...... 213
b. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO EXTORTED ARLENE PEDONE, RESULTING IN AN ESTIMATED LOSS OF $350,000 – IS WITHOUT MERIT ...... 214
c. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO ESTABLISHED A CORRUPT RELATIONSHIP WITH MEDISYS AND ITS CONSTITUENT ENTITIES – IS WITHOUT MERIT ...... 217
d. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO EXTORTED THE JAMAICA CHAMBER OF COMMERCE – IS WITHOUT MERIT ...... 223
e. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO HAD A CORRUPT RELATIONSHIP WITH WINSTON FINANCIAL – IS WITHOUT MERIT ...... 224
iv f. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO HAD A CORRUPT RELATIONSHIP WITH CHARLES CALLAHAN AND PLAZA COLLEGE – IS WITHOUT MERIT ...... 226
g. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO HAD A CORRUPT RELATIONSHIP WITH BERNARD GORDON EHRLICH – IS WITHOUT MERIT ...... 227
h. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO HAD A CORRUPT RELATIONSHIP WITH LONG ISLAND RAIL ROAD – IS WITHOUT MERIT ...... 228
i. THE GOVERNMENT’S CLAIMS RELATING TO MR. SEMINERIO’S SUPPOSED CORRUPT WORK FOR AN FBI UNDERCOVER AGENT ...... 229
F. CONCLUSION ...... 230
CONCLUSION ...... 231
v TABLE OF AUTHORITIES
Page
FEDERAL CASES
Blakely v. Washington, 542 U.S. 296 (2004) ...... 126
Cleveland v. United States, 531 U.S. 12 (2000) ...... 158
Contino v. United States, 2007 WL 4591999 (S.D.N.Y. Dec. 28, 2007) ...... 203
Fountain v. United States, 357 F.3d 250 (2d Cir. 2004) ...... 152
Koon v. United States, 518 U.S. 81 (1996) ...... 173, 177, 194
Liparota v. United States, 471 U.S. 419 (1985) ...... 158
McNally v. United States, 483 U.S. 350 (1987) ...... 152, 158
Rita v. United States, 551 U.S. 338 (2007) ...... 128
Simon v. United States, 361 F. Supp.2d 35 (E.D.N.Y. 2005) ...... 127, 201
Sorich v. United States, No. 08410, 555 U.S. (Feb. 23, 2009) (Scalia, J., dissenting from denial of certiorari) ...... 204, 205
United States v. Adekoya, 2007 WL 186659 (2d Cir. 2007) ...... 203
United States v. Adelson, 441 F. Supp.2d 506 (S.D.N.Y. 2006) ...... 209, 210
United States v. Adler, 52 F.3d 20 (2d Cir. 1995) ...... 195
United States v. Amato, 540 F.3d 153 (2d Cir. 2008) ...... 152
United States v. Antico, 275 F.3d 245 (3d Cir. 2001) ...... 151, 154, 207
United States v. Arthur, 544 F.2d 730 (4th Cir. 1976) ...... 208
United States v. Barbato, 2002 WL 31556376 (S.D.N.Y. Nov 15, 2002) ...... 178, 200
United States v. Barbera, 2005 WL 2709112 (S.D.N.Y. Oct. 21, 2005) ...... 195
vi United States v. Bates, 2007 WL 2780551 (E.D.Mich. Sept. 20, 2007) ...... 172
United States v. Bellomo, 2002 WL 1267996 (E.D.N.Y. Apr 10, 2002) ...... 200
United States v. Blarek, 7 F. Supp.2d 192 (E.D.N.Y. 1998) ...... 200
United States v. Bloom, 149 F.3d 649 (7th Cir. 1998) ...... 207
United States v. Bonczek, 2009 WL 2924550 (S.D.N.Y. Sept. 8, 2009) ...... 170
United States v. Brennan, 395 F.3d 59 (2d Cir. 2005) ...... 203
United States v. Caldwell, 2008 WL 4522609 (5th Cir. Oct. 9, 2008) ...... 170
United States v. Canova, 412 F.3d 331 (2d Cir. 2005) ...... 194
United States v. Canova, 485 F.3d 674 (2d Cir. 2007) ...... 194
United States v. Carbo, 572 F.3d 112 (3d Cir. 2009) ...... 207
United States v. Carmona-Rodriguez, 2005 WL 840464 (S.D.N.Y. Apr. 11, 2005) . . . . . 199, 201
United States v. Carson, 560 F.3d 566 (6th Cir. 2009) ...... 170
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) ...... 162, 211
United State v. Cooper, 394 F.3d 172 (3d Cir. 2005) ...... 195, 196
United States v. Crosby, 397 F.3d 103 (2d Cir. 2005) ...... 126, 127, 210-212
United States v. Crumbliss, 2003 WL 223457 (4th Cir. 2003) ...... 178, 179
United States v. Davis, 537 F.3d 611 (6th Cir. 2008) ...... 162
United States v. Demaree, 459 F.3d 791 (7th Cir. 2006) ...... 128
United States v. Denardi, 892 F.2d 269 (3d Cir. 1989) ...... 161
United States v. Dhafir, 577 F.3d 411, 2009 WL 2500127 (2d Cir. Aug. 18, 2009) ...... 211
United States v. Fairclough, 439 F.3d 76 (2d Cir. 2006)...... 127
vii United States v. Fatico, 579 F.2d 707 (2d Cir. 1978) ...... 4
United States v. Fermin, 2008 WL 1984261 (2d Cir. May 6, 2008) ...... 206
United States v. Fernandez, 443 F.3d 19 (2d Cir. 2006) ...... 130
United States v. Ferranti, 928 F. Supp. 206 (E.D.N.Y. 1996) ...... 204
United States v. Fishman, 2009 WL 1940742 (S.D.N.Y. June 29, 2009) ...... 197
United States v. Flemming, 2007 WL 1451126 (3d Cir. May 17, 2007) ...... 154, 157
United States v. Foxworth, 2009 WL 1582923 (2d Cir. June 8, 2009) ...... 159
United States v. Gall, 552 U.S. 38, 128 S.Ct. 586 (2007) ...... passim
United States v. Genao, 343 F.3d 578 (2d Cir. 2003) ...... 155
United States. v. Giffen, 326 F. Supp. 2d 497 (S.D.N.Y. 2004) ...... 155
United States v. Gigante, 989 F. Supp. 436 (E.D.N.Y. 1998) ...... 175, 203
United States v. Granderson, 511 U.S. 39 (1994) ...... 161
United States v. Grandmaison, 77 F.3d 555 (1st Cir. 1996) ...... 160
United States v. Guang, 511 F.3d 110 (2d Cir. 2007) ...... 206
United States v. Harvey, 532 F.3d 326 (4th Cir. 2008) ...... 175
United States v. Hasner, 340 F.3d 1261 (11th Cir. 2003), cert. denied, 125 S.Ct. 38 (2004) ...... 175
United States v. Jackson, 835 F.2d 1195 (7th Cir. 1988) ...... 175
United States v. Jimenez, 212 F. Supp.2d 214 (S.D.N.Y 2002) ...... 176, 180-182
United State v. Jennings, 487 F.3d 564 (8th Cir. 2007) ...... 160
United States v. Jones, 460 F.3d 191(2d Cir. 2006) ...... 126, 128, 168
viii United States v. Kimbrough, 552 U.S. 85, 128 S.Ct. 558 (2007) ...... passim
United States v. Kincaid-Chauncey, 556 F.3d 923 (9th Cir. 2009) ...... 206, 207
United States v. Kurtz, 237 F.3d 154 (2d Cir. 2001) ...... 152
United States v. Kuznetsov, 2007 WL 2020110 (S.D.N.Y. July 11, 2007) ...... 152
United States v. Legros, 529 F.3d 470 (2d Cir. 2008) ...... 203
United States v. LiButti, 1994 WL 774647 (D.N.J. 1994) ...... 182
United States v. Maltese, 1993 WL 222350 (N.D.Ill. June 22, 1993) ...... 183
United States v. Mariano, 2008 WL 2470911 (3d Cir. June 20, 2008) ...... 151, 154
United States v. Moy, 1995 WL 311441 (N.D.Ill. 1995) ...... 182, 202
United States v. McBride, 434 F.3d 470 (6th Cir. 2006) ...... 162
United States v. McCaa, 2009 WL 1867937 (2d Cir. June 30, 2009) ...... 160
United States v. McClatchey, 316 F.3d 1122 (10th Cir. 2003) ...... 195-196
United States v. McClean, 822 F. Supp. 961 (E.D.N.Y. 1993) ...... 182
United States v. Ministro-Tapia, 470 F.3d 137 (2d Cir. 2006) ...... 127, 160
United States v. Moore, 2002 WL 1790142 (4th Cir. 2002) ...... 182
United States v. Morkin, 133 F.3d 628 (8th Cir. 1998) ...... 196
United States v. Nektalov, 461 F.3d 309 (2d Cir. 2006) ...... 181
United States v. Nellum, 2005 WL 300073 (N.D.Ind. Feb. 3, 2005) ...... 201
United States v. Ocampo, 2008 WL 501295 (2d Cir. Feb. 25, 2008) ...... 195
United States v. Ogando, 547 F.3d 102 (2d Cir. 2008) ...... 170
United States v. Olhovsky, 562 F.3d 530 (3d Cir. 2009) ...... 160
United States v. Osorio, 2008 WL 4280067 (2d Cir. Sept. 17, 2008) ...... 128
ix United State v. Panarella, 277 F.3d 698 (3d Cir. 2002) ...... 158
United States v. Parris, 573 F. Supp.2d 744 (E.D.N.Y. 2008) ...... 209
United States v. Patterson, 281 F. Supp.2d 626 (E.D.N.Y. 2003) ...... 170
United States v. Phillips, 431 F.3d 86 (2d Cir. 2005) ...... 203
United States v. Pimentel, 932 F.2d 1029 (2d Cir. 1991) ...... 3
United States v. Ranum, 353 F. Supp.2d 984 (E.D.Wis. 2005) ...... 127
United States v. Rattoballi, 452 F.3d 127 (2d Cir. 2006) ...... 126, 127, 210
United States v. Rigas, 2009 WL 3166066 (2d Cir. Oct. 5, 2009) ...... 126
United States v. Rioux, 97 F.3d 648 (2d Cir. 1996) ...... 161, 173, 181, 195
United States v. Rodríguez, 527 F.3d 221 (1st Cir. 2008) ...... 161
United States v. Roth, 1995 WL 35676 (S.D.N.Y. Jan. 30, 1995) ...... 173
United States v. Rubenstein, 403 F.3d 93 (2d Cir. 2005) ...... 127
United States v. Rubin, 999 F.2d 194 (7th Cir. 1993) ...... 152
United States v. Ruiz, 2006 WL 1311982 (S.D.N.Y. 2006) ...... 201
United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003) (en banc) ...... 152
United States v. Sawyer, 85 F.3d 713 (1st Cir. 1996) ...... 151, 154
United States v. Scungio, 255 F.3d 11 (1st Cir. 2001) ...... 152
United States v. Serafini, 233 F.3d 758 (3d Cir. 2000) ...... 196-197
United States v. Shadduck, 889 F. Supp. 8 (D. Mass. 1995) ...... 182
United States v. Sindima, 488 F.3d 81 (2d Cir. 2007) ...... 127
x United States v. Smith, 374 F.3d 1240 (D.C. Cir. 2004) ...... 156
United States v. Smith, 445 F.3d 1 (1st Cir. 2006) ...... 172
United States v. Somerstein, 20 F. Supp.2d 454 (E.D.N.Y. 1998) ...... 195
United States v. Sun-Diamond Growers of Cal., 526 U.S. 398 (1999) ...... 206
United States v. Tann, 2009 WL 1605124 (2d Cir. Jun 9, 2009) ...... 160
United States v. Thompson, 484 F.3d 877 (7th Cir. 2007) ...... 205, 208
United States v. Tom, 2009 WL 1705604 (10th Cir. 2009) ...... 162
United States v. Trupin, 475 F.3d 71 (2d Cir. 2007) ...... 202
United States v. Urciuoli, 513 F.3d 290 (1st Cir. 2005) ...... 205
United States v. Walker, 490 F.3d 1282 (11th Cir. 2007) ...... 208
United States v. Ware, 2009 WL 102215 (S.D.N.Y. Jan. 14, 2009) ...... 203
United States v. Watts, 2008 WL 5099960 (2d Cir. Dec. 3, 2008) ...... 127
United States v. Welch, 327 F.3d 1081 (10th Cir. 2003) ...... 208
United States v. West, 383 F. Supp.2d 517 (S.D.N.Y. 2005) ...... 127
United States v. Williams, 475 F.3d 468 (2d Cir. 2007) ...... 160
United States v. Woods, 159 F.3d 1132 (8th Cir. 1998) ...... 195
United States v. Woodward, 149 F.3d 46 (1st Cir. 1998) ...... 151, 154
United States v. Wurzinger, 467 F.3d 649 (7th Cir. 2006) ...... 172
Wasman v. United States, 468 U.S. 559 (1984) ...... 148
Weyhrauch v. United States, 548 F.3d 1237 (9th Cir. 2008), granting cert., in part, by 129 S.Ct. 2863 (Jun. 29, 2009) ...... 204
xi FEDERAL AND STATE STATUTES
N.Y. Public Officers L. § 74(2) ...... passim
18 U.S.C. § 1001 ...... 156
18 U.S.C. § 1341 ...... passim
18 U.S.C. § 1346 ...... passim
18 U.S.C. § 1957 ...... 156
18 U.S.C. § 3553 ...... passim
U.S.S.G. § 2C1.1 ...... passim
U.S.S.G. § 2C1.3 ...... passim
U.S.S.G. § 2C1.7 ...... 153-157
U.S.S.G. § 2C1.1(b)(2) ...... 202, 203, 215
U.S.S.G. § 5F.1.2 ...... 2, 148, 230
U.S.S.G. Amend. 619 (Nov. 1, 2001) ...... 152, 153
U.S.S.G. Amend. 666 (Nov. 1, 2004) ...... 153
U.S.S.G. Amend. 679 (Nov. 1, 2005) ...... 153
OTHER AUTHORITIES
John A. Beck, Compassionate Release From New York State Prisons: Why Are So Few Getting Out?, 27 J.L. MED. & ETHICS 216 (1999) ...... 172
Jason S. Ornduff, Releasing the Elderly Inmate: A Solution to Prison Overcrowding, 4 ELDER L.J. 173 (1996) ...... 172
xii Notes, A Matter Of Life And Death: The Effect Of Life-Without-Parole Statutes On Capital Punishment, 119 HARV. L. REV. 1838, 1852-53 (Apr. 2006) ...... 179
Ryan J. Huschka, Sorry For The Jackass Sentence: A Critical Analysis Of The Constitutionality Of Contemporary Shaming Punish Punishments, 54 U. KAN. L. REV. 803 (Apr. 2006) ...... 179
Judi Villa, Growing Old in Prison –Aged Inmates’ Care Puts Stress on State, ARIZ. REPUBLIC, May 8, 2005, at A1...... 179
Sunny Kaplan, Health Care Costs Rising As Prison Population Grows and Ages, Stateline.org (June 24, 1999) ...... 179
U.S. Sentencing Comm., “Measuring Recidivism: The Criminal History Computation Of The Federal Sentencing Guidelines” (2004) (www. ussc.gov/publicat/Recidivism_General.pdf) ...... 201
xiii I.
PRELIMINARY STATEMENT
This Memorandum is respectfully submitted on behalf of the defendant Anthony Seminerio.
On October 20, 2009, a hearing will be held before this Court, pursuant to United States v. Fatico,
579 F.2d 707 (2d Cir. 1978), to address factual issues relevant to the sentence to ultimately be imposed upon Mr. Seminerio by this Court.
On June 24, 2009, Mr. Seminerio pleaded guilty to a single Count of Scheme to Defraud the
Public of Honest Services (18 U.S.C. Sections 1341 and 1346), by violating N.Y. Public Officers
Law Section 74(2)1 because he failed to disclose a conflict of interest he had in the discharge of his official duties as an elected New York State Assemblyman. Mr. Seminerio has taken full responsibility for the criminal conduct to which he pleaded guilty in connection with his consulting company, Marc Consultants.
As Mr. Seminerio explained in his own words in his letter to Your Honor:
“I knew that there were limitations on what I could and could not do as a consultant – I could not work on State matters – and I was always transparent about my consulting work....
On July 10, 2008 – during the same time that my consulting company, Marc, was being paid a consulting fee from Jamaica Hospital for the purpose of advancing Jamaica Hospital’s interests in non-New York State matters – I spoke to Dennis Whalen, who had just been promoted to the position of Interim Director of State Operations, from his prior position as New York State Deputy Secretary for Health and Human Services.
Your Honor, [during that July 10, 2008 telephone conversation with Mr. Whalen,] I praised and promoted Jamaica Hospital, which is what
1Section 74(2) of the “Code of Ethics” of the New York Public Officers Law – the “Rule with respect to conflicts of interest” – states, in relevant part, that, “No ... member of the legislature ... should ... engage in any ... professional activity ... which is in substantial conflict with the proper discharge of his duties in the public interest.” I pleaded guilty to, and I make no excuse for my conduct. What I did was wrong and illegal. I knew that I was not permitted to advocate on behalf of a client – Jamaica Hospital – before Mr. Whalen and his agency, but I did. This was not a premeditated act on my part, it was an angry response (albeit an unthinking angry response) to Senator [Carl] Kruger’s misuse of my name to advance his own agenda. I knew – in fairness and by what is expected of me by the law – in that conversation with Mr. Whalen that I should have disclosed to Mr. Whalen, who was a representative of a State agency, the fact that I was being paid a consulting fee by Jamaica Hospital. I fully understand that my conduct deprived the public of honest services by me – honest services which the public deserves.” (Exh.2 A)
Mr. Seminerio is 74 years old and, indeed, at the twilight of his life; and with the exception of his involvement in the crime which brings him before this Court, Mr. Seminerio has lived a fundamentally good, decent and law-abiding life as an honest and successful public servant, who worked hard to provide for his family and his community. The criminal conduct to which Mr.
Seminerio pleaded guilty represents an extremely aberrant and atypical episode during the otherwise unblemished 74 years of his life. Notwithstanding his admitted misconduct, it is clear beyond doubt, as evidenced by the more than 300 letters submitted on his behalf to Your Honor, that Mr. Seminerio is a dedicated husband, parent, grandparent, and community leader and advocate, who shares the love and support of his family, friends, colleagues, constituents and members of his community who know him best.
The defense has calculated Mr. Seminerio’s adjusted offense level to be 4, pursuant to the of the United States Sentencing Guidelines (the “Guidelines”), which corresponds to an advisory
Guidelines range of 0 to 6 months. At Mr. Seminerio’s sentencing before Your Honor, we will ask this Court to impose a sentence of home detention, pursuant to U.S.S.G. Section 5F.1.2. We
2“Exh.” followed by a letter refers to Exhibits in the three (3) accompanying “Exhibit Books” to this Memorandum of Law.
2 respectfully submit that a sentence of home detention is consistent with the advisory Guidelines and is warranted based upon the factors set forth in 18 U.S.C. Section 3553 and the totality of circumstances of this case, including the nature of Mr. Seminerio’s offense and the history and characteristics of his entire life.
In the event that this Court determines that Mr. Seminerio’s adjusted offense level is greater than level 4, this Court also has the discretion to depart downward from the Guidelines and to impose a non-Guidelines sentence, pursuant to U.S.S.G. Sections 5H1.1, 5H1.4, 5H1.11, 5K2.20, and 18 U.S.C. Section 3553, and the cases that have interpreted those Sections, based upon the totality of circumstances of this case, including the nature of Mr. Seminerio’s offense and the history and characteristics of his entire life. We understand that a downward departure and the imposition of a non-Guidelines sentence require an extraordinary set of mitigating circumstances, which we respectfully submit are present in Mr. Seminerio’s case.
The aberrant and isolated nature of Mr. Seminerio’s criminal conduct and the extraordinary set of mitigating circumstances in this case have been lost on the Government, resulting in a sharp disagreement between the Government and the defense with respect to the advisory Guidelines calculation in this case. The Government has calculated Mr. Seminerio’s adjusted offense level to be 33, which corresponds to an advisory sentencing range of 135 to 168 months.3
3The Government’s June 23, 2009 letter (Exh. D), submitted to the defense pursuant to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991) (the “Pimentel Letter”), sets forth the Government’s position, as of that date, as to the advisory Guidelines range in Mr. Seminerio’s case. The Government’s September 24, 2009 Memorandum (Exh. E, “Gov. Memo.” or “Loss Memorandum”), sets forth the Government’s position, as of that date, as to the loss calculations, pursuant to the Guidelines.
3 The Government’s Guidelines calculation, which is almost entirely driven by the
Government’s flawed loss calculation, is predicated upon the Government’s theory that, since 1998,
Mr. Seminerio was corrupt at every turn and in virtually everything he did. The Government has wrongly claimed that Mr. Seminerio engaged in decade-long corrupt scheme of “selling his
[political] office,” through a “shell” consulting company, which Mr. Seminerio used to collect corrupt payments through extortion, political blackmail and strong-arm tactics. (See Exh. E, Gov.
Memo., pp. 1-3, 5; Exh. B, Indictment.) We respectfully, but strongly, submit that the Government’s strained view of the facts is simply not supported by credible evidence and cannot be squared with the facts underlying this case.
Mr. Seminerio further writes in his letter to Your Honor:
“I want to tell you about my consulting work and the isolated crime I committed. I want to emphasize that I fully understand that there is no excuse for my crime. However, I am not guilty of all of the horrible allegations made against me by the Government.” (Exh. A)
The true nature of Mr. Seminerio as a person and the circumstance of his aberrant and isolated criminal conduct during the otherwise unblemished 74 years of his life stand in stark contrast to the Government’s unrealistic view of this case. Indeed, first and foremost, this case is about a dedicated husband, father, grandfather and public servant, who for nearly five decades dedicated his life to serving the greater needs of his community.
At Mr. Seminerio’s sentencing before Your Honor, we will ask this Court to impose the individualized sentence of home detention. As we discuss later in this Memorandum, we base our request for this individualized sentence upon the following:
• Mr. Seminerio has taken full responsibility and blames no one but himself for the isolated crime he committed; and Mr. Seminerio fully understands that
4 there is no excuse for his crime – but he is not guilty of all of the horrible allegations made against him by the Government.
• The criminal conduct to which Mr. Seminerio pleaded guilty represents an extremely aberrant and atypical episode during the otherwise unblemished 74 years of his life and nearly 50 years of dedicated public service. Until the action which brought him before this Court, Mr. Seminerio was proud of the life he led; proud of who and what he was; and proud of what he had accomplished for his family, his community and his many friends.
• For nearly five decades, as a Correction Officer and Union leader, and as a 16-time elected New York State Assemblyman, Mr. Seminerio selflessly dedicated himself to serving the needs of others – and, in doing so, Mr. Seminerio personally helped to change and improve the lives of literally thousands of people.
• This aberrant episode involved Mr. Seminerio, on a single occasion, in connection with a New York State agency, advocating on behalf of his consulting client, Jamaica Hospital, without disclosing that consulting relationship to the New York State agency. Mr. Seminerio praised and promoted Jamaica Hospital, which is what he pleaded guilty to; and Mr. Seminerio knew that what he did was wrong and illegal. This was not a premeditated act by Mr. Seminerio – rather, it was an angry response (albeit an unthinking angry response) to Senator Carl Kruger’s misuse of Mr. Seminerio’s name to advance his (Senator Kruger’s) own agenda.
• Mr. Seminerio’s motive for his criminal conduct, although in no way an excuse, was that he became angered that another politician had misused his name to achieve what Mr. Seminerio believed would not have been in the best interests of the members of his community – the financial benefit was never his primary motivating factor. However, Mr. Seminerio clearly knew that it was wrong and illegal not to disclose that he was a paid consultant. (The facts relating to Mr. Seminerio’s criminal conduct are further discussed later in this Memorandum.)
• Mr. Seminerio knows that because of the wrong decision that he, and he alone, has made in his life, he has undermined his ability to spend whatever time he has left with his wife, children and grandchildren.
• There is also the serious matter of Mr. Seminerio’s health. Mr. Seminerio has been advised by his doctor that, given his extraordinary health problems, he is at high risk for recurrent congestive heart failure, myocardial infarct, stroke and even death, and will likely not live out a prison sentence. (See
5 Exh. F, Sept. 29, 2009 Medical Report of Calogero Tumminello, M.D.) Indeed, at the age of 74, and with his whole life behind him, Mr. Seminerio is already a prisoner, because although his mind is functioning, he is trapped in a body that both does not work and is failing him badly.
• Mr. Seminerio understands that any period of incarceration will likely mean that he dies in prison. On the other hand, if this Court imposes a sentence of home detention, Mr. Seminerio will be punished in such a way that he will be able to spend at least some of the rest of his life with his family.
• Finally, although not directly related to the sentence that Your Honor will impose in this case, Mr. Seminerio realizes how terribly he has hurt his family, friends, constituents and the community in which he lives. Mr. Seminerio now stands before Your Honor, an old and broken man – a convicted felon – who has lost the respect which had meant so much to him and which he had spent the better part of his life earning. Whatever sentence is imposed upon him, Mr. Seminerio will never be able to change the fact that he will forever be labeled a convicted felon in the eyes of his wife, his children and his grandchildren.
The discussion in this Memorandum is not intended to mitigate in any way the serious misconduct which brings Mr. Seminerio before this Court. Rather, we provide this information to portray a more personal view of Mr. Seminerio as an individual, and a dedicated husband, parent, grandparent, and community leader and advocate, in the belief that a full explanation of the circumstances of Mr. Seminerio’s offense, in the context of his life, will demonstrate the appropriateness of imposing the individualized sentence of a term of home detention so that Mr.
Seminerio may live out the rest of his life with his family.4
4This Memorandum will not address the factual and legal claims made by the United States Department of Probation in its Presentence Investigation Report (“PSR”). Although the PSR is dated September 18, 2009, as a result of what we have been advised was an inadvertent and unintended clerical error by the Department of Probation, the defense did not receive the PSR until October 6th. During an October 7th telephonic conference call between the Court, the Government and the defense, it was agreed that: Mr. Seminerio will not be sentenced on October 20th; the purpose of the October 20th hearing is to address the issue of “loss” amount for purposes of Guidelines calculations; and the defense will be permitted to submit any objections to the PSR after the October 20th hearing.
6 II.
BACKGROUND AND PERSONAL HISTORY OF MR. SEMINERIO.
A. MR. SEMINERIO’S FAMILY.
Mr. Seminerio is 74 years old. At the twilight of his life, and with the exception of his involvement in the crime which brings him before this Court, Mr. Seminerio has lived a fundamentally good, decent and law-abiding life. He is an extraordinarily dedicated husband, parent, grandparent, and community leader and advocate, who shares the love and support of his family, friends, colleagues, constituents and members of his community who know him best.
Mr. Seminerio was born in February 1935 in Brooklyn, New York. At six years of age, Mr.
Seminerio’s whole life was turned upside down when his mother, Anna, died unexpectedly of heart complications. She was only 36 years old. Following his mother’s death, Mr. Seminerio was primarily raised by his father, Giovanni, and his older sister, Carmela. Mr. Seminerio’s father, the
Patriarch of the family, worked tirelessly at two jobs, as a construction worker and as a baker, to support his six children: Carmela, Mary and Antoinette; and Frank, Angelo and Mr. Seminerio. In addition to working long hours, Mr. Seminerio’s father always watched over his children, made sure they were clean and cared for and even helped with the household chores.
Mr. Seminerio, very early in his life, came to understand the challenges of a single-parent home, watching his father and siblings struggle financially and live a hand-to-mouth existence. Mr.
Seminerio grew up in a four-room apartment, heated by a single coal stove, on Pacific Street in
Brooklyn. Mr. Seminerio’s father slept in a small alcove; his three sisters slept in a bed together in the second bedroom; and Mr. Seminerio and his two brothers slept in a bed together in the third bedroom.
7 Mr. Seminerio’s oldest sister, Carmela, quit school when she was 15 years old in order to help care for her younger siblings and, in many respects, filled the role of their mother. When
Carmela married, Mary looked after the family, and then Antoinette stepped in after her. Mr.
Seminerio and all of his siblings had chores and contributed in and around the house, and they were all taught to cook, clean and take care of themselves. The life-lessons impressed upon Mr.
Seminerio growing up have had a lasting impact.
In order to help his father and contribute to his family, when Mr. Seminerio was nine years old, he began working after school and on weekends shining shoes and selling the newspaper (the
Journal American) in the East New York Long Island Railroad Station. In his October 1, 2009 letter to Your Honor, Mr. Seminerio writes of the jobs he had as a young child:
“Although the few dollars I earned was really never enough, I felt that it was my way of helping my father and family survive.” (Exh. A, Letter of Mr. Seminerio)
Though Mr. Seminerio and his siblings did not have much in the way of material possessions, they were raised to believe that the most precious thing one had in life was one’s family. That principle was reinforced by the hardships Mr. Seminerio and his siblings faced growing up, as they all learned to rely on and share with one another to get by. Not surprisingly, Mr. Seminerio has maintained his close and loving relationship with his siblings on into adulthood, and family has remained a central focus in his life.
In his letter, Mr. Seminerio recalls the hardships he and his family faced and overcame together when he was growing up:
“I grew-up in the poorest of Italian immigrant homes. My mother died when I was six years old, and my hard-working father, my two brothers, my three sisters and I struggled just to put food on the table
8 and coal in the single furnace in our kitchen that heated our tiny apartment. My two brothers and I shared one bed in one room; my three sisters shared a bed in another room; and my father slept by himself in a small alcove area. Because there was ice on the walls in the winter in the unheated rooms, we practically lived in the kitchen around the small coal stove. We were poor – but we were happy and thankful for what we had.” (Exh. A, Letter of Mr. Seminerio)
Mr. Seminerio graduated from Our Lady of Loretta grammar school, located on Pacific Street in Brooklyn, in 1949, and was awarded a partial scholarship to attend Brooklyn Preparatory High
School on Rogers Avenue in Brooklyn. During his first two years of high school, Mr. Seminerio worked part-time as a bike messenger for Western Union in Downtown Brooklyn. In his junior year of high school, Mr. Seminerio had to drop-out so that he could work full-time to help support his family. He was hired by a ship-building construction company on the dry-docks in Brooklyn, and worked as a gofer (collecting garbage, carrying tools for the laborers, etc.) until the company relocated to Philadelphia several years later. On Saturdays, he would deliver eggs door-to-door to customers in his neighborhood.
Mr. Seminerio subsequently found a job working on an assembly line building aircrafts for
Republican Aviation in Farmingdale, Long Island. For a short period of time, Mr. Seminerio worked for Corroon & Reynolds, an insurance company located in Manhattan, before he eventually went to work for his brother, Frank, in a candy store on Wyckoff Avenue in Brooklyn. Frank owned the candy store and Mr. Seminerio tended to customers and worked in the stockroom.
On March 9, 1957, Mr. Seminerio married his high school sweetheart, Catherine McCormick, whom he had met at a church dance when they were both 16 years old. One year after he was married, in 1958, Mr. Seminerio was drafted into the United States Army. After basic training, Mr.
Seminerio was transferred to Fort Jackson, South Carolina, where he was trained in telegraphy (then
9 Morse Code). During the same time that he was taking the telegraphy proficiency exams at Fort
Totten, New York, Mr. Seminerio also took and passed the General Education Development (GED)
Test, earning his High School Equivalency Diploma.
At the time Mr. Seminerio completed his telegraphy training, in late-1958, the Army did not have any open positions in telegraphy. Therefore, Mr. Seminerio was transferred to a missile base in Quincy, Massachusetts. Mr. Seminerio’s wife, Catherine, moved to the missile base with him, where they lived there together for several months. Mr. Seminerio served as an orderly, which was a position much like being a gofer for the Colonels and Majors on the missile base. In late-1959, when the Colonel who Mr. Seminerio reported to was transferred away from the missile base, Mr.
Seminerio requested to be relocated to New York to be closer to his family; and Mr. Seminerio was subsequently transferred to Fort Totten in Bayside, New York. After serving as a Colonel’s orderly at Fort Totten for approximately three months, he was transferred to Fort Tilden in Rockaway, New
York, to serve as a chauffeur because of his familiarity with the New York area.
Mr. Seminerio received an Honorable Discharge from the United States Army in 1960. He then went back to working at his brother’s candy store for several years, and he and his wife,
Catherine, began to start a family. Mr. Seminerio and Catherine had their first child, John, in 1960; followed by their first daughter, Anna, a few years later; and their second daughter, Mabel, a few years after that.
As we discuss in detail below (pp. 15-18, infra), in June of 1964, while working as a foreman at ACE Dyeworks in Brooklyn, Mr. Seminerio received an offer to work for the New York City
Department of Correction (“Department of Correction”), which he accepted. (Mr. Seminerio had submitted an application to the Department of Correction four years earlier when he left the Army.)
10 While working as a Correction Officer, Mr. Seminerio simultaneously pursued a college degree through courses which were being offered to civil servants at the New York Institute of Technology
(“NYIT”). During the day, Mr. Seminerio would work as a Correction Officer on Rikers Island; and he attended classes four nights per week and for half a day on Saturdays at NYIT’s Westbury
Campus on Long Island. He received his Bachelor of Science degree from NYIT in 1978.
As further discussed below (pp. 19-21, infra), in 1978, Mr. Seminerio left the Department of Correction to run for political office as a Member of the New York State Assembly. Mr.
Seminerio was elected to the Assembly in 1978, and he spent the next 30 years of his life committed to helping his community and the people of the State of New York. During his entire life, the only thing to ever rival Mr. Seminerio’s commitment to his constituents has been Mr. Seminerio’s unwavering commitment and devotion to his family, whom he loves above all else.
As noted earlier, Mr. Seminerio married his high school sweetheart, Catherine, in 1957, and they have been married for 52 years. They have three children (John, Anna and Mabel) and eight grandchildren (Anton, Ryan, Anthony, Mary Kate, Cecilia, Mark, Annabel and Georgia). Mr.
Seminerio believed it was imperative that he instill in his children the same strong family values that he learned as child. He and Catherine raised their children in a warm and welcoming environment, emphasizing family and togetherness, but also hard work and responsibility. The importance of education in the development of one’s character and potential was also a prominent theme in the
Seminerio household, as evidenced by the fact that all three of Mr. Seminerio’s children have graduated from college and obtained advanced degrees. Mr. Seminerio believed it was his duty as a parent to ensure that his children received a good education. See Exh. J, Tab 184, Letter of Brian
McCarthy, Mr. Seminerio’s nephew (“[Mr. Seminerio] is the model of the ‘family man’ I strive to
11 be. As I grew older I saw his profound love and concern for his family. That love and interest enabled his children to succeed at what ever they decided to undertake. He supported and guided his children with their education being the focal point. Each of his children are successful, compassionate, giving people in their own right.”).
Mr. Seminerio and Catherine have lived in the same home, located at 109-56 111th Street in
Richmond Hill, Queens, for 45 years. The home, which they bought in 1964, is a two-family home with five rooms upstairs and five rooms downstairs. When Mr. Seminerio and Catherine were raising their family, Mr. Seminerio’s mother-in-law lived upstairs until she passed away. Later, when Mr. Seminerio’s father became ill, Mr. Seminerio moved him into the second floor and took care of him until he died in 1979.5
As Mr. Seminerio’s children have grown up and started families of their own, they have continued to enjoy an extremely close and loving relationship. Mr. Seminerio, Catherine and their children (and grandchildren) live near each other and see each other on a regular basis. They eat dinner together on Sunday nights, rotating locations between each other’s homes. Mr. Seminerio
5In Antoinette DeMarco’s letter to Your Honor, she explains that Mr. Seminerio has been her landlord for over 25 years. In the mid-1980s, Ms. DeMarco and her husband moved into Mr. Seminerio’s home, occupying three rooms on the second floor. Ms. DeMarco is now a widow living on a fixed-income and writes that even though Mr. Seminerio could charge a lot more for the space she rents, he asks her to pay only $260 per month. Ms. DeMarco notes that Mr. Seminerio has never suggested that she move and has never increased her rent more than a few dollars over the years.
Ms. DeMarco expresses a sense of comfort and security in her current living situation and hopes that she will continue to be able to live there. As Ms. DeMarco further writes in her letter, “I don’t think I would ever want to move from here as their home is close to all that I know. It is a worry for me the with Tony’s current legal problems and the financial expense of defending himself, they may have to sell their home....It would be devastating for me and for them as they have lived in the same home for over 40 years.” (Exh. J, Tab 81)
12 and Catherine try to spend as much time as possible with their three children and eight grandchildren.
A mere sampling of the hundreds of letters written to Your Honor on behalf of Mr.
Seminerio, confirm that, first and foremost, Mr. Seminerio is a caring and loving father, husband and grandfather:
• Toni Marie Marnick writes, “[Mr. Seminerio] is a wonderful caring man. He has always made his family feel safe and loved and that goes further than his children and wife ... he has always made me feel the same....As an uncle, father, husband, grandfather and son he is an amazing man we can always count on.” (Exh. J, Tab 11)
• Barry M. Weinberg, D.D.S., writes, “I have great respect for [Mr. Seminerio], the family man, the father, husband and elected official. I have seen and been part of good things he has participated in. I know I am not the only person who feels this way about him.” (Exh. J, Tab 279)
• Ed Donnelly writes, Mr. Seminerio “has been a good husband and father, solicitous of other people’s family members; particularly of those who are ill.” (Exh. J, Tab 92)
• Theresa M. Doherty writes, “I hope that you too can see his big heart, his love for his family and his respect for his neighborhood.” (Exh. J, Tab 90)
• Anthony Sarandrea writes, “Words cannot describe the love and caring that my uncle [Mr. Seminerio] had and has for his family, he lived and still lives for all of them....” (Exh. J, Tab 243)
• Frank and Jean Katsch write, “[Mr. Seminerio] is a loving husband and a doting father and grandfather to his children and grandchildren....[W]e would like to see Tony spend the rest of his days with his wife, children and grandchildren. His family means everything to him and they love him very much and would miss him terribly.” (Exh. J, Tab 147)
• Jacqueline O’Hagan writes, “I have known Tony over the years to be a great husband, father and friend....” (Exh. J, Tab 206)
13 • Diane E. Riepe-Hitchens writes, “Mr. [Seminerio] is a very kind, generous, giving person who loves his family unconditionally and his friends without hesitation.” (Exh. J, Tab 230)
• Anthony M. Cocchiola writes, “I’ve known Tony for about 15 year[s], he is a devoted family man, a person who has compassion for people in need and has been dedicated to helping all of his constituents as an Assemblyman for thirty years.” (Exh. J, Tab 66)
• Anita Seguine writes, “Not only was [Mr. Seminerio] an outstanding Assemblyman but he was a loving and loyal husband to his wife Catherine, his children, his grandchildren, and to all the citizens of his community....” (Exh. J, Tab 247)
• Anthony Russo writes, “[Mr. Seminerio] has always been devoted to his wife and children. They are his whole life.” (Exh. J, Tab 236)
• John J. McCormick writes,“I have had the privilege of meeting his wife and his children and marvel at the way they have been inspired by their father to pursue wonderful careers....He has devoted his entire life to helping others. I ask you to please let him come home to his family and enjoy the time he has left.” (Exh. J, Tab 185)
• Maria A. Thomson writes, “I have known our Assemblyman as a man of good character, a great representative who is devoted to his beautiful wife and family as a good husband and father.” (Exh. J, Tab 267)
• Rosemarie Montalbano, Esq., writes that Mr. Seminerio is “a man who has given himself so selflessly to so many people from so many various walks of life.” Ms. Montalbano feels truly blessed that Mr. Seminerio has always treated her like a family member, and observes, “I have never seen a man love his family and the people around him with such fulness.” (Exh. J, Tab 195)6
6Additional letters submitted on Mr. Seminerio’s behalf further attest to his devotion to his family as a loving and caring husband, father and grandfather. (See, e.g., Exh. J, Tab 76 [Letter of Carl Curto, extended family]; Exh. J, Tab 125 [Letter of Anthony Granato, constituent]; Exh. J, Tab 223 [Letter of Rose Ann Rao, constituent]; Exh. J, Tab 224 [Letter of Paula M. Reardon, family friend]; Exh. J, Tab 225 [Letter of Miguel Reyes, constituent]; Exh. J, Tab 231 [Letter of Hector Rivera, constituent]; Exh. J, Tab 248 [Letter of Edward H. Seguine]; Exh. J, Tab 194 [Letter of Tommy Modica, friend]; Exh. J, Tab 77 [Letter of Pat Dalia, friend].)
14 Mr. Seminerio realizes how terribly he has hurt his friends, his community, the public and, above all, his family; and that whatever sentence is imposed upon him, Mr. Seminerio will never be able to change the fact that he will forever be labeled a convicted felon in the eyes of his wife and family. In that regard, Mr. Seminerio has also come to recognize during this dark period of his life that he is extremely fortunate to have such a loyal and devoted family that has stood by his side with unconditional support. In light of Mr. Seminerio’s age and declining health (discussed infra, pp. 55-
58), we can only hope that Your Honor considers his entire life, his motivations, his health and his circumstances, and fashions a sentence that punishes him in a way that he might spend at least some of the rest of his life with his family.
B. MR. SEMINERIO’S CORRECTIONS AND UNION WORK.
As mentioned above, Mr. Seminerio began work as a Correction Officer for the Department of Correction in the summer of 1964. He was assigned to a new facility, known as “C-76,” that had opened up on Rikers Island.
Just a few weeks after being hired by the Department of Correction, Mr. Seminerio was presented with what was, in retrospect, a life-changing offer. A representative of the Correction
Officers Union, the Correction Officers Benevolent Association (“C.O.B.A. Union” or “Union”) came to Rikers Island to speak to all of the trainees about Union benefits. He told the trainees that they needed to elect a C.O.B.A. Union Delegate and the trainees chose Mr. Seminerio to represent them. In his position as Union Delegate, Mr. Seminerio went to meetings, took notes and kept his fellow officers informed of Union activity; and Mr. Seminerio became committed to improving the working conditions, training and benefits of all Department of Correction employees.
15 In 1972, Mr. Seminerio was elected to serve on the Executive Board of the Union and, over the next six years, worked his way through the ranks, from Third Vice President, to Second Vice
President, to First Vice President. As a C.O.B.A. Union Executive Board Member, Mr. Seminerio attended and conducted monthly Board meetings, and quickly learned all about the day-to-day operations of the C.O.B.A. Union, and developed a strong understanding of how to manage and tend to the needs, interests and agenda of the Union and its constituency.
In addition to his responsibilities on the C.O.B.A. Union’s Executive Board, Mr. Seminerio was appointed to serve as the Union’s Grievance Officer. In that capacity, Mr. Seminerio was available “24/7” to assist other members of the Union, including representing Correction Officers in grievance procedures, and serving as a liaison between the Union and the institutional commander.
While serving on the C.O.B.A. Union’s Executive Board, Mr. Seminerio was also tasked with serving as the Union’s fiduciary, and was entrusted to oversee the investment of $9 million in benefit funds belonging to the Union’s membership.
Over the years, Mr. Seminerio became increasingly involved in extensive contract negotiations on behalf of the Union, including lobbying and advocating on behalf of the Union’s members for: health and dental insurance benefits; maternity leave; retirement benefits; uniforms; etc. Mr. Seminerio’s role on the Executive Board extended to traveling one to two times per week to Albany (and sometimes to Washington, D.C.) to lobby for legislation on behalf of the Union.7
7In the mid-1970s, Mr. Seminerio helped found the New York State Peace Officer’s Association (“NYSPOA”), comprised of all Peace Officers working within the State of New York, including, for example: State and City Correction Officers; Sheriffs; Marshals; Constables; Court Officers; Metropolitan Transit Authority Bridge and Tunnel Officers; etc. Mr. Seminerio’s primary purpose in founding the NYSPOA was to attempt to unite all Peace Officers into one organization in order to: promote and improve the safety, training and benefits of its membership; enhance the (continued...)
16 Mr. Seminerio was a valued member of the Department of Correction, not merely as a dedicated representative for Correction Officers’ needs, but also as a trustworthy, reliable and skilled on-the-job Correction Officer. Mr. Seminerio’s admirable work as a Correction Officer and as a member of their Union is evidenced by the numerous letters written by Mr. Seminerio’s past colleagues in Corrections, including, but not limited to:
• Michael Koch, a retired Assistant Deputy Warden for the City of New York, writes on behalf of Mr. Seminerio, whom he has known for over 35 years. They first met when Mr. Seminerio was serving on the Executive Board for the Correction Officers Benevolent Association. In his letter to Your Honor, Mr. Koch explains how Mr. Seminerio, as an older colleague in the profession, graciously offered him his advice, encouragement and friendship. (Exh. J, Tab 155)
• John P. McHugh, a former New York City Correction officer and retired First Deputy Chief Clerk, New York County, Criminal Term, describes the stressful and often dangerous conditions that Correction Officers worked under at Rikers Island during the 1960s, having no defensive weapons besides their “wits” and their “guts.” Nonetheless, Mr. McHugh always felt “secure” when he worked with Mr. Seminerio, and writes, “I know, and the other [Correction Officers] knew that ‘No matter what came up, Tony wouldn’t let you down!’” (Exh. J, Tab 187)
• Reverend Winston M. Clarke, a former New York City Correction Officer and current minister with the First Reformed Church in Mount Vernon, New York, worked with Mr. Seminerio on Rikers Island during the 1960s. Rev. Clarke describes Mr. Seminerio as a loyal advocate for the other Correction Officers, and he describes Mr. Seminerio as “a very vocal individual, standing up for those officers who needed help.” (Exh. J, Tab 64)
• Ralph Perricelli, a former New York City Correction Officer who worked with Mr. Seminerio, writes, “Anthony and I met each other in the late 1960s while working as Correction Officers for the New York City Department of Corrections. We worked side by side for many years. Anthony was always
7(...continued) value of Peace Officers within their respective communities; and facilitate and cultivate camaraderie and cooperation between the NYSPOA membership and all Law Enforcement Agencies and Police Organizations.
17 dedicated to the job and to creating a better work environment for his co workers. This dedication was evidenced by his eventual rise to an executive board position with The Correction Officers Benevolent Association.” (Exh. J, Tab 211)
• Joseph Di Gregorio, a former New York City Correction Officer who worked with Mr. Seminerio, writes, “In 1964 we met as new correction officer[s] on Riker’s Island. Anthony took much of his time helping other new officers adjust to the tough task and work of correction.” (Exh. J, Tab 85)
• James T. Garvey, Jr., was a 23-year-old, “new jack” Correction Officer when he first partnered with Mr. Seminerio. At the time, Mr. Seminerio had been working as a Correction Officer for only two months, but Mr. Garvey thought he had “the confidence and demeanor of a seasoned officer.” Mr. Garvey further writes that Mr. Seminerio always “treated the inmates with a dignity and respect that came from strength, not weakness.” (Exh. J, Tab 117)
• Joseph Capone, a former New York City Correction Officer, writes that during the entire period of time that he worked with Mr. Seminerio, from 1964 to 1978, Mr. Seminerio was “dedicated to the Department and his co-workers.” (Exh. J, Tab 50)
• Eugene Maroney, a former New York City Correction Officer, remembers the confidence he had working with Mr. Seminerio because he knew Mr. Seminerio was a fellow officer whom he could trust and rely upon. He writes, “[Correction Officers] are a brotherhood of men and women working with a true reliance on integrity, ability and character. This was so evident in Tony from my first meeting....It was truly a comfort for me when I worked with Tony in the buddy-system, where would be paired off for mutual safety and assistance.” (Exh. J, Tab 179)
Many of Mr. Seminerio’s fellow officers were sad to see him leave the job when he decided to run for the New York State Assembly, but as Mr. Maroney acknowledges in his letter to Your
Honor, “Corrections loss was definitely Tony’s constituents[’] gain.” (Exh. J, Tab 179)
18 C. MR. SEMINERIO’S POLITICAL CAREER.
1. THE CIRCUMSTANCES LEADING TO MR. SEMINERIO’S DECISION TO RUN FOR THE NEW YORK STATE ASSEMBLY IN 1978.
In 1978, Mr. Seminerio was working as a Correction Officer, had just completed a Bachelor of Science degree at New York Institute of Technology (NYIT) and was contemplating continuing his education by attending law school. He was heavily engaged in Union activities, including: serving on the Executive Board as the First Vice President of the C.O.B.A. Union; traveling one to two times per week to Albany (and sometimes to Washington, D.C.) to lobby for legislation on behalf of the Union; and attending State campaign and election activities and numerous legislative functions.
Mr. Seminerio’s work for the Union in Albany gave him the opportunity to meet both State legislators and other union officials from other industries, and to work hand-in-hand with them to meet the needs of each of their respective constituencies. Mr. Seminerio was hoping to build on his knowledge and experience from having served as an advocate for his fellow Correction Officers, ensuring that their voices were heard by the State government, and run for the President of the
C.O.B.A. Union – fortunately, Mr. Seminerio never had the opportunity.
In 1978, when the incumbent Republican Assemblyman of Mr. Seminerio’s District (the 31st
Assembly District8), Alfred A. DelliBovi, announced that he would be running for the United States
House of Representatives, his Assembly seat became vacant. Many of the members of Mr.
Seminerio’s Union and his community, as well as other union officials in other industries and
8sIn 1978, the New York’s 31 t Assembly District comprised Woodhaven, Richmond Hill, Ozone Park and sections of Glendale in Queens. In the early 1990s, most of the areas covered by the 31st Assembly District were re-zoned as the 38th Assembly District.
19 legislators he had met in Albany and throughout the State, encouraged Mr. Seminerio to run for
Assemblyman. Members of the C.O.B.A. Union and other people believed that Mr. Seminerio made an excellent candidate for Assemblyman based upon his extensive experience as a lobbyist and his proven willingness and ability to listen to other people, to understand their needs and to effectuate change where change was needed most.
Although Mr. Seminerio knew that it was very unlikely he would win the election for
Assemblyman, he did not want to look back at his life knowing that he had missed out on a possible opportunity to have truly helped other people. Mr. Seminerio also believed that, at the very least, running for the Assembly would provide him with valuable learning experience, which he could use if he someday later decided to run for President of the C.O.B.A. Union.
With the help of his family and friends and various campaign groups, Mr. Seminerio raised
$19,000 to run his campaign (which was organized out of his backyard). Mr. Seminerio’s campaign slogan was simply: “Time For A Change – Be Honest With The People.” Throughout the campaign,
Mr. Seminerio pledged to voters that he would help solve their problems, and if he did not know the answer to a particular problem or question, he would do his best to find that answer or solution – a promise he kept for the 30 years he served as a public official.9
Apparently, Mr. Seminerio’s message resonated with voters because, in November 1978 – by the narrowest of margins, 131 votes out of more than 40,000 votes cast – Mr. Seminerio became
9See Exh. J, Tab 106, Letter of Margaret Finnerty (Ms. Finnerty first met Mr. Seminerio when he decided to run for Assemblyman in 1978, and many of her family members became involved in his campaign. Ms. Finnerty writes of the admirable way in which Mr. Seminerio conducted himself during the campaign and after he was elected, “[Mr. Seminerio] believed in treating people [] nice. He ran his campaign with respect and dignity. He never tolerated bad words or comments about other candidates.”).
20 the first Democrat in 27 years to be elected to the office of Assemblyman for the 31st Assembly
District.10 It was Mr. Seminerio’s first win in what would become a streak of 16 electoral wins.
2. MR. SEMINERIO’S 30 YEARS OF DEDICATED SERVICE TO THE PUBLIC AS A NEW YORK STATE ASSEMBLYMAN.
When Mr. Seminerio took office as an Assemblyman in January 1979, he did so with the knowledge that he had earned his seat by only a very small margin of votes. He wanted to prove to his entire District that he took his position very seriously and was completely dedicated to meeting the needs of his constituents. Therefore, he immediately went to the then-Speaker of the Assembly,
Stanley Fink, and asked for the authority to open two District Offices in order to make himself and his staff as accessible as possible to his constituents. Mr. Seminerio’s request was granted, and he opened two Districts Offices (located at 107-05 Jamaica Avenue in Richmond Hill, and 68-28 Myrtle
Avenue in Glendale), in addition to his office in the Legislative Office Building in Albany. Those offices remained open for 30 years until Mr. Seminerio’s resignation from the Assembly in 2009.
From the moment Mr. Seminerio was first elected, he recognized that his job was to serve the people, plain and simple. For the 30 years that followed, Mr. Seminerio remained steadfastly committed to improving the lives of his constituents and, indeed, all New Yorkers – whether it be through legislation, acquiring State-funding for valuable community services or simply always being available to assist members of his community with their problems.11
10Even after he was elected, for a period of time, Mr. Seminerio worked part-time at various jobs to help support his family.
11Numerous letters submitted on Mr. Semineiro’s behalf confirm his character traits of honesty and decency. (See, e.g., Exh. J, Tab 240 [Letter of Gurbhej Sandhu, constituent]; Exh. J, Tab 255 [Letter of Harmal Singh, constituent]; Exh. J, Tab 257 [Letter of Kulbir Singh, constituent]; Exh. J, Tab 258 [Letter of Param Partap Singh, constituent]; Exh. J, Tab 261 [Letter of Satnam (continued...)
21 Mr. Seminerio firmly believed that one of the most important aspects of being an
Assemblyman was making himself accessible to his constituents and having a presence throughout his community. When he was not in Albany, Mr. Seminerio was splitting his time between his two
District Offices – where he sat with the door open, waiting to meet with whomever came in, to listen to their problems and to see how he could help. He believed that actually speaking to his constituents regularly, face-to-face, was the best way to truly understand the needs of the people and how to best fulfill those needs.12
It was particularly important to Mr. Seminerio that his constituents understood that they could and should always come to Mr. Seminerio for help. Often a problem that may have seemed insurmountable to a member of the public, could, in fact, be solved with relative ease with the help of Mr. Seminerio and his staff. Mr. Seminerio enjoyed using his knowledge and resources to provide people with advice, direction and solutions; and much meaning in Mr. Seminerio’s life was derived from making a positive and tangible difference in people’s lives everyday.
11(...continued) Singh, constituent]; Exh. J, Tab 260 [Letter of Sardul Singh, constituent]; Exh. J, Tab 148 [Letter of Mandep Kaur, constituent]; Exh. J, Tab 149 [Letter of Rajbinder Kaur, constituent]; Exh. J, Tab 150 [Letter of Tarsem Kaur, constituent]; Exh. J, Tab 256 [Letter of Inridit Singh, constituent]; Exh. J, Tab 259 [Letter of Santokh Singh, constituent].)
12See Exh. J, Tab 144, Letter of Summer Jones (“[Mr. Seminerio] is different from most politicians, because he actually cares about the people. Tony has always gone out of his way to assist the people from the community that he does not even know. He is an extremely compassionate man....”); Exh. J, Tab 159, Letter of Paul R. Kurtz (“I have encountered many fine men who truly [knew] what it meant to sacrifice for the public good. Tony is one of the best, a dedicated family man and friend.”); Exh. J, Tab 202, Letter of Sister Margaret Nulty (“ ... I can honestly say Anthony Seminerio is one of a kind – his incredibly generous spirit and deeply rooted values are unique....His empathy and compassion for others has also been consistent throughout the years I have known him....Tony is, in fact, a man of faith who has lived out the gospel message to love one another.”).
22 The literally dozens of letters from constituents and community members confirm that Mr.
Seminerio’s constituents, no matter how young or old, understood that they could and should always come to Mr. Seminerio for help no matter whether the problem was big or small:
• Margaret Polino, a family friend, writes, “For [Mr. Seminerio], no problem was too big or too small. He treated everyone with respect and genuinely tried to help everyone who walked through his office door. Sometimes a person who lived in another Assembly district would come into the office.... [Mr. Seminerio] offered his assistance just as he did for everyone else.” (Exh. J, Tab 214)
• Joe Caruana writes on behalf of his former Assemblyman, Mr. Seminerio, “[Mr. Seminerio] is a man of integrity and would always go above and beyond for everyone who needed his help. His never ending energy and smiling nature was an inspiration for his constituents of all ages....He is never too busy to listen. He is available 24x7 and I have seen constituents asking his help no matter where he goes, [whether] it is in his office, after church, at a street festival or the diner. He is always receptive and polite and genuinely tries to help. He is a man of his word....His dedication and devotion has inspired younger people to enter the law profession as well as politics. He has been a mentor and a guiding force to many in the community.” (Exh. J, Tab 54)
• Joann Hill thanks Mr. Seminerio for not letting her daughter “fall[] between the cracks,” and writes, “I wandered into Mr. Seminerio’s office and was surprised to be greeted by him rather than a secretary....He immediately welcomed me in, listened to my concerns held my hand and said ‘... Give me a few days, and let me see if I can help you.’ That is exactly what he did....Giving back to the community is what Mr. Seminerio really stands for and it is what sets him apart from others. He is approachable, caring and a man of his word.” (Exh. J, Tab 133)
• Kathleen Gould is a school teacher who has known the Seminerio family for 20 years. Over the years, Ms. Gould volunteered to help with Mr. Seminerio’s campaigns, and in doing so, was pleased to find that Mr. Seminerio felt it was important get young people involved in local politics, even though they could not yet vote for him. Ms. Gould writes, “It was evident, to me, that [Mr. Seminerio] reached out to the youth in the community and took the time to teach them about local politics. He was interested in all that they had to say and he felt that the student’s opinions
23 counted, even though they were not old enough to cast a ballot in his favor.” (Exh. J, Tab 124)
• Patricia Clune writes on behalf of her former Assemblyman, Mr. Seminerio, “[Mr.] Seminerio is the only politician I have ever known who welcomed ordinary people with problems, medical needs, handicaps, etc....and treated them all like VIP’s. He tried to help everyone and was 100% accessible, just a phone call away. That was the reason for his success as a politician.” (Exh. J, Tab 65)
• Josephine Modica writes on behalf of her former Assemblyman, Mr. Seminerio, “[Mr. Seminerio] has represented us and has assisted us tremendously with various problems we have faced throughout the years. His door was always open....I do hope you will bear in mind the wonderful work he has done, his commitment to the community and the difference he has made in our lives.” (Exh. J, Tab 193)
• Edna Marks John writes on behalf of her former Assemblyman, Mr. Seminerio, “... [W]hen I met with Mr Seminerio in his office in Queens and later in Albany he was very respectful, courteous, helpful to me with problems with my home, neighbors, etc. I can call upon him with my problems and he always directed me and advised me how I can solve my problems. I am writing you this letter to ask you to be very sympathetic to this elderly man who dedicated his life as an Assemblyman to our community as my community leader.” (Exh. J, Tab 142)
• Frank D’Esposito writes on behalf of his former Assemblyman, Mr. Seminerio, “I have known Assemblyman Anthony Seminerio for many years. In that time I have seen him work tirelessly for the district he represents....I find it noteworthy that anyone who wanted to be heard by Tony was never refused his time.” (Exh. J, Tab 82)
• Carlo Costanza writes on behalf of her former Assemblyman, Mr. Seminerio, “[Mr. Seminerio] has always represented an extremely diverse constituency, always with respect and care. He always had an open door to anyone who needed help, had concerns or just stopped by his office to say hello....Mr. Seminerio’s politics were always to support a good cause or idea regardless of party lines....” (Exh. J, Tab 71)
• Erma Aloisio writes on behalf of her former Assemblyman, Mr. Seminerio, “Tony was always readily available to help and never made me feel for one minute that you were imposing or inconveniencing him – quite the opposite – he truly enjoyed helping people. I cannot stress enough what a kind, caring,
24 individual he is with a big heart, a gentleman in every sense of the word. If you ran into him outside his office, he always made a point to say hello and ask how things were going and if he could be of any assistance with anything and you knew he meant it. He is genuine, sympathetic [and] easily approachable....” (Exh. J, Tab 20)13
Mr. Seminerio’s dedication and efforts to assist all members of his community with their problems and needs, no matter how large or small, are further confirmed by the numerous “thank you” notes written to Mr. Seminerio by constituents over the years, including, but by no means limited to14:
• Miramique Burgos, Director of Communications for Overcoming-Love Ministries in Woodhaven, Queens, on behalf of her Church, thanked Mr. Seminerio for his active role in reducing criminal activity in the area surrounding the Church, and wrote, “We thank you once again for your prompt response to, support of, and advocacy for our church and ultimately our children.” (Exh. K, Tab 1)
• Henrietta and Michael Goldfeder thanked Mr. Seminerio for his work supporting libraries, and specifically for his efforts in getting libraries to open six days per week, as opposed to only four or five. (Exh. K, Tab 2)
• Maria and Rafaelle Russo thanked Mr. Seminerio for his assistance in connection with a dirty sewer issue. (Exh. K, Tab 3)
13Many other letters submitted on Mr. Seminerio’s behalf, from other constituents, family members and members of the greater New York City community, confirm Mr. Seminerio’s accessibility to his constituents and willingness and eagerness to help others in any way possible. (See, e.g., Exh. J, Tab 24 [Letter of Butch Aurora and Mario Crociata, community members]; Exh. J, Tab 37 [Letter of Harvey Blas, community member]; Exh. J, Tab 94 [Letter of Andrew Drazic, constituent]; Exh. J, Tab 196 [Letter of Mary Morris, constituent]; Exh. J, Tab 238 [Letter of Thomas Russo, second cousin]; Exh. J, Tab 252 [Letter of Norma Shillito, constituent]; Exh. J, Tab 209 [Letter of Ishverlal G. Patel, constituent]; Exh. J, Tab 244 [Letter of Jerry Schneider, constituent].)
14We are attaching hereto as “Exh. K,” Tabs 1 through 34, letters received by Mr. Seminerio’s office over the years, from various constituents and community members thanking Mr. Seminerio for the assistance he provided.
25 • George Garcia thanked Mr. Seminerio and his staff for their assistance and direction regarding an immigration issue. (Exh. K, Tab 4)
• Joseph A. Faraldo, Esq., counsel to the owners of Don Peppe’s Restaurant in Ozone Park, Queens, thanked Mr. Seminerio for assisting Don Peppe’s Restaurant in its application for the renewal of a beer and wine license, and for being consistently available and responsive to any phone calls. Mr. Faraldo wrote, “We are very happy that you continue to support the people of the 38th District ... and that you have done so in quite an honorable and respectful fashion on behalf of your constituents for almost 30 years. Your efforts will never be forgotten.” (Exh. K, Tab 5)
• Frank Kraus, in a letter thanking Mr. Seminerio and his staff for their assistance in disputing an improper fee charged to him by the New York City Water Department, wrote, “I’m completely happy with and grateful to you for the fine help that you gave me in this matter. I will be very glad to tell everyone I know of the great helpfulness of you and your Staff.” (Exh. K, Tab 6)
• Jane Guzman thanked Mr. Seminerio for taking the time to listen to her and her husband and to review the information they provided to him, and for then sending a letter on her behalf to the Acting Commissioner of the New York City Department of Buildings requesting that the Department flag her file. Ms. Guzman wrote, “Knowing that you do work ‘for the people’ is the reason why we have voted for you. We greatly appreciate your assistance and support in this very important matter.” (Exh. K, Tab 7)
• Lisa Overton thanked Mr. Seminerio and his staff for their efforts in helping her find an apartment. (Exh. K, Tab 8)
• Richard A. Somes thanked Mr. Seminerio and his staff for their help in connection with a sanitation issue. (Exh. K, Tab 9)
• Ann Leiter, Principal of P.S. 56 in Queens, thanked Mr. Seminerio for getting the sink hole on 86th Avenue in Queens repaired “for the safety of the entire community.” (Exh. K, Tab 10)
• Kimberly Barnett, in a letter expressing her support and appreciation of Mr. Seminerio, wrote, “I want to write you to tell you what a wonderful, amazing and compassionate human being I think you are. You are the ONLY form of hope and peace my 7 children and I have had....Thank you, sir, for blessing us with the privilege of being constituents for you. We felt personally cared for and regarded as human beings.” (Exh. K, Tab 11)
26 • Flo Anderson thanked Mr. Seminerio and his staff for the time and effort they put into preparing a citation as a gift for her mother. (Exh. K, Tab 12)
• Dr. Joseph L. Musso of Comprehensive Cardiovascular, P.C., thanked Mr. Seminerio for his advice regarding the difficult task of expanding his medical practice in Queens County. (Exh. K, Tab 13)
Education was an issue of particular importance to Mr. Seminerio, as he believed that a receiving a good education was one of the best ways for a person to ensure their future or to improve their current situation. Numerous letters submitted on Mr. Seminerio’s behalf confirm his commitment to supporting schools and encouraging people to pursue an education:
• Angelo A. DiGangi writes that Mr. Seminerio has provided him with much needed guidance and has been a “role model” and “source of inspiration” to him in his decision to attend law school. (Exh. J, Tab 87)
• Efthimia Tsavalias writes that it was Mr. Seminerio who inspired her to go to college, and who always told her that “[o]nly through education, you can make the world a better place.” (Exh. J, Tab 270)
• Adelina Yusupova writes that when her family first immigrated to the United States from Uzbekistan, Mr. Seminerio “was the man who reached out to us and made our American dream come true”; and when she was completing high school, Mr. Seminerio was the guiding force in her pursuit of a higher education, providing information and encouragement which has helped her achieve a Doctor of Pharmacy degree. (Exh. J, Tab 289)
• Palma Cardillo, a retired Assistant Principal in the Queens Public School system, confirms Mr. Seminerio’s unfailing willingness to assist her school in any way that he could by conducting assemblies, speaking at graduations or simply supplying certificates and medals to the students. (Exh. J, Tab 53)
• Margaret Polino writes that she is “truly grateful” for Mr. Seminerio’s advice and encouragement in her pursuit of a higher education. (Exh. J, Tab 214)
Apart from his commitment to being a hands-on community leader, Mr. Seminerio was guided in his activities as an Assemblyman by his belief that, in addition to a good education, all
27 people should be entitled to quality healthcare, affordable housing and a safe community in which to live. His strong family values translated into a deep respect for the elderly and concern for the needs of senior citizens; and his past service in the United States Army made him particularly sensitive to the issues affecting veterans.15 Mr. Seminerio viewed all proposed State legislation with those same values in mind, and was often quoted as saying that his method of evaluating legislation was: “If it’s good for me and my family, it might be good for you and yours.”
Mr. Seminerio’s voting reflects his focus on the issues that were important to his constituents, including: education, community safety, affordable housing and fair salaries.
For example, as an Assemblyman, Mr. Seminerio:
• Voted to override the Governor’s vetoes of funding for State and City colleges and universities, including funding for the highly successful Tuition Assistance Program.
• Supported the Assembly’s passage of legislation to protect tenants and allow New York City to strengthen local rent regulation laws to provide more comprehensive coverage than provided by State laws.
• Supported the passage of legislation to help end wage discrimination, including the enacting of the New York State Fair Play Act, which ensures that pay differentiation is not based on a person’s sex or national origin.
• Supported the Assembly’s passage of legislation and resolutions designed to support and emphasize the importance of public libraries in New York’s schools and communities.
15Mr. Seminerio’s commitment to the needs of the members of the United States Military, both active service men and women and veterans, is confirmed in many of the letters submitted to Your Honor on Mr. Seminerio’s behalf. (See, e.g., Exh. J, Tab 278 [Letter of Robert H. Wedinger, retired Brigadier General in the United States Army]; Exh. J, Tab 229 [Letter of William A. Riepe, former Commander of a local Queens American Legion Post]; Exh. J, Tab 281 [Letter of Thomas X. Winberry, former Commander of the Queens County American Legion]; Exh. J, Tab 284 [Letter of David Yee, World War II veteran].)
28 • Supported the Assembly’s passage of legislation aimed at better protecting New York’s families from dangerous sexual predators by providing for longer sentences for the worst sex crimes, civil commitment for dangerous predators and mandatory treatment for sexual offenders.
• Supported the Assembly’s passage of legislation to give law enforcement officers the tools necessary to track down illegal guns by focusing on gun dealers, to ban weaponry used to kill police officers and to keep guns out of the hands of felons.
• Supported the passage of legislation to allow immigrant aliens to receive medical assistance with less difficulty.
Mr. Seminerio’s focus on the issues that were important to his constituents, including issues related to quality of life, safety and education, as well as his focus on the unique needs of particular groups, such as children, senior citizens, veterans, public servants and small business owners, is further evidenced by the dozens of newspaper articles published over the years16 – which reflect Mr.
Seminerio’s view that the “main purpose” of being a legislature is create bills to “help” people17:
• Efforts By Mr. Seminerio To Improve Quality Of Life, Safety And Community Conditions:
< “Seminerio Praises New Law for Urban Revitalization,” The Leader Observer, noting that Mr. Seminerio supports new law to revitalize and rebuild urban neighborhoods in New York State. (Exh. L, Tab 1)
< “Praising Their Assemblyman,” New York Daily News, noting that the residents of 107th Street and Liberty Avenue thank Mr. Seminerio for assisting them with their rodent
16We are attaching hereto as “Exh. L,” Tabs 1 through 47, articles and excerpts from news publications, which were collected by Mr. Seminerio’s office over the 30 years he served as an Assemblyman.
17“Inquiring Reporters: Special Interest Pressure,” The Legislative Gazette, When asked if special interest groups are too powerful in the State Legislature, Mr. Seminerio responds, “ ... [T]he main purpose of being a legislator is to legislate bills that would help your district....My special interest group is the 31st Assembly District in Queens.” (Exh. L, Tab 47)
29 problem within one hour of their contacting his office. (Exh. L, Tab 2)
< “Hearing On Sanitation Held On Porch,” The Forum of South Queens, noting that Mr. Seminerio co-sponsored a public hearing to allow Richmond Hill residents the opportunity to question and to discuss their issues with the Department of Sanitation. (Exh. L, Tab 3)
< “Seminerio Calls For An Investigation Into Transporting Hazardous Waste,” The Forum of South Queens, noting that Mr. Seminerio urges Governor Mario Cuomo to establish a State Commission to create preferred routing for hazardous waste shipments which would keep such shipments out of heavily populated New York City neighborhoods. (Exh. L, Tab 4)
< “Seminerio Sponsors Legislation to Protect Water Supplies,” The Leader Observer, noting that Mr. Seminerio multi- sponsors legislation to prohibit the discharge of carcinogens and birth defect causing substances into water supplies. (Exh. L, Tab 5)
< “Seminerio Supports New Laws Regulating Handling Of Infectious Wastes,” The Leader Observer, noting that Mr. Seminerio supports laws aimed at protecting the public’s health by increasing State supervision and control over the disposal of infectious wastes from hospitals, clinics and nursing homes. (Exh. L, Tab 6)
< “Seminerio Angry About Subway Derailments,” The Leader Observer, noting that Mr. Seminerio, then-chairman of the Assembly Subcommittee on Transportation Safety, presided over a public hearing to address New York City train derailments and commuter safety and to “instill accountability into the Transit Authority.” (Exh. L, Tab 37)
< “Seminerio Supports Legislation Which Protects New Homeowners,” The Leader Observer, noting that Mr. Seminerio supports legislation increasing warranty protections for new home purchasers. (Exh. L, Tab 7)
30 < “WRBA 14th Annual Dinner Dance A Resounding Success,” The Leader Observer, noting that Mr. Seminerio was honored by the Woodhaven Residents’ Block Association for his support and assistance to the community of Woodhaven, Queens. (Exh. L, Tab 8)
< “Seminerio Talks At Rate Hearing,” The Forum of South Queens, noting that Mr. Seminerio introduced a bill making the Chairman of the Public Service Commission (which regulates and sets rates for the State’s utilities) an elected position, in an effort to increase the Commission’s responsiveness to the public. (Exh. L, Tab 9)
< “Seminerio Banking Bill Signed,” The Leader Observer, noting that legislation introduced by Mr. Seminerio was signed into law prohibiting banking institutions from imposing service charges on customers resulting from the bank’s mishandling of customer funds. (Exh. L, Tab 10)
< “Ferrini Welfare League Honors Seminerio,” The Leader Observer, noting that Mr. Seminerio received the Annual Bishop’s Award as Italian-American of the Year from the Ferrini Welfare League, which focuses on the issues faced by immigrants. (Exh. L, Tab 11)
< “Seminerio Hears Calls For Free Hearing Tests,” The Forum of South Queens, noting that Mr. Seminerio arranged for free hearing tests to be offered to the public by the Lexington School for the Deaf. (Exh. L, Tab 24)
• Efforts By Mr. Seminerio To Assist Senior Citizens:
< “Seminerio Votes for Home Heating Program,” The Leader Observer, noting that Mr. Seminerio voted for legislation to make home heating more affordable for senior citizens and to expand emergency fuel assistance. (Exh. L, Tab 12)
< “Senior Citizens Center Dedication,” The Forum of South Queens, noting that Mr. Seminerio was honored at the dedication of a new senior citizens’ center in Forest Park, Queens. (Exh. L, Tab 13)
31 < “First Client for ‘Meals on Wheels,’” Newsday, noting that Mr. Seminerio supports the Forest Park Senior Center’s new “Meals on Wheels” program. (Exh. L, Tab 14)
< “Seminerio Announces New Social Security Increases,” The Leader Observer, noting that Mr. Seminerio sponsored a bill which was signed into law to increase Social Security Income monthly benefits. (Exh. L, Tab 15)
< “Seminerio Helps Real Property Taxpayers,” The Leader Observer, noting that Mr. Seminerio supports new law which will help senior citizens and disabled taxpayers avoid tax sales. (Exh. L, Tab 16)
< “Increased Aid for Elderly Crime Victims,” The Leader Observer, noting that Mr. Seminerio co-sponsored a bill which was signed into law to allow elderly victims of crime to receive compensation for lost or damaged property. (Exh. L, Tab 17)
< “Senior Citizen Property Tax Exemptions Available,” The Leader Observer, noting that Mr. Seminerio co-sponsored a bill which was signed into law to provide senior citizen homeowners with real property tax exemptions, and that Mr. Seminerio has made applications for such exemptions available in his District Office. (Exh. L, Tab 18)
< “Charlotte’s Corner,” The Leader Observer, noting that the Director of the Richmond Hill Senior Center thanks Mr. Seminerio for his support in their move to a new location. (Exh. L, Tab 19)
< “Seminerio: Let Seniors Ride For Free,” The Leader Observer, noting that Mr. Seminerio co-sponsors legislation to provide free public transportation to senior citizens in New York City. (Exh. L, Tab 20)
< “Seminerio Supports Prescription Plan For Seniors,” The Leader Observer, noting that Mr. Seminerio supports the Prescription Drug Assistance Plan to lower prescription medication costs for senior citizens. (Exh. L, Tab 21)
32 < “Senior Praises Seminerio,” The Forum of South Queens, noting that “[t]here is someone who cares – Assemblyman Anthony Seminerio....His kindness and concern, as well as quick attention brought people to take action....” (Exh. L, Tab 22)
< “New Law Helps Elderly-Seminerio,” The Forum of South Queens, noting that Mr. Seminerio supports new law permitting senior citizen renters to terminate their lease upon acceptance into subsidized housing or residential care facilities. (Exh. L, Tab 23)
• Efforts By Mr. Seminerio To Advocate On Behalf Of Families, Children And Education:
< “Legislators Announce Funding For School Board 27 Program,” The Forum of South Queens, noting that Mr. Seminerio and other Queens Legislators acquired $100,000 in State funds for Community School Board 27’s “Gifted and Talented” program. (Exh. L, Tab 25)
< “Governor Signs P.S. 60 Mini-School Legislation,” The Leader Observer, noting that Mr. Seminerio sponsored a bill which was signed into law to construct a mini-school to help alleviate overcrowding in P.S. 60. (Exh. L, Tab 26)
< “Seminerio Launches 5th Annual Christmas Toy Drive,” The Leader Observer, noting that Mr. Seminerio sponsors toy drive for needy and hospitalized children. (Exh. L, Tab 27)
< “Seminerio Launches Kidsave Window Decal Lifesaving,” The Leader Observer, noting that Mr. Seminerio launches “KIDSAVE” Window Decal Lifesaving Program to alert firefighters to rooms where children sleep. (Exh. L, Tab 28)
< “NYS Seeks to Prevent Family Violence,” The Leader Observer, noting that Mr. Seminerio supports the Children and Family Trust Fund, developed by Governor Mario Cuomo and the State Legislature and administered by the Department of Social Services, to serve as a new source of funding for family violence prevention programs. (Exh. L, Tab 29)
33 < “Drug Abuse Prevention Bill Gets Seminerio’s Support,” The Forum of South Queens, noting that Mr. Seminerio co- sponsors legislation to require health education courses to stress the prevention of drug and substance abuse. (Exh. L, Tab 30)
< “Seminerio Alcohol Program Aimed at Young,” The Leader Observer, noting that Mr. Seminerio supports new alcohol abuse prevention program focusing on educating parents and children, which will be offered through community-based organizations throughout the State. (Exh. L, Tab 31)
< “Seminerio Supports Statewide Expansion of Poison Control Centers,” The Leader Observer, noting that Mr. Seminerio supports law establishing a Statewide network of poison control centers to reduce accidental poisoning and promote child safety practices. (Exh. L, Tab 32)
< “Seminerio Announces Bill on Seminars for Teen Suicide,” The Leader Observer, noting that Mr. Seminerio supports legislation requiring schools to educate young people on the basics of suicide prevention. (Exh. L, Tab 33)
< “Weinstein Legislation Requiring Tuition Refunds,” The Leader Observer, noting that Mr. Seminerio co-sponsors legislation requiring educational institutions to fully refund tuition payments when a student withdraws from the institution before the beginning of the term. (Exh. L, Tab 34)
< “Seminerio Works to Help Find Missing Persons,” The Leader Observer, noting that Mr. Seminerio co-sponsors legislation to permit the distribution of circulars containing information on missing persons in shopping malls and shopping centers, in an effort to reach a larger portion of the population. (Exh. L, Tab 35)
• Efforts By Mr. Seminerio To Advocate On Behalf Of Veterans, Public Servants And Small Business Owners:
< “Varied events honor fallen,” New York Daily News, noting that Mr. Seminerio was the Grand Marshall of a Forest Hills parade honoring Col. Jeromus Remsen and other soldiers of
34 the American Revolution, and declared May 30th to be “Remsen Day.” (Exh. L, Tab 36)
< “Bill would force Cuomo to give raise,” Knickerbocker News, noting that Mr. Seminerio co-sponsors legislation to deny the Governor his current right to withhold from managerial/confidential State employees raises which have been authorized by the Legislature. (Management/confidential employees are prohibited from forming unions of bargaining collectively with the State.) (Exh. L, Tab 38)
< “Seminerio Reports on Job Training,” The Leader Observer, noting that Mr. Seminerio informs constituents of the availability of, and eligibility requirements for, job training programs under the Job Training Partnership Act. (Exh. L, Tab 39)
< “Seminerio Announces 1987 Vets Legislation,” The Leader Observer, listing nine separate pieces of legislation passed in New York State in 1987 focusing on tax-related, education- related and other assistance to veterans and their families. (Exh. L, Tab 40)
< “Health Care at Top of Veterans Agenda,” The Leader Observer, noting that Mr. Seminerio took part in a symposium on “Long Term Care for Elderly Veterans,” to discuss the issue of affordable long term healthcare for veterans. Mr. Seminerio explained the efforts to address current problems: “‘To help serve veterans in need of care, the construction of a second state home for veterans is now underway in Stony Brook, Long Island. This $24 million facility should go a long way toward addressing some of the health care needs of veterans....’” (Exh. L, Tab 41)
< “Seminerio & Maltese Wage War Over Outrageous Tax Assessments,” Queens Chronicle, noting that Mr. Seminerio co-sponsors legislation to ease the tax burden placed on small businesses. (Exh. L, Tab 42)
< “Maltese Bill To Aid Corrections Officers Passes The Senate,” Queens Chronicle, noting that Mr. Seminerio co-
35 sponsors a bill to provide a pension plan to New York City Correction Officers. (Exh. L, Tab 43)
< “Dinkins Discovers Queens; Decides To Save Engine 294!” The Forum of South Queens, noting that Mr. Seminerio played a “significant role[]” in keeping Fire Engine Company 294 in Richmond Hill open for the safety of the neighborhood. (Exh. L, Tab 44)
< “Seminerio Helps Employees Learn of Available Benefits,” The Forum of South Queens, noting that Mr. Seminerio supports new law requiring insurance companies providing group health insurance coverage to small businesses to inform policy holders of all selectable benefit options. (Exh. L, Tab 45)
< “Police award,” The Legislative Gazette, noting that Mr. Seminerio received the Legislator of the Month Award from the New York State Federation of Police. (Exh. L, Tab 46)
During his 30 years in the Assembly, Mr. Seminerio served as a member of numerous
Assembly Committees, including Ways and Means, Governmental Employees, Labor, Cities, Banks and Racing and Wagering; and he served as the Chairman of the Assembly Subcommittee on
Transportation Safety. Mr. Seminerio also held several positions within the Assembly itself, including: Vice Chairman of the Democratic Conference; Chairman of the Legislative Commission on Public Management Systems; and Deputy Majority Whip.
Mr. Seminerio’s official actions as an Assemblyman were always aimed at providing for the needs of the people of his District and the entire State of New York. This is confirmed by the many letters of support Mr. Seminerio has received over the years from various organizations and associations that have benefitted from State legislation that Mr. Seminerio helped bring about, including, but by no means limited to:
36 • Laurence J. Levine and Joseph Mauro, 2nd Vice-President/Legislative Director and President of the Bridge and Tunnel Officers Benevolent Association, in a letter announcing the Bridge and Tunnel Officers Benevolent Association’s endorsement of Mr. Seminerio’s candidacy for reelection to the New York State Assembly in 2008, wrote, “Your concern, your caring and your positions on the vital issues ... has earned the respect and gratitude of all who know you.” (Exh. K, Tab 14)
• James F. Lyman, Executive Director of the New York State Law Enforcement Officers Union, Council 82, on behalf of the membership of Council 82, thanked Mr. Seminerio for his support and endorsed Mr. Seminerio’s candidacy for reelection to the New York State Assembly in 2008. (Exh. K, Tab 15)
• Wanda Williams, Director of the Political Action and Legislation Department of District Council 37, in a letter announcing District Council 37’s endorsement of Mr. Seminerio’s candidacy for reelection to the New York State Assembly in 2008, wrote, “We endorsed you because we believe you will continue to protect the interests of our members, the City of New York and working people in general.” (Exh. K, Tab 16)
• Helen Sears, Member of the Council of the City of New York, 25th District, in a letter congratulating Mr. Seminerio on his reelection to the New York Assembly in 2006, wrote, “Your commitment and dedication to your community has been proven through your electoral win....I look forward to continuing our work together and am pleased to be a colleague of yours in elected office.” (Exh. K, Tab 17)
• George W. Reilly and John J. Murphy, Business Manager and Financial Secretary-Treasurer of the Plumbers and Gasfitters Local Union No. 1, in a letter thanking Mr. Seminerio for his support of the Wicks Reform in the 2008 budget (protecting New York taxpayers, workers and plumbing and mechanical contractors, and facilitating the training of new skilled workers), wrote, “Your support of Wicks is important to the economic future for our members, their families and thousands of other working families across New York.” (Exh. K, Tab 18)
• Susan Lacerte, Executive Director of the Queens Botanical Garden, thanked Mr. Seminerio for his support in helping to get the State-wide ZBGA (Zoos, Botanical Gardens and Aquariums) funding increased from $8 million to $9 million in 2008. (Exh. K, Tab 19)
37 • Martha E. Stark, Commissioner of the City of New York Department of Finance, thanked Mr. Seminerio for his help in passing bill A8578, allowing not-for-profit organizations to receive a property tax exemption from the date of purchase. (Exh. K, Tab 20)
• Hoong Yee Krakauer, Executive Director of the Queens Council on the Arts (“QCA”), thanked Mr. Seminerio for his ongoing support of the QCA and for notifying the QCA that it had been approved for a grant by the New York State Council on the Arts. (Exh. K, Tab 21)
• David Brenner, Executive Director of the Dysautonomia Foundation, Inc., expressed his “sincere gratitude” to Mr. Seminerio for his efforts in obtaining a $50,000 appropriation in the New York State Budget for the Dysautonomia Foundation’s Treatment Center at New York University Medical School. (Exh. K, Tab 22)
• Patricia Wade, Executive Director of the Ridgewood Older Adult Center and Services, Inc., thanked Mr. Seminerio for his commitment to serving the needs of the older adults of New York and for his leadership in establishing the $1 million State-funding stream for the operational costs of senior center vehicles. (Exh. K, Tab 23)
Mr. Seminerio’s commitment to meeting the needs of his constituents, which at times required him to be an outspoken representative18, was immediately evident to his colleagues in the
State Legislature; and whether they agreed or disagreed, Mr. Seminerio’s commitment earned him their respect. In fact, even Alfred A. DelliBovi, the Republican Assemblyman who Mr. Seminerio first replaced in 1978, writes in his letter in support of Mr. Seminerio:
“ … [Mr. Seminerio’s] values were constant: dedication and love of his family; a strong desire to help ordinary people; compassion; a willingness to listen to people who had a problem; and a passion for providing solutions....[Mr. Seminerio] worked harder, he opened more offices, and solved more problems than any Assemblyman had done before. He was available and turned down no one.” (Exh. J, Tab 80)
18Indeed, known for his outspoken candor and unwavering commitment to serving the people’s interests – even when, at times, it was not popular to do so – Mr. Seminerio became a notable talk radio show host on WABC in the New York City area.
38 Numerous additional letters written by Mr. Seminerio’s former colleagues in the State
Government, as well as other officials he worked with in his capacity as an Assemblyman, attest to
Mr. Seminerio’s dedication to serving his constituents as a skilled community leader and member of the Legislature:
• Michael J. Bragman, former Majority Leader of the New York State Assembly, has known Mr. Seminerio since first being elected to the New York State Assembly in 1981. As colleagues in the Assembly, Mr. Bragman respected Mr. Seminerio and would often ask Mr. Seminerio to “help and provide counsel” to other Assembly members. When Mr. Bragman became Majority Leader of the Assembly, he would ask Mr. Seminerio to meet with a variety of people from around the state who contacted him (Mr. Bragman) as the Majority Leader. Mr. Bragman explains, “I did so, because he [Mr. Seminerio] would listen to their needs and then use his experience and expertise to assist them. In doing so, he never asked for recognition or advancement. He was just anxious to assist.” (Exh. J, Tab 43)
• Thomas V. Ognibene, Esq., former Minority Leader of the New York City Council and former counsel to the New York State Senate, writes, “I learned very quickly to respect and admire [Mr. Seminerio]’s commitment to his fellow citizens and the communities he represented....To him, his position was more of a calling to serve those that needed help than simply an ‘Albany’ Legislator. His dedication was heartfelt and genuine. He was beloved by those who knew him and helped thousands of hard working and needy New Yorkers confront an often intransigent government bur[eau]cracy and get the services and assistance they so often desperately needed. His public service was the hallmark of what should be expected from our elected officials.” (Exh. J, Tab 205)
• Joni A. Yoswein, a former Member of the New York State Assembly, writes, “[Mr. Seminerio] never abandoned his deep-seated commitment to helping the regular folks who came into his district office every day. [Mr.] Seminerio was always known – both throughout Richmond Hill and Glendale and in Albany – as an Assembly member who understood the important role of constituent service and the ways in which an effective Assembly office could help the residents of the district. Whether it’s helping a senior citizen access a state prescription drug program or simply knowing who at ConEd to call to help a family get their electricity turned back on, these are the kinds of day-to-day efforts that make a difference in people’s lives and are exactly
39 types of services that [Mr.] Seminerio was always so proud to provide to his neighbors.” (Exh. J, Tab 287)
• Tarky Lombardi, Jr., a retired New York State Senator, writes, “I have had a long and meaningful friendship with [Mr. Seminerio]. I know him to be a gentle, reliable hardworking Legislator whose generosity and compassion was always directed toward helping others.” (Exh. J, Tab 166)
• George H. Madison, a former Member of the New York State Assembly, former Executive Director of the Assembly Minority and former member of the cabinet for Governor George Pataki, writes, “From the day Anthony was elected in 1978, he became a friend to everyone in the Assembly. His generosity, friendliness and strong voice for his district were admired by all.” (Exh. J, Tab 172)
• Barbara M. Clark, a current Member of the New York State Assembly, 33rd District, writes of her gratitude to Mr. Seminerio for going “out of his way” to assist her when she was new to the Assembly and to help her in efforts to establish an economic development zone within her District. Mr. Clark attests to Mr. Seminerio’s good and decent character and writes, “In the subsequent twenty years that he and I served in the New York State Assembly, this willingness to assist remained a central feature of Mr. Seminerio’s behavior. Over this time period I cannot recall even one instance where I was given any reason whatsoever to believe that Mr. Seminerio’s offer of assistance was being driven by anything other than the nature of his character.” (Exh. J, Tab 63)
• Audrey I. Pheffer, a Member of the New York State Assembly, 23rd District, writes, “ ... I have worked with [Mr. Seminerio] on many community, civic and educational issues that have jointly affected our districts....Over the past 20 years, I have come to know [Mr. Seminerio] … as a champion for all of the needs and concerns of his area.” (Exh. J, Tab 212)
• Vincent F. Nicolosi, Esq., a former Member of the New York State Assembly, writes, “I have never known Anthony Seminerio to be anything other then a gentleman, hard worker and dedicated public servant....[Mr.] Seminerio was always trying to assist and help other people who were in need. He would go out of his way to help everyone who sought his assistance without any expectation of something in return.” (Exh. J, Tab 200)
• Honorable Frank R. Seddio, a former New York City Police Officer, former Member of the New York State Assembly and former Judge of the Surrogate’s Court, Kings County, writes, “From the first day of my service
40 Anthony Seminerio was there to help in my acclamation to the Assembly, offering good words of advice and educating me in the legislative process....Mr. Seminerio was both a mentor and a true guiding light in my efforts to help my community.” (Exh. J, Tab 246)
• Dov Hikind, a current Member of the New York State Assembly, 48th District, writes, “I had the occasion to work with Tony on a number of different issues in our capacity as elected members of the New York State Assembly. I always found him to be a decent, kind, and caring individual....Regardless of political affiliations or positions, Tony was well-liked and respected by his colleagues, and was known throughout the Chamber as a devoted personality.” (Exh. J, Tab 132)
• John A. DeFrancisco, a current New York State Senator, 50th District, writes, “... I have known Mr. Seminerio as a member of the State Legislature for seventeen years. In the years I have interacted with him I always found him to be a fair and honest person. He was a hard worker and very dedicated to his constituents.” (Exh. J, Tab 79)
• Lewis J. Yevoli, a former Member of the New York State Assembly, 10th and 13th Districts, writes, “I was always impressed with [Mr. Seminerio]’s compassion for those who did not have a voice and for his dedication to the people he served. [Mr. Seminerio] was a tenacious spokesperson for the issues he believed in and he had no tolerance for injustice.” (Exh. J, Tab 285)
• Ed Sullivan, a former Member of the New York State Assembly, writes, “... I admired and respected [Mr. Seminerio]. He never told me anything that he did not personally believe to be true. He was one of the most honest men in a profession which is not always known for honesty.” (Exh. J, Tab 265)
• John F. Duane, a former Member of the New York State Assembly, 25th District, writes that during his time in the Assembly, he was able to “witness[] Mr. Seminerio’s genuine commitment to serving his community and improving the lives of all New Yorkers.” (Exh. J, Tab 95)
• Nettie Mayersohn, a current Member of the New York State Assembly, 27th District, is particularly thankful for Mr. Seminerio’s sponsorship of a piece of legislation that she introduced, which became known as the “Baby AIDS Law,” and writes, “[Mr.] Seminerio worked tirelessly with me for the three year period it took to pass the legislation. The results of his efforts have saved and continue to save lives. I will forever be grateful for his heroics in the Assembly on behalf of these children. I hope that this will be taken into
41 consideration along with his other good work up in Albany.” (Exh. J, Tab 183)
Mr. Seminerio was not only respected and well-liked by his colleagues, he was admired by his employees and other members of the legislative staff, who recognized Mr. Seminerio’s commitment and eagerness to help serve the needs of his constituents and appreciated that his generosity extended to nearly everyone he met. Mr. Seminerio was a kind and understanding boss who ran a warm and welcoming office that was open to everyone. Below, and by way of example only, is what just a handful of Mr. Seminerio’s employees and other people who regularly came into contact with him have said in their letters submitted to Your Honor:
• Donna Gallo Langan, who has worked as a staff member of the New York State Assembly for over thirty years, writes, “For all these years I have know[n Mr. Seminerio] as a man of exemplary character. Both professionally and personally, I have seen him helpful to all classes of and kinds of people. He learned and grew as our State became more diverse. His proper aim was [to] serve the citizens in his district but he understood he was there to serve the larger, more various population of our State.” Ms. Gallo Langan notes that Mr. Seminerio’s generosity and willingness to help was also evident in the way he treated people at work and the fact that “he always went the extra distance to assist staff who had turned to him for help.” (Exh. J, Tab 114)
• Colleen Adams, who has worked in the Clerk’s Office of the New York State Assembly for over 30 years, writes of her personal gratitude to Mr. Seminerio for helping her when she was denied her application to return to her appropriate tier in the New York State retirement system. Although Ms. Adams had been told by the Assembly Speaker’s Legal Services staff that a chapter amendment was done to the then-current legislation which would rectify her problem – after five years, no such amendment had been passed. Ms. Adams writes that when she finally told Mr. Seminerio about her situation, he “did what no one else would take the time or energy to do for a staff member” – he immediately had legislation drafted to address the problem and then “lobbied tirelessly until it was passed.” (Exh. J, Tab 16)
• Bartley J. Costello, III, writes, “Over the last 30 years I have observed Mr. Seminerio on a weekly basis during the Legislative Sessions. Two
42 characteristics quickly became evident. First, he is a kind person always taking time to listen to a constituent, a lobbyist, or another legislator. When Members of the Assembly Tom Catapano and Eileen Dugan suffered from illnesses which took their lives, he was constantly assisting them on both person[al] and professional issues. Kindness is his trademark. The second characteristic is that he is passionate about his beliefs and dedicated to pursuing issues, even those which others have abandoned as lost. In this regard, he worked diligently to obtain benefits for retired elderly state troopers making their cause special with the then Speaker of the Assembly. As with his kindness, there are countless other stories of his dedication.” (Exh. J, Tab 72)
• Eleanor M. Wilson, a retired Executive Assistant to a New York State Assembly member, writes in support of Mr. Seminerio, whom she believes to be an “outstanding, dedicated and loyal friend.” She describes Mr. Seminerio as a man with a true generosity of spirit, who was steadfast in his commitment to serving the needs of others, and writes, “ ... I was able to witness the hard work [Mr. Seminerio] contributed to his constituents. He never said ‘no’ to those in need, whether it was a constituent or a friend.... Not only did he go out of his way for me, but for many, who needed guidance, a shoulder to cry on or just support. Please know that [Mr.] Seminerio is a true family man and friend to all who approach him....[H]e would go to the bitter end to accomplish what was needed.” (Exh. J, Tab 280)
• Margaret M. Donahue, a legislative staff member, writes, “None of [Mr. Seminerio’s] gestures of help and kindness ever made headlines, but they sure were spoken about between the staff members of the legislature. If you heard of someone having a problem and getting no help from anyone, you always told them to go see [Mr. Seminerio].” (Exh. J, Tab 91)
• Sandra Palma, an employee of Mr. Seminerio for five years, writes of Mr. Seminerio’s generosity and eagerness to help others, noting that he has assisted her and others in finding jobs and also helped guide her in the process of buying a home. Ms. Palma explains that Mr. Seminerio’s “over the top” generosity is reflected in the welcoming atmosphere of his office, and writes, “Our office has always had an open door policy to all, no matter who you are and who you represent. Coffee and donuts, pizza and sandwiches were always offered to anyone who came in.” (Exh. J, Tab 208)
• Lamarian Lesperance, an employee of the New York State Assembly for 32 years, writes to “attest to [Mr. Seminerio]’s generosity, kindness and civility to all that visited his office.” (Exh. J, Tab 162)
43 • Lisa Loughlin, who has worked for Mr. Seminerio for seven years and had been Mr. Seminerio’s Chief of Staff for the last three years, writes that, as a member of Mr. Seminerio’s staff, she was able to observe Mr. Seminerio’s commitment to helping others and to serving his community. She writes, “[Mr. Seminerio] was so passionate about his constituents and their problems. In fact, you didn’t even have to live in his District or be one of his constituents in order in order for him to help, he never asked for anyone’s address, that didn’t matter to him.” (Exh. J, Tab 169)
• Anne Garry Richmond, an employee of the New York State Assembly, writes, “[Mr. Seminerio’s] office door was always open to everyone from the Speaker to our disabled messengers....I am aware of so many times he has helped people from all kinds of life. He is giving, loving and has a huge heart.” (Exh. J, Tab 227)
Mr. Seminerio loved each and every minute of his 30-year career as an Assemblyman.
Serving the public was not merely his job, it defined his entire life. Many times over the years, Mr.
Seminerio was approached by other legislators and members of the Democratic Party who encouraged him to “move up the ladder” and run for the New York State Senate or the United States
House of Representatives, but Mr. Seminerio was never really interested. He loved the hands-on way in which he could help people as an Assemblyman; he loved the connection he had with his constituents; and he loved his community in Queens.
In addition to his work in the Assembly, over the years Mr. Seminerio has committed a significant amount of his time to volunteering and working with the Holy Name Society of Our Lady of Perpetual Help, the Boy Scouts19, the New York State Parent Teachers Association and numerous
19See Exh. J, Tab 101 (Letter of Lawrence A. Faulstich, former Committee Chairman of the local Boy Scout Troop [discussing Mr. Seminerio’s voluntary efforts on behalf of the Boy Scouts]); Exh. J, Tab 96 (Letter of the Eagle Scouts of Troop 105 [“We collectively feel that Mr. Seminerio resounds in kindness, generosity, and is a good hearted person that has not only given himself to his family, but to a number of young impressionable boys that we were, no to mention all the other lives that he touched. In all [due] respect and humility, we ask that you please consider Mr. Seminerio’s (continued...)
44 other organizations. Mr. Seminerio’s unwavering commitment to helping others and serving the needs of his constituents, his local community, the Corrections community, the City of New York and the State of New York has earned him many awards and honors over the last 30 years from organizations including, but not limited to:
• Correction Officers Benevolent Association, City of New York, 1978 Recognition of Faithful Meritorious Service, in recognition of Mr. Seminerio being a loyal and dedicated Executive Board Member.
• Long Island Correction Association, 1979 Achievement Award.
• Theresa Giordano Memorial Fund, Inc., Queens Chapter, 1979 In recognition of Mr. Seminerio’s humanitarian efforts to the organization.
• Office of Catholic Education Human Life Office, Diocese of Brooklyn, 1980 Certificate of Appreciation, for Mr. Seminerio’s faithful service.
• Queens Soccer Club, 1980 In appreciation of Mr. Seminerio’s efforts on behalf of the youth of the Queens community.
• New York State Supreme Court Officers Association, 1980 Distinguished Service Award, for Mr. Seminerio’s untiring efforts on behalf of the senior court officers of New York State.
• Columbia Association of the Department of Correction, City of New York, 1980 In appreciation of Mr. Seminerio’s untiring, outstanding devotion of service.
• Crime Victims’ Political Platform, 1980 Man of the Year.
19(...continued) age and health, and all of the goodness that is still residing inside him when you are making your decision.”]).
45 • Forest Park Senior Citizens, 1980 In appreciation to Mr. Seminerio, “the one who cares.”
• Columbia Association of the Department of Correction, City of New York, 1981 Man of the Year, for Mr. Seminerio’s years of past service and his continuous dedications to the cause of the Columbia Association.
• The City University of New York, 1981 Friend of the Italian American Institute Award.
• Forest Park Senior Citizens, 1981 For sincere appreciation of Mr. Seminerio’s efforts.
• The Police Benevolent Association, Metropolitan Transit Authority – Long Island Railroad Police, 1982 Commendation, for Mr. Seminerio’s time and efforts to protect the citizens of New York and his continuous support of police officers and the criminal justice services through legislative process.
• Richmond Hill Block Association, 1982 In appreciation for Mr. Seminerio’s untiring efforts, love and caring for the youth of the Richmond Hill community over the years.
• Long Island Correctional Association, 1983 Achievement Award, for Mr. Seminerio’s devoted efforts.
• New York State Parole Officers Association, 1983 Legislator of the Year.
• Community Mayors of New York State, Inc., 1984 Humanitarian Award.
• 102nd Precinct Community Council, 1984 Citation, in appreciation for Mr. Seminerio’s commendable and outstanding services to the community.
• Bridge and Tunnel Officers, 1984 Thomas Creegan Memorial Award, for Mr. Seminerio’s outstanding dedication and contributions to the citizens of New York State.
46 • New York City Housing Patrolmen’s Benevolent Association, 1984 Certificate of Appreciation, in recognition of Mr. Seminerio’s support and efforts on behalf of the Housing Police Department.
• New York State Court Officers Association, 1984 A Special Award, for Mr. Seminerio’s tenure as a Legislator and for his loyalty and prolific advocacy for public employees.
• New York State Corrections Officers, Locale No. 2398 A.K.C.F., 1984 For Mr. Seminerio’s assistance in affecting the passage of legislation.
• Friends of the Legion, 1984 The American Legion Continental Post 1424 – Certificate of Recognition, for Mr. Seminerio’s unselfish service, dedication and invaluable assistance to the community.
• Ozone Park Soccer Club, 1984-1985 Honorary Vice President.
• National Council of Churches Association in Civil Service, 1985 Honoree of the Year, in recognition of Mr. Seminerio’s dedication and reputation in promotion the causes, ideals and protection of civil servants, and his immeasurable community work.
• Jamaica Hospital (Trustees and Administrative Staff), 1985 Man of the Year, for Mr. Seminerio’s outstanding commitment to the pursuit of quality healthcare services to his constituents in the Jamaica Hospital community.
• New York State Supreme Court Officers Association, 1985 Award of Recognition, for Mr. Seminerio’s untiring efforts on behalf of all senior court officers and their families.
• Wakefield Little League, 1985 In recognition of Mr. Seminerio’s support in helping the Ozone Park/Richmond Hill/Wakefield Little League.
• The Ferrini Welfare League, 1985 Italian-American of the Year Award, for Mr. Seminerio’s devotion and service to needy families, immigrants and the youth of Queens County.
47 • Ozone Howard Little League, 1986 In appreciation for Mr. Seminerio’s outstanding support and concern from the staff, parents and children of the Ozone Howard Little League.
• Court Officers Benevolent Association of Nassau County, 1986 Man of the Year Award, in grateful appreciation for Mr. Seminerio’s service to the community and the non-judicial court employees of New York State.
• New York Sheriff’s Association, 1986 Elected Friend of Law Enforcement, for Mr. Seminerio’s outstanding contributions to the improvement of New York State’s Criminal Justice System.
• New York State Federation of Police, 1986 Achievement Award, for Mr. Seminerio’s outstanding contributions to the members of the Law Enforcement Community.
• Detectives Crime Clinics, 1986 Public Official of the Month, for Mr. Seminerio’s leadership, integrity and tireless efforts in promoting efficient law enforcement.
• New York State Association of Counties, 1987 Certificate of Merit, for Mr. Seminerio’s outstanding service to County Government in New York State.
• New York State Deputies Association, Inc., 1987 Friend of the Deputy Award, in recognition of Mr. Seminerio’s presentation of legislation in the New York State Assembly to improve the Retirement System for Deputies.
• Jamaica Hospital, 1987 Presented on the occasion of the Renaissance Ground Breaking.
• Metropolitan Police Conference, 1987 In appreciation for Mr. Seminerio’s untiring efforts on behalf of police officers and their families.
• Concerned Women for America, 1988 Membership Certificate, in appreciation for Mr. Seminerio’s friendship, prayers and support of the Concerned Women for America.
48 • Troy Police Benevolent Association, 1988 In appreciation for Mr. Seminerio’s participation as the Principal Speaker at the 85th Anniversary and Awards Dinner.
• Woodhaven Residents’ Block Association, 1988 Thank You , for Mr. Seminerio’s support and participation in the 1988 journal of the Woodhaven Residents Block Association.
• Kiwanis Club of Woodhaven, 1988 In appreciation for Mr. Seminerio’s support of Kiwanis Club of Woodhaven’s Center for Special Needs.
• The Vic Palcic Summer Basketball Memorial, 1988 Summer Basket Ball League Number 1 Sponsor, for Mr. Seminerio being a great friend to everyone in the community, particularly “your youngest” constituents of the 31st Assembly District.
• Wyckoff Heights Hospital, 1989 Certificate of Appreciation, for Mr. Seminerio’s outstanding efforts on behalf of Wyckoff Heights Hospital, its Board of Trustees, its Staff and the communities it serves.
• Kiwanis Club of Woodhaven, 1989 For Mr. Seminerio’s outstanding ongoing cooperation and service.
• Suffolk County Police Conference, 1989 For Mr. Seminerio’s dedication and tireless efforts towards making the 1/60th Bill A-5608-6 become law.
• Detective’s Association, Inc., 1989 In recognition of Mr. Seminerio’s valuable and devoted service.
• The South Queens Boys and Girls Club, Inc., 1990 In appreciation for Mr. Seminerio’s outstanding service.
• The Greater Woodhaven Development Corporation, 1990 In appreciation of Mr. Seminerio’s efforts.
• Detectives’ Endowment Association Police Department of the City of New York, 1990 Honorary Member.
49 • Coalition of Italo-American Associations, Inc., 1990 Certificate of Appreciation and Merit, for Mr. Seminerio’s contributions and commitment to the Italian-American Community.
• Kiwanis Club of Woodhaven, 1990 For Mr. Seminerio’s ongoing support and dedication to the Center for Special Needs.
• International Association of Firefighters, 1990 Award for Distinguished Achievement, for Mr. Seminerio’s capable, dedicated and conscientious service on behalf of his fellow citizens.
• Community Violence Prevention Program, 1990 Statesman of the Decade.
• The Community of Woodhaven, The Woodhaven Residents’ Block Association, and The Woodhaven Residents’ Security Patrol, 1990 For Mr. Seminerio’s dedication and supportive commitment to the above organizations.
• Suffolk County Detective Investigators, and Police Benevolent Association, 1991 Honorary Detective Investigator, in appreciation for Mr. Seminerio’s many years of dedication and untiring efforts on behalf of Law Enforcement, especially Detective Investigators.
• Battalion Chief Eligibles, Fire Department of New York, 1991 “Always a Friend to the Firefighters.”
• The Greater Woodhaven Development Corporation, 1991 In appreciation of Mr. Seminerio’s dedication and support to the community of Woodhaven.
• Ridgewood Bushwick Senior Citizens Council, Inc. – Respite Care Program, 1991 In recognition of Mr. Seminerio’s support and commitment to the Thanksgiving Celebration.
• Richmond Hill South Civic Association, 1991 In appreciation for Mr. Seminerio’s outstanding friendship and dedication to his community.
50 • New York Honorary Fire Chiefs Association, Inc., 1991 Honorary Member.
• Queens Kiwanis Sports Association, 1992 In recognition of Mr. Seminerio’s untiring efforts and loyal support over the last 14 years on behalf of the youth of the community.
• Federazione Italo-Americana of Greater New York, 1992 Man of the Year.
• The Conservative Party of New York State, 1992 An Honorary Member of the Chairman’s Club, in recognition of Mr. Seminerio’s outstanding expression of citizenship in furthering the philosophical principles and political goals of the Conservative Party.
• Italian Charities of America, 1993 Man of the Year, in recognition of Mr. Seminerio’s service and dedication to Italian culture and the community at large.
• New York City Housing Police Department, 1993 In appreciation for all Mr. Seminerio has given of himself to the men and women of the New York City Housing Police Department.
• N.Y. State Correctional Superintendents Legislative Committee, 1993 For Mr. Seminerio’s continued dedication and loyal support and commitment to the men and women of New York State Corrections.
• The Federazione Italo-Americana Di Brooklyn and Queens, Inc., 1993 For Mr. Seminerio’s many years of leadership and guidance.
• New York Constitutional Freedoms, 1994 For obtaining a rating of 100% on the New York State Constitutional Freedoms’ Issues of the year.
• The Friends of the Middle Village Library, 1994 For Mr. Seminerio’s support.
• Ridgewood/ Bushwick Senior Center, 1994 For Mr. Seminerio’s dedication, commitment and service to senior citizens throughout Queens.
51 • Queens County Council Veterans of Foreign Wars, 1994 “A true Veterans advocate.”
• The Greater Ridgewood Youth Council, 1994 In grateful acknowledgment of Mr. Seminerio’s extraordinary efforts on behalf of the community’s youth.
• Federazione Italo-Americana of Greater New York, 1994 In appreciation for Mr. Seminerio’s efforts as an outstanding representative.
• Flushing Hospital Medical Center, 1995 The Second Century Community Service Award, in acknowledgment of Mr. Seminerio’s distinguished career and support of the goals of the medical center.
• New York State Court Officers Association, 1995 Anti Graffiti Award.
• A Way Out, Inc., 1995 Certificate of Appreciation for Outstanding and Dedicated Service.
• Columbia Association, 1995 Community Service Award, in recognition of Mr. Seminerio’s long and illustrious career as a community activist and watchdog.
• Fiorello La Gaurdia Good Government Committee, Inc., 1996 For Mr. Seminerio’s outstanding dedication to the public service and contributions in the furtherance of good government.
• New York State Conference of Italian American State Legislators, 1996 Distinguished Legislator of the Year Award, in appreciation and recognition for Mr. Seminerio’s outstanding service to the New York State’s Italian American Community.
• 104th Precinct Community Council, 1996 For Mr. Seminerio’s outstanding support throughout the years.
• Glendale Civilian Observation Patrol (GCOP), 1997 Certificate of Recognition – GCOP Man of the Year.
52 • New York City Department of Correction, 1998 Corrections Explorers Certificate of Appreciation, in recognition and acknowledgment of Mr. Seminerio’s outstanding contributions to the Corrections Explorers Post 2037.
• The Greater Woodhaven Development Corporation, 1998 In recognition of Mr. Seminerio’s commitment and benevolent support of the Woodhaven Community.
• Columbia Association of the Department of Correction, City of New York, 2000 Presidents Award.
• Queens County Council Veterans Of Foreign Wars, 2000 In appreciation of Mr. Seminerio’s untiring efforts.
• Italian Charities of America, 2000 Humanitarian Award, for Mr. Seminerio’s untiring and dedicated efforts in governmental affairs on behalf of the people of the State and City of New York and for his leadership in humanitarian causes for the Italian American community.
• The Greater Woodhaven Development Corporation, 2001 In recognition of Mr. Seminerio’s continued commitment as a benevolent and devoted friend of the Woodhaven community.
• Comunita Italo-Americana, 2002 In appreciation of Mr. Seminerio’s continued friendship and support.
• National Council of Columbia Association in Civil Service, 2004 2004 Government Service Award, for Mr. Seminerio’s many years of legislative representation for the Italian American and Civil Service Communities, and Mr. Seminerio’s creation of a day to recognize Civil Servants in the State of New York.
• The Bone Marrow Bowl-A-Thon, 2004 Award of Appreciation, in recognition of Mr. Seminerio’s long- standing commitment to increase the registry of potential bone marrow donors, through Mr. Seminerio’s unwavering effort to raise funds for the Marrow Foundation.
53 • Queens County Conference Knights of Columbus, 2005 Certificate of Appreciation, in appreciation for Mr. Seminerio’s unselfish contributions and sponsorship in helping with the Third Annual Softball Game to help children with disabilities and the Special Olympics.
• The South Queens Boys and Girls Club, Inc., 2006 In appreciation for Mr. Seminerio’s support and dedication to the children of Queens County.
• City of New York Parks & Recreation, 2006 For Mr. Seminerio’s outstanding commitment to the development, repair and reconstruction of Park Projects and Programs.
• The Federazione Italo-Americana of Brooklyn and Queens, 2006 Lifetime Service Award, in recognition for Mr. Seminerio’s lifelong distinguished and dedicated service in promoting Italian culture.
• The Greater Woodhaven Development Corporation, 2007 Man of the Year, for Mr. Seminerio’s commitment and dedication throughout the years to the organization and to the community of Woodhaven.
• Queens County Conference Knights of Columbus, 2006 Certificate of Appreciation, in appreciation for Mr. Seminerio’s unselfish contributions and sponsorship in helping with the Fourth Annual Softball Game to help children with disabilities and the Special Olympics.
• Richmond Hill Block Association, 2007 Outstanding Assemblyman, in recognition of Mr. Seminerio’s nonpareil caring, dedication and support for the Richmond Hill Block Association and the Richmond Hill community.
In sum, Mr. Seminerio had proven himself to be an invaluable asset to the people of the State of New York during his 30 years of public service. Regrettably, on June 23, 2009, as a result of the criminal conduct which brings him before Your Honor, Mr. Seminerio voluntarily resigned from the
New York State Assembly.
54 D. MR. SEMINERIO’S EXTRAORDINARY MEDICAL CONDITIONS HAVE FORCED HIM TO FACE HIS OWN MORTALITY WITH A DEEPER UNDERSTANDING OF, AND GENUINE CONTRITION FOR, HIS CRIMINAL CONDUCT.
Mr. Seminerio has been advised by his doctor that, given his extraordinary health problems, he is at high risk for recurrent congestive heart failure, myocardial infarct, stroke and even death, and will likely not live out a prison sentence:
“Based on the evidence and physical findings, it is of my opinion that Mr. Anthony Seminerio has multisystem disorders including pulmonary emphysema, coronary artery disease, atrial fibrillation, syndrome x comprised of morbid obesity, hypercholesteremia, and increased abdominal girth, hypothyroidism, sleep apnea, peripheral vascular disease, venous stasis dermatitis, left ventricular dysfunction, peripheral edema, and is at high risk for recurrent congestive heart failure, myocardial infarct and stroke and even death.
It is in my medical opinion of twenty one years of practice that if Mr. Anthony Seminerio is imprisoned there is a high risk that he will die during the time in which he will serve out his sentence.” (See Exh. F, Sept. 29, 2009 Medical Report of Calogero Tumminello, M.D.; emphasis added).
Mr. Seminerio’s extraordinary medical conditions include, among other things:
• Mr. Seminerio suffers from atrial • Mr. Seminerio suffers from fibrillation; hypokalemia;
• Mr. Seminerio suffers from coronary • Mr. Seminerio suffers from artery disease; hypocalcemia;
• Mr. Seminerio suffers from chronic • Mr. Seminerio suffers from diastolic heart failure; thrombocytopenia;
• Mr. Seminerio has a history of • Mr. Seminerio has a history of quadruple coronary artery bypass pulmonary hypertension; surgery;
55 • Mr. Seminerio suffers from • Mr. Seminerio has a history of hypertension; gastro-intestinal bleeding;
• Mr. Seminerio suffers from morbid • Mr. Seminerio has a history of obesity; tricuspid valve regurgitation;
• Mr. Seminerio has a history of • Mr. Seminerio has a history of hiatal obstructive sleep apnea; hernia;
• Mr. Seminerio suffers from • Mr. Seminerio suffers from stasis hypothyroidism; dermatitis; and
• Mr. Seminerio suffers from • Mr. Seminerio suffers from dyslipidemia; cardiomegaly.
(See Exh. F, Sept. 29, 2009 Medical Report of Calogero Tumminello, M.D.)
In addition to Mr. Seminerio’s now-somewhat routine doctor (and hospital) appointments, it would not be an exaggeration to say that Mr. Seminerio is left the rest of the week, on a daily basis, managing his diet and his heavy regimen of more than a dozen medications and dealing with his medical conditions. Mr. Seminerio’s daily regimen of medications includes: Altace, 10 mg once daily (for treatment of congestive heart failure and hypertension); Furosemide, 80 mg twice daily (for treatment of edema and hypertension); Levothyroxine, .025 mg once daily (for hypothyroid activity);
Matenolol, 100 mg twice daily (for treatment of hypertension and angina, and reduction of mortality from myocardial infarction); Verapamil, 180 mg twice daily (for treatment of hypertension and angina); Coumadin, 4 mg once daily (for prevention of heart attacks, strokes and blood clots);
Combivent inhaler, 2 puffs every six hours (for treatment of chronic obstructive pulmonary disease);
Simvastatin, 80 mg once daily (for treatment of high cholesterol); aspirin, 81 mg once daily (for prevention of heart attacks, strokes and blood clots); Temazepam, 15 mg once daily (for insomnia);
Synthroid, 25 mg once daily (for hypothyroid activity); Ferrous sulfate, 325 mg once daily (for
56 treatment of iron deficiency anemia); Vitamin C, 500 mg twice daily; Vitamin B complex, once daily; and potassium, 10 mEq, once daily. (See Exh. F, Sept. 29, 2009 Medical Report of Dr.
Calogero Tumminello, M.D.)
Indeed, although his mind is functioning, Mr. Seminerio is trapped in a body that both does not work and is failing him badly. Stated in Mr. Seminerio’s own words in his letter to Your Honor:
“Facing sentencing before Your Honor causes me to think about life in a way that I never have before. During this dark period, I saw my life slipping away from me. I gained a true sense of mortality; a sense of clarity about my life, my family and the great privilege it is simply to be alive – this was a clarity that I had never had before. In many ways, I am already a prisoner, because although my mind is functioning, my body does not work and is failing me badly.
I can only thank God that my family continues to stand by me because without them, my life would be meaningless. Whatever years I have left in my life, I would like to spend them caring for my wife and my family – they mean everything to me. Of course, I understand all too painfully that Your Honor will be sentencing me, and that any real sentence of imprisonment would mean that I die in jail. But I accept full responsibility for what I have done.” (Exh. A, Letter of Mr. Seminerio)20
20The literally dozens of letters submitted on behalf of Mr. Seminerio from his family, friends and constituents make clear that people are genuinely concerned and worried about Mr. Seminerio’s health and the extraordinary medical complications he has endured in recent years, and continues to face every day of his life. (See Exh. J, Tab 1 [Letter of Catherine Seminerio, wife]; Exh. J, Tab 5 [Letter of Mabel C. Kurtz, daughter]; Exh. J, Tab 4 [Letter of Frank Seminerio, brother]; Exh. J, Tab 236 [Letter of Anthony Russo, cousin]; Exh. J, Tab 42 [Letter of James J. Boyle, friend]; Exh. J, Tab 224 [Letter of Paula M. Reardon, friend and colleague]; Exh. J, Tab 52 [Letter of Cav. Peter Cardella, constituent]; Exh. J, Tab 102 [Letter of Carol Felsen, colleague]; Exh. J, Tab 106 [Letter of Margaret Finnerty, friend and colleague]; Exh. J, Tab 112 [Letter of Ira H. Futterman, Esq., friend]; Exh. J, Tab 109 [Letter of Assemblyman Michael J. Fitzpatrick, colleague]; Exh. J, Tab 162 [Letter of Lamarian Lesperance, colleague]; Exh. J, Tab 169 [Letter of Lisa Loughlin, colleague]; Exh. J, Tab 179 [Letter of Kathryn and Eugene Maroney, friends]; Exh. J, Tab 212 [Letter of Assemblywoman Audrey I. Pheffer, colleague]; Exh. J, Tab 254 [Letter of Steven M. Sinacori, friend]; Exh. J, Tab 269 [Letter of Natalie J. Trichilo, colleague]; Exh. J, Tab 32 [Letter of Thomas F. Barraga, colleague].)
57 Mr. Seminerio can only hope that Your Honor considers his entire life, his motivations, his health and his circumstances, and fashions a sentence that punishes him in a way that he might spend at least some of the rest of his life with his family.
58 III.
THE LETTERS SUBMITTED TO THIS COURT BY, AND ON BEHALF OF, MR. SEMINERIO, REFLECT MR. SEMINERIO’S GENUINE REMORSE AND CONTRITION, AND DEMONSTRATE THAT MR. SEMINERIO IS A FUNDAMENTALLY GOOD AND DECENT PERSON.
A. INTRODUCTION.
In overview, Mr. Seminerio’s letter, along with the other letters submitted on his behalf by
Mr. Seminerio’s wife, members of his family, colleagues, friends and constituents which are described below, provide insight into his basic decency as an individual and reflect a more in-depth view of him as a person. Indeed, the credible and significant evidence of Mr. Seminerio’s good and decent character is particular important here because the Government has, in effect, engaged in a baseless character attack against Mr. Seminerio and his public service record of 30 years. (See Gov.
Memo., pp. 1-3.)
Collectively, the letters written to Your Honor – totaling more than 300 letters – demonstrate that, first and foremost, Mr. Seminerio is a caring and loving father, husband and grandfather, and a fundamentally decent person, who has dedicated his entire life, personally and professionally, to providing and working for the best interests of his family, friends, colleagues, constituents and the people of the State of New York.
B. MR. SEMINERIO’S LETTER TO THIS COURT REFLECTS HIS GENUINE REMORSE AND CONTRITION.
In the coming weeks, Mr. Seminerio will be standing before Your Honor to be sentenced.
The type of person Mr. Seminerio is, and the texture of his life, is revealed in his October 1, 2009, letter to Your Honor. (Exh. A) Mr. Seminerio writes to Your Honor:
59 “I am 74 years old and until the actions which brought me before this Court, I was proud of the life I led; proud of who and what I was; and proud of what I had accomplished for my family, my community and my many friends. Now I stand before Your Honor, an old and broken man – a convicted felon – who has lost the respect which had meant so much to me and which I had spent the better part of my life earning. I feel as if I have already died, and that I am just waiting for my body to stop working.
Until my conduct in this case, I was proud of every day of my 74 years on this earth....
....
What I did was wrong and illegal, and I take full responsibility for my misconduct and its consequences. I lost my reputation and I lost my pride – two things which I have worked my entire life to earn. Even worse, I have hurt my wonderful family, which I love more than anything else in the world, terribly.” (Exh. A, Letter of Mr. Seminerio)
In his letter, Mr. Seminerio recounts what it was like growing-up in the poorest of Italian immigrant homes. His mother died when he was six years old, and he and his hard-working father, two brothers and three sisters struggled just to put food on the table and coal in the single furnace that heated their tiny apartment. Mr. Seminerio writes, “We were poor – but we were happy and thankful for what we had.” (Exh. A, Letter of Mr. Seminerio)
Mr. Seminerio’s somewhat meager upbringing made him appreciate that much more his political career through which he was able to reach out and change other people’s lives. He further writes:
“I had two very simple philosophies as an Assemblyman – philosophies of life that my father taught me when I was growing up: first, there but for the grace of God go I (meaning that if a constituent had a problem, I should treat that problem as if it were my own); and second, if a bill is good for me and my family, it’s probably good for my constituents and their families – and that is how I should vote.
60 My typical day as an Assemblyman over the years was dealing with individual issues of the people in my District, and no problem was too small. Whether the issue was the need for a speed bump on a neighborhood street, the need for a child in my District to change schools or to get into a school, or helping a business in my District or which impacted my District, my constituents’ needs were my needs, and that is how I tried to conduct myself for the thirty years I served in the Assembly.” (Exh. A, Letter of Mr. Seminerio)
Mr. Seminerio’s letter reflects his acceptance of full responsibility for his criminal conduct which has practically turned his and his family’s lives upside down:
“Your Honor, I praised and promoted Jamaica Hospital, which is what I pleaded guilty to, and I make no excuse for my conduct. What I did was wrong and illegal. I knew that I was not permitted to advocate on behalf of a client – Jamaica Hospital – before Mr. Whalen and his agency, but I did. This was not a premeditated act on my part, it was an angry response (albeit an unthinking angry response) to Senator Kruger’s misuse of my name to advance his own agenda. I knew – in fairness and by what is expected of me by the law – in that conversation with Mr. Whalen that I should have disclosed to Mr. Whalen, who was a representative of a State agency, the fact that I was a paid consultant to Jamaica Hospital. I fully understand that my conduct deprived the public of honest services by me – honest services which the public deserves.
I have replayed this conversation in my mind a thousand times. I wanted Jamaica Hospital to succeed, not because I was a paid consultant, but because I believed David Rosen and Jamaica Hospital would do the best and most for the people; I was angered that another politician had misused my name to achieve what I believed would have been an unfair and wrong result for the people; I knew that if I mentioned that I was a paid consultant of Jamaica Hospital this would undermine my efforts; and I knew it was wrong not to tell Mr. Whalen of that relationship. At the time, I was not acting out of greed or thinking about the broader implications of what was legal or not, I really believed that Jamaica Hospital should be able to take over the distressed hospitals because that would have been the right result for the people and the communities who relied upon those hospitals.” (Exh. A, Letter of Mr. Seminerio)
61 Mr. Seminerio also explains how his extraordinary medical conditions have forced him to face his own mortality with a deeper understanding of, and genuine contrition for, his criminal conduct:
“Facing sentencing before Your Honor causes me to think about life in a way that I never have before. During this dark period, I saw my life slipping away from me. I gained a true sense of mortality; a sense of clarity about my life, my family and the great privilege it is simply to be alive – this was a clarity that I had never had before. In many ways, I am already a prisoner, because although my mind is functioning, my body does not work and is failing me badly.” (Exh. A, Letter of Mr. Seminerio)
Mr. Seminerio knows the extraordinary pain he caused his family by letting them down and, in effect, acting as a hypocrite by failing to live by the same code of ethics which he has tried to instill in his own children – and prays that Your Honor will impose a sentence that punishes him in a way so that he may spend at least some of the rest of his life with his family:
“I can only thank God that my family continues to stand by me because without them, my life would be meaningless. Whatever years I have left in my life, I would like to spend them caring for my wife and my family – they mean everything to me. Of course, I understand all too painfully that Your Honor will be sentencing me, and that any real sentence of imprisonment would mean that I die in jail. But I accept full responsibility for what I have done.
I know that Your Honor has the responsibility to impose a fair and just sentence. I can only hope and pray that Your Honor will consider my lifelong and total commitment to my family and to my community.” (Exh. A, Letter of Mr. Seminerio)
Mr. Seminerio’s letter, along with the other letters submitted on his behalf which are described below, provide insight to his basic decency as an individual and reflect a more in-depth view of him as an extraordinarily dedicated husband, father, grandfather, and community leader and advocate.
62 C. LETTERS SUBMITTED BY MR. SEMINERIO’S FAMILY.
Catherine Seminerio writes on behalf of her husband, whom she loves dearly. Catherine describes her husband as an “excellent husband and a great father” and a “giving and loving man,”
(Exh. J, Tab 1) Catherine proudly writes in her letter to Your Honor that her husband, Mr.
Seminerio, is a dedicated and loving family man:
“He is always telling the children and anyone else who will listen that, ‘Family comes first!’... Tony has always been an excellent husband and a good provider for our family. In my opinion, there is nobody better than him. He is an honest, hardworking man. I have never had to worry during my years of marriage to him....I couldn’t have chosen a better father for my children or grandfather for my grandchildren. He has always been faithful to me and our family.” (Exh. J, Tab 1)
Catherine is also proud that she and her husband, Mr. Seminerio, have raised a family bonded by shared values and mutual love and support, which has given her strength during this difficult period she and her husband face:
“We have tried to instill in our children the values and morals that we both hold so dear: to be good to your neighbor; never lie, cheat or steal; and ‘do unto others as you would have others do unto you.’ We have tried to live by example for our children. Even now at this very difficult time in our lives, Tony still tries to show his children by example. Tony has not wavered in his love or support of our family and they have not wavered in their love and support of him.” (Exh. J, Tab 1)
Catherine knows her husband is a man not simply devoted to his family, but to his entire community. She admires his seemingly limitless generosity and writes that her husband is a “ person who gives without consideration of himself ... [and] without the expectation of anything in return.”
(Exh. J, Tab 1) Catherine writes of the many times their doorbell rang, sometimes in the middle of
63 the night, from various people coming to her husband for help. No matter what, her husband would patiently listen to these people’s problems and do whatever he could to assist.
Catherine accepted the interruptions and the loss of privacy that sometimes came with her husband’s job as an Assemblyman, because she understood how much it meant to her husband to be able to help people and she knew he was making a difference in many people’s lives. As
Catherine further explains in her letter to Your Honor:
“It’s amazing, sometimes even to me, all the people my husband’s life has affected. I sometimes think that Tony is like the character George Bailey in the movie ‘It’s Wonderful Life,’ had he never been born, so many peoples’ lives would be in a different place, they would not have accomplished their goals and their lives would have taken a different path.” (Exh. J, Tab 1)
Catherine confirms Mr. Seminerio’s genuine expression of remorse and contrition for his criminal conduct, which has turned their lives upside down:
“Tony has accepted responsibility for his actions and has admitted his wrongdoing....He knows that it was wrong and it was something that he was not suppose to do. His remorse is overwhelming and he is truly sorry.” (Exh. J, Tab 1)
Catherine does not attempt to excuse her husband’s criminal conduct, but believes that it was an aberration in a lifetime otherwise selflessly devoted to helping others. She writes that it is a comfort that, despite Mr. Seminerio’s wrongdoings, many members her community still remember her husband for his three decades of public service and join her in supporting him:
“This year has probably been the most difficult we have ever faced together in all our years of marriage....I would never have imagined that my husband’s career would have ended like this, after all he has done for others and given of himself, with him facing the possibility of 12 to 15 years in jail. It is almost more than one can bare....I thank God everyday for the many wonderful people, family, friends,
64 neighbors and constituents, who do know the real Tony and are standing by his side.” (Exh. J, Tab 1)
Catherine concludes her letter by respectfully requesting that Your Honor grant her husband,
Mr. Seminerio, leniency based upon the totality of his good and decent life, so that he can live out the rest of his life caring for, and surrounded by, their family:
“I sincerely hope your Honor will weigh all the circumstances together with the many good deeds Tony has done and his remorse for his actions, and allow my husband the dignity to spend his final years at home with his family and loved ones.” (Exh. J, Tab 1)
Carmela Gandolfo, Mr. Seminerio’s oldest sister, writes on her brother’s behalf, whom she loves dearly and with whom she shares a close relationship. She writes about their upbringing and the hardships they faced as a family after their mother died, and explains, “We did not have much, but we had each other.” As the eldest sibling, Carmela assisted her father in taking care of her siblings, and writes, “Tony has always been a kind, sweet good boy. Even as a youngster, Tony would help anyone in need, neighbors, friends or family.” (Exh. J, Tab 2)
As Carmela and Mr. Seminerio have grown up, they have remained close; and throughout that time, Mr. Seminerio’s caring nature has not changed. Carmela writes with great appreciation of the times that Mr. Seminerio has helped her family. She explains that when she and her husband moved away from Brooklyn, Mr. Seminerio let their oldest son, Joey, live with Mr. Seminerio’s family so that Joey could finish his senior year of high school without being uprooted. Additionally, after Carmela’s and Mr. Seminerio’s father had a stroke, Mr. Seminerio moved his father into his own home and took care of him until his death.
65 Carmela concludes her letter by expressing the great love and pride she feels for her brother, and respectfully requesting that Your Honor demonstrate compassion and grant Mr. Seminerio leniency:
“Tony has always been there for his family. I am honored to be called his sister. Your, honor, as a mother figure to my brother, I throw myself at the mercy of the court and I would like to ask for forgiveness for my brother. He has done a lifetime of good; please do not judge him on this one act alone. Please judge him as the whole man he is.” (Exh. J, Tab 2)
Antoinette Gioia, Mr. Seminerio’s older sister, writes with love and gratitude for her brother.
She explains what it was like to watch her younger brother, Mr. Seminerio, grow up, proudly noting that the caring, generous nature he displayed as a child has never changed:
“[Mr. Seminerio] was always a happy, good natured and generous child. He was never selfish or mean to his siblings or anyone else. He grew up watching out for our younger brother, Angelo. As he got older, his personality never changed. He was and still is a caring and loving individual towards his family and others. He has always been generous to me and my family.” (Exh. J, Tab 3)
Antoinette has always been thankful to have Mr. Seminerio in her life, especially when her husband, Vito, was diagnosed with pancreatic cancer nearly four years ago. When Vito first became ill and was in need of immediate medical attention, her younger brother, Mr. Seminerio, was the first person she called. Mr. Seminerio came to her house, took her to the hospital and stayed with her during the process of being admitted. Antoinette writes that Mr. Seminerio did everything he could to help his sister and her husband through this difficult and emotional time:
“[Mr. Seminerio] made sure that my husband received the best possible care. In my time of need, my brother and his wife, Catherine, were there for me and never left my side. Tony was always one step ahead, making arrangements and thinking of things to make it a little easier for me during my most difficult time….I
66 never had to ask him for anything, he just did it. I leaned on them both physically, mentally and emotionally. I don’t know what I would have done without them.” (Exh. J, Tab 3)
Since Antoinette’s husband passed away three and half years ago, Antoinette writes that Mr.
Seminerio telephones her regularly to check up on her and takes her to and from her doctor’s appointments, as she does not drive. Antoinette explains, “It is such a source of great comfort to know that Tony and Cathy are just a phone call away no matter what time of day or night.” (Exh.
J, Tab 3)
Antoinette thanks Your Honor for taking the time to read her letter and letting her show you
“the kind of person [Mr. Seminerio] really is; loving, generous and kind”; and concludes her letter by requesting that Your Honor demonstrate compassion when sentencing her brother:
“I also know that my brother is truly sorry for what he did. He has already suffered the pain of humiliation and embarrassment that he has brought upon himself, his family and all of us who love him. I hope that you will take that into consideration and his true goodness when rendering your decision.” (Exh. J, Tab 3)
Frank Seminerio writes with great love and respect for his younger brother, Mr. Seminerio.
Frank believes that because of the hardships he and his siblings faced together as children, they became, and have remained throughout their entire lives, very close to one another. Frank explains the difficulties he, his brother, Mr. Seminerio, and their entire family faced growing up:
“When my mother died, I was twelve years old and Anthony was seven. We were raised during the depression and as you can imagine, without a mother, life was very difficult for us. Our father supported us with a small bake shop that he ran. It was expected of all of us to help with the shop and the household as well as keep up with our school work. We lived in a four room apartment. My brothers and I shared one bed. Times were hard and we shared whatever we had. It was important for our father that we all remain together.” (Exh. J, Tab 4)
67 Frank expresses not only his sincere love for his brother – whom he considers to be a
“wonderful husband,” a “great father” and an “extraordinary grandfather” – but also his genuine concern for his brother’s health. Frank notes in his letter that, notwithstanding Mr. Seminerio’s criminal conduct, “[our] entire family has always been proud of our brother and we remain proud of him today.” (Exh. J, Tab 4) Frank concludes his letter by respectfully requesting that Your Honor demonstrate compassion by granting his “generous and giving” brother leniency:
“I hope the court will take into consideration Tony’s good deeds and the character of the whole man and not just one misjudg[e]ment or misstep in a career that has spanned three decades and has changed the lives of so many in a positive way.” (Exh. J, Tab 4)
Mabel C. Kurtz, Mr. Seminerio’s daughter, is a New York City Public School teacher. She writes on behalf of her father, whom she loves dearly, as a man completely devoted to his family:
“His love for our family is immeasurable. He would go to the ends of the earth to put a smile of any of his children’s or grandchildren’s faces.” (Exh. J, Tab 5)
Mabel writes with great pride of how her father was able to support her family while going back to school to earn a college degree himself; and she expresses her admiration for the dedicated and selfless way in which he served his community as an Assemblyman:
“[My father’s t]hirty years [as an Assemblyman] have been filled with countless acts of kindness and compassion....It might have been a letter of recommendation, a phone call on someone’s behalf, a hot cup of coffee or a donut. It might have been an ear to listen, a shoulder to cry on or a hand to hold. If my father could help someone by doing any of these things, he would never, ever hesitate to help anyone at anytime – day or night.” (Exh. J, Tab 5; emphasis in original.)
68 Mr. Seminerio’s many achievements have been a huge source of inspiration for Mabel in her own life. She writes that her father has always encouraged her and her siblings to follow their dreams, and has taught Mabel, both through words and by example, that “whatever it is I set my mind to – nothing is impossible – if you work hard, are honest and trustworthy.” In fact, Mabel believes that one of the most important lessons she learned from her father is that “nothing is more important than telling the truth.” (Exh. J, Tab 5)
Mabel writes that, notwithstanding her father’s misconduct, she continues to admire her father and is proud to be his daughter; and she believes that he is, and always has been, “an honorable man.” (Exh. J, Tab 5) Mabel concludes her letter by respectfully requesting that Your
Honor demonstrate mercy by granting her father, Mr. Seminerio, leniency based upon the totality of his good and decent life spent in the service of others:
“He has spent the better part of his life serving others. He has gotten such joy from being able to help people when they had nowhere else to turn. I know that he has affected so many with his kind acts and encouraging words. He has always been willing to listen to people and offer advice. I implore you to consider his age and health when determining your sentence for him....I am confident you will judge my father with a kind heart and an open mind.” (Exh. J, Tab 5)
John Seminerio writes on behalf of his dear father, Mr. Seminerio. John says that his father and mother raised their family to be “close knit,” and that they all – his parents, his siblings and their children – get together once per week. John is grateful that, even though his father had to work long hours while John was growing up, he was still very present in John’s life and involved in John’s extracurricular activities:
“I never realized as a child all the sacrifices that he made to provide for our family, to be present in our lives and to always be there for us
69 every step of the way. I wish I had his energy and drive that he had back then.” (Exh. J, Tab 15)
John is proud of his father’s many achievements and contributions to his community. In particular, he recalls when his father was presented with the Man of the Year Award from the
Community of Mayors, a charitable group serving disabled children. John writes that in his speech, his father said that the “greatest gift the Community of Mayors gave him was a perspective on his own life and how grateful he was that his own children were healthy.” (Exh. J, Tab 15) Mr.
Seminerio’s appreciation for what he had and his motivation to help those less fortunate, are things that both he and his wife have been able to pass down to their children:
“My dad (and my mom) have instilled a strong sense of community and service in each of their children. We have always been taught to give of our time and our talents. I love and respect my dad deeply.” (Exh. J, Tab 15)
John writes that his father has confided in him on several occasions about his sincere and deep regret for his criminal conduct, expressing both “his remorse and his sorrow” over what he has done. John does not attempt to excuse his father’s criminal conduct, but rather, concludes his letter by respectfully requesting that Your Honor demonstrate mercy by granting his father, Mr. Seminerio, leniency based upon the totality of his good and decent life and his many contributions to the community:
“I hoping that this letter, whatever weight it may have, will convince you to be lenient on my dad....[He] has never been in trouble before and is not in the best of health. If you weigh all the good that he has done against the misconduct for which he appears before you, I hope you can see your way to being compassionate.” (Exh. J, Tab 15)
70 Anton Seminerio, Mr. Seminerio’s ten-year-old grandson, writes of his fond memories of the time they have spent together, from family vacations and get-togethers to the visits at his grandfather’s office. Anton, who clearly loves his grandfather and is very proud of him, writes:
“My grandpa is a great man. He has 8 grandkids and he loves all of us. I love when we get together on Sundays with my aunts, uncles, cousins and grandpa and grandma. He always asks how I am doing in school and if I need anything.” (Exh. J, Tab 6)
Although he understands that his grandfather has committed a crime, Anton writes that, in his mind, Mr. Seminerio will always be the caring, generous and loving grandfather he has come to know, and whom he hopes can remain a part of his life:
“I want to remember my grandpa for all the good things he’s done for me and everyone else. My grandpa is getting old now. I want him to be with us for a long time.” (Exh. J, Tab 6)
Maria Gioia Massimiano is Mr. Seminerio’s niece, and her mother, Antoinette Gioia, is
Mr. Seminerio’s sister. Ms. Massimiano writes about the “very personal and difficult story” of her father’s death, in order to demonstrate what her uncle, Mr. Seminerio, means to her. (Exh. J, Tab
7) When Ms. Massimiano’s father fell ill and was rushed to the emergency room, Mr. Seminerio was at the hospital right away “just to be there, to sit with us, just to make sure we were OK.” After hours and hours had passed, Ms. Massimiano told Mr. Seminerio that it would be alright and that he could go home, but Mr. Seminerio refused and simply replied, “just go[,] stay with your father.”
(Exh. J, Tab 7)
Later, when her father became terminally ill, Ms. Massimiano felt confused and helpless, and so she would call her uncle “anytime day and night” for advice and comfort. Mr. Seminerio was always there for her and would visit the hospital, the nursing home and, finally, an assisted living
71 center just to spend time with Ms. Massimiano’s father and to provide emotional support for Ms.
Massimiano and her family. Ms. Massimiano writes that she is eternally grateful for how Mr.
Seminerio has loved and cared for her entire family, continuing to look after her 78-year-old widowed mother to this day, and aptly quotes her late father’s words regarding her uncle: “[Mr.
Seminerio]’s been so good to us, he’s a good kid, he always was.” (Exh. J, Tab 7)
Ms. Massimiano concludes her letter by expressing her hope that her letter provides an example of the kind of “selfless family man and compassionate friend” her uncle, Mr. Seminerio, is, and that his “lifetime of good” will not be discounted. (Exh. J, Tab 7)
Anna Gibbs is Mr. Seminerio’s niece and goddaughter, and writes of her love and respect for her “blunt, blustery, bellowing, caring, protective, passionate” uncle, Mr. Seminerio, and the positive impact his generosity has had on her and her family’s lives. (Exh. J, Tab 8) Ms. Gibbs writes that Mr. Seminerio was not only “exceptionally close to his children, involved with them, in their lives,” but he was involved in her (Ms. Gibbs’) life as well. When Ms. Gibbs was about eleven years old, her parents’ relationship began to fall apart, ultimately ending in divorce. Ms. Gibbs writes that during this difficult period of time, Mr. Seminerio “made me feel safe, on steady ground and I wanted to be around him more.” Every time Ms. Gibbs visited Mr. Seminerio, who is her father’s older brother, Mr. Seminerio would take Ms. Gibbs aside and tell her to tell her mother that
“if she needed anything to call him. I knew he meant it. She did too.” (Exh. J, Tab 8)
When Ms. Gibbs’ mother was diagnosed with rheumatoid arthritis, Mr. Seminerio helped to have her car registered for handicap plates because she was too embarrassed to do it herself. Ms.
Gibbs further writes of Mr. Seminerio’s commitment to helping her mother:
72 “The day before my mother died, 32-years after my parents divorced, [Mr. Seminerio] was trying to get her a bed in Jamaica Hospital because the Brooklyn hospital she was in had left in her the hallway tied to a chair because she had no strength to hold herself up.” (Exh. J, Tab 8)
Ms. Gibbs concludes her letter to Your Honor by reiterating her continued love and respect for her uncle, which is based upon his kind, generous, caring nature and all the help has provided to others throughout the years:
“I have always loved and respected [Mr. Seminerio]. I will always love and respect him....He never, ever turns his back when someone needs him. He did not turn his back on his neighborhood or leave that little house in Ozone Park.
....
... I know he has done wonderful things for Queens, as a correction officer and as an assemblyman, because he knew in his heart what needed to be done, whether it was for his community, a friend or a family member and I would dare say, for a stranger. As a son, a husband, a father, an uncle, a godfather, he is simply exceptional.” (Exh. J, Tab 8)
Lucio Gandolfo writes on behalf of his uncle and godfather, Mr. Seminerio, whom he has known and admired his entire life. Mr. Gandolfo is actively involved in his community as a
Volunteer Firefighter and a coach and through various religious organizations and recreational programs, and has received a number of awards for his service to the community. (Exh. J, Tab 9)
Mr. Gandolfo spent a lot of time with Mr. Seminerio when he was growing up and fondly remembers how much fun his uncle was, but also remembers that his uncle always stood as an important example of selflessness, compassion and a willingness to help others.
In his letter, Mr. Gandolfo writes about how he was inspired by his uncle’s actions and generosity of spirit:
73 “In 1996, when I received Lynbrook’s Man of the Year award, I dedicated it to my Uncle Tony; because of my uncle’s example of community service, he led me to emulate him, to make a difference in my community. In my humble opinion, I feel everyone should be blessed with an Uncle Tony, like my Uncle Tony. He had taught me compassion for my fellow human being, the importance of family and that I am part of a greater whole.” (Exh. J, Tab 9)
Mr. Gandolfo concludes his letter by respectfully requesting that Your Honor grant “leniency and compassion to a man, who showed compassion to numerous people in his lifetime.” (Exh. J,
Tab 9)
Frank T. Russo, Jr., writes on behalf of his cousin, Mr. Seminerio, with whom he has shared a close relationship over the past seven decades. Because Mr. Russo’s parents helped raise
Mr. Seminerio, Mr. Russo knows that Mr. Seminerio was “taught to value family,” and notes that his cousin’s “position as Assemblyman never stopped hi[m] from being a strong part of the family.”
However, Mr. Seminerio was also devoted to his constituents. Mr. Russo had visited his cousin at his office and observed how he treated his constituents:
“[Mr. Seminerio’s constituents] would call with a problem – which [Mr. Seminerio] attempted to resolve immediately....This was a continual thing – they called and they were served – time and time again. This is one of the reasons he was elected. The people loved him.” (Exh. J, Tab 10)
Mr. Russo notes that Mr. Seminerio also loved his constituents, writing that Mr. Seminerio never moved from his home in Richmond Hill because “he wanted to be close to the people who voted for him.” Mr. Russo concludes his letter to Your Honor by writing that he believes Mr.
Seminerio to be a good husband, father and grandfather who cares about people.
Karen Takoushian writes on behalf of her uncle, Mr. Seminerio, who had a significant influence on her upbringing. She has many fond memories of Mr. Seminerio from her childhood
74 growing up in Queens, and remembers how he taught her and her cousins the importance of having both an “education” and a “kind heart.” Ms. Takoushian believes that, as an Assemblyman, Mr.
Seminerio was truly gifted in his ability to “listen[] to people and communicate[] to their core”; and she admires how Mr. Seminerio showed particular concern for immigrants and other minorities in his community. In all the years Ms. Takoushian has known Mr. Seminerio, his devotion to serving his community has never faded. (Exh. J, Tab 12)
As Ms. Takoushian further writes:
“[Mr. Seminerio] had to educate many constituent who did not grow up with America’s justice system.…Assemblyman Seminerio was a fixture in his neighborhood, more valued because he walked the talk about tolerance in a changing demographic. He would remind all that diversity and the changing culture of Richmond Hill was something everyone should embrace.” (Exh. J, Tab 12)
Ms. Takoushian knows of Mr. Seminerio’s misconduct and does not seek to justify his actions, but states that she nonetheless remains “loyal” to Mr. Seminerio because she has “witnessed his heart [and] his unselfishness.” She concludes her letter by respectfully requesting that Your
Honor grant leniency to Mr. Seminerio, “who for the better part of his life worked with purpose and caring to make his part of the world a better more safer place to live.” (Exh. J, Tab 12)
Toni Marie Marnick, Mr. Seminerio’s niece, writes of her uncle’s devotion to his family and his community. Ms. Marnick describes her uncle as a man whose love for his family is
“unlimited and unconditional.” As Ms. Marnick writes, “My Uncle is a wonderful caring man. He has always made his family feel safe and loved and that goes further than his children and wife ... he has always made me feel the same.” (Exh. J, Tab 11)
75 In her letter, Ms. Marnick tells of how her mother was taken in an ambulance to a Brooklyn hospital shortly before she died, and when Ms. Marnick arrived at the hospital, she found her mother tied with a rope to a chair. She telephoned Mr. Seminerio, who was up in Albany, and he stopped everything he was doing to try to have her transferred to a more suitable hospital.
Ms. Marnick concludes her letter by thanking Your Honor for giving her the opportunity to tell you about “the real man Anthony Seminerio,” and writes:
“This is a man who stands by his family along with his community with such commitment. There are few people these days that we can safely say this about. Uncle Tony has accomplished so many wonderful things for the city of Queens as an assemblyman and friend to the people in the community. As an uncle, father, husband, grandfather and son he is an amazing man we can always count on.” (Exh. J, Tab 11)
Joseph and Margaret Sarandrea, write on behalf of Mr. Seminerio, whom they have known for over 50 years. Mrs. Sarandrea is Mr. Seminerio’s wife’s cousin. Mr. and Mrs. Sarandrea describe Mr. Seminerio as a “caring and considerate” man, and list the many ways in which he has helped their family throughout the years – from driving them to the hospital when Mrs. Sarandrea was in labor, to guiding their son-in-law in completing his GED and applying for a union job, to providing advice and support when they were placing Mrs. Sarandrea’s mother in a nursing home.
In addition to Mr. Seminerio helping his family members, Mr. and Mrs. Sarandrea confirm that Mr. Seminerio was constantly available and willing to assist his entire community:
“ ... [W]hen we were out for dinner, strangers would come over to the table and ask Tony for help and advice. He was always very gracious and always advised them. Never questioning what district they were in, he always listened and helped them whenever he could!” (Exh. J, Tab 13)
76 Susan Seminerio, Mr. Seminerio’s daughter-in-law, has known Mr. Seminerio for 30 years and has been married to his son, John, for 23 years. From the moment Susan met Mr. Seminerio, she has always known him to be “a loving caring man who cherished his family.” Susan writes about how much she enjoyed the Italian Sunday dinners at Mr. Seminerio’s house, where she was just one of many guests, as Mr. Seminerio was always opening his home up to others. Susan is grateful for the many ways in which Mr. Seminerio has helped her and her family over the years – from generously volunteering his time and effort to their son Anton’s Boy Scout Troop, to providing
Susan with thoughtful and beneficial career advice. (Exh. J, Tab 14)
Apart from Mr. Seminerio’s dedication to his family, Susan further attests to Mr. Seminerio’s good reputation and his service to his community:
“[Mr. Seminerio] is a wonderful father, grandfather, mentor and friend to the community. His reputation is solid and his loyalty to family, friends and neighbors is unending....John and I are involved with many local civic and social associations. Over the years dozens of people have told us how wonderful [Mr. Seminerio] is and how he has helped them resolve a problem that they had.” (Exh. J, Tab 14)
The following family members have also written letters to Your Honor, which letters further confirm that, first and foremost, Mr. Seminerio is a caring and loving father, husband and grandfather, who is a fundamentally decent person, and who has dedicated his entire life, personally and professionally, to providing and working for the best interests of his family, friends, colleagues, constituents and the people of the State of New York:
• Angelo Seminerio writes on behalf of his brother, Mr. Seminerio, “Tony is a person who loved his job and the people in his districts to the fullest. Tony went out for all his constituents. He left no table unturned to help a constituent who came to his office or anyone else for that matter. It did not matter to Tony, if the person lived in his district or not, Tony still went all out to produce for them.…Wherever I went, people had nothing but praise for
77 Tony and how he helped them out or someone in their family. Whenever he could, he helped his constituents get jobs when they could not find work....I know is that for 25 years plus he gave the New York Assembly and the people in his district all he had.” (Exh. J, Tab 241)
• Anna Keane writes on behalf of her uncle, Mr. Seminerio, and discusses the many fond memories she has of her uncle’s generosity and kindness. In her letter to Your Honor, Ms. Keane writes that, although “family is most important thing” to Mr. Seminerio, he has also “helped countless amounts of people with their needs and wants.” She writes of one time when she met a single mother who was unemployed and she told her to go see her uncle, Mr. Seminerio, for help. The woman began crying and hugged Ms. Keane, telling her of all Mr. Seminerio had already done to help her. Ms. Keane concludes her letter by respectfully requesting that Your Honor demonstrate mercy by granting Mr. Seminerio leniency. (Exh. J, Tab 152)
• Claire G. Russo writes on behalf of her uncle and godfather, Mr. Seminerio, “My uncle has a heart of gold and has helped many, many people throughout his long career as an assemblyman. He certainly has touched my heart in many ways. I wish him only the best in life.” (Exh. J, Tab 237)
• Vincent Seminerio writes on behalf of his uncle, Mr. Seminerio, “No matter how busy or demanding his life as an Assemblyman was, he always found the time to remove himself from his duties, and with such a level of tolerance....He has always been there for me so many times, to show his love and understanding never placing a time limit when offering his own valuable time....If I could say one thing that epitomizes our relationship, Uncle Tony always has a way of making things seem far less complicated and gives that dose of perspective, I think we all need from someone in our lives from time to time.” (Exh. J, Tab 250)
• Anthony Sarandrea writes on behalf of his uncle, Mr. Seminerio, “I have been at my uncle Tony[’]s house numerous times, when his dinner was interupted [sic] by people in his area calling him up with complaints about various problems they had. I was amazed that he would answer questions from his constituents on his own time. He really loved his job and was always willing to help people, he treated strangers with the respect he would give his own family....I have been around my uncle, my Aunt and my cousins and seen firsthand the love and kindness he had shown them. Words cannot describe the love and caring that my uncle had and has for his family, he lived and still lives for all of them....” (Exh. J, Tab 243)
78 • John Gandolfo writes with love and gratitude on behalf of his “funny, kind and gregarious” granduncle, Mr. Seminerio. Mr. Gandolfo will always be appreciative of the support and encouragement Mr. Seminerio gave him when he was struggling in school and the career counseling Mr. Seminerio provided to him later in life. Mr. Gandolfo concludes his letter by thanking Your Honor for your consideration and respectfully requesting that Your Honor give Mr. Seminerio “the compassion he showed so many others....” (Exh. J, Tab 115)
• Joseph F. Gandolfo writes of his uncle, Mr. Seminerio, “My grandmother [Mr. Seminerio’s mother] died young and my mother took her place helping to raise her brothers and sisters. Uncle Tony never forgot this, and to this very day he is always helping someone in need....He wasn’t selfish or greedy. He worked hard and cared for his family.” (Exh. J, Tab 116)
• Anthony Russo writes on behalf of his cousin, Mr. Seminerio, “Anthony has always been devoted to his wife and children. They are his whole life....He was always willing to help his constituents and went out of his way to be altruistic. Because of this, he was loved in his district for no other reason then that he was always there to support his constituency.” (Exh. J, Tab 236)
• Michelle Dodhia writes on behalf of her cousin, Mr. Seminerio, “Tony has been there for me, his family and his community....Tony was there when I needed confidence to put my life back together. I am so proud to be his cousin. Tony is a good man.” (Exh. J, Tab 89)
• Mary Giacomantonio writes on behalf of her uncle, Mr. Seminerio, “My uncle doesn’t only help his family members but he helps many other people, even strangers. When my parents go to dinner with my Aunt Catherine and Uncle Tony, there are few times that the[y] don’t get interrupted by someone always asking my uncle for advice, a favor or just a thank you for something he has done for them....His heart is the biggest thing he owns! His generous nature and his love for all truly is amazing.” (Exh. J, Tab 121)
• Maryann Jones writes on behalf of her cousin, Mr. Seminerio, “I grew up with [Mr. Seminerio], and saw him grow up into a good man. Tony is a very giving and caring person to both his family and community. Tony works extremely hard, and goes out of his way to help people in need.” (Exh. J, Tab 143)
• Debra Megahed writes on behalf of her cousin, Mr. Seminerio, “Tony has taught me how to be strong and be in control of my life. Tony convinced me to go back to school....Tony has a heart of gold. Always thinking how he can
79 help people. He is the most unselfish man I [have] ever known.” (Exh. J, Tab 188)
• Donna Cassidy writes that her uncle, Mr. Seminerio, “always was there for myself and my family” – whether it was taking her shopping as a child, taking her younger brother on vacation when their parents were going through tough times financially, or always providing her with good advice. She concludes her letter to Your Honor by writing, “I’ve seen my uncle do so many honorable and charitable deeds throughout my life. When my uncle stands before you, I hope you judge him for the charitable wonderful man he’s been all his life.” (Exh. J, Tab 56)
• Frank Culley, writes on behalf of his son’s father-in-law, Mr. Seminerio, “ ... I have had the opportunity to observe [Mr. Seminerio] first hand in his dealings with family, friends, constituents, and fellow assemblymen and women on occasions too numerous to mention. I find him to be a loving father, grandfather, and husband who is very much involved in his family ... [and] a painfully honest, generous, thoughtful, frugal individual who puts the needs of others, whether they be family, friends, or constituents before himself.” (Exh. J, Tab 74)
• Kathleen Culley writes in support of her son’s father-in-law, Mr. Seminerio, whom she has known for 20 years. Mrs. Culley has always observed Mr. Seminerio to be, above all else, a truly giving and loving man, and writes, “[Mr. Seminerio] is a kind, caring, unselfish [and] generous human being. He is loyal and dependable to family and friends. His lifestyle is not one of extravagance, but of simplicity. A compassionate and loving man, Tony goes out of his way to [e]nsure that his grandchildren are made to feel very special....Tony continually reaches out to help others in society and makes sure that their needs are taken care of, no matter how insignificant they may seem.” (Exh. J, Tab 75)
• Marianne Badala writes on behalf of her uncle, Mr. Seminerio, a beloved member of her “close knit family.” Ms. Badala’s mother, Mary (Mr. Seminerio’s sister), passed away when Ms. Badala was only 14 years old. Ms. Badala explains how important Mr. Seminerio’s love and support was to her during that difficult time, and writes, “If I needed for anything my uncle was always there for me. His home was filled with love, warmth and a sense of stability. I was there often. That was a tremendous consolation for me....If you measure a man’s life, consideration should also be given to all the good deeds he has done. In closing your honor, I ask you to show mercy....” (Exh. J, Tab 28)
80 • Marie Kurtz writes in support of Mr. Seminerio, a “very respected and beloved member” of her extended family. Ms. Kurtz describes Mr. Seminerio as “a loving father, grandfather and a genuinely generous man,” and writes of how he would make daily trips to his daughter Mabel’s house to help her take care of his grandchildren when Mabel’s husband was stationed in Iraq. Ms. Kurtz has volunteered in Mr. Seminerio’s office and supported him at many social and political functions, and she notes that it was always evident that he was making a positive difference in people’s lives. Ms. Kurtz further writes, “I was always impressed by how many people he helped and how many lives he touched. He is the ‘go to’ guy. Helping anyone who would ask.” (Exh. J, Tab 158)
D. LETTERS SUBMITTED BY MR. SEMINERIO’S FRIENDS, CONSTITUENTS AND COLLEAGUES.
Numerous friends, constituents and colleagues have also written letters to Your Honor on Mr.
Seminerio’s behalf. Collectively, these letters further confirm that, first and foremost, Mr. Seminerio is a caring and loving father, husband and grandfather, and a fundamentally decent person, who has dedicated his entire life, personally and professionally, to providing for his family, his co-workers, his constituents, his community and the people of the State of New York.
Simcha Waisman, President of the One-Stop Richmond Hill Community Center, writes on behalf of the organization’s entire Board of Directors in support of Mr. Seminerio. Mr. Waisman writes that Mr. Seminerio has been “untiring and most supportive” of his organization’s work, including providing support for: the Computer Technology & Videoconferencing Program, which provides the community’s youth with opportunities to learn about science and technology; the
Mommy & Me Program, a learning program for both parents and toddlers; and general funding which has been used to run after-school tutoring programs and to assist community residents with their quality of life issues. (Exh. J, Tab 276)
81 Mr. Waisman expresses his gratitude for Mr. Seminerio’s unwavering commitment to both the One-Stop Richmond Hill Community Center and the needs of the community at large:
“Mr. Seminerio has been dedicated to the Richmond Hill community, and without his assistance and support the programs we offer to our community residents would not be possible. In fact, he has staunchly supported our residents on a daily basis, and never asked for anything in return.” (Exh. J, Tab 276)
Mr. Waisman concludes his letter to Your Honor by writing:
“In our opinion, the State of New York and our community of Richmond Hill will greatly miss his persevering, caring and steadfast way of bringing the very best to our residents.” (Exh. J, Tab 276)
James J. Boyle, retired President of the United Firefighters Association, writes on behalf of his friend, Mr. Seminerio, whom he has known for 30 years. Ms. Boyle first came to know Mr.
Seminerio in an official capacity through Mr. Seminerio’s service as an officer in the Correction
Officers’ Union and then as a member of the New York State Assembly. Over time, their professional relationship grew into a close friendship. (Exh. J, Tab 42).
In his letter to Your Honor, Mr. Boyle recalls September 11, 2001 with great sorrow as the day he lost his son, Michael. He expresses his extreme gratitude that Mr. Seminerio was there to support him through that tragedy and writes, “I will never forget Tony’s own tears and words providing comfort for me after that terrible day.” (Exh. J, Tab 42).
Just as Mr. Boyle loves Mr. Seminerio as a devoted friend, he also respected Mr. Seminerio as a devoted Assemblyman, and writes:
“Tony always approached his duties in the Assembly with great passion and enthusiasm like no other elected representative. He is a man of action and when he gave his word [he] carried forward on his commitments, always displaying great loyalty.” (Exh. J, Tab 42)
82 Mr. Boyle does not seek to excuse Mr. Seminerio’s misconduct, but rather, simply expresses his deep concern for his friend and his health. In respectfully requesting that Your Honor demonstrate mercy and grant Mr. Seminerio leniency, Mr. Boyle writes, “Please take into account the good things Tony has achieved over his thirty-year career in the Assembly. He suffers everyday for the hurt he caused for his dishonest act.” (Exh. J, Tab 42)
Rocco Valentino, a former New York City Correction Officer, writes on behalf of Mr.
Seminerio, his friend and former colleague. Mr. Valentino first met Mr. Seminerio on Rikers Island, when he was a 21-year-old rookie Correction Officer and Mr. Seminerio was a 35-year-old experienced Correction Officer. Mr. Valentino writes that from that day forward, Mr. Seminerio was like a big brother to him:
“ ... [Mr. Seminerio] never stopped looking out for me. He always guided and protected me from getting into trouble legally and physically with the inmates in the jail.” (Exh. J, Tab 272)
Over the years, Mr. Valentino’s relationship with Mr. Seminerio grew “stronger and closer”; and Mr. Valentino, having no family of his own, adopted Mr. Seminerio as his “Uncle Tony.” Apart from being Mr. Seminerio’s adopted family, friend and colleague, Mr. Valentino was also his constituent, and volunteered on all of Mr. Seminerio’s campaigns because he believes Mr. Seminerio to be a “man of honor.” Mr. Valentino had many opportunities to visit Mr. Seminerio in his District
Office and observed Mr. Seminerio’s genuine enthusiasm for serving his constituents.
Mr. Valentino writes:
“I witnessed [Mr. Seminerio] welcoming people into his office off the streets and addressing their grievances and problems....No appointment was necessary and none of the egotistical formalities....He was never seeking power or money. He only wanted to help people....” (Exh. J, Tab 272)
83 Notwithstanding Mr. Seminerio’s criminal conduct, Mr. Valentino still believes in Mr.
Seminerio’s fundamental honesty and decency, and writes that he does not know “a finer man or more trustworthy human being than [Mr.] Seminerio.” (Exh, J, Tab 272)
Kathleen J. Fitz Gerald writes on behalf of Mr. Seminerio, for whom her father, Captain
James Fitz Gerald, used to work. Ms. Fitz Gerald’s entire family came to know Mr. Seminerio personally, as her father considered Mr. Seminerio to be a “trusted friend.” Ms. Fitz Gerald writes of the “very touching sight” she witnessed when she visited Mr. Seminerio’s Richmond Hill office and found a number of people waiting there to “ask for help, to speak their minds, or just to be heard”; and Mr. Seminerio was there, “easing their minds by offering to do what he could.” (Exh.
J, Tab 107)
Ms. Fitz Gerald’s father often spoke of Mr. Seminerio’s “integrity” and described him as “a friend you could count on.” Mr. Fitz Gerald writes that her father’s “high praises” of Mr. Seminerio were confirmed for her, especially during her father’s battle with cancer towards the end of his life.
During that difficult period of time, Ms. Fitz Gerald came to know Mr. Seminerio’s “gentle” nature, and writes that his emotional phone calls to their home “left a lasting impression on our family.”
(Exh. J, Tab 107)
Ms. Fitz Gerald concludes her letter to Your Honor by writing that although she was
“surprised” to hear of Mr. Seminerio’s misconduct, her support for Mr. Seminerio is unwavering and she “pray[s] that God will keep Tony with his family; his wife, his children and his grandchildren [because t]hey all need him.” (Exh. J, Tab 107)
Anthony V. Gazzara is a retired Queens County Civil Court Judge of the City of New York, a former New York State Senator and a former New York State Assemblyman, among other
84 positions. Judge Gazzara has known Mr. Seminerio for over 30 years, having first met him when
Mr. Seminerio was a lobbyist on behalf of the Correction Officers’ Union. He is aware of Mr.
Seminerio’s criminal conduct, which Judge Gazzara believes was an aberration from the
“personality” and “goodness” he otherwise knows Mr. Seminerio to possess. (Exh. J, Tab 119)
Judge Gazzara further writes of Mr. Seminerio’s good reputation:
“For the 33 years of my association [with Mr. Seminerio] as a legislator and friend neither any of our colleagues in the legislature, mutual friends or people I know whom I recommend for assistance have ever heard of any adverse criticism of his character or dealings, on the contrary only praise.” (Exh. J, Tab 119)
Judge Gazzara concludes his letter to Your Honor by writing:
“I respectfully ask that you take into consideration [Mr. Seminerio’s] 30 years of service, his age, his health, which is delicate, and render leniency.” (Exh. J, Tab 119)
Kathleen Gould, a school teacher and close friend of Mr. Seminerio’s daughter, Mabel, has known the Seminerio family for 20 years. Ms. Gould writes on behalf of Mr. Seminerio – whom she refers to as “Mr. Sem” – as a “true family man [who] supports his children’s endeavors, provides them with emotional support, love and kindness.” She notes that when Mabel’s husband, Mark, was serving in Iraq, Mr. Seminerio made a point to visit Mabel’s home more frequently to be with his grandchildren and to help with babysitting in their father’s absence. Mr. Seminerio was always willing to help anyone, not just his family. Ms. Gould concludes her letter to Your Honor by attesting to Mr. Seminerio’s unwavering loyalty and declaring that she considers herself “fortunate to know him and be a part of his extended family.” (Exh. J, Tab 124)
Marjorie Ehrlich has known the Seminerio family for approximately 30 years, and writes that, throughout that time, she has always been “impressed with the close ties of the entire Seminerio
85 family ... [and t]he mutual respect of all the family members to each other.” (Exh. J, Tab 97) Ms.
Ehrlich has “treasured [the] friendship and support” of the Seminerio family, and is appreciative of the many ways Mr. Seminerio has helped her family – from providing career guidance and advice to one of her daughters, to finding a vascular specialist and setting up an examination when doctors told her that she would have to have her leg amputated.
Beyond Mr. Seminerio’s care and concern for his family and friends, Ms. Ehrlich writes that she was also “impressed by his personal dedication to every single constituent and their needs – no matter how trivial they might seem.” In particular, Ms. Ehrlich notes Mr. Seminerio’s concern for the community’s youth and his opposition to gambling facilities in the area because he believed that the loss of money from gambling often deprived a family of essentials. (Exh. J, Tab 97)
Ms. Ehrlich concludes her letter by respectfully requesting that Your Honor take into consideration all of the good Mr. Seminerio has done throughout his life, and demonstrate mercy by granting Mr. Seminerio leniency:
“We are saddened by the current events – but in our hearts feel [Mr. Seminerio] and his family have indeed suffered a great deal and compassion and mercy would be considered by this Court. We respectfully ask this honorable Court to consider [Mr. Seminerio’s] dedication to each and every constituent and his getting personally involved in their problems and achieving a favorable result for their needs...” (Exh. J, Tab 97)
Pat Esposito has known Mr. Seminerio and his family for over seven decades, having lived on the same block together as children. Mr. Esposito grew up with Mr. Seminerio, and writes that he knows that Mr. Seminerio was raised in an environment “where respect, honesty and loyalty to family and friends were the norm” and that “dedication to family and friends” has become part of
Mr. Seminerio’s character. As a lifelong friend of Mr. Seminerio, Mr. Esposito has shared many
86 important life events with him, including his initial, and ultimately successful, run for the New York
State Assembly. Mr. Esposito writes that Mr. Seminerio was accomplished as both an Assemblyman and as a father – noting that as an Assemblyman, Mr. Seminerio “fought for community projects and helped people locate affordable apartments in the neighborhood,” and as a father, Mr. Seminerio
“was instrumental in the formation of [his children’s] characters.” (Exh. J, Tab 100)
Mr. Esposito concludes his letter to Your Honor by confirming his belief in Mr. Seminerio’s good character:
“Tony is a proud and honorable man, a faithful husband, who loves his wife and three children and eight grandchildren. He is a man who has devoted his life to helping [those] who have asked for help. Tony has helped and done more for people than anyone I know. I am proud to call him a friend.” (Exh. J, Tab 100)
Paula Marchese writes on behalf of her friend, Mr. Seminerio, whom she has known for over 50 years. Mr. Seminerio served as an usher in Ms. Marchese’s wedding, and Ms. Marchese’s family and Mr. Seminerio’s family have since become “dearest friends.” Ms. Marchese has, over the years, spent a significant amount of time with Mr. Seminerio and his family, and she knows Mr.
Seminerio to be a “wonderful parent and friend” and a “great godfather” to her son, Robert. (Exh.
J, Tab 177)
In his letter to Your Honor, Ms. Marchese also attests to Mr. Seminerio’s reputation within his community as a man of great generosity, who was always willing to help anyone, and writes:
“If anyone in the family or neighborhood needed help either financially or just directions on how to proceed to solve a problem, Tony was the go to guy. He always had time to listen, give advice and just be there to help.” (Exh. J, Tab 177)
87 Ms. Marchese concludes her letter by respectfully requesting that Your Honor “take into consideration all the good work Tony has done throughout his life” when determining Mr.
Seminerio’s sentence. (Exh. J, Tab 177)
John Fogarile, who has lived in Richmond Hill, Queens for over 40 years and has known
Mr. Seminerio for approximately 35 years, writes of Mr. Seminerio’s dedication as both a father and an Assemblyman. Mr. Fogarile’s and Mr. Seminerio’s children grew up together, celebrating birthdays and other family events together. Mr. Fogarile knows Mr. Seminerio to be a devoted father, and writes, “ ... Tony and his wife, Catherine, are two of the most family oriented people you’ll ever meet. His character is reflected in his children, who are all successful today.” (Exh. J,
Tab 110)
Mr. Fogarile has also observed Mr. Seminerio’s commitment to serving his community and has experienced first-hand his enthusiasm for helping anyone in need of assistance, noting that Mr.
Seminerio has helped both Mr. Fogarile’s wife and daughter find employment. Mr. Fogarile sums up Mr. Seminerio’s generous and approachable nature in his letter, and writes:
“Here’s a guy that you would meet in a restaurant or the corner bakery. He would always ask me about my health, and my family. He would want to know if there was anything he could do for me (as if he didn’t already do enough). His help and influence affected so many people that even Tony doesn’t realize it.” (Exh. J, Tab 110)
Lisa M. Buccini, Esq., writes on behalf of her friend and former boss, Mr. Seminerio. Ms.
Buccini first became acquainted with Mr. Seminerio while she was interning with the New York
State Assembly. After Ms. Buccini had completed her internship, Mr. Seminerio offered her a part- time job so she could work for him while completing college. Ms. Buccini writes that it was Mr.
Seminerio who encouraged her to take the Law School Admission Test (LSAT) and go to law
88 school, even though she had never thought that an advanced degree would be financially possible.
Ms. Buccini continued to work for Mr. Seminerio until she graduated from Albany Law School in
2002. (Exh. J, Tab 44)
Ms. Buccini is aware of Mr. Seminerio’s criminal conduct and does not attempt to excuse his misconduct, but instead, focuses on what she knows to be Mr. Seminerio’s fundamental good and decent nature and his remorse and contrition for his wrongdoing:
“He is a kind, compassionate and generous man who always puts the well being of others ahead of his own....I know that Tony is deeply remorseful and understands what he did and what was wrong about it....I am confident that he has learned humble lessons from his mistakes.” (Exh. J, Tab 44)
Ms. Buccini concludes her letter by respectfully requesting that Your Honor demonstrate mercy by granting leniency to her “kind, honest and courageous” friend, Mr. Seminerio.
Jody Rickert writes on behalf of Mr. Seminerio, for whom she worked for 13 years, and whom she describes as her “Guarding Angel.” Ms. Rickert writes with extreme gratitude of how, when she and her husband lost their business and their home, Mr. Seminerio gave her a job and gave her hope. Only a few months after she started working for Mr. Seminerio, Ms. Rickert’s daughter became very ill, and Mr. Seminerio was completely understanding of her need to take time off from work. During this difficult period of time, Mr. Seminerio would constantly reassure her, “Take care of your family first, this job will always be here.” Ms. Rickert knew that Mr. Seminerio truly meant what he said because she has seen that Mr. Seminerio’s family members are “the most important things in his life....He lives for them.” (Exh. J, Tab 228)
89 In the time she spent working for Mr. Seminerio, Ms. Rickert learned that the generosity and kindness Mr. Seminerio gave to her, he extended to everyone who walked through his door. Ms.
Rickert writes that Mr. Seminerio would attend to constituents’ issues as if they were his own:
“When I went to work for Tony I never realized that an Assemblyperson took on such problems and concerns of their constituents. He always tackled their problems or issues whole- heartedly and never left a stone unturned. Sometimes their problems were big, some very simple but there have been times when they would be heartbreaking. Tony would always say ‘but for the grace of God there go I.’” (Exh. J, Tab 228)
Ms. Rickert concludes her letter by respectfully requesting that Your Honor grant Mr.
Seminerio leniency based upon all the good he has done for others and his lifetime of service to the public.
Scott C. Cantone, Esq., an attorney who has had over 15 years of public service working for the New York State Legislature and two New York City Mayors, writes on behalf of Mr.
Seminerio, whom he has known for 19 years. They first met when Mr. Cantone was fresh out of college and working for the Insurance Committee of the New York State Assembly. Mr. Cantone truly appreciates the “warmth and respect” Mr. Seminerio showed him when he was a junior staffer, and adds that, in fact, that was the way Mr. Seminerio treated everyone:
“[Mr. Seminerio] was loved by all of the staff at the Legislative Office Building and Capitol; from secretaries to elevator operators to legislative aides and interns. He respected and cared about everyone, in spite of their place on the political ladder....” (Exh. J, Tab 49)
Mr. Cantone’s relationship with Mr. Seminerio continued even after he left Albany to attend law school, and he continued to witness Mr. Seminerio’s kindness and compassion. In particular,
Mr. Cantone writes about a first-year law school student who came into Mr. Seminerio’s office,
90 worried that he would fail out of school. Mr. Seminerio asked Mr. Cantone if he would speak to this student and tutor him, which, of course, Mr. Cantone agreed to do. The following year, this same student’s father passed away, and Mr. Cantone writes that Mr. Seminerio “became a father figure in [this student’s] life, looking out for him and his family.” (Exh. J, Tab 49)
Mr. Cantone knows that his personal experiences with Mr. Seminerio are emblematic of Mr.
Seminerio’s unending generosity:
“[Mr. Seminerio] was always there for his community and constituents; they were part of his larger family. He had a big heart and never turned anyone away and would fight for everyone as if they were his own child, mother or brother.” (Exh. J, Tab 49)
Mr. Cantone concludes his letter to Your Honor by describing Mr. Seminerio as a
“compassionate, honest, and a zealous hard-working advocate,” and requesting that Your Honor grant Mr. Seminerio leniency based upon “the countless people [he] went out of his way to help,
[and] the immeasurable lives he has touched.” (Exh. J, Tab 49)
Barry Sudiker, founder of the Crime Victims Rights Organization, writes of Mr.
Seminerio’s true compassion as a human being, and integrity as a politician – noting that “when he gives his word, he stands by it.” Mr. Sudiker expressed his gratitude for Mr. Seminerio’s loyal support of the Crime Victims Rights Organization over the years, but also for the kindness Mr.
Seminerio has showed in helping Mr. Sudiker’s family. Mr. Sudiker explains that when Mr.
Seminerio learned of how Mr. Sudiker’s extremely ill mother was having problems getting required health services, Mr. Seminerio personally called the appropriate offices to get her the care she needed
– and Mr. Seminerio’s concern for Mr. Sudiker’s mother never diminished. (Exh. J, Tab 264)
91 Mr. Sudiker writes that the compassion Mr. Seminerio showed him was consistent with the caring, kindness and generosity he routinely observed Mr. Seminerio display in all aspects of his life:
“‘Tony’, as he asked his constituents to call him, did these types of good deeds for his entire community, irrespective of anyone’s lot in life. [Mr.] Seminerio has always cared about people and understands the problems that family face. Perhaps that comes from the closeness and dedication he feels toward his own family, whom many in the community got to know and love. His dedication to them and to the people he served was obvious to anyone who visited his office in Queens – in the way he treated people and reacted to their problems.” (Exh. J, Tab 264)
Mr. Sudiker respectfully requests that Your Honor grant Mr. Seminerio leniency based upon the totality of his good and decent life spent in public service.
Natanel and Julia Yusupov write in support of their former Assemblyman, Mr. Seminerio, whom they describe as a “wonderful human being” of “great character and charisma.” The
Yusupovs and their two children emigrated from Uzbekistan in 1992. They arrived in the United
States with no jobs, no education and barely enough public assistance to survive. Desperate and not knowing where else to turn, Mr. Yusupov went to see their Assemblyman, Mr. Seminerio. Mr
Yusupov writes that, fortunately, he found the help he was looking for:
“Mr. Seminerio was truly touched. His kind eyes were so reassuring from that moment I knew that I came to the right place and [was] speaking to the right person.” (Exh. J, Tab 288)
Mr. Yusupov told Mr. Seminerio that he was interested in accounting and wanted to receive an education that would allow him to better provide for his family. Mr. Yusupov writes that Mr.
Seminerio’s “moral support and leadership skills” enabled him to get a college degree and his wife to pursue an education in the healthcare field. The Yusupovs will be forever grateful to Mr.
Seminerio for helping them build a life in a new country. (Exh. J, Tab 288)
92 Through their personal experience, they have come to know Mr. Seminerio as a sincere man of decency and generosity, and they write:
“Mr. Seminerio is a leader who not only speaks and promises but actually gets things done. To our family he is not only a leader but is also a father figure filled with kindness, wise advice, and humanity.... His actions are from pure goodness.” (Exh. J, Tab 288)
The following additional letters written to Your Honor from friends, constituents and colleagues further illustrate that, first and foremost, Mr. Seminerio is a caring and loving father, husband and grandfather, and a fundamentally decent person, who has dedicated his entire life, personally and professionally, to providing for his family, his co-workers, his constituents, his community and the people of the State of New York:
• Christina Rosamilia, Mabel’s best friend since childhood, writes on behalf of Mr. Seminerio, “I am a practicing Catholic and I am very active in my church. I try to live my life in a way that is helpful and productive. I have always admired Mr. Seminerio; being helpful and productive is just one of the many reasons why I love and respect him. Over the years, Mr. Seminerio must have helped thousands of families in need in all different avenues of life. Helping people is all that I have ever known him to do. He has told me on many occasion[s] how gratifying it is to help others. I have learned by his example.” (Exh. J, Tab 234)
• Doreen Connell, Principal Secretary to Justice Jeremy Weinstein of the Queens County Supreme Court, writes on behalf of her friend, Mr. Seminerio, with great appreciation for the care and concern he always showed for her daughter, Patricia. Ms. Connell writes that she “will always be grateful to [Mr. Seminerio] for his guidance and encouragement” in finding the best possible high school for her daughter to attend. Patricia also used to babysit Mr. Seminerio’s grandchildren, and Ms. Connell is thankful that her daughter was always “treated as one of the family and made to feel comfortable at his home.” Ms. Connell concludes her letter to Your Honor by writing that she is “proud” to have Mr. Seminerio, “a wonderful, caring family man,” as one of her friends. (Exh. J, Tab 70)
• Joseph Esposito writes on behalf of his friend, Mr. Seminerio, “I have known him for almost 43 years. I consider him my Uncle Tony since he was
93 my Godfather for Confirmation....To this day, despite all th[at] Uncle Tony is facing, he still inquires about me, my wife and my two children. He still continues to think about others and willing to offer support in any way he can.” (Exh. J, Tab 99)
• Joan A. Perri writes on behalf of Mr. Seminerio, whom she has known since she was a child and who she believes “would go out of his way to help anyone in need.” In her letter, Ms. Perri explains that her parents had owned an Italian restaurant until her father passed away suddenly. Mr. Seminerio immediately offered Ms. Perri’s mother a job in one of his offices. Ms. Perri writes of her mother’s experience working for Mr. Seminerio,“ ... [F]or eleven years my Mother worked for Uncle Tony and was so very proud to say so & to see firsthand, all that he accomplished for District 38. The people of Richmond Hill were proud of all the good things that came out of having Uncle Tony represent them in Albany.” (Exh. J, Tab 210)
• Margaret Polino writes on behalf of her “dear family friend,” Mr. Seminerio, whom she has known for 33 years. Ms. Polino’s mother was Mr. Seminerio’s office manager for six years, during which time Ms. Polino also often volunteered in Mr. Seminerio’s office. Ms. Polino attests to Mr. Seminerio’s “dedication and compassion” for anyone who came to him with a problem, including her own family. When Ms. Polino’s father could no longer work due to disabilities resulting from a stroke he suffered at the age of 58, Mr. Seminerio asked him to be an office “volunteer” because he knew it was important for her father to interact with other people. Indeed, Ms. Polino believes that through this thoughtful offer, Mr. Seminerio gave her father “a reason to live when he was at the point of giving up on life.” (Exh. J, Tab 214)
• Evelyn G. Procaccini, a receptionist for Mr. Seminerio since 1979, writes, “All the years that I have known him, he has always proven himself to be a loyal and dedicated public servant. It has been an honor and a pleasure to be in his employ....I believe in him and that will never change.” (Exh. J, Tab 219)
• Vincent Romeo writes on behalf of Mr. Seminerio, whom he has known for over 40 years and believes to be “a person of honesty dedication and support.” When Mr. Romeo’s daughter had to have surgery to have a metal cage inserted into her neck and back, Mr. Seminerio helped her get a new job after weeks of recovery. Mr. Romeo describes Mr. Seminerio’s many calls to him and his daughter during this time as “nothing short of overwhelming.” Mr. Romeo views the assistance Mr. Seminerio provided to his family as just one example of what Mr. Seminerio has done for so many others and writes,
94 “I cannot over emphasize his ongoing commitment and many hours he has worked for over thirty years for his constituents and friends, including my family....He is and will always be a person who will be there for anyone who needs his help.” (Exh. J, Tab 233)
• Colleen A. Fitz Gerald Guidarelli writes on behalf of Mr. Seminerio, for whom her father, Captain James Fitz Gerald, previously worked. Ms. Guidarelli expresses her “utmost respect” for Mr. Seminerio, whom she considers to be “a wonderful family man” and “a loving, caring person who would and has given the shirt off his back to those in need.” Ms. Guidarelli is also particularly appreciative of the fact that Mr. Seminerio treats all of his employees with “respect and admiration,” and notes “how wonderfully [Mr. Seminerio] treated my dad during his last few months before passing.” Ms. Guidarelli writes, “I can honestly say that Tony Seminerio is part of our family and that his caring attitude and love for others is something we all admire about him and respect him for.” (Exh. J, Tab 108)
• Mario Biaggi, Jr., Esq., writes on behalf of his friend, Mr. Seminerio, “I have known Assemblyman Anthony Seminerio since I was a young man. Throughout those years I have known him above all to be dedicated to and thoroughly enjoy the service of others. His commitment to public service is legendary which is why so many from outside his assembly district would also seek and ultimately obtain his help....I have always known him to be sincere, honest, compassionate and ready to help others.” (Exh. J, Tab 35)
• Richard M. Biaggi, Esq., writes on behalf of his friend, Mr. Seminerio, who he has known for 33 years, “[I] have known [Mr. Seminerio] to be a hard working representative who always helped a friend, especially when in need....I ask that you look at the whole man and view the total picture and balance the life time of good that he has done against what he now faces before your Honor.” (Exh. J, Tab 36)
• Thomas X. Winberry writes on behalf of Mr. Seminerio, whom has known for over 40 years and whom he has found to be “an honest, decent, loyal and trustworthy friend and citizen.” As a former Commander of the Queens County American Legion, Mr. Winberry is particularly grateful for the attention Mr. Seminerio has given to the needs of the United States’ service men and women. Apart from Mr. Seminerio’s decades of service to the public as a Correction Officer and then as an Assemblyman, Mr. Winberry believes that Mr. Seminerio’s “devotion to [h]is remarkable family is truly inspiring.” Mr. Winberry respectfully writes, “ ... I and my family beg you to take into consideration his many years of good and righteous service to our
95 city, state and nation and please be lenient in the passing of your judgement.” (Exh. J, Tab 281)
• Anthony LaGreca, a New York State licensed Physical Therapist working for the New York State Department of Education, writes on behalf of her friend, Mr. Seminerio, “Judge, I know [Mr. Seminerio] violated the public trust and broke the law. But, there is a lifetime of good and decency in this man who will stand before you at sentencing. He has been a pillar in his community for years. His constituents and friends still have much respect and love for him and truly appreciate all that he has done....I respectfully request that you show leniency and the utmost judicial discretion when you sentence this man who, at least until now, has been much admired and deserved the gratitude of many, including me.” (Exh. J, Tab 160)
• Tony Fenuggio writes on behalf of his friend, Mr. Seminerio, “[Mr. Seminerio is a] hard working individual, and ready to help anyone in need. I’ve known Mr. Seminerio for more than 25 years, and I know him to be honest, and sincere in all he does.” (Exh. J, Tab 103)
• Robert and Rose Aurora, who have known Mr. Seminerio for nearly 25 years, write on Mr. Seminerio’s behalf with great gratitude for the many ways he has helped them regarding their daughter, Melissa. Melissa was born with multiple, serious physical and mental disabilities; and throughout Melissa’s life, the Auroras have struggled finding and placing Melissa in facilities capable of meeting her many needs. Thankfully, every time they went to see Mr. Seminerio, he was both willing and able to help find a place for Melissa at the most appropriate children’s hospital, residential school and, ultimately, adult care facility. The Auroras write of what Mr. Seminerio’s efforts on behalf of their daughter have meant to them, “You see, [Mr.] Seminerio was never a politician in our eyes. He did not help us to get himself votes. We did not even live in Queens. He did this solely out of the goodness of his heart. He may have been a politician but, to us, he has always been our child’s guardian angel. When doors closed on us, he opened them....He will always be special in our hearts.” (Exh. J, Tab 25)
• Barbara Di Gregorio writes on behalf of her “life long friend,” Mr. Seminerio, “I want you to know he is a person of high quality that through the years did much to help others. His unique and unselfish consideration of people brought him great respect in life. He will always have the respect of my family and I.” (Exh. J, Tab 84)
• Joe Di Gregorio, Jr., writes on behalf of his friend, Mr. Seminerio, “My father and I always admired [Mr. Seminerio’s] will to help others as well as
96 his own family. I respect him and believe he is a man of good character. His numerous good deeds for others, which were many, far exceed any faults a human being could have. Please take all into consideration.” (Exh. J, Tab 86)
• Carol Speary, a retired Court Clerk and former constituent of Mr. Seminerio for many years, writes that she feels “lucky and proud” to have had Mr. Seminerio representing her as her Assemblyman. She tells the story of how one day she came home to find that one of her neighbors was being evicted. The parents were not home and their seven-year-old child had come home from school to find the contents of the family’s apartment being loaded into a truck. Not knowing what else to do, Ms. Speary called her Assemblyman, Mr. Seminerio, who came right to the phone and spoke with her personally; and although Mr. Seminerio could not prevent the eviction, he sent someone from his office over to the apartment right away to collect information about the eviction in order to assist the parents. (Exh. J, Tab 262)
• Raymond J. Irrera writes on behalf of his friend, Mr. Seminerio, “I have known [Mr. Seminerio] for over twenty years. In that time I’ve come to appreciate his characteristic forthrightness, his love of family, especially his grandchildren, and above all his penchant for helping others as a natural-born community leader....[I]f ever the quality of mercy should be generously and appropriately applied in the face of one’s transgression, it is in this case. It is my earnest hope that you will take into consideration the whole of his life as a man dedicated to doing for others, be they family or friends...” (Exh. J, Tab 139)
• Ed Donnelly, a former union leader, writes on behalf of his friend, Mr. Seminerio, “I have known Mr. Seminerio for over thirty years. During that time he has been unfailingly kind and generous in his approach to people that I have been aware of. Further, he has never been known to demand any favors from anyone that I have ever known of. He has been a good husband and father, solicitous of other people’s family members; particularly of those who are ill.” (Exh. J, Tab 92)
• Fran Schumer Polizzotto, a former Queens County Assistant District Attorney and a friend of Mr. Seminerio’s daughter, Anna, writes on behalf of Mr. Seminerio, “[Mr. Seminerio] encouraged me in my career and to join the District Attorney’s office in order to help serve the public. He cares about people and took his responsibility to them seriously and to heart.” (Exh. J, Tab 215)
97 • Robert H. Wedinger, a retired Brigadier General in the United States Army, writes in support of Mr. Seminerio and expresses his gratitude for Mr. Seminerio’s commitment to the needs of both active and retired members of the United States Military and their families. Mr. Wedinger writes that he believes Mr. Seminerio’s criminal conduct to be an aberration in an otherwise good and decent life, and respectfully requests that Your Honor grant Mr. Seminerio leniency based upon his many contributions to “Military Families, Veterans, Senior Citizens and his Constituents.” (Exh. J, Tab 278)
• Joseph P. Colangelo writes on behalf of his friend, Mr. Seminerio, “I know Tony to be a man of integrity. I’ve personally witnessed his caring nature with his constituents. He would listen compassionately to them and act immediately my making phone calls to help resolve their issues....He’s had a lifelong dedication to public service.” (Exh. J, Tab 68)
• Regina Cranston writes on behalf of her friend, Mr. Seminerio, “Since the first day I met him I have always admired his devotion to his family....Tony has always been a good and caring friend. I remember when my husband died how he’d reacted with such feeling, emotion and true compassion. He’s an upstanding person and I will always be grateful and proud to call him a friend.” (Exh. J, Tab 73)
• Theresa M. Doherty writes on behalf of her friend, Mr. Seminerio, “Mr. and Mrs. Seminerio never let their children be spoiled. They live in a house very similar to all the others in the neighborhood and they attended the same schools as the rest of us. They were also expected to work part time jobs while they were in school just like the rest of us. I have a great deal of respect for this man and his entire family....I hope that you too can see his big heart, his love for his family and his respect for his neighborhood.” (Exh. J, Tab 90)
• Michelle Fogarile-Cennamo writes on behalf of her friend, Mr. Seminerio, “I respect and admire Mr. Seminerio so much. He is fair, reasonable, helpful and caring. Most of all, he is down to earth....My life would be very different if I ha[d] not had the privilege of growing up on the same street as the Seminerios. There is not a person around that he has not helped directly or indirectly....He barely accepts a thank you in return. His concern for people is unmeasurable.” (Exh. J, Tab 111)
• Toni-Lynn Calandra, who is 44 years old, grew up a few blocks from the Seminerio family and has known Mr. Seminerio for nearly her entire life, writes, “Some of the necessities in life – a good job and nice home – I feel I have, thanks to the help, advice and guidance I have received from Mr.
98 Seminerio. The most important things in my life – my children and my family – are all well because of the kindness, love, concern, and generosity of one of the most decent men I have ever known, Mr. Seminerio....I urge you to take this into consideration, and give him the opportunity to continue to help others as he has done for us.” (Exh. J, Tab 47)
• Ted Hargrove writes on behalf of his friend, Mr. Seminerio, “In my 68 years of life, Tony is truly one of those people that I have encountered that is willing to do whatever is necessary to help any person that calls his office. No matter what the problem may be but would get on the phone and call whatever agency is necessary to try and accommodate their specific problems....He has always been constant in devotion to his job and his family.” (Exh. J, Tab 129)
• Thomas G. Hickey, former President of the Historic Commands of the American Revolution (“H.C.A.R.”), has known Mr. Seminerio for 30 years. Mr. Hickey writes of his gratitude for all of the help and support Mr. Seminerio has provided to the H.C.A.R., and describes Mr. Seminerio as the “driving force and the ‘go to guy,’” helping with the organization of the event and with solving all logistical problems. Mr. Hickey concludes his letter by respectfully requesting that Your Honor grant Mr. Seminerio leniency, and writes, “ ... I know in my heart Tony is of the best New York fiber and has an extremely big heart which still has a lot to offer to others.” (Exh. J, Tab 131)
• Michael V. Kaplen, Esq., writes on behalf of Mr. Seminerio, whom he has known for over 30 years. Mr. Kaplen first met Mr. Seminerio when he (Mr. Kaplen) was a young man, “fatherless and in search of direction.” Mr. Kaplen writes that Mr. Seminerio provided him with the support, counsel and inspiration he needed to pursue a career in law. However, Mr. Kaplen also notes that exhibiting such care and concern for another was not unique for Mr. Seminerio, and writes, “Assemblyman Seminerio was always there when someone needed help. It did not matter the color a person’s skin, their ethnicity, wealth or their party affiliation, if they needed assistance, Assemblyman Seminerio never said ‘No’. No problem was to trivial to him to become personally involved and no individual was ever to inconsequential to address with dignity and with respect.” (Exh. J, Tab 146)
• Dr. Paul-Michael Kazas, President of the Knights of Lithuania, writes on behalf of Mr. Seminerio, whom he has known for 30 years. In his letter to Your Honor, Dr. Kazas discusses Mr. Seminerio’s efforts to help various individuals and organizations, including with issues involving: senior citizens benefits and rights; local crime; graffiti removal; reduction of excessive fees and taxes; and improvement of local healthcare through the
99 expansion of hospital services and facilities. On behalf of the greater Lithuanian-American Community, Dr. Kazas writes,“ ... [W]e respectfully ask that in relation to the case involving Anthony S. Seminerio, that all due consideration be provided for his love, support, dedication and friendship to those within his former district as Assemblyman and beyond.” (Exh. J, Tab 151)
• Michael Michel, President of Christ the King Regional High School in Middle Village, New York, former staff member of the New York City Council and former President of the Middle Village Volunteer Ambulance Corp., writes on behalf of Mr. Seminerio. Mr. Michel, in his various positions, has been dealing with Mr. Seminerio for over 15 years. He writes, “I have always found [Mr. Seminerio] to be an honorable, straight forward, caring person whose word was his bond....His efforts on behalf of his constituents were an inspiration to me and he always put in maximum efforts in order to satisfy their requests.” Mr. Michel concludes his letter by respectfully requesting that Your Honor consider Mr. Seminerio’s “good deeds and services to the community and constituents” in deciding the appropriate sentence. (Exh. J, Tab 190)
• Robert Senhouse, a court officer with the Unified Court System of the State of New York, writes on behalf of his former Assemblyman, Mr. Seminerio. Mr. Senhouse has personally sought Mr. Seminerio’s help on behalf of himself, his family and his friends, and Mr. Seminerio never failed to assist him. Mr. Senhouse writes, “When you walk into the Assemblyman’s district office, he is seated right there in the open, not behind some closed door and he greets you like he has known you all your life. He treats your problems as if they were his own, getting on the phone right then and there to see what he can do to assist you.” Mr. Senhouse adds that as a lifelong resident of Queens and a Court Officer, he is familiar with Mr. Seminerio’s actions on behalf of his District, including: preventing the closing of the local firehouse in Woodhaven; securing State funding for after-school programs, local senior centers and public parks; and supporting the Court Officers’ Union in efforts to improve their work environment and pension and health benefits. Mr. Senhouse further writes, “[Mr. Seminerio’s] reputation among my colleagues and his constituents is that of a honest, hardworking individual who speaks his mind, always fights for what is right and looks out for ‘the little guy.’ He will truly be missed, and our community has lost a great representative.” (Exh. J, Tab 251)
• Kenneth Iapalucci, John Seminerio’s friend since childhood, writes on behalf of Mr. Seminerio, “I can sincerely say that I am proud to be able to call
100 Mr. Seminerio a role model and friend for most of my life.” (Exh. J, Tab 137)
• Frank and Jean Katsch write on behalf of their friend, Mr. Seminerio, “[Mr. Seminerio] is a loving husband and a doting father and grandfather to his children and grandchildren....[W]e would like to see Tony spend the rest of his days with his wife, children and grandchildren. His family means everything to him and they love him very much and would miss him terribly.” (Exh. J, Tab 147)
• William A. Lockwood writes on behalf of his friend, Mr. Seminerio, whom he came to know while living in the same community in Queens in the 1960s and early 1970s. Mr. Lockwood’s son, Mark, and Mr. Seminerio’s son, John, were close friends growing up, and Mr. Lockwood knew Mr. Seminerio to be someone who “was always there for the kids, the church and the Boy Scouts.” Mr. Lockwood respectfully requests that Your Honor demonstrate mercy and grant Mr. Seminerio leniency because “[h]e has given his life to the community and his family.” (Exh. J, Tab 165)
• Nick Marchese, whose father has been a close friend of Mr Seminerio since childhood, writes on behalf of Mr. Seminerio, “[Mr. Seminerio] was always there for [his son] John and I....He would listen, give some advice, or be there to lend a hand....If there is any measure of the type of man Uncle Tony is you just look at his kids and grandkids, my Aunt and Uncle have done a great job.” (Exh. J, Tab 176)
• Tara M. Adams writes on behalf of her friend, Mr. Seminerio. Ms. Adams is both surprised and “saddened” to have to attest to Mr. Seminerio’s “great and selfless acts” and to the fact that he is “an honest, compassionate man.” In her letter, she describes many of the ways in which Mr. Seminerio has aided her and her family personally – helping her disabled brother get on social security, helping her father get into one of the best hospices in New York when he was dying of cancer, and supporting her when grandfather passed away from cancer. Ms. Adams is extremely grateful to Mr. Seminerio for being there for her when she had nowhere else to turn, and writes, “If Tony did not help me, there would have been nobody else to support me through one of the most traumatic times in my life. I will never forget what he did for me.” Ms. Adams further writes, “Tony is one of those rare people for whom helping is its own reward. In all the time I’ve known him, he’s never asked for anything in return. That is the man that we all hold dear.” (Exh. J, Tab 18; emphasis in original.)
101 • Tom Mastanduono writes on behalf of his friend, Mr. Seminerio, whom he has known since early in his professional career when he (Mr. Mastanduono) struggled to open his own business. Mr. Seminerio would visit Mr. Mastanduono several times a week “with a smile and words of encouragement.” Since that time, Mr. Seminerio and his family have become personal friends of Mr. Mastanduono. He writes, “[Mr. Seminerio] has always guided me and given me the fortitude of what it takes to succeed in this competitive world. Tony is a colleague, a friend and a second father to me. I look for the good in all of us and in Tony that’s all I have ever seen and been shown.” (Exh. J, Tab 181)
• Patricia A. Marshall is a community volunteer and an employee of the City of New York. She first met Mr. Seminerio nearly two and a half decades ago at a fund-raiser for the Democratic Party, and subsequently met Mr. Seminerio’s wife and children at various social events and through volunteering on Mr. Seminerio’s campaign. Ms. Marshall has found Mr. Seminerio to be a “loving and giving husband to his wife and family”; and even though she did not live in Mr. Seminerio’s District, Mr. Seminerio told her, “if you ever need anything, you can call me.” Ms. Marshall eventually took Mr. Seminerio up on his offer when her car was totaled and her insurance company told her that their paperwork had been issued to her in error, her car was not insured and they would not be honoring her claim. Mr. Seminerio immediately helped solve the problem. Ms. Marshall concludes her letter to Your Honor by writing that two months before Mr. Seminerio resigned, Ms. Marshall’s son went to visit Mr. Seminerio to tell him how much he cared about him and that he was in his thoughts. Ms. Marshall writes, “[Mr. Seminerio] was more concerned about my son and how he was doing and asked about my daughter and me. That is what Tony is all about, not himself but always others.” (Exh. J, Tab 180)
• Paul J. Maringelli writes on behalf of his friend, Mr. Seminerio, “Many people, including myself, have gone through his office door or into his Democratic Club and asked for help. Anthony Seminerio has helped, or tried to help, them all.” (Exh. J, Tab 178)
• Jacqueline O’Hagan writes on behalf of her friend, Mr. Seminerio, “I have seen Tony over the years be a great husband, father and friend....What truly inspired me about this man is that he took that same passion and love for his family and shared it with his constituents. Whenever there was someone in need in the neighborhood, Tony got the call....Never once did I see him turn anyone away or turn his back on his friends, family or community.” (Exh. J, Tab 206)
102 • Leonard F. Postilio writes on behalf of his friend, Mr. Seminerio, “Living next door to [Mr. Seminerio], Catherine and their children, John, Anna and Mabel, afforded us the opportunity of knowing them and enjoying the friendship of a warm and loving family unit... [Our] families shared common goals which included working hard while enjoying family and friends.” (Exh. J, Tab 218)
• Diane E. Riepe-Hitchens writes on behalf of her friend, Mr. Seminerio, “I would often ask Mr. [Seminerio] why he continues to live in the same home for more than 30 years, his response always was, ‘Because this is where my people live’, meaning his constituents. I found this response to be a humble statement of a great man....Mr. [Seminerio] is a very kind, generous, giving person who loves his family unconditionally and his friends without hesitation.” (Exh. J, Tab 230)
• John J. Santucci, Esq., a former Queens County District Attorney, writes on behalf of his friend, Mr. Seminerio, “Every member of the Seminerio family was known to be honorable, respectful, and always willing to help others....If and when, as was often the case, [Mr. Seminerio’s] constituents could always rely upon him for his assistance and understanding. He was never too big or too busy to give of himself for the good of others.” (Exh. J, Tab 242)
• John L. Tufarelli writes on behalf of his friend, Mr. Seminerio, “I hope the powers that be in this case realize what a fin[e] human being [Mr. Seminerio]’s been for his life....[T]he man I’ve known for most of my life would provide for those who had less whether they were family, friends, or even strangers and wouldn’t do it with any fanfare!” (Exh. J, Tab 271)
• Josephine and Joseph Capone write on behalf of their friend, Mr .Seminerio, “ ... [H]is character was never questioned. Anthony was a devoted friend who always helped everyone even with his very busy schedule. Anthony never forgot where he came from.” (Exh. J, Tab 50)
• Kathryn and Eugene Maroney write on behalf of Mr. Seminerio, who Mr. Maroney has known for over 45 years. Mr. Maroney writes that, “[a]s a husband, father and grandfather, I have emulated Tony and patterned my life after him.” The Maroneys conclude their letter by respectfully requesting that Your Honor demonstrate mercy in sentencing Mr. Seminerio, and write, “On bended knees we truly beg for leniency, Your Honor. Please take into account his many years of community service and dedication, his exemplary family life and all his long hours of hard work for over 30 years as an Assemblyman.” (Exh. J, Tab 179)
103 • Frank Squillante, a former New York City Correction Officer, writes, “I have spoken to [Mr. Seminerio] and he has expressed sincere sorrow and remorse for betraying the public’s trust. I truly believe that Anthony has already suffered extensively for his actions. He has lost credibility in the public eye, and I believe he is truly despondent regarding what he has put his family through. He is a good family man and a decent caring individual.” (Exh. J, Tab 263)
• Patricia Lavvas is an Associate Court Clerk for the New York State Unified Court System and former work associate of Mr. Seminerio’s daughter, Anna Culley. Through Ms. Lavvas’ many personal conversations with Ms. Culley, she has learned of “Mr. Seminerio’s many acts of kindness and willingness to help people in need” and his “love for his family, especially his wife and grandchildren, and of their love for him.” Although Ms. Lavvas has met Mr. Seminerio only a couple of times, she writes that he nonetheless “gratuitously volunteered” to help her son, John, obtain information regarding his admission to Queens College, and that “[h]is kindness and caring by volunteering to help will never be forgotten.” (Exh. J, Tab 161)
• Vincent Arcuri, Jr., a resident of Glendale, Queens for 65 years who is active in numerous local organizations, writes on behalf of his former Assemblyman, Mr. Seminerio, “In all the years I have known Tony Seminerio, he has been dedicated to our communities, has always responded to calls for assistance or funding and, to my knowledge, has never asked or demanded anything in return. I believe him to be a truly decent person, overly generous with his time and willing to do whatever he could for his neighbors and constituencies.” (Exh. J, Tab 21)
• David M. Wray, who has known Mr. Seminerio for over 15 years, has a deep respect for Mr. Seminerio as representative for his constituency, and describes him as “a tenacious legislator who could articulate for citizens of his district in public forums with fairness and levity.” Mr. Wray further writes of his admiration for Mr. Seminerio’s fundamentally kind and decent nature, “I have always found Mr. Semin[e]rio to be a man of character with a deep sense of faith, family and community. In stories of his previous career as a corrections officer, his sense of compassion and fairness to those who had made mistakes in their lives respectful and honorable.” (Exh. J, Tab 283)
• Patricia Nolan writes on behalf of her former Assemblyman, Mr. Seminerio, “[Mr. Seminerio] was a great politician, getting things done here in Richmond Hill and surrounding areas....We will miss him and I don’t think we will find anyone who will work for the people as hard as Tony.” (Exh. J, Tab 201)
104 • Wilfred Jim Ramlall writes of his gratitude to his former Assemblyman, Mr. Seminerio, for helping him find employment when he returned to the United States after volunteering in Israel. Mr. Ramlall explains that it seemed like no one wanted to hire him because he had been away for five years. He finally contacted his Assemblyman for help, and Mr. Seminerio explained to him what the various agencies at the Local, State and Federal levels were, told him where he could apply for positions and showed him how to update his resume. Mr. Ramlall ultimately found a career in the Federal Government. Mr. Ramlall writes of his interactions with Mr. Seminerio, “[Mr. Seminerio] was always the giver, and I was always the one at the receiving end....[H]e has counseled me like a father would a son.” (Exh. J, Tab 222)
• Judith Adams writes on behalf of her former Assemblyman, Mr. Seminerio, “I have know[n] Anthony Seminerio for over 10 years, and in that time he has helped me every time I had a problem with my son. He has two compressed disks in his back and ultimately needed to stop working and apply for social security. Anthony Seminerio walked me through the whole process....I know he has done such things for many of his constituents. He was the person everyone came to when in need of help or just a friendly ear. I have never known Tony to refuse anyone, his time or wisdom!” (Exh. J, Tab 17)
• Antoinette DeMarco, Mr. Seminerio’s tenant for 25 years, does not attempt to excuse Mr. Seminerio’s criminal conduct, but rather, focuses on the fundamentally good and decent character Mr. Seminerio has consistently displayed, and writes,“These charges and allegations against Tony are very shocking and not the man I know him to be. I have always known him to be a dedicated community leader, devoted and loving father and a good friend to all of his fellow neighbors and constituents....I would ask that you take into consideration the type of people that Tony and Catherine truly are, generous and loving. In my own experience, Tony has never been motivated by greed.” (Exh. J, Tab 81)
• Linda Tomasello, whose mother, Antoinette DeMarco, has been Mr. Seminerio’s tenant for 25 years, writes on behalf of Mr. Seminerio, “My 25 years of knowing Anthony Seminerio is that of a dedicated leader and loving father, and a kind friend to all who know him.” (Exh. J, Tab 268)
• Barry Sclar writes on behalf of his former Assemblyman, Mr. Seminerio, “I have been a member of the Ozone Park Community for almost 20 years and I feel Anthony Seminerio did a lot of good for it....I believe that Anthony Seminerio should be recognized for the work that he performed for the
105 community....I believe that he should receive leniency when presented to a judge....I want to personally thank say thank you to Anthony Seminerio for all of his loyalty.” (Exh. J, Tab 245)
• Thomas M. Long, Chairman of the Queens County Conservative Party, has known Mr. Seminerio for almost 30 years. Mr. Long writes that he has always observed Mr. Seminerio to be a “dedicated family man” and a “sincere individual and elected official working on behalf of his constituents always treating them with [the] utmost respect.” (Exh. J, Tab 167)
• Kathy-Ann and Robert Jetter write on behalf of their friend and neighbor, Mr. Seminerio, whom they believe to be “one the most caring, kind, loving family m[e]n” they have ever known. The Jetters write of their appreciation for the way Mr. Seminerio looked out for their neighborhood and how he was always available to help anyone who needed assistance, “[Mr. Seminerio] was always on call for his neighbors all over our area. Everyone would stop by car or walking and speak to him about problems. [Mr. Seminerio] always listened and helped.” (Exh. J, Tab 141)
• John P. Grebert, Executive Director and past-President of the New York State Association of Chiefs of Police, who has dealt with Mr. Seminerio on many occasions in his capacity as an Assemblyman, writes, “In my experience, Mr. Seminerio has always been the most accessible member of the legislature and more than willing to listen to the concerns of our members regarding public safety concerns that were a priority to us. This is in spite of the fact that we never have had the ability to make large campaign donations or deliver votes in his district. Rather, it was due to his concern for real life public safety issues as well as management rights issues which were often opposed by the much larger labor organizations.” (Exh. J, Tab 126)
• Donald Bailey, who has known Mr. Seminerio and his family for over 40 years, writes to attest to Mr. Seminerio’s good work in his community and “his continued support of our local youth.” As a former Boy Scout, Mr. Bailey is particularly appreciative of Mr. Seminerio’s active role within the local Boy Scout Troop, consistently volunteering his time and effort to the Troop “without hesitation.” Mr. Bailey writes that he is proud to call Mr. Seminerio his neighbor and friend. (Exh. J, Tab 29)
• Lawrence A. Faulstich, who has known Mr. Seminerio for 45 years, writes, “Whenever I or my family was in need, he would always listen and direct us to the proper person or offer us advice as to how we should proceed. Mr Seminerio has always been responsive to anyone in the community who had asked for help.” (Exh. J, Tab 101)
106 • Adelina Yusupova writes on behalf of her former Assemblyman, Mr. Seminerio, “Mr. Seminerio is a humble, approachable and a perfect model of a leader who connects with the people. Mr. Seminerio not only taught me the value of helping others but the importance of caring and communicating with people and making a difference in their lives.” (Exh. J, Tab 289)
• Patricia J. Longhi writes on behalf of her former Assemblyman, Mr. Seminerio, “I’ve known Tony Seminerio for the past 20 years and found him to be a very honest person, who came across as forthright, believable and emotionally distressed by this incident.” (Exh. J, Tab 168)
• Jerry Schneider writes on behalf of his former Assemblyman, Mr. Seminerio, “I have known [Mr. Seminerio] for more than 20 years during which time I have found him to be in touch with his constituents, helping them whenever he could....He has always remained available to his constituents, and has never left ‘the home people’ of his community....I would humbly request that when sentencing his case, you consider leniency.” (Exh. J, Tab 244)
• Anthony M. Cocchiola writes on behalf of his former Assemblyman, Mr. Seminerio, “I’ve known Tony for about 15 year[s], he is a devoted family man, a person who has compassion for people in need and has been dedicated to helping all of his constituents as an Assemblyman for thirty years....Please take into consideration all the good this man has done in his career as a father, assemblyman, and community leader.” (Exh. J, Tab 66)
• Phyllis Walker writes on behalf of her former Assemblyman, Mr. Seminerio, “The time that I have known Mr. Seminerio he was a kind understanding man, always smiling, had a nice word to say to anyone, kept the neighborhood clean and drugs away from the area. Everyone respected him. He also was caring what happens to teens and children. He believe in education, so many things that this man have done in his life for people.” Exh. J, Tab 277)
• Bruno Caputo writes on behalf of his former Assemblyman, Mr. Seminerio, “... I can only say that a finer gentleman I never met. His warmth, sincerity, is real....[K]nowing him for six years make me proud to say that I know him and have the respect for him.” (Exh. J, Tab 51)
• Dorothy Lewis writes on behalf of her former Assemblyman, Mr. Seminerio, “Mr. Seminerio served his constituents honorably for many years. He provided many beneficial services to his community. He is a family man and
107 very proud of his children’s accomplishments....I believe in his basic honesty and I hope this will be considered.” (Exh. J, Tab 164)
• John C. Zwerenz writes on behalf of his former Assemblyman, Mr. Seminerio, “We are very grateful for all of the positive accomplishments Tony has done for the Glendale community and for assisting our family in time of need....Whenever we would go to the Assemblyman he would always take the time to hear our plea and successfully help us. We have found him to be a caring, sympathetic and effective man. He would help us and others we know and never asked for anything in return.” (Exh. J, Tab 98) • • Rosemary De Bartolo, a community advocate, writes on Mr. Seminerio’s behalf, “... [Mr. Seminerio] has a formidable record for helping people, being a family man, and taking care of his community....As a past president of the Ozone Park Civic Association, Tony was there when we needed him. He listened to our Community needs, unlike many of the newer people.” (Exh. J, Tab 78)
• Kathryn U. Posekel writes on behalf of her former Assemblyman, Mr. Seminerio, “I am a life-long resident of Richmond Hill. For the years that Mr. Seminerio has represented our community, I can honestly say that he always did his best for his constituents. Matters of concern were given just attention, and services deemed beneficial to the community were fought for; in particular, he has consistently provided for several youth-related programs. Additionally, he has always made himself available for fact-to-face meetings, and is willing to go the extra mile to help constituents with their personal issues; something that can’t be said about most elected officials....I am hopeful that Mr. Seminerio’s proven record of good work for the community will not be forgotten.” (Exh. J, Tab 217)
• Anita Seguine writes on behalf of her former Assemblyman, Mr. Seminerio, “My family and I owned and operated a small family business in Tony’s District and his hometown for many years....Those who know him, including my family, all my workers and patrons always found Tony ready to lend a hand in any way he could to help solve their problems. Not only was he an outstanding Assemblyman but he was a loving and loyal husband to his wife Catherine, his children, his grandchildren, and to all the citizens of his community....[H]e will be greatly missed by all he served so well.” (Exh. J, Tab 247)
• John J. McCormick writes on behalf of his former Assemblyman, Mr. Seminerio, “I have known Mr. Anthony Seminerio and attended many functions and meetings over the last 30 years. I have come to trust and
108 admire him for the many wonderful things he has done for the people and the community of South Queens....Mr. Seminerio has helped so many people and organizations young and old. He has devoted his entire life to helping others. I ask you to please let him come home to his family and enjoy the time he has left.” (Exh. J, Tab 185)
• Hans and Sina Mansoori write on behalf of their former Assemblyman, Mr. Seminerio, “We have known Mr. Anthony Seminerio both personally and professionally for over 20 years....During this time he has proven to be an excellent and dedicated community leader and Assemblyman. He has always had the highest regard, respect and love for his constituents and friends. He has always encouraged his young supporters to excel. Mr Seminerio has worked diligently to improve the quality of life for his constituents and for all New Yorkers....We can honestly say that Anthony Seminerio has always sought the best for his community and for the people he served with dignity and respect....We sincerely hope that a man who has done so much good for so many people will be treated with fairness and compassion just as he has always done for others.” (Exh. J, Tab 175)
• Giuseppe Modica writes on behalf of his former Assemblyman, Mr. Seminerio, “I have known Mr. Seminerio for over 30 years, as I have been a constituent of his for the same period....[H]e is an extremely hard worker and is always willing to assist anyone when called upon to do so....His integrity and dedication to his constituency is remarkable and his performance as a community leader is truly outstanding....Your Honor, I am therefore asking you to be lenient with Mr. Seminerio and to take into consideration all the goodness and hard work he has done for the community and our great country. Please do not ignore all the contribution[s] he has made to various organization[s] and all the people he has represented over the years, who would not normally have a ‘voice’. I do hope you will see that Mr. Seminerio has made a difference in our lives over the years.” (Exh. J, Tab 192)
• Anthony Modica writes on behalf of his former Assemblyman, Mr. Seminerio, “[Mr. Seminerio] is loved by me as though he were my very own father. I know him to be sincere and true in all he does, and for his district and the community as well. He was always most helpful for everyone all thr[ough] the years he held his position.” (Exh. J, Tab 191)
• Loraine D. Casella, former President of the Richmond Hill Block Association, writes on behalf of her friend and former Assemblyman, Mr. Seminerio, “I can emphatically say – with no exception – that he is gentleman of high integrity, an honest, hard-working professional, caring person – A MAN AMONG MEN – one of a kind, and I don’t use that term lightly. He
109 gave of himself each and every day, whether in Albany, or at his district offices – assisting our community residents in solving their problems....Mr. Seminerio persevered until the problem was solved. He acted ‘hands-on’, never saying he was ‘too busy, etc.’ much to the delight of our residents. If not for Mr. Seminerio, our community of Richmond Hill could not have accomplished the myriad of successful State and City programs evolving over thirty years for thousands of satisfied constituents.” (Exh. J, Tab 55)
• John J. Poklemba writes on behalf of his friend and colleague, Mr. Seminerio, “I have known Assemblyman Seminerio professionally and personally for many years and would encourage your Honor to consider his many redeeming qualities and personal and professional commitments. I first had the opportunity to work with Assemblyman Seminerio when he was first elected to the Assembly. I always found Assemblyman Seminerio to observe the highest degree of integrity in all of his business and personal ventures. He often made voluntary, unselfish efforts to assist those with special needs. He has also made significant contributions to improving New York State government and is considered by all who know him to be hard-working, loyal and dedicated.” (Exh. J, Tab 213)
• James G. Yip, owner of a Chinese restaurant in Rensselaer, New York, writes on Mr. Seminerio’s behalf, “I have known Mr. Anthony Seminerio for more years than I can remember. My staff and I have always known him as a kind and generous family man.” (Exh. J, Tab 34)
• Ira H. Futterman, Esq., writes on behalf of his friend, Mr. Seminerio, “For over 30 years, [Mr. Seminerio] has served his constituency and was invaluable in solving problems for the neighborhoods that he represented. To my knowledge, his door was never closed to a constituent who needed guidance or assistance.” (Exh. J, Tab 112)
• Michael P. Ricatto, who used to work for the Forest Hills County Club, his family’s business, writes on Mr. Seminerio’s behalf, “I have had the unique pleasure of knowing Assemblyman Anthony ‘Tony’ Seminerio for approximately three decades....It was rare, when the assembly was not in session, that when calling Assemblyman Seminerio’s office, he was not available to speak to you and assist you with whatever difficulty you might be having. I know him to be one of the most hardworking, family-oriented people I have ever met in my life....I have come to know Assemblyman Seminerio to be an individual of good nature and as you render your decision, I ask that you not only take into consideration the years of dedicated service provided by Assemblyman Seminerio to his constituents and the great effort and care he afforded to his job as Assemblyman but I also ask you to reflect
110 upon the long-standing relationships he has maintained among a host of friends, supporters, relatives and me.” (Exh. J, Tab 226)
• Steven M. Sinacori writes on behalf of his friend, Mr. Seminerio, “I have seen [Mr. Seminerio] in a very unselfish way help people. Whether it be the senior citizen who was in need of a ride home after shopping, another person who suffered a stroke whom Mr. Seminerio helped, the numerous young persons who Mr. Seminerio supported and assisted them in beginning their careers (in many different fields), citizen who[se] insurance company did not want to cover them when ill; I have seen him help people and solve their problems.” (Exh. J, Tab 254)
• Captain Richard P. Hayman is a professional mariner who lives in the James Brown House in Manhattan, a designated City landmark dating from 1817. Capt. Hayman writes that when New York State made a plan to build a large water mane under the sidewalk in front of the house, potentially damaging the historic building, no one would listen to his complaints until Mr. Seminerio came to the rescue. Capt. Hayman writes of his gratitude to Mr. Seminerio for going out of his way to help, “Without Mr. Seminerio’s interest we may have been literally out on the street homeless. He came to assist us out of his sense of concern, as his public service even though we are not in his legislative district.” (Exh. J, Tab 130)
• John Athanasopoulos, part-owner of the Atlantic Diner in Richmond Hill, writes on Mr. Seminerio’s behalf, “The purpose of this letter is to formally and publicly commend Anthony Seminerio for the excellent service he provided in our community....I congratulate him on his community spirit and pride. I am pleased in his steps to preserve and enhance a strong and viable area....His planning and willingness to help is truly appreciated....He has my admiration and gratitude.” (Exh. J, Tab 23)
• Bill Athanasopoulos, part-owner of the Atlantic Diner in Richmond Hill, has known Mr. Seminerio for over 15 years. Mr. Athanasopoulos attests to Mr. Seminerio’s good character and exemplary public service, and writes, “ ... [Mr. Seminerio] is a true family man and the best community leader we have ever had. He has helped so many people, including myself, and all from the good ness of his heart. I am lucky to know him and I am proud to say he is my customer and friend....” (Exh. J, Tab 22)
• Steve Moutopoulos, part-owner of the Atlantic Diner in Richmond Hill, has known Mr. Seminerio for over 15 years. He attests to Mr. Seminerio’s decency and generosity and the good deeds he has done on behalf of the community, and writes, “[Mr. Seminerio] has been an honest, hardworking,
111 and dedicated community leader for over thirty years. He is a devoted husband, father, and grandfather.... [N]o matter how busy he is, he will find the time to listen and help in any way he can.... Bottom line, Mr. Seminerio is a man with dignity; he is giver not a taker, and a wonderful human being.” (Exh. J, Tab 197)
• Joan Bachert writes on behalf of her former Assemblyman, Mr. Seminerio, “[Mr. Seminerio] has always been a tremendous support to our organization (The One Stop Richmond Hill Community Center), and was responsible for the funding which allowed us to continue our programs in the community, i.e.[,] Mommy & Me, after-school tutoring for grades 2-5, after-school computer technology and videoconferencing program, summer camp programs, and many other outreach services we provide to our community free of charge. This funding was provided by Tony out of a real concern for his constituents, and he has never asked for anything in return for his generous support of our organization....His early resignation has truly been a loss to our community.” (Exh. J, Tab 27)
• Hermine and Barry Block write on behalf of their friend, Mr. Seminerio, “We are particularly saddened about Mr. Seminerio because he has done so much good for the people of his district and does care greatly about them. His office was always available to help anyone having to deal with confusing and frustrating bureaucracy....He truly went out of his way for the people whom he represented. Mr. Seminerio cares about people and the real life frustrations that they face everyday.” Exh. J, Tab 38)
• Cheryl Button, a childhood friend of Mr. Seminerio’s daughter, Mabel, writes on Mr. Seminerio’s behalf, “I know Mr. Seminerio to be a loving, caring man. He is someone who has worked hard for our community, helping to make our streets safe....He has done so much good for all of us who live in Richmond Hill.” (Exh. J, Tab 46)
• Sookhdeo Budha writes on behalf of his neighbor, Mr. Seminerio, whom he describes as a “one of a kind human being.” Mr. Budha is Guyanese immigrant who works 80 hours per week at two full-time jobs. He expresses his sincere gratitude for the many ways in which Mr. Seminerio has been an immense help to him and his family, such as: arranging to have the garbage left by the previous residents of Mr. Budha’s home removed from his property; arranging to have Mr. Budha’s yard shoveled every winter; constantly offering to help with errands; and, most importantly, providing Mr. Budha with guidance and advice in securing the best possible education for his children. Mr. Budha writes, “I always tell my children to always
112 remember [Mr. Seminerio] as a legend and never forget the good he has done for our family. We wish to have him always by our side....” (Exh. J, Tab 45)
• Peter Cardella, chairman and founder of the Peter Cardella Senior Citizen Center, Inc., chairman and founder of the Federazione Italo-Americana di Brooklyn and Queens, Inc., and founder of the Italian Cultural Center at St. John’s University, writes on behalf of his friend and former Assemblyman, Mr. Seminerio, “I have known Anthony Seminerio for over twenty years. He has been a person dedicated to the welfare of the working class people and the senior citizens of our community. He has served our seniors with grants serving the homebound and seniors with special needs....In fact, the Federazione Italo-Americana and the Peter Cardella Senior Center have made him ‘Man of the Year’ because of his outstanding service to the senior population and the Italian community at large.” (Exh. J, Tab 52)
• Richard K. Chan writes on behalf of his lifelong friend, Mr. Seminerio, “There have never [been] any circumstance that when I needed [Mr. Seminerio’s] help...that I did not receive[] it in an instance....In these many years, I found him to be hard working and had a very humble office front on Jamaica Avenue, where the doors were always open to anyone that needed his help. I [have] yet to meet another public servant with his integrity and dedication in the more than 50 years that I have known him.” (Exh. J, Tab 59)
• Lois S. Sullivan writes on behalf of Mr. Seminerio, a lifelong friend of her father, Richard K. Chan, and expresses her gratitude for the “guidance, counseling and support” Mr. Seminerio has given her family over the years. Mr. Seminerio has known Ms. Sullivan’s family ever since her parents, who immigrated to New York from China, first opened a restaurant in Brooklyn. Ms. Sullivan writes of her many “memories of [Mr. Seminerio’s] generosity” – from sending homemade trays of ravioli to Ms. Sullivan’s family when they were just starting out in the restaurant business and times were tough, to providing emotional support and advice to Ms. Sullivan’s father when he needed to find a nursing home for her grandmother, to giving Ms. Sullivan information and advice about job opportunities for her unemployed husband and public school placement for her son. Ms. Sullivan observes that as an Assemblyman, even though Mr. Seminerio “worked hard in his office for his constituents for many many years, rarely taking any days off even to the detriment of his health,” he still always had the time to be there for her family when they needed him. (Exh. J, Tab 266)
• Grace M. Chin, daughter of Mr. Seminerio’s lifelong friend, Richard K. Chan, writes on Mr. Seminerio’s behalf, “While [Mr. Seminerio] has done
113 a great wrong, and it is no small matter, we hope and pray that the court will consider all his good works to the community he has loyally served for all these years. He has not moved away from the neighborhood of his constituents, but continues to live there still. Since he has been in politics, he has made himself readily available to meet the people ... and do the right thing for them.” (Exh. J, Tab 60)
• Joseph DiMartino writes on behalf of his former Assemblyman, Mr. Seminerio, “During the years I have known [Mr. Seminerio], I always respected him and know the good he has done as an Assemblyman and community leader. I know him to be a very caring husband, parent and grandfather. I am fortunate to consider him my friend. As a volunteer lobbyist for the New York Organ Donor Network and TWU [Transport Workers Union] retirees, I have, on several occasions, visited Tony in Albany. He always welcomed me, along with my fellow volunteers, with kindness and support.” (Exh. J, Tab 88)
• Christopher P. DeVoy, son of Mr. Seminerio’s former Chief of Staff, writes on Mr. Seminerio’s behalf, “[Mr. Seminerio] never forgot where he came from or who he worked for. For the next twenty nine years you could find Tony in his office sitting behind his desk waiting for the next constituent problem or complaint. You never needed an appointment; he was always there. When Tony resigned, the people of the 38th district have not only lost an assemblyman... we lost a friend.” (Exh. J, Tab 83; emphasis in original.)
• Louis Gazzale writes on behalf of his former Assemblyman, Mr. Seminerio, “Over the last 30 years, I have seen first-hand this decent hard-working man fight for his community. When our firehouse (Eng. 294) was closed, resulting in the death of 4 members of our community, the Assemblyman worked tirelessly to secure the reopening....He showed me we could make a difference....I have gotten to see the same dedication as a husband, father, and grandfather in Anthony Seminerio. He has done more good for more people than anyone I know.” (Exh. J, Tab 118)
• Peter G. Geis, Esq., writes on behalf of his former Assemblyman, Mr. Seminerio, “[Mr. Seminerio] was much more than a legislator or lawmaker – he was for many the only advocate they had. Keeping senior citizens programs operating and making sure people in the community received their municipal services....[B]oth publicly and privately Tony always exhibited a[n] extreme sense of fairness and often would say something can’t be done because ‘it’s just not right’. Whether it was politics or someone with a sewer problem, Tony took actions based upon his strong sense of values....” (Exh. J, Tab 120)
114 • Laurence J. Levine, Vice President of the Bridge and Tunnel Officers Benevolent Association, writes on behalf of his friend and colleague, Mr. Seminerio, “Through the years of working on issues of great importance to my membership I could always count on a straight answer from Assemblyman Seminerio. He is not like any other politician if he believes in an issue he’ll fight for what is right, even going against the Speaker of the House.” (Exh. J, Tab 163)
• Paula Ippolito writes on behalf of her former Assemblyman, Mr. Seminerio, “[Mr. Seminerio] is a personable guy, who genuinely cares for the people he comes into contact with. [Mr. Seminerio] has always been an advocate for the waitresses where I work. He has gone above and beyond what we thought to be required of his position.” (Exh. J, Tab 138)
• Edward Kalanz writes on behalf of his former Assemblyman, Mr. Seminerio, “I learned from Mr. Seminerio’s perseverance and dedication that a civil service job was more about the service and not the pay and benefits. That’s the kind of person he is, always reaching out to people in need....He doesn’t care who gets the credit, as long as your problem is resolved....I would not be where I am today without the guiding hand, fatherly advice and genuine concern of Mr. Seminerio, who has been a shining example of public service to our State.” (Exh. J, Tab 145)
• Frank A. Kotnik, Jr., former President of the Glendale Civilian Observation Patrol, writes on behalf of his former Assemblyman, Mr. Seminerio, “Without any request from G-COP [Glendale Civilian Observation Patrol], Assemblyman Seminerio was the first to assist our growing organization with state grants when we needed financial help. When G-COP or the community needed help, Mr. Seminerio was there. May God bless him because without his help, G-COP would never have evolved into the organization we are today....I will never forget the genuine concern he had for the safety of residents of Glendale.” (Exh. J, Tab 156)
• Frank J. Macchiarola, Chancellor of St. Francis College and former Chancellor of Schools for New York City, writes on behalf of his colleague, Mr. Seminerio, “[Mr. Seminerio] made me feel welcome in what was usually for a New York City public official, a not too friendly city....He was a caring legislator, attentive to those he represented. I never knew him to ask for anything in return. His reputation for helping others was well known....” (Exh. J, Tab 170)
115 • Harvey Machaver, Fellow of the American College of Healthcare Executives, Fellow of the American Public Health Association, Fellow of the New York Academy of Medicine, member of the American Hospital Association and former Chief Executive of the Hospital for Joint Diseases, writes on behalf of his friend, Mr. Seminerio, “In the 1970s, when I served on the Board of Directors of the Health Systems Agency of New York and of the Greater New York Hospital Association, Mr. Seminerio had a reputation for his understanding and reliable, honorable support of health issues....Although neither my wife nor I were his constituents, when I had a question about care for disabled children, his door was always open to me. His willingness to address my question was clearly based [on] his decency and commitment to the service of others, expecting nothing in return.” (Exh. J, Tab 171)
• Robert J. Malito, Esq., writes on behalf of his friend and former Assemblyman, Mr. Seminerio, “[Mr. Seminerio’s] specific support over the years for the South Queens Boys & Girls Club and for the award winning Queens Public Library System have been exemplary year after year. Tony truly believed in helping the people of Queens and of New York and did so in many ways for which he deserved great credit and much thanks.” (Exh. J, Tab 173)
• B.L. Ochman, a friend of Mr. Seminerio’s son, John, attests to Mr. Seminerio’s fundamental kindness and writes, “ ... [Mr. Seminerio] has helped a lot of people, like me, who could give him nothing in return. I hope you take that into consideration.” (Exh. J, Tab 204)
• Richard and Frances McCusker write on behalf of their former Assemblyman, Mr. Seminerio, “We are writing this letter in support of Anthony Seminerio with the hope that the fifty plus years of his contributions to our community will not go un-recognized....He worked tirelessly in helping both the small guy and the Senior citizens, but most importantly the children....Please take our respect and admiration of Anthony Seminerio into consideration when reaching your decision.” (Exh. J, Tab 186)
• Scott Meier writes on behalf of his friend and former Assemblyman, Mr. Seminerio, “[Mr. Seminerio] adores his family and friends. Everyone he came into contact with, he treated like family though....It is so rare to find someone like this, who will selflessly help others for no gain of their own. I truly believe him to be a valuable public servant, a devoted family man and a friend.” (Exh. J, Tab 189)
116 • Anne Murphy writes on behalf of her former Assemblyman, Mr. Seminerio, “Tony has always lent a hand when we were running affairs at Our Lady of Perpetual Help Church. When we ran picnics at the Aqueduct race track, he helped get the permits and donated money....Tony served our area for many years and did many great things for the community. Please remember this when you are deciding what punishment Tony should get.” (Exh. J, Tab 198)
• John Naja writes of the “esteem and gratitude” he has for his former Assemblyman, Mr. Seminerio, whom he has known for over 15 years. Mr. Naja discusses the “invaluable and re-assuring” advice and counsel Mr. Seminerio provided to Mr. Naja and his family, which enabled them to buy the house in which Mr. Naja had grown up. Mr. Naja also talks about his experiences being a member of the diverse 38th Assembly District Democratic Club, of which he felt Mr. Seminerio was “the guiding force and the glue that held everything together.” Mr. Naja concludes his letter by respectfully requesting that Your Honor consider Mr. Seminerio’s public service, as well as Mr. Naja’s own personal experiences with Mr. Seminerio and the Democratic Club, which Mr. Naja believes “have truly made me a better person.” (Exh. J, Tab 199)
• Oscar Nuñez writes on behalf of his former Assemblyman, Mr. Seminerio, “Mr. Seminerio has been an outstanding Assemblyman and community leader for more than three decades. Anthony Seminerio has made himself available to anyone who walked into his office looking for help or even advice. I do not think society will benefit from sending Mr. Seminerio to jail.” (Exh. J, Tab 203)
• Margaret O’Halloran, Esq., writes on behalf of her former Assemblyman, Mr. Seminerio, “I am sure you will hear of his numerous acts of kindness but many would have gone without mention, the way he prefers it. When my mom passed away last year Mr. Seminerio was told that we would have people back to our house. Knowing the state we were in, Mr. Seminerio sent over enough food for everyone for the two days of services, out of his own pocket without a word to us. Mr. Seminerio is an empathetic man of good character.” (Exh. J, Tab 207)
• Albert Porcelli writes on behalf of his former Assemblyman, Mr. Seminerio, “My experience concerning former Assemblyman Seminerio has been great. He is the most gracious legislator I have ever had the pleasure to meet....He is a man of action and will fight very hard for his constituents....Mayor David Dinkins, in 1993, wanted to cut costs by closing Fire Engine No. 294 in Richmond Hill, Queens. I will always remember how hard Mr. Seminerio
117 fought the Mayor, and eventually won the battle to keep Fire Engine No. 294 open for the safety of constituents and the general public.” (Exh. J, Tab 216)
• Maria A. Thomson, Executive Director of the Greater Woodhaven Development Corporation, writes on Mr. Seminerio’s behalf, “[Mr. Seminerio] has always listened to our complaints and assisted us in resolving them. There are not too many residents of his Assembly District that he did not help, in one way or the other, for his door was always open, and his help always there for them. I have known our Assemblyman as a man of good character, a great representative who is devoted to his beautiful wife and family as a good husband and father.” (Exh. J, Tab 267)
• Dr. John J. Sacco writes on behalf of his colleague, Mr. Seminerio, “In my individual and professional dealings with Mr. Seminerio, he has always been honest and ‘above-board’ with me and my colleagues....His character and friendship have always been regarded as impeccable and valued. He is known to be a devoted family man whose hard work, integrity and dedication to his profession for thirty year will forever be held in high esteem by his constituents.” Exh. J, Tab 239)
• Joseph Mauro writes on behalf of his colleague, Mr. Seminerio, “[Mr. Seminerio has worked endlessly to sponsor and pass legislation that has had a profoundly positive[] impact upon our members and their families for several decades....He has exuded a dedication and a passion for helping the working men and women of New York throughout my civil service career which spans almost three decades.” (Exh. J, Tab 182)
• Ron Jackson, a 41-year-old heart transplant patient, writes to express his “sincere gratitude and appreciation” for Mr. Seminerio’s and his staff’s assistance when his (i.e., Mr. Jackson’s) insurance lapsed and he could not afford his expensive anti-rejection medication. Mr. Jackson hopes that Your Honor will take into consideration “all the good Mr. Seminerio has done for the general public” when determining the appropriate sentence to impose upon him. (Exh. J, Tab 140)
• Thomas C. Ferstler is a childhood friend of Mr. Seminerio’s son, John. Mr. Ferstler writes that, as a child, Mr. Seminerio’s home was a “refuge” for him when his parents were going through a difficult divorce. As Mr. Ferstler got older, he continued to go to Mr. Seminerio for “fatherly and career advice with sound answers.” Of particular note, Mr. Ferstler is very grateful for the support Mr. Seminerio has given to the Independent Bikers Toys for Tots drive, helping them gather toys and obtain permits each year. He hopes that Your Honor will consider his letter and “what [Mr. Seminerio] and his family
118 mean to me” in deciding the appropriate sentence to impose upon him. (Exh. J, Tab 105)
• Fr. Anthony Ciorra, Ph.D, Dean of the Graduate School of Religion and Religious Education at Fordham University, has recently been introduced to Mr. Seminerio through Mr. Seminerio’s relative, Sister Margaret Nulty. Mr. Seminerio has told Mr. Ciorra of his criminal conduct and has asked for Mr. Ciorra’s prayers. Mr. Ciorra writes, “I was impressed by [Mr. Seminerio’s] sincerity and his reaching out to me despite the fact that he did not know me personally. I was impressed with is humility and genuineness....Although this is a difficult time for him, I think he has the depth of character that will make him a better human being at the end of this painful process.” (Exh. J, Tab 62)
• Angelina Grossi, who has known Mr. Seminerio for most of her life, writes, “ ... [Mr. Seminerio] was an extremely good person, husband, father and grandfather. He has always conducted himself with the highest degree of integrity and professionalism....[I] hope that you will find it in your heart to show him the same compassion and consideration that he has always given to his family, friends and constituents.” (Exh. J, Tab 127)
• Robert Grossi writes on behalf of Mr. Seminerio, “During the years I have known him, I found him to be a hard working man as well as a great person. He is a devoted friend and would go to great lengths to assist anyone in need. His devotion to his family is unsurpassed, as well as his devotion to his duties in Albany....His kindness was extended to all who were in need of his help.” (Exh. J, Tab 128)
• Paul Giovanniello is a friend of Mr. Seminerio’s daughter and has known Mr. Seminerio for fifteen years. Mr. Giovanniello writes of Mr. Seminerio’s obvious devotion to his family, “ ... I have witnessed [Mr. Seminerio] being a loving and caring father to his son and daughters and you could not ask for a better grandfather to his grandchildren. [Mr. Seminerio] is a family man.... He was always there for them and they were the most important things in his life.” (Exh. J, Tab 123)
• Victor F. Albetta, President and Chief Executive Officer of Hygrade Business Group, writes to express his continued support of Mr. Seminerio, notwithstanding Mr. Seminerio’s criminal conduct. Mr. Albetta writes of the many ways Mr. Seminerio has helped him and his family throughout the years such as: helping Mr. Albetta find his first job after completing his service in the United States Air Force; hiring his brother, Michael Albetta, as his Assembly Aide and encouraging him to continue a career in community service; and naming a street in honor of his mother, a school crossing guard,
119 when she died. Mr. Albetta concludes his letter by respectfully requesting that Your Honor grant Mr. Seminerio leniency based upon the totality of his good and decent life, and hopes that you will consider “his long record of hard work and dedication to his community, his common touch with those he represented, and his being a great family man....[and Mr. Seminerio’s] personal and public record, as well as his age and health. [Mr. Seminerio] is remorseful and, given the chance will more than repay society in his remaining years.” (Exh. J, Tab 19)
• Kim Rizzo is a friend of Mr. Seminerio’s daughter, Mabel, and has known Mr. Seminerio for 14 years. Ms. Rizzo describes Mr. Seminerio as a devoted and loving family man; and she notes that when Mabel’s husband was called to duty in Iraq, Mabel would not have been able to work and take care of her three children without Mr. Seminerio’s help and support. Ms. Rizzo further writes of her admiration for Mr. Seminerio and the family he has raised, “[Mr. Seminerio] has maintained a close-knit family with is loving nature, and encouraged family values which are not often seen in today’s society....He and his family are wonderful examples of how families should be raised, and [have] become such an integral and positive part of the society around them.” (Exh. J, Tab 232)
• Efthimia Tsavalias, the Director of Housekeeping at the Maritime Hotel and a part-time Greek teacher, writes on behalf of Mr. Seminerio, whom she describes as her “mentor.” Ms. Tsavalias first met Mr. Seminerio when she was a manager at the Atlantic Diner in Richmond Hill; and she explains that it was Mr. Seminerio who inspired her to go to college, always telling her that “[o]nly through education, you can make the world a better place.” Ms. Tsavalias, who has a great deal of respect for Mr. Seminerio as both a family man and community leader, writes, “He is a devoted husband, father, grandfather and overall a wonderful person who listens, cares and helps....I always admired his dedication, his kindness, and his ambition to do what is the best for his community. He is a man who inspires people around him and earns his respect.” (Exh. J, Tab 270)
• Mary Ann Holloran, a resident of Bayside, New York, who has known Mr. Seminerio and his family since the early 1990s, writes on Mr. Seminerio’s behalf, “ ... [W]e have relied on him for several issues that have arisen in our community. In all of those instances Mr. Seminerio provided the support and assistance needed to rectify the issues. At no point did he ever ask for anything in return....I truly believe that Mr. Seminerio is a good family man devoted husband and a genuinely honest citizen. As a member of the community I plead that you show him leniency considering his contributions to New York City, his family and his friends.” (Exh. J, Tab 134)
120 • Angelo Maltaghati is a retired New York City Police Officer and a resident of Howard Beach, New York, for over 30 years. Through his involvement with the Kiwanis Club in Queens, Mr. Maltaghati has had many occasions to interact with Mr. Seminerio and witness his eagerness to assist others, especially during Christmas toy drives. (Exh. J, Tab 174)
• Sylvia J. Doreste writes on behalf of Mr. Seminerio, whom she has known for over 20 years. Ms. Doreste is a colleague and friend of Mr. Seminerio’s daughter, Mabel. As a Public School teacher in Woodhaven, Queens, Ms. Doreste has personally witnessed Mr. Seminerio assist local parents who were unable to secure positions for their children in their zoned school. Through her friendship with Mabel, Ms. Doreste has had the opportunity to get to know Mr. Seminerio and his family personally. She admires his relationship with his wife, Catherine, and has found him to be both a “proud father” and “loving” grandfather. Indeed, Ms. Doreste was most impressed by the support Mr. Seminerio gave to Mabel and her children when Mabel’s husband was called to duty in Iraq. Ms. Doreste writes, “ ... I hold Mr Seminerio in very high esteem, as I am sure countless other people, that may not have the capacity to appeal to you personally, do. In all the years that I have known him he has proven to be a man that works hard for all citizens.” (Exh. J, Tab 93)
• Palma Cardillo, a retired Assistant Principal in the Queens public school system, writes on behalf of Mr. Seminerio, “In so many ways [Mr.] Seminerio has touched the lives of the people he knew. He improved his community in a million small ways. All his years of kindness and hard work must not be forgotten.” (Exh. J, Tab 53)
• Maureen Caulfield has known Mr. Seminerio for over 15 years, and expresses her gratitude for Mr. Seminerio’s generosity following a devastating fire in her home. Mr. Caulfield writes that not only was Mr. Seminerio the first person to offer financial assistance to her, he was also there to help her in dealing with the process of obtaining Section 8 housing assistance after her home was destroyed. (Exh. J, Tab 57)
• Robert Champa, a resident of Ozone Park, Queens, has known Mr. Seminerio for over 25 years. Mr. Champa is “forever grateful” for Mr. Seminerio’s efforts in helping to keep Mr. Champa’s nephew’s wife and her children together as they immigrated to the United States from the Phillippines. He appreciates Mr. Seminerio’s service to his community, especially Mr. Seminerio’s efforts to help provide State funding for the
121 Richmond Hill Block Association, a community organization which holds various after-school and summer programs for children. (Exh. J, Tab 58)
• Ralph Bombardiere, Executive Director of the New York State Association of Service Station and Repair Shops, writes on behalf of Mr. Seminerio, “On many occasions it was important that [the New York State Association of Service Station and Repair Shops, Inc.] communicate to Mr. Seminerio the small service station/repair shop position on legislation. We found him to be extremely attentive and considerate of our positions. More than that he was fair.” (Exh. J, Tab 40)
• Marie Vitucci, a resident of Ozone Park, Queens for over 40 years, attests to the “kindness and compassion” of her former Assemblyman, Mr. Seminerio. Ms. Vitucci will always be grateful for the assistance Mr. Seminerio provided to her now-deceased sister, Joan, who was a single mother living with Multiple Sclerosis. Mr. Seminerio helped Joan get legal counsel, which allowed her to maintain custody of her daughter for the precious few years they had together. Ms. Vitucci writes that what Mr. Seminerio did for her sister is emblematic of his reputation amongst the members of her community, “[Mr.] Seminerio has always been available to everyone in our neighborhood....He always stopped and talked to anyone that needed his assistance. Mr. Seminerio has always been very well respected, and held in the highest regard by everyone in our community.” (Exh. J, Tab 274)
• Brenda S. Bohr has known Mr. Seminerio, her former Assemblyman, for 15 years, having first contacted him when she had questions regarding renters’ rights. In their first interaction and in their many subsequent ones, Ms. Bohr always found Mr. Seminerio to be extremely willing and able to assist her. She writes, “ ... I have sought Mr. Seminerio’s advice from problems with sanitation pick-up to social security to unemployment to citizenship questions. If he did not have a solution, he would get back to me personally with an answer. I have sent friends and neighbors with every confidence that [Mr. Seminerio] could help them.” (Exh. J, Tab 39)
• Carol Simon and Leo Compton, Executive Directors of the South Queens Boys and Girls Club, both are grateful for Mr. Seminerio’s attendance at many of their fundraisers and community events, and especially for Mr. Seminerio’s efforts in securing vital funding for their organization over the years. Ms. Simon and Mr. Compton write, “Mr Seminerio has always shown love and respect for our young members. He would always remark that the youth of Richmond Hill were the future and that it was important for the
122 community to work together to give them every opportunity possible.” (Exh. J, Tab 253 [Letter of Carol Simon]; Exh. J, Tab 69 [Letter of Leo Compton])
• Joseph A. Ferrara, a member of the Board of Directors of the South Queens Boys and Girls Club (“SQBGC”), writes on behalf of Mr. Seminerio, whom he has known for 25 years. In his letter describing Mr. Seminerio’s support of the SQBGC, Mr. Ferrara writes, “[Mr. Seminerio] was honest, sincere and never asked for any special treatment or recognition. Recognizing that our children are our future, he always asked ‘What can I do to help the kids?’ and never, ever asked for anything in return....He is a truly good man and deserves leniency.” (Exh. J, Tab 104)
• Anne E. Quinn, a former resident of Queens, writes to express her support of Mr. Seminerio. Ms. Quinn, the former Editor and Production Manager of The Forum of South Queens, came to know Mr. Seminerio through her involvement in local community events. Ms. Quinn observed Mr. Seminerio to be the type of man who, if he met you in the street, would always have time to stop and talk to you and would always ask if there was anything he could do for you. She believes Mr. Seminerio was truly dedicated to his community, and writes, “ ... [Mr. Seminerio] was more than just the local Assemblyman, he was a friend who honestly cared about every individual he served. He was not a ‘promises and do nothing’ politician, he kept promises and did plenty to better the lives of those who lived in his community.” (Exh. J, Tab 220)
• David Yee, an 84-year-old World War II veteran, writes of his gratitude to Mr. Seminerio. Mr. Yee explains that when he could no longer afford to pay his rent on his Social Security Income and was being threatened with eviction, Mr. Seminerio stepped in and had him relocated to a Senior Apartment Complex in Chinatown. Mr. Yee adds that, since then, Mr. Seminerio has continued to help him with his financial and healthcare issues, and has never asked for anything in return. (Exh. J, Tab 284)
• Barry Rachnowitz, former President of Local 290 of the Public Employees Federation AFLI-CIO, writes in support of Mr. Seminerio, whom he has known for 25 years. Mr. Rachnowitz writes that during his time as President of his Union, Mr. Seminerio was always willing to listen to his concerns and his “door was always open to me when there were issues that needed attention.” Mr. Rachnowitz adds, “Through all these years I only heard how helpful [Mr. Seminerio] and his staff was to his constituency and members of adjoining communities. His reputation for honesty was excellent.” (Exh. J, Tab 221)
123 • Steven Wong is the manager of his family-owned Chinese restaurant in Richmond Hill and Mr. Seminerio is one of his regular customers. Mr. Wong describes Mr. Seminerio as a truly generous man, noting that he will never forget the time several years ago when his restaurant was destroyed by a fire and Mr. Seminerio came by and offered to loan him money until his insurance came through. (Exh. J, Tab 282)
• Clement Vicari, a former resident of Ozone Park and active member of the Kiwanis Club of Howard Beach, writes that through his activities for his Kiwanis Club, he has many interactions with members from Bushwick, Glendale, Middle Village, Richmond Hill and Ozone Park. Mr. Vicari attests to Mr. Seminerio’s excellent reputation in those neighborhoods for “being loyal to his constituents and organizations” and for “performing good works.” (Exh. J, Tab 273)
We respectfully submit that, collectively, the literally hundreds of letters submitted to this
Court by Mr. Seminerio’s family members, numerous friends, constituents and colleagues, make clear that, although Mr. Seminerio broke the law, Mr. Seminerio is a caring and loving father, husband and grandfather, who is a fundamentally decent person and who is certainly not a threat to the public. In that regard, and for the reasons more fully discussed below, based upon the aberrant and atypical nature of Mr. Seminerio’s criminal conduct and his personal background as well as his extraordinary medical conditions, we respectfully submit that there is a sound basis for this Court to grant Mr. Seminerio a modest downward departure and impose a sentence of home detention.
124 LEGAL ANALYSIS
IV.
BASED UPON THE NATURE OF MR. SEMINERIO’S CRIMINAL CONDUCT, HIS BACKGROUND AND HIS EXTRAORDINARY PERSONAL CIRCUMSTANCES, A SOUND BASIS EXISTS FOR THIS COURT TO IMPOSE A SENTENCE OF HOME DETENTION.
A. OVERVIEW OF THE STATE OF THE LAW AND THE RELEVANT SENTENCING FACTORS, WHICH COMPEL THE CONCLUSION THAT A SENTENCE OF HOME DETENTION IS WARRANTED IN THE CASE OF MR. SEMINERIO.
At Mr. Seminerio’s sentencing before Your Honor, we will ask this Court to impose a sentence of home detention. As we discuss below, the defense has calculated Mr. Seminerio’s adjusted offense level to be 4, pursuant to the Guidelines, which corresponds to an advisory
Guidelines range of 0 to 6 months. In the event that this Court determines that Mr. Seminerio’s adjusted offense level is greater than level 4, this Court also has the discretion to depart downward from the Guidelines and to impose a non-Guidelines sentence of home detention.
We set forth below and discuss the legal and factual bases for this Court to impose a sentence of home detention in the case of Mr. Seminerio:
• First, the proposition that it is necessary to impose “individualized justice” because it is now axiomatic that the Guidelines are no longer mandatory in the post-Booker era.
• Second, the circumstances of Mr. Seminerio’s aberrant and isolated criminal conduct, which occurred during the otherwise unblemished 74 years of his life.
• Third, this Court’s authority and discretion to impose a sentence of home detention, which sentence is consistent with the advisory Guidelines calculation in Mr. Seminerio’s case.
125 • Fourth, a sentence of home detention is warranted based upon a full consideration of the sentencing factors set forth in 18 U.S.C. Section 3553(a), including, but not limited to: the nature of Mr. Seminerio’s offense and the history and characteristics of his entire life; Mr. Seminerio’s extraordinary medical conditions; and Mr. Seminerio’s exceptional good works and acts of charity.
• Fifth, a sentence of home detention satisfies the purposes of sentencing – retribution, deterrence, incapacitation and rehabilitation.
We want to emphasize again that the discussion in this Memorandum of Mr. Seminerio’s criminal conduct and his personal background is not intended to mitigate in any way the serious misconduct which brings Mr. Seminerio before this Court. Rather, we have provided this information in the belief that a full explanation of the circumstances of Mr. Seminerio’s offense, in the context of his life as well as Section 3553(a)’s sentencing factors, will demonstrate the appropriateness of imposing the individualized sentence of home detention.
We begin with the preliminary proposition that it is necessary to impose individualized justice because it is now axiomatic that the Guidelines are no longer mandatory and “a district court has broad latitude to ‘impose either a Guidelines sentence or a non-Guidelines sentence.’” United
States v. Rigas, 2009 WL 3166066, *9 (2d Cir. Oct. 5, 2009) (internal citations omitted); United
States v. Gall, 552 U.S. 38, 128 S.Ct. 586 (2007); United States v. Kimbrough, 552 U.S. 85, 128
S.Ct. 558 (2007); United; Blakely v. Washington, 542 U.S. 296 (2004); United States v. Rattoballi,
452 F.3d 127 (2d Cir. 2006); United States v. Crosby, 397 F.3d 103 (2d Cir. 2005); see also United
States v. Jones, 460 F.3d 191, 195 (2d Cir. 2006) (sentencing judge is not prohibited from considering “the judge’s own sense of what is a fair and just sentence under all the circumstances”).
Concededly, Booker “did not signal a return to wholly discretionary sentencing” Rattoballi, 452 F.3d at 132 (citations omitted); and in determining the reasonableness of a sentence, courts must still
126 consider the advisory Guidelines as a “benchmark.” Kimbrough, 128 S.Ct. at 574 (citations omitted); United States v. Ministro-Tapia, 470 F.3d 137, 142 (2d Cir. 2006) (quotations and citations omitted); United States v. Rubenstein, 403 F.3d 93, 98-99 (2d Cir. 2005).
The United States Supreme Court and the Second Circuit, however, both have declined to adopt per se rules holding the Guidelines presumptively reasonable. Gall, 128 S.Ct. at 595-97;
Crosby, 397 F.3d at 114-15. The Second Circuit has opted instead to “fashion the mosaic of reasonableness through case-by-case adjudication.” Crosby, 397 F.3d at 114-15 (citations omitted), accord Rattoballi, 452 F.3d at 133; United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006)
(citation omitted); United States v. Fairclough, 439 F.3d 76, 80 (2d Cir. 2006). Indeed, sentencing courts have been liberated from the mandatory Guidelines and are now able to “achiev[e] somewhat more individualized justice” Crosby, 397 F.3d at 114, which is based upon the “uniform and constant” consideration by sentencing judges of “every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Gall, 128
S.Ct. at 598 (citations omitted).21
21See also United States v. Sindima, 488 F.3d 81, 84 (2d Cir. 2007) (the Second Circuit has frequently observed that it will “not require district courts to engage in the utterance of ‘robotic incantations’ when imposing sentences in order to assure us that they have weighed in an appropriate manner the various section 3553(a) factors”) (citations omitted); United States v. Ranum, 353 F. Supp.2d 984, 987 (E.D.Wis. 2005) (“The guidelines are not binding, and courts need not justify a sentence outside of them by citing factors that take the case outside the ‘heartland.’ Rather, courts are free to disagree ... with the actual range proposed by the guidelines, so long as the ultimate sentence is reasonable and carefully supported by reasons tied to the § 3553(a) factors....District courts cannot just add up figures and pick a number within a narrow range. Rather, they must consider all of the applicable factors, listen carefully to defense and government counsel, and sentence the person before them as an individual. Booker is not as an invitation to do business as usual.”; emphasis added); see also Simon v. United States, 361 F. Supp.2d 35, 40 (E.D.N.Y. 2005) (Swifton, Sr. J.), citing Ranum, supra; United States v. West, 383 F. Supp.2d 517, 519 (S.D.N.Y. 2005) (Sweet, J.), citing Ranum, supra; cf. United States v. Watts, 2008 WL 5099960, *1 n.1 (2d (continued...)
127 As the Seventh Circuit aptly observed:
“The judge is not required – or indeed permitted – to ‘presume’ that a sentence within the guidelines range is the correct sentence and if he wants to depart give a reason why it’s not correct. All he has to do is consider the Guidelines and make sure that the sentence he gives is within the statutory range and consistent with the sentencing factors listed in 18 U.S.C. § 3553(a). His choice of sentence, whether inside or outside the guideline range, is discretionary and subject therefore to only light appellate review. The applicable guideline nudges him toward the sentencing range, but his freedom to impose a reasonable sentence outside the range is unfettered.”
United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir. 2006) (citations omitted, emphasis added).
This flexibility in sentencing now requires courts to analyze the sentencing factors set forth in 18 U.S.C. Section 3553(a), while using the advisory Guidelines as one of the factors to be considered to ensure that the purposes of sentencing have been satisfied (i.e., retribution, deterrence, incapacitation and rehabilitation). 18 U.S.C. Section 3553(a)(2). Thus, while not bound by the
Guidelines, this Court is still required to consider the Guidelines when sentencing Mr. Seminerio; and so long as this Court considers the advisory Guidelines range, it is free to impose a non-
Guidelines sentence. Gall, 128 S.Ct. at 596-98 (citations omitted); Jones, 460 F.3d at 195-96
(citations omitted).
We fully recognize that there is no greater challenge in the post-Booker era for a District
Court Judge than sentencing an individual defendant so that fairness and proportionality can be
(...continued) Cir. Dec. 3, 2008) (affirming sentence imposed by the District Court [Buchwald, J.], and explaining, “To satisfy the judicial burden under section 3553(c), ‘[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision making authority.’”), quoting and citing Rita v. United States, 551 U.S. 338, 56-57 (2007); United States v. Osorio, 2008 WL 4280067, *2 (2d Cir. Sept. 17, 2008) (same, affirming sentence imposed by the District Court [Buchwald, J.]), citing Rita, supra.
128 achieved. This is somewhat of an even greater challenge in this case because of the true nature of
Mr. Seminerio as a person; his nearly 50 years of honorable service to his community and the State of New York; and the circumstances of his aberrant and isolated criminal conduct during the otherwise unblemished 74 years of his life.
At the cost of repetition, the discussion in this Memorandum is not intended to mitigate in any way the serious misconduct which brings Mr. Seminerio before this Court. Rather, we provide this information in the belief that a full explanation of the circumstances of Mr. Seminerio’s offense, in the context of his life, will demonstrate the appropriateness of imposing the individualized sentence of home detention, which we respectfully submit satisfies the purpose of sentencing – retribution, deterrence, incapacitation and rehabilitation.
B. MR. SEMINERIO’S CRIMINAL CONDUCT.
1. INTRODUCTION.
On June 24, 2009, Mr. Seminerio pleaded guilty to a single Count of Scheme to Defraud the
Public of Honest Services (18 U.S.C. Sections 1341 and 1346), by violating N.Y. Public Officers
Law Section 74(2) because he failed to disclose a conflict of interest he had in the discharge of his official duties as an elected New York State Assemblyman. Mr. Seminerio has taken full responsibility for the criminal conduct to which he pleaded guilty in connection with his consulting company, Marc Consultants.
The defense has calculated Mr. Seminerio’s adjusted offense level to be 4, pursuant to the of the Guidelines, which corresponds to an advisory Guidelines range of 0 to 6 months. At Mr.
Seminerio’s sentencing before Your Honor, we will ask this Court to impose a sentence of home detention.
129 In the event that this Court determines that Mr. Seminerio’s adjusted offense level is greater than level 4, this Court also has the discretion to depart downward from the Guidelines and to impose a non-Guidelines sentence, pursuant to U.S.S.G. Sections 5H1.1, 5H1.4, 5H1.11, 5K2.20, and 18 U.S.C. Section 3553, and the cases that have interpreted those Sections, based upon the totality of circumstances of this case, including the nature of Mr. Seminerio’s offense and the history and characteristics of his entire life. We understand that a downward departure and the imposition of a non-Guidelines sentence require an extraordinary set of mitigating circumstances, which we respectfully submit are present in Mr. Seminerio’s case.
The Government’s Guidelines calculation, which is almost entirely driven by the
Government’s loss calculation, is based upon the Government’s theory that, since 1998, Mr.
Seminerio was corrupt at every turn and in virtually everything he did; and that Mr. Seminerio engaged in a decade-long corrupt scheme of “selling his [political] office.” (See Exh. E, Gov.
Memo., pp. 1-3, 5; Exh. B, Indictment.) The strained theory of the Government’s prosecution is most principally predicated upon its belief that Mr. Seminerio utilized a “shell” consulting company
– Marc Consultants – to collect corrupt payments through extortion, political blackmail and strong- arm tactics. (Id.)
For example, and only by way of example, the Government claims:
“From in or about 1998, through ... 2008, Seminerio engaged in a scheme to defraud the public of his honest services as a member of the Assembly through the use of a purported consulting firm, named ‘Marc Consultants’....In truth and in fact, Seminerio did little or no consulting work....Rather ... Seminerio received hundreds of thousands of dollars from various entities ... in exchange for which Seminerio has taken official action for the benefit of those entities, resulting in favorable treatment for those entities in the Assembly and by New York State Officials....
130 ....
The evidence demonstrates that Seminerio never provided bona fide consulting services, and that he was in fact paid consulting fees as a way for private parties to secure his support as a member of the New York State Assembly. Seminerio had no relevant prior experience in the business areas where he provided consulting....Seminerio described his services as ‘opening doors’ for people. The evidence gathered in support of the charges in this case demonstrates that this was just a euphemism for selling his office.” (Exh. E, Gov. Memo., pp. 1-3; emphasis added.)
We respectfully, but strongly, submit that the Government’s unrealistic view of the facts is not supported by credible evidence and cannot be squared with the now-historical facts underlying this case. In light of the Government’s unrealistic view of this case, it is necessary to address:
• First, Mr. Seminerio’s very relevant training, knowledge and experience which served as the foundation of his consulting business, Marc Consultants;
• Second, Mr. Seminerio’s political and business relationship with Arlene Pedone;
• Third, the 1998 falling out between Mr. Seminerio and Ms. Pedone – as a direct result of Ms. Pedone’s dishonest and, unethical conduct – and Mr. Seminerio’s formation of his own company, Marc Consultants; and
• Fourth, Mr. Seminerio’s single, isolated criminal act – which he fully acknowledges was wrong and takes complete and sole responsibility for – stands in stark contrast to Mr. Seminerio’s otherwise fundamentally good, decent and law-abiding life.
Collectively, these facts make clear that the Government’s theory of prosecution is unrealistic and strained; and therefore, we respectfully submit, should be rejected by this Court. Moreover, these facts further confirm the appropriateness of sentencing Mr. Seminerio to a term of home confinement, consistent with the Guidelines, predicated upon the true nature of Mr. Seminerio as a
131 person and the circumstances of his aberrant and isolated criminal conduct during the otherwise unblemished 74 years of his life.
2. MR. SEMINERIO’S VERY RELEVANT TRAINING, KNOWLEDGE AND EXPERIENCE WHICH SERVED AS THE FOUNDATION FOR HIS CONSULTING BUSINESS.
We respectfully submit that the Government’s claim regarding Mr. Seminerio’s qualifications
– that is, that “[Mr.] Seminerio had no relevant prior experience in the business areas where he provided consulting” – is both unfair and untrue. (Quoting Exh. E, Gov. Memo., p. 3.) Mr.
Seminerio’s experience – first as a Union leader, then as an elected official – provided him with first- hand knowledge, experience and training to be in a position to provide consulting services to Marc
Consultants’ clients.
As discussed earlier, Mr. Seminerio’s life changed dramatically in 1964, when he was hired by the New York City Department of Correction. Just a few weeks after being hired by the
Department of Correction, Mr. Seminerio’s fellow officers selected him to be their Union Delegate.
In his position as Union Delegate, Mr. Seminerio went to meetings, took notes and kept his fellow officers informed of Union activity. As Mr. Seminerio writes in his letter to Your Honor, he became committed to improving the working conditions, training and benefits of all Department of
Correction employees:
“I found that I loved representing my fellow guards in contract negotiations and helping them in connection with grievance issues. My fellow guards worked at the City’s corrections centers and their job was very hard and I tried my best to serve them.” (Exh. A, Letter of Mr. Seminerio)
In 1972, Mr. Seminerio was elected to serve on the Executive Board of the Union and, over the next six years, worked his way up to the position of First Vice President. As an Executive Board
132 Member, Mr. Seminerio attended and conducted monthly Board meetings, and quickly learned all about the management of the Union, from day-to-day operations to the Union’s broader agenda. Mr.
Seminerio was also appointed to serve as the Union’s Grievance Officer, representing Correction
Officers in grievance procedures and serving as a liaison between the Union and the institutional commander.
Over the years, Mr. Seminerio became increasingly involved in extensive contract negotiations on behalf of the Union, including lobbying and advocating on behalf of the Union’s members for: improved safety conditions; health and dental insurance benefits; maternity leave; retirement benefits; uniforms; etc. Mr. Seminerio’s role on the Executive Board extended to traveling one to two times per week to Albany (and sometimes to Washington, D.C.) to lobby for legislation on behalf of the Union, giving him the opportunity to meet and work hand-in-hand with
State officials and other union officials from other industries.
In November 1978, Mr. Seminerio was elected to the New York State Assembly. He decided to run because he had found it so rewarding to be able to serve his fellow officers in the Union, and he “felt that the possibility of being able to serve all of my neighbors in my Assembly District would be an even greater opportunity.” (Exh. A, Letter of Mr. Seminerio) From the moment Mr.
Seminerio was first elected, he recognized that his job was to serve the people.
For the 30 years that followed, Mr. Seminerio did what he could to improve the lives of his constituents – whether it be through legislation, acquiring State funding for valuable community services or simply being easily accessible and available to assist members of his community with their problems, to which he gave the same attention as he would his own. As Mr. Seminerio further writes in his letter to Your Honor, “ ... [M]y constituents’ needs were my needs, and that is how I
133 tried to conduct myself for the thirty years I served in the Assembly.” (Exh. A, Letter of Mr.
Seminerio)
We have addressed these facts relating to Mr. Seminerio’s background because the
Government’s strained theory of prosecution – that Mr. Seminerio utilized a “shell” consulting company, Marc Consultants, to collect corrupt payments – supposedly, is somehow evidenced by the Government’s claim that “[Mr.] Seminerio had no relevant prior experience in the business areas where he provided consulting.” (Exh. E, Quoting Gov. Memo., p. 3.) The Government’s claim regarding Mr. Seminerio’s qualifications is both unfair and untrue. Mr. Seminerio’s years of experience as a Union leader and then as an elected official provided him with the knowledge, experience and training to be in a position to provide consulting services to Marc Consultants’ clients. Through his work as an Executive Board member of his Union, he gained insight into the needs of employees, as well as particular experience with employee benefits and insurance programs.
As an elected official, Mr. Seminerio gained a familiarity with the needs and offerings of a wide range of industries, companies and programs operating within or affecting his District.
The Government’s unrealistic view of the facts, including Mr. Seminerio’s background, is further evidenced by the following now-historical facts. A significant portion of Mr. Seminerio’s consulting work related to the medical and healthcare industries. Mr. Seminerio’s very relevant experience and insight into the inner-workings of the medical and healthcare industries – which directly contributed to Mr. Seminerio’s consulting business – was first realized more than a decade before Mr. Seminerio ever formed Marc Consultants. In the mid-1980s, Mr. Seminerio was instrumental in the drafting and passing of legislation which created a “Bad Debt and Charity pool” to fund and pay the bills of distressed hospitals that provide a disproportionate share of services to
134 uninsured or indigent patients in New York State. “Passing that law was a milestone for Mr.
Seminerio,” who viewed the legislation, which helped more than 60 hospitals statewide, as the
“greatest accomplishment of his legislative career.” Barbara Benson, “Jamaica Hospital ... ,” Crain’s
New York Business.com (Sept. 12, 2008) (located at http://www.crainsnewyork.com/article/200809
12/FREE/809129978).
Simply stated, Mr. Seminerio’s “relevant prior experience” is a well-settled and a historical fact. Whether it was lobbying on behalf of his Union in Albany or Washington, D.C., for improved safety conditions or health insurance benefits; working on legislation to fix the medical and healthcare industries; or simply meeting and work with members of his community to improve the lives of his constituents – Mr. Seminerio had a wealth of relevant prior experience in the business areas where he provided consulting services.
3. MR . SEMINERIO’S POLITICAL AND BUSINESS RELATIONSHIP WITH ARLENE PEDONE.
In about 1996, Arlene Pedone, one of Mr. Seminerio’s trusted colleagues, discussed with Mr.
Seminerio the fact that she had her own consulting business, Neighborhood Marketing Corporation
(“Neighborhood Marketing”). Ms. Pedone also discussed the possibility of Mr. Seminerio doing some consulting work with her and her company. Mr. Seminerio had known Ms. Pedone since the late-1970s through her involvement in local community activities and, over time, Mr. Seminerio introduced her to other community leaders. Eventually, Ms. Pedone became the President of the
Richmond Hill Block Association, and later became a District Leader. In fact, Mr. Seminerio trusted
Ms. Pedone so completely that he made her the Treasurer of his campaign election fund, “Friends of Seminerio.”
135 In 1996, Mr. Seminerio decided to enter into a consulting business with Ms. Pedone. His decision to do consulting work was straightforward. As Mr. Seminerio writes in his letter to Your
Honor:
“I believed that I could help people and, in doing so, I could earn some additional income to provide for my family. Throughout my career, without compensation, I had tried to help businesses by making introductions and opening doors for them to other people I knew.” (Exh. A, Letter of Mr. Seminerio)
For years Mr. Seminerio had seen other legislators earning outside income, whether it be from their legal practice (i.e., as attorneys), teaching, outside business interests or through consulting companies.22 He believed that, as a consultant, he would be able to provide valuable services and be compensated for those services, based upon the people he had met and the experiences he had in his 20 years in the Assembly and his nearly 15 years in the Department of Correction. What Mr.
Seminerio would be doing as a consultant, and much of what he had already been doing throughout his career, he had learned from politics and, in large part, from his prior work serving on the
Executive Board of the Correction Officers’ Union, including working on contract negotiations and advocating for better employment-related benefits such as health care, pensions, etc.
When Mr. Seminerio decided to enter into the consulting business in 1996, he knew that there were limitations on what he could and could not do as a consultant – specifically, he knew that
22Indeed, during Mr. Seminerio’s time in the New York State Assembly, many political officials throughout the United States earned additional income in connection with work performed outside the role of elected official. See generally National Conference of State Legislatures, Report on “Full and Part-Time Legislatures,” (June 2009) (available at http://www.ncsl.org/?tabid=16701) (recognizing that in the majority of States, the income paid to legislatures is “usually not enough to allow them to make a living without having other sources of income.”) In fact, in 2002, 115 of the 212 members of the New York Legislature reported earnings of at least $1,000 from a private-sector job or business. William F. Hammond, “New York Guidelines Sought for Lawmakers’ Work,” N.Y. Sun, July 16, 2003, p. 1.
136 he could not work on State matters. Furthermore, Mr. Seminerio was always transparent about his consulting work. Indeed, in 1996, when he decided to enter into a consulting business with Ms.
Pedone, Mr. Seminerio submitted a letter to the Legislative Ethics Committee in Albany, the
Assembly Counsel Mark Glaser, and Assembly Speaker Sheldon Silver regarding his consulting for
Ms. Pedone’s company, Neighborhood Marketing. (See Exh. G, April 1, 1996 Letter to the
Legislative Ethics Committee.) In response to his letter, the Legislative Ethics Committee issued
Advisory Opinion 96-06, which stated, in short, that Mr. Seminerio was allowed to provide consulting services, but could not perform consulting services in connection with any New York
State matter (see Exh. H, Advisory Opinion 96-06) – and during the time that Mr. Seminerio worked with Ms. Pedone, he did not work on any State matters.
4. THE FALLING OUT BETWEEN MR. SEMINERIO AND MS. PEDONE – AS A DIRECT RESULT OF MS. PEDONE’S DISHONEST AND UNETHICAL CONDUCT – AND MR. SEMINERIO’S FORMATION OF HIS OWN COMPANY, MARC CONSULTANTS.
After working together for several years, in approximately 1998, Mr. Seminerio and Ms.
Pedone had a falling out – as a direct result of Ms. Pedone’s dishonest and unethical conduct – which ended their business relationship and their political affiliation. The Government has claimed that Mr. Seminerio engaged in a scheme to collect corrupt payments from Ms. Pedone through extortion, political blackmail and strong-arm tactics and, later, retaliation. (See Exh. E, Gov.
Memo., pp. 1-5, 7; Exh. B, Indictment.) The Government’s strained view of the facts simply is not supported by credible evidence and cannot be squared with the now-historical facts underlying this case.
137 In approximately 1998, Mr. Seminerio received a very troubling telephone call from someone who worked at HeartShare (a company that provides, among other things, medical services to children with disabilities); and Mr. Seminerio learned for the first time that HeartShare had hired Ms.
Pedone and Mr. Seminerio to perform certain consulting work. This individual further told Mr.
Seminerio that: Ms. Pedone had promised that both she and Mr. Seminerio would provide certain consulting services to HeartShare; HeartShare had paid $85,000 directly to Ms. Pedone for those consulting services; and those consulting services had never been provided by Ms. Pedone, Mr.
Seminerio or anyone else.
Mr. Seminerio was shocked by this information; and when the person from HeartShare asked
Mr. Seminerio what had happened, Mr. Seminerio simply apologized and told the individual the truth – that he did not know anything about what Ms. Pedone had said or done in connection with this consulting matter. Bluntly stated, Ms. Pedone stole $85,000 from their consulting client,
HeartShare, and Mr. Seminerio. Mr. Seminerio confronted Ms. Pedone about the extremely troubling information he had learned; and when he asked Ms. Pedone about the $85,000, she simply said, “I was going to tell you about the money – I guess I forgot.”
At this point, there was no question in Mr. Seminerio’s mind that he had to terminate his business and political relationship with Ms. Pedone – and that is exactly what he did. Mr. Seminerio told Ms. Pedone that he wanted nothing more to do with her; he ended their consulting business relationship; and he removed her as the Treasurer of his “Friends of Seminerio” campaign election fund. Furthermore, to be absolutely sure that Ms. Pedone could no longer use his name to steal money from other people, Mr. Seminerio sent a letter to his donors making it clear that Ms. Pedone was no longer involved with his campaign.
138 It bares repeating that the reason we have explained to Your Honor the facts relating to the end of Mr. Seminerio’s business relationship with Ms. Pedone is because the Government’s strained theory of prosecution is that Mr. Seminerio extorted Ms. Pedone, and that his relationship with Ms.
Pedone was somehow the beginning of Mr. Seminerio’s decade-long corrupt scheme of “selling his
[political] office,” through a “shell” consulting company, used by Mr. Seminerio to collect corrupt payments through extortion, political blackmail and strong-arm tactics. (See Exh. E, Gov. Memo., pp. 1-5, 7; Exh. B, Indictment.)
After Mr. Seminerio ceased doing consulting work with Ms. Pedone because she had stolen money from their client and their business, he decided to form his own consulting company, Marc
Consultants. Later, in January 2001, in an excess of caution, Mr. Seminerio wrote to the Honorable
John McEneny, of the Ethics and Guidance Standing Committee, and disclosed the fact that his business relationship with Neighborhood Marketing had ended, and that he had formed Marc
Consultants. (See Exh. I, January 9, 2001 Letter to Hon. John McEneny.)
The rules relating to consulting businesses, including Marc Consultants, remained the same as they had been in 1996 – Mr. Seminerio was not allowed to perform consulting services in connection with any New York State matter. Mr. Seminerio knew the rules and, for twelve years, with one and only one exception, he lived by those rules while he provided real consulting services to real clients, who had real needs.23
23In fact, several of the recorded conversations produced by the Government in connection with its investigation confirm that Mr. Seminerio knew that he was not allowed to perform consulting services in connection with any New York State matter, and he had no intention of violating the rules. For example, and only by way of example, in a September 21, 2007 recorded conversation with Brian McLaughlin, Mr. Seminerio made clear that he was aware of the limitations on his consulting activities when he set up his consulting business and that he was continuing to (continued...)
139 In this regard, it is also particularly curious that the Government has claimed that, “[i]n truth and in fact, [Mr.] Seminerio did little or no consulting work....Seminerio never provided bona fide consulting services.” (Exh. E, Gov. Memo., p. 2) The now-historical facts relating to Mr.
Seminerio’s consulting business, Marc Consultants, make it absolutely clear that Mr. Seminerio did, in fact, provide real consulting services to real clients, who had real needs.
For example, and only by way of example, Mr. Seminerio provided very real services to
Jamaica Hospital Medical Center (“Jamaica Hospital”), which services assisted Jamaica Hospital in a number of local and federal matters and brought certain opportunities to Jamaica Hospital’s attention. Among the matters for which Mr. Seminerio provided assistance were:
• The 90-09 Van Wyck Property. In early-1999, Mr. Seminerio introduced Jamaica Hospital to officials of the New York City Economic Development Corp., and informed Jamaica Hospital of the availability of a piece of property located at 90-09 Van Wyck Expressway, in Queens, New York, which is directly across the street from Jamaica Hospital on the Van Wyck service road. Mr. Seminerio’s involvement in Jamaica Hospital’s acquisition of the 90-09 Van Wyck building went far beyond the introduction. Mr. Seminerio was involved in meetings with City officials and followed-up on the legal issues that were involved in acquiring the property. Jamaica Hospital paid $375,000 for the 90-09 Van Wyck building – and today the building is estimated to be worth more than ten times that value, nearly $4 million. In fact, the billboards on top of the 90-09 Van Wyck building produce yearly revenues of $150,000 for Jamaica Hospital.
23(...continued) adhere to those restrictions. In that conversation, Mr. Seminerio stated to Mr. McLaughlin, “All I knew, all I knew is, I couldn’t deal with state agencies....You understand? So I don’t deal with the state.” Similarly, in a September 28, 2007 recorded conversation, Mr. Seminerio clearly sets out to Mr. McLaughlin the scope of permissible activities in connection with his consulting business, and states, “You gotta understand – I can only deal with, uh, city or federal problems. I can’t go to any state agencies.” In that same conversation, Mr. Seminerio indicates that he will not take on clients if their needs will require consulting activities in connection with States agencies. Mr. Seminerio further states to Mr. McLaughlin, “People come to me, and sometimes I give ‘em to ... Pat Lynch. I give it to Brian Meara [a lobbyist]. Things that, uh, I can’t deal with – they’re all state stuff.”
140 • Ambulance Districts. The Fire Department, City of New York, is responsible for determining ambulance territories. For Jamaica Hospital, the greater the number of ambulance districts in a territory, the more business the hospital does. Jamaica Hospital now has one of the largest Emergency Medical Services territories in New York City, in large part due to the efforts of Mr. Seminerio.
• New York Police Department – Back To Work Physicals. Mr. Seminerio introduced Jamaica Hospital to contacts at the New York City Police Department in connection with a proposal whereby Jamaica Hospital would perform “back-to-work” physicals for police officers. Ultimately, the deal was not consummated, but there were extensive negotiations.
• Bio-Terrorism Grant. Jamaica Hospital is one of four bio-terrorism treatment centers in New York City. Mr. Seminerio introduced Jamaica Hospital to a former New York City Office of Emergency Management official who Mr. Seminerio thought might be able to help advise Jamaica Hospital on how to pursue federal grant money for the bio-terrorism treatment unit.
• HUD Officials. In two instances, Mr. Seminerio made introductions for Jamaica Hospital to United States Department of Housing and Urban Development (“HUD”) officials. One introduction involved a project by Jamaica Hospital to build an ambulatory care clinic in Astoria, Queens. The building that housed the clinic was HUD-owned, and Mr. Seminerio introduced hospital personnel to people at HUD. The second incident involved Mr. Seminerio helping to resolve a logjam at HUD relating to the capital financing of Jamaica Hospital’s new nursing home facility.
• Planning Board 9 And Zoning. Mr. Seminerio introduced Jamaica Hospital to a number of leaders on the community board in connection with two zoning-related matters: Jamaica Hospital’s ten-story parking garage; and the building of Brady House, Jamaica Hospital’s traumatic brain injury residence, which had to overcome NIMBY (“Not In My Backyard”) resistance.
• Parking Garage. In addition to the zoning issues that Jamaica Hospital faced with respect to the parking garage, Mr. Seminerio assisted Jamaica Hospital in connection with financing the construction of the parking garage through NYCIDA (Industrial Development Agency, part of New York City’s Economic Development Corp.).
141 • Richmond Hill Block Association. Mr. Seminerio was active in the Richmond Hill Block Association, which Jamaica Hospital used to conduct health fairs to market its services to a large segment of the community. In at least one instance, Jamaica Hospital was not in the position to pay the usual fee for a booth at a health fair, and Mr. Seminerio dealt with the Block Association to make sure that Jamaica Hospital could still participate and pay a reduced fee.
• Military Associates. Mr. Seminerio introduced Military Associates to Jamaica Hospital, a relationship that gave Jamaica Hospital access to the Tricare insurance network; and Mr. Seminerio suggested that Jamaica Hospital should pursue Tricare opportunities serving returning Iraq veterans with traumatic brain injury (TBI) and/or mental health issues.
• School-Based Health Programs. Jamaica Hospital was involved in approximately a dozen school-based health programs, and Mr. Seminerio introduced Jamaica Hospital to various school superintendents and principals.
• Traffic Re-Routing. Because Jamaica Hospital is located on the one-way frontage road to the Van Wyck Expressway, access to Jamaica Hospital can easily be disrupted during construction projects. Mr. Seminerio interceded with officials at the New York City Department of Transportation and/or the New York City Police Department to help with traffic re-routing patterns during periods of construction. This occurred when there was construction on the Van Wyck overpass and the construction interfered with ambulances getting to Jamaica Hospital.
• Factoring Of Jamaica Hospital’s Receivables. Mr. Seminerio introduced Jamaica Hospital to somebody who would help “factor” Jamaica Hospital’s receivables to improve cash flow, although no deal ever came to fruition.
• Military Physicals. Mr. Seminerio provided information to Jamaica Hospital regarding a potential contract for Jamaica Hospital to perform Army physicals at Jamaica Hospital, although no deal every came to fruition.
• Property Close To Hospital. There was a property that Jamaica Hospital was interested in purchasing (a fence company was occupying the property at the time). Mr. Seminerio obtained information about the property and provided it to Jamaica Hospital, although no deal ever came to fruition.
142 • Opportunities Related To Other Hospitals. Mr. Seminerio provided information to Jamaica Hospital about other hospital facilities that could potentially be acquired or used, such as St. John’s in Smithtown and a Veterans Hospital at St. Albans.
• Winston Financial. Mr. Seminerio introduced Jamaica Hospital to Winston Financial, which provided supplemental insurance to Jamaica Hospital’s employees.
• Assistance With Construction Projects. Mr. Seminerio had been instrumental in dealing with local agencies in connection with Jamaica Hospital’s numerous construction projects throughout the years.
We respectfully submit that the now-historical facts, discussed above, make it absolutely clear that Mr. Seminerio did, in fact, provide real consulting services to real clients, who had real needs – facts which further demonstrate that the Government’s theory of prosecution is truly unrealistic.
5. MR. SEMINERIO’S SINGLE, ISOLATED CRIMINAL ACT – WHICH HE FULLY ACKNOWLEDGES WAS WRONG – STANDS IN STARK CONTRAST TO MR. SEMINERIO’S OTHERWISE FUNDAMENTALLY GOOD, DECENT AND LAW- ABIDING LIFE AS AN HONEST PUBLIC SERVANT.
During the period of time that Mr. Seminerio owned and operating Marc Consultants, the rules relating to consulting businesses remained the same as they had been in 1996 – Mr. Seminerio was not allowed to perform consulting services in connection with any New York State matter. For twelve years, Mr. Seminerio honored those rules and did not advocate on behalf of any client in connection with any New York State matter – but in July 2008, on one and only one occasion, Mr.
Seminerio violated the rules. The facts of this truly unfortunate and regrettable violation are not complicated.
143 On July 10, 2008 – during the same period of time that Mr. Seminerio’s consulting company,
Marc Consultants, was being paid a consulting fee from Jamaica Hospital for the purpose of advancing Jamaica Hospital’s interests in non-New York State matters – Mr. Seminerio had a conversation with Dennis Whalen. Mr. Whalen had just been promoted to the position of Interim
Director of State Operations, from his prior position as New York State Deputy Secretary for Health and Human Services.
Mr. Seminerio had telephoned Mr. Whalen to congratulate him on his promotion, and told
Mr. Whalen, “You know you got ... a friend of me in the Assembly.” As Mr. Seminerio explains in his letter to Your Honor, “I meant what I said, and I believed that he [Mr. Whalen] and his agency would continue to serve the best interests of the public and that I would consider their needs as being consistent with the needs of my constituents.” (Exh. A, Letter of Mr. Seminerio)
In that July 10th telephone conversation between Mr. Seminerio and Mr. Whalen:
• Mr. Whalen brought up a discussion that he had concerning Caritas/Wyckoff Hospital and Parkway Hospital (“Parkway”), and said that he (Mr. Whalen) had been speaking to “Carl” about the hospitals. Mr. Whalen spoke of this issue as if Mr. Seminerio would know what he was referring to. At first Mr. Seminerio was confused, but it quickly became clear to him what Mr. Whalen was talking about and what was going on; and then Mr. Seminerio began to get upset.
• Mr. Whalen said that Senator Carl Kruger was trying to get a deal for Parkway to acquire two hospitals (Mary Immaculate and St. John’s) from Caritas/Wyckoff. Mr. Seminerio said that he would like to see the hospitals go to Jamaica Hospital. Mr. Whalen seemed surprised by Mr. Seminerio’s response and said, “But he is using your name” – “ Carl Kruger!” Mr. Seminerio became angry and said, “Tell him [Kruger] he can go f [ - - - explicative omitted] himself! I hate, I hate Parkway Hospital!”
144 • Mr. Whalen continued to tell Mr. Seminerio that Senator Kruger was using his name (without Mr. Seminerio’s permission or knowledge), and Senator Kruger stated that Mr. Seminerio wanted the deal to go to Parkway. Mr. Seminerio became very upset that Senator Kruger was misusing his name to advance his (Senator Kruger’s) own agenda. Mr. Whalen informed Mr. Seminerio that Parkway was claiming that it had $50 million dollars to bring to the table, and Mr. Seminerio replied that “they don’t have ten cents” and he bad-mouthed and criticized Parkway.
• Mr. Seminerio believed it would be impossible for Parkway to meet their financial obligations with regard to these two distressed hospitals because Parkway had its own financial troubles which caused it to have to rely on State funding; and Parkway’s claims in the past to have money to finance other projects had never materialized because of Parkway’s own financial problems. In Mr. Seminerio’s opinion, Parkway would only have made the financial problems worse for the distressed hospitals.
• Mr. Whalen agreed with Mr. Seminerio’s assessment that Parkway was not financially sound and that their promises in the past had never materialized. Mr. Seminerio then brought up David Rosen of Jamaica Hospital and said to Mr. Whalen, “... give ‘em a break [referring to Mr. Rosen]. He wants Mary Immaculate.” Mr. Whalen also said that “North Shore Hospital was also interested in taking over the hospitals and that they would want Mr. Rosen to be a part of their deal, but in order to make that work, we’ve gotta get rid of this Parkway deal somehow.” Mr. Seminerio said that he did not know who made the deal with Parkway, and Mr. Whalen replied that there was no deal with Parkway.
• Mr. Seminerio also bad-mouthed and criticized Robert Aquino, the Chief Executive Officer of Parkway, and said that Mr. Aquino will never put in his own money (meaning that Parkway would never use its own money to rehabilitate the financially distressed hospitals, but instead Parkway would rely on State funding). Mr. Seminerio again expressed his outrage at Senator Kruger for using his name and told Mr. Whalen that he was going to call Senator Kruger on it. Mr. Whalen stated, “Please do.” After Mr. Seminerio calmed down, he praised Mr. Rosen and Jamaica Hospital, and told Mr. Whalen how benevolent and community-minded David Rosen and the people at Jamaica Hospital are. Mr. Whalen agreed and said he would like nothing better to than to see Jamaica Hospital get Mary Immaculate because he knew they wanted to use it for long-term care.
145 Mr. Seminerio knew that he was not permitted to advocate on behalf of a client (Jamaica
Hospital) before Mr. Whalen and his State agency, but he did – and Mr. Seminerio knows his conduct was illegal and wrong. However, this was not a premeditated act on Mr. Seminerio’s part
– it was an angry and unthinking response to Senator Kruger’s misuse of Mr. Seminerio’s name to advance his own agenda. Mr. Seminerio truly wanted Jamaica Hospital to succeed, not because he was a paid consultant, but because he believed David Rosen and Jamaica Hospital would be able to do the most for the community with the distressed hospitals in question. Mr. Seminerio was upset that another politician had misused his name to achieve what he (Mr. Seminerio) believed would have been an unfair and wrong result for the people; he knew that if he mentioned that he was a paid consultant of Jamaica Hospital, it would undermine his efforts; and he knew it was wrong not to tell
Mr. Whalen of that relationship.
As Mr. Seminerio further explains:
“At the time, I was not acting out of greed or thinking about the broader implications of what was legal or not, I really believed that Jamaica Hospital should be able to take over the distressed hospitals because that would have been the right result for the people and the communities who relied upon those hospitals.” (Exh. A, Letter of Mr. Seminerio)
Based upon the single, isolated, criminal act to which Mr. Seminerio pleaded guilty, and which represents an extremely aberrant and atypical episode during the otherwise unblemished 74 years of his life, we respectfully submit that there is a sound basis for this Court to impose a sentence of home detention.
146 C. A SENTENCE OF HOME DETENTION FALLS WITHIN THE ADVISORY GUIDELINES RANGE OF MR. SEMINERIO’S CASE – 0 TO 6 MONTHS, BASED UPON AN ADJUSTED OFFENSE LEVEL OF 4.
1. OVERVIEW OF THE DEFENSE’S GUIDELINES CALCULATION.
The defense has calculated Mr. Seminerio’s adjusted offense level to be 4, pursuant to the
Guidelines, which corresponds to an advisory Guidelines range of 0 to 6 months. Mr. Seminerio’s adjusted offense level has been calculated as follows:
Base Offense Level +6 U.S.S.G. § 2C1.3(a) (Conflict Of Interest; Payment Or Receipt Of Unauthorized Compensation) Acceptance Of Responsibility -2 U.S.S.G. § 3E1.1(a) Adjusted Offense Level 4 Criminal History I Advisory Guidelines Range 0 to 6 Months
We respectfully submit that, based upon the actual and only crime that Mr. Seminerio committed – and there is no additional relevant conduct in this case – the base offense level is 6, pursuant to the Guidelines’ “Conflict of Interest” provision, U.S.S.G. Section 2C1.3. Mr. Seminerio has taken full responsibility and blames no one but himself for the isolated crime he committed; and because Mr. Seminerio has demonstrated acceptance of responsibility for his criminal conduct, we respectfully submit that a two-point reduction is warranted, pursuant to U.S.S.G. Section 3E1.1(a).
Mr. Seminerio’s adjusted offense level of 4 corresponds to an advisory Guidelines range of
0 to 6 months. For the reasons more fully discussed below, at Mr. Seminerio’s sentencing before
Your Honor, we will ask this Court to impose a sentence of home detention, pursuant to U.S.S.G.
147 Section 5F.1.2. We respectfully submit that a sentence of home detention is consistent with the advisory Guidelines and is warranted in the case of Mr. Seminerio based upon the factors set forth in 18 U.S.C. Section 3553 and the totality of circumstances of this case, including the nature of Mr.
Seminerio’s offense and the history and characteristics of his entire life; and a sentence of home detention is “sufficient, but not greater than necessary” to comply with the four purposes of sentencing set forth in Section 3553(a)(2) (i.e., retribution, deterrence, incapacitation and rehabilitation). See generally Wasman v. United States, 468 U.S. 559, 564 (1984) (consideration of the charged conduct, real offense behavior and the full breadth of a defendant’s characteristics
“ensures that the punishment will suit not merely the offense but the individual defendant”).
2. BASED UPON THE ACTUAL AND ONLY CRIME THAT MR. SEMINERIO COMMITTED, THE GUIDELINES CALCULATION IN THIS CASE SHOULD BE DETERMINED UNDER U.S.S.G. SECTION 2C1.3 – AND NOT U.S.S.G. SECTION 2C1.1.
We respectfully submit that, based upon the actual and only crime that Mr. Seminerio committed, Mr. Seminerio’s Guidelines calculation should be determined under the U.S.S.G. Section
2C1.3 – the Guidelines’ “Conflict of Interest” provision. The crime committed by Mr. Seminerio
– failure to disclose a conflict of interest he had in the discharge of his official duties as an elected
New York State Assemblyman – falls squarely within the express and intended reach of Section
2C1.3, as evidenced by the plain language of Section 2C1.3, its history and its commentary.
Moreover, we respectfully submit that, in light of the unique facts and circumstances of this case
(discussed infra), Mr. Seminerio’s criminal conduct – that is, his failure to disclose on a single occasion his conflict of interest – falls outside the “heartland” of the criminal conduct contemplated by U.S.S.G. Section 2C1.1’s general fraud provision.
148 On June 24, 2009, Mr. Seminerio appeared before Your Honor and pleaded guilty to the sole
Count of the Indictment, Scheme to Defraud the Public of Honest Services (“Honest Services
Fraud”) under 18 U.S.C. Sections 1341 and 1346, by violating N.Y. Public Officers Law Section
74(2). Mr. Seminerio pleaded guilty to a single Count of Honest Services Fraud because on one, and only one, occasion in July 2008, he violated N.Y. Public Officers Law Section 74(2), which states, in relevant part:
“Rule with respect to conflicts of interest. No officer or employee of a state agency, member of the legislature or legislative employee should have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest.”
On June 24, 2009, Mr. Seminerio explained to Your Honor:
“ ... on or about July 10, 2008, I had a conversation with a representative of a New York State agency. During that conversation, I advocated in favor of and promoted the interest of Jamaica Hospital in connection with a New York State matter. In that conversation, I should have, but intentionally did not, disclose to the representative of the New York State agency the fact that I was being paid a consulting fee by Jamaica Hospital.
On or about July 10, 2008, when I advocated in favor of and promoted the interests of Jamaica Hospital, without disclosing that Jamaica Hospital had paid me a consulting fee, my conduct had the effect of depriving others of the right of honest services.” (Exh. C, Transcript of Plea Minutes, p. 9)
Mr. Seminerio knew that he was not permitted to advocate on behalf of Jamaica Hospital before Mr. Whalen and his State agency, but he did – and Mr. Seminerio knows his conduct was illegal and wrong. (See Exh. C, Transcript of Plea Minutes, p. 9; Exh. A, Letter of Mr. Seminerio.)
To be clear, however, the consulting fees Jamaica Hospital paid Mr. Seminerio were not part of a
149 bribery scheme, or some sort of quid pro quo, in exchange for Mr. Seminerio providing Jamaica
Hospital with favorable treatment in any New York State matter. As Mr. Seminerio further explains in his letter to Your Honor (Exh. A), while his conduct on a single occasion was both wrong and criminal, his conduct was not part of a decade-long fraud as the Government alleges:
“Your Honor, [during that July 10, 2008 telephone conversation with Mr. Whalen,] I praised and promoted Jamaica Hospital, which is what I pleaded guilty to, and I make no excuse for my conduct. What I did was wrong and illegal. I knew that I was not permitted to advocate on behalf of a client – Jamaica Hospital – before Mr. Whalen and his agency, but I did. This was not a premeditated act on my part, it was an angry response (albeit an unthinking angry response) to Senator [Carl] Kruger’s misuse of my name to advance his own agenda. I knew – in fairness and by what is expected of me by the law – in that conversation with Mr. Whalen that I should have disclosed to Mr. Whalen, who was a representative of a State agency, the fact that I was being paid a consulting fee by Jamaica Hospital. I fully understand that my conduct deprived the public of honest services by me – honest services which the public deserves.” (Emphasis added.)
To state the matter bluntly, there is absolutely no merit whatsoever to the Government’s claim that Mr. Seminerio was paid hundreds of thousands of dollars, as part of some supposed decade-long bribery scheme, involving a quid pro quo – money in exchange for Mr. Seminerio’s favorable treatment in connection with his position as a New York State Assemblyman. We respectfully submit that the Government’s unrealistic view of the facts is not supported by credible evidence and cannot be squared with the now-historical facts underlying this case. Indeed, there is a complete absence of “cash for favors” or “bribes for votes” conduct that is the raison d’etre of
U.S.S.G. Section 2C1.1, entirely removing Mr. Seminerio’s case from the intended reach and
“heartland” of Honest Services Fraud cases contemplated by Section 2C1.1.
150 Not all Honest Services Fraud cases involve an illegal bribe or gratuity (i.e., a quid pro quo).
Honest Services Fraud “typically occurs in two scenarios: ... bribery, where a legislator was paid for a particular decision or action; or ... failure to disclose a conflict of interest resulting in personal gain.” United States v. Mariano, 2008 WL 2470911, *3 (3d Cir. June 20, 2008) (emphasis added), citing United States v. Antico, 275 F.3d 245, 262 (3d Cir. 2001); United States v. Mariano, 2008 WL
2470911, *3 (3d Cir. June 20, 2008) (same); United States v. Flemming, 2007 WL 1451126, *3 (3d
Cir. May 17, 2007) (same); United States v. Woodward, 149 F.3d 46, 54-55 (1st Cir. 1998); United
States v. Sawyer, 85 F.3d 713, 723-24 (1st Cir. 1996) (same).
Contrary to the Government’s strained theory of prosecution, Mr. Seminerio’s case does not have any of the hallmarks associated with a typical “bribes for votes” or “cash for favors” case which falls under 18 U.S.S.G. Section 2C1.1. The gravamen of Mr. Seminerio’s case is that, in violation of N.Y. Public Officers Law Section 74(2), he deprived the people of the State of New York of his honest services by advocating in favor of and promoting the interests of Jamaica Hospital, without disclosing that he had a conflict of interest by virtue of his business-consulting relationship with
Jamaica Hospital. The criminal conduct committed by Mr. Seminerio is expressly included within the intended reach of U.S.S.G. Section 2C1.3 – “Conflict of Interest” offenses.
Ordinarily, the Guidelines provision listed in the Statutory Index of the Guidelines is applied in determining the applicable base level offense. See generally U.S.S.G. 2B1.2(a). Mr. Seminerio pleaded guilty to the sole Count of the Indictment, pursuant to 18 U.S.C. Section 1341 (Mail Fraud), and 18 U.S.C. Section 1346, which incorporates Honest Services Fraud into Section 1341.24 The
24As we further discuss below, in 1987, the Supreme Court concluded that the Mail and Wire Fraud statutes, 18 U.S.C. Section 1341 and 1343: were “limited in scope to the protection of (continued...)
151 2008 Guidelines’ Statutory Index does not contain a corresponding provision to Section 1346 (i.e.,
Honest Services Fraud), and Section 1341 refers to U.S.S.G. Sections 2B1.1 and 2C1.1.
It well-settled that if the Indictment establishes an offense “more aptly” covered by another provision of the Guidelines – that provision of the Guidelines should be applied in determining the advisory Guidelines calculation. U.S.S.G. Section 2B1.1(c)(3) n.15; United States v. Genao, 343
F.3d 578, 583-84 (2d Cir. 2003); United States v. Kurtz, 237 F.3d 154, 155-56 (2d Cir. 2001);
United States v. Scungio, 255 F.3d 11 (1st Cir. 2001); United States v. Rubin, 999 F.2d 194 (7th Cir.
1993). Here, as discussed above, Mr. Seminerio’s “real offense” was failing to disclose his conflict of interest as a result of his consulting relationship with Jamaica Hospital, which conduct is more aptly and, indeed, is expressly covered by U.S.S.G. Section 2C1.3’s “Conflict of Interest” provision.
Prior to November 1, 2001, the Commentary to Section 2C1.3 (“Background”) explained that
“[S]ection [2C1.3] applies to financial and non-financial conflicts of interest by present and former federal officers and employees.” See U.S.S.G. Amend. 619 (Nov. 1, 2001). However, in 2001, the
Background statement limiting Section 2C1.3 to “present and former federal officers and employees”
24(...continued) property rights”; did not protect the “intangible right of the citizenry to good government”; were not applicable to cases of political corruption that involve no loss of money or intangible property; and did not criminalize schemes “designed to deprive individuals, the people, or the government of intangible rights, such as the right to have public officials perform their duties honestly.” McNally v. United States, 483 U.S. 350, 356, 358-60 (1987); see United States v. Rybicki, 354 F.3d 124, 133-34 (2d Cir. 2003) (en banc) (discussing history of Section 1346 and McNally). However, within a year of the McNally case, Congress enacted 18 U.S.C. Section 1346, which defined the term “scheme or artifice to defraud” to include a “scheme or artifice to deprive another of the intangible right of honest services”; and Section 1346 had the effect of overruling McNally, and reinstated the intangible rights theory. See generally Fountain v. United States 357 F.3d 250, 255-56 (2d Cir. 2004); United States v. Amato, 540 F.3d 153, 164-65 (2d Cir. 2008); United States v. Kuznetsov, 2007 WL 2020110 (S.D.N.Y. July 11, 2007) (Batts, J.); United States. v. Giffen, 326 F. Supp. 2d 497, 504 (S.D.N.Y. 2004) (Pauley, J.) (same).
152 was eliminated, thereby expanding the scope of Section 2C1.3 to include the conduct of defendants other than present and former federal officers and employees.
In 2001, Section 2C1.3 was amended by adding, inter alia, a Cross Reference to Section
2C1.1, “Offering, Giving, Soliciting, or Receiving A Bribe, Extortion Under Color of Official
Right”; and in 2005, Section 2C1.3 was amended by adding, inter alia, the Cross Reference to the
2004 amended language of Section 2C1.1, “Fraud Involving the Deprivation of the Intangible Right to Honest Services of the Public Officials.” See U.S.S.G. Amend. 619 (Nov. 1, 2001); U.S.S.G.
Amend. 666 (Nov. 1, 2004); U.S.S.G. Amend. 679 (Nov. 1, 2005). The United States Sentencing
Commission explained that the purpose of amending Section 2C1.3, by adding the Cross Reference to Section 2C1.1 (i.e., Deprivation of Honest Services), was because “the cases to which these
Guidelines [2C1.3] apply usually involve a conflict of interest offense that is associated with a bribe or gratuity.” U.S.S.G. Amend. 619 (Nov. 1, 2001) (emphasis added). Thus, on its face, Section
2C1.3’s Cross Reference to Section 2C1.1 makes clear that Section 2C1.1 only applies “if the offense involved a bribe or gratuity.” (Id.; emphasis added.)
Morever, the intended and limited reach of Section 2C1.1 to bribery-related Honest Services
Fraud is apparent from the 2004 Amendment to Section 2C1.1. Effective November 1, 2004,
U.S.S.G. Section 2C1.7 (“Fraud Involving Deprivation Of ... Honest Services”) was consolidated with the general bribery Guidelines provision of Section 2C1.1. Subsequent to consolidating Section
2C1.7 and 2C1.1, the United States Sentencing Commission, in the 2005 “Commentary” to Section
2C1.1, confirmed the intended and limited reach of Section 2C1.1 to bribery-related Honest Services
Fraud:
153 “Background: This section applies to a person who offers or gives a bribe for a corrupt purpose, such as inducing a public official to participate in a fraud or to influence an individual’s official actions, or to a public official who solicits or accepts such a bribe.”
By retaining U.S.S.G. Section 2C1.3 as part of the Guidelines notwithstanding the 2004 restructuring of official misconduct offenses to Sections 2C1.1 and 2C1.7, the Sentencing
Commission made clear its intent to apply a different, less severe, base offense level to non-bribery
Honest Services Fraud, predicated upon the failure to disclose a conflict of interest. The Sentencing
Commission’s clear effort to more severely punish bribery-related Honest Services Fraud, further supports the conclusion that Mr. Seminerio’s conduct falls outside the “heartland” of U.S.S.G.
Section 2C1.1, where there is no credible basis to conclude that Mr. Seminerio engaged in a typical
“bribes for votes,” quid pro quo, or “cash for favors” scheme.
Stated another way, the Guidelines recognize (as have Courts) that not all Honest Services
Fraud cases involve an illegal bribe or gratuity (i.e., a quid pro quo); and that Honest Services Fraud can be limited to a failure to disclose a conflict of interest without any form of a quid pro quo, as in the case of Mr. Seminerio.25 Particularly instructive to the case of Mr. Seminerio is United States v. Hasner, 340 F.3d 1261, 1276 (11th Cir. 2003), cert. denied, 125 S.Ct. 38 (2004), in which the
Eleventh Circuit upheld the sentencing court’s application of Section 2C1.3 – explaining that Section
2C1.3 is the most applicable Guidelines Section to cases that involve the failure to disclose conflicts of interest, as in the case of Mr. Seminerio.
25Mariano, 2008 WL 2470911, *3 (3d Cir. June 20, 2008) (Honest Services Fraud “typically occurs in two scenarios: ... bribery, where a legislator was paid for a particular decision or action; or ... failure to disclose a conflict of interest resulting in personal gain.”), citing Antico, 275 F.3d at 262; Mariano, 2008 WL 2470911 at *3 (same); Flemming, 2007 WL 1451126 at *3 (same); Woodward, 149 F.3d at 54-55; Sawyer, 85 F.3d at 723-24 (same).
154 The facts of the Hasner case can be summarized as follows:
• Hasner was the chairman of the Palm Beach County Housing Finance Authority (“HFA”), which provided loans to developers of low-income housing; and co-defendant Lisa Fisher was a real estate broker who also owned a real estate consulting firm. 340 F.3d at 1264-65.
• After an Arizona developer contacted Fisher about becoming involved in the Florida real estate market, she and Hasner arranged for the developer to buy a parcel of land from a realtor with ties to Hasner. In return, Hasner received a referral fee amounting to one percent of the sale price, while Fisher received a commission on the sale. Id. at 1265-66.
• After the purchase was arranged, Hasner advocated for the developer to receive a low-interest HFA loan financed by public bonds; he did not disclose his financial interest to the other members of the HFA; and Hasner’s actions were in direct contravention of a Florida statute forbidding any member of a public board from having a financial interest in matters pending before the board. Id.
• While Hasner subsequently recused himself from the final vote on the bond issue on the grounds of a “potential conflict of interest,” he did not specify what that conflict was, thereby leaving the other board members under a mis- impression regarding his involvement in the matter; and the board then approved the bond issue and loan. Id. at 1266.
• Subsequently, Hasner’s referral fee came to light during the bond closing; and at that time, Hasner agreed to forgo his fee. However, at the same time, Hasner made a secret arrangement with the Arizona developer to receive an equivalent commission from the sale of another property, even though he had done no work in connection with that sale. Id. at 1266-67.
• Hasner entered into a secret deal to receive an undisclosed referral fee and sales commission from a housing project financed by tax-exempt bonds issued by the HFA. Id.
• When Hasner’s conflict was disclosed, he denied his interest, signed a letter disclaiming any fees and promptly entered into yet another secret letter agreement promising payment of his commission and referral fee through an unrelated project. Id. at 1267.
155 Hasner and Fisher were both convicted of multiple counts of Honest Services Mail Fraud (18
U.S.C. Sections 1341 and 1346); and Hasner was also convicted of Money Laundering (18 U.S.C.
Sections 1957) and having made false statements to an investigative agent (18 U.S.C. Section 1001).
Id. at 1268. The District Court denied the Government’s argument that Section 2C 1.726 (now
2C1.1) applied; and, instead, the District Court concluded that Section 2C1.3 governed the defendants’ criminal conduct because the “gravamen of the misconduct” was the concealment of
Hasner’s financial interest. Id. On appeal, the Government, again, challenged the District Court’s application of Section 2C1.3. The Eleventh Circuit rejected the Government’s claim , and affirmed the District Court’s application of Section 2C1.3 (rather than Section 2C1.7, now Section 2C1.1).
Hasner, 340 F.3d at 1275-76.27
As in the Hasner case, the “gravamen of the misconduct” in the case of Mr. Seminerio is his failure to disclose his “financial interest” based upon his consulting business relationship with
Jamaica Hospital. In the case of Mr. Seminerio, there is no credible evidence of a quid pro quo or that he ever accepted “cash for favors” or “bribes for votes.” On one, and only one, occasion in July
2008, Mr. Seminerio violated N.Y. Public Officers Law Section 74(2), when he advocated in favor
26Effective November 1, 2004, U.S.S.G. Section 2C1.7 was consolidated with U.S.S.G. Section 2C1.1.
27Compare United States v. Smith, 374 F.3d 1240, 1244 (D.C. Cir. 2004) (the sentencing court concluded that a conflict of interest offense, rather than a gratuities offense, was the predicate offense for the conspiracy of which Smith was convicted and, therefore, the base offense level was 6, pursuant to U.S.S.G. Section 2C1.3; internal citations omitted), with United States v. Foxworth, 2009 WL 1582923 (2d Cir. June 8, 2009) (affirming Honest Services Wire Fraud bribery conviction of elected official defendant, wherein there was actual proof of bribery – that the defendant made material misrepresentations by omission that the defendant had been paid multiple cash bribes in exchange for favorable action being taken by the defendant).
156 of and promoted the interests of Jamaica Hospital, without disclosing that Jamaica Hospital had paid him a consulting fee.
Accordingly, we respectfully submit that, if the criminal conduct in the Hasner case fell within the scope of Section 2C1.3’s Conflicts of Interest provision – and not Section 2C1.1’s bribery-related Honest Services Fraud provision – then the case of Mr. Seminerio falls even further within the scope of Section 2C1.3.28 We further submit that the facts of the Hasner case – where there was some evidence of intentionally secret payments – are significantly more indicative of a typical “Honest Services Fraud” than the facts in the case of Mr. Seminerio.
As noted earlier (p. 151, supra), contrary to the Government’s strained theory of prosecution,
Mr. Seminerio’s case does not have any of the hallmarks associated with a typical Section 2C1.1
“bribes for votes” or “cash for favors” case. The gravamen of Mr. Seminerio’s case is that, in violation of N.Y. Public Officers Law Section 74(2), he deprived the people of the State of New
28But see United States v. Grandmaison, 77 F.3d 555 (1st Cir. 1996) (declining to apply U.S.S.G. Section 2C1.3 to Honest Services Fraud case where the defendant served on a city board, and for an extended period of time advocated on behalf of companies in which he had a financial interest; defendant personally received illegal gratuities; defendant acted as a middleman facilitating the payment of illegal gratuities to other public officials; and defendant’s multiple acts of public corruption, occurring over an extended period of time and motivated strictly by greed, affected the public decision-making process); United State v. Jennings, 487 F.3d 564 (8th Cir. 2007) (while Jennings’ non-disclosure of his conflict of interest was important evidence of his scheme to defraud, conflict of interest was not the only criminal conduct proven by the Government at trial, including lying and fabricating documents – thus the sentencing court did not err in applying Section 2C1.7 [now 2C1.1], rather than Section 2C1.3, where “[t]here was more to his scheme than a conflict of interest”).
We respectfully submit that the criminal conduct in the Grandmaison and Jennings cases involving a criminal “cash for favors” scheme, is far removed from Mr. Seminerio’s criminal conduct – involving the failure, on a single occasion, to disclose a conflict of interest and where there is a complete absence of “cash for favors” or “bribes for votes” conduct that is the raison d’etre of U.S.S.G. Section 2C1.1.
157 York of his honest services by advocating in favor of and promoting the interests of Jamaica
Hospital, without disclosing that he had a conflict of interest by virtue of his business-consulting relationship with Jamaica Hospital – conduct that expressly falls within the scope of Section 2C1.3.
In an excess of caution, we note that to the extent that any ambiguity exists as to the applicability and meaning of Section 2C1.3 to the case of Mr. Seminerio (and we respectfully submit there is no ambiguity), this Court should apply the “rule of lenity,” and any ambiguity with respect to the application of Section 2C1.3 should be resolved in Mr. Seminerio’s favor. United States v.
Granderson, 511 U.S. 39, 40 (1994). The rule of lenity “ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes the appropriate balance between the legislature, the prosecutor, and the court in defining criminal liability.” Liparota v. United States,
471 U.S. 419, 427 (1985); Cleveland v. United States, 531 U.S. 12, 25 (2000) (applying the rule of lenity in mail fraud case, post-McNally); Murphy, 323 F.3d at 116 (3d Cir. 2003) (“Deprivation of honest services is perforce an imprecise standard, and rule of lenity concerns are particularly weighty in the context of prosecutions of political officials....”), quoting United State v. Panarella, 277 F.3d
698 (3d Cir. 2002)
3. CONCLUSION AS TO THE DEFENSE’S CALCULATION OF MR. SEMINERIO’S ADVISORY GUIDELINES, UNDER U.S.S.G. SECTION 2C1.3.
Based upon the actual and only crime that Mr. Seminerio committed, the Guidelines calculation should be determined under the U.S.S.G. Section 2C1.3 – the Guidelines’ specific
“Conflict of Interest” provision. The crime committed by Mr. Seminerio falls squarely within the express and intended reach of Section 2C1.3 as evidenced by the plain language of Section 2C1.3, its history and commentary and the cases that have interpreted Section 2C1.3.
158 Accordingly, we respectfully submit that, based upon the actual and only crime that Mr.
Seminerio committed – and there is no additional relevant conduct in this case – the base offense level is 6, pursuant to the Guidelines’ “Conflict of Interest” provision, U.S.S.G. Section 2C1.3. Mr.
Seminerio has taken full responsibility and blames no one but himself for the isolated crime he committed; and because Mr. Seminerio has demonstrated acceptance of responsibility for his criminal conduct, we respectfully submit that a two-point reduction is warranted, pursuant to
U.S.S.G. Section 3E1.1(a).
D. IN THE EVENT THAT THIS COURT DETERMINES THAT THE ADJUSTED OFFENSE LEVEL IS GREATER THAN LEVEL 4, THE FACTORS TO BE CONSIDERED AT SENTENCING, PURSUANT TO 18 U.S.C. SECTION 3553(A) AND OTHER PROVISIONS OF THE GUIDELINES, COMPEL THE CONCLUSION THAT A SENTENCE OF HOME DETENTION IS WARRANTED.
1. INTRODUCTION.
The defense has calculated Mr. Seminerio’s adjusted offense level to be 4, which corresponds to an advisory Guidelines range of 0 to 6 months; and the Government has calculated the adjusted offense level to be 33, which corresponds to an advisory sentencing range of 135 to 168 months.
The defense and the Government sharply disagree – and we will address that disagreement later in this Memorandum. See pp. 148-59, infra. However, as we discuss below, even assuming, arguendo, that the Court calculates Mr. Seminerio’s adjusted offense level to be greater than level 4, Your
Honor has the discretion to depart downward from the advisory Guidelines and to impose a non-
Guidelines sentence, pursuant to U.S.S.G. Sections 5H1.1, 5H1.4, 5H1.11, 5K2.20, and 18 U.S.C.
Section 3553, and the cases that have interpreted those Sections, based upon the totality of
159 circumstances of this case, including the nature of Mr. Seminerio’s offense and the history and characteristics of his entire life.
We understand that a downward departure and the imposition of a non-Guidelines sentence require an extraordinary set of mitigating circumstances, which we respectfully submit are present in Mr. Seminerio’s case.
2. THE FACTORS TO BE CONSIDERED AT SENTENCING, PURSUANT TO 18 U.S.C. SECTION 3553(A) AND OTHER PROVISIONS OF THE GUIDELINES, THAT COMPEL THE CONCLUSION THAT A SENTENCE OF HOME DETENTION IS WARRANTED IN THE CASE OF MR. SEMINERIO.
a. INTRODUCTION.
A sentencing court is now required to consider the Guidelines and all of the other factors set forth in Section 3553(a), which is comprised of two distinct parts: (1) the “sentencing mandate” set forth in the prefatory clause of Section 3553(a); and (2) the “factors” to be considered in fulfilling this mandate. The overarching principle and basic mandate of Section 3553(a), which is a limiting principle favorable to defendants, requires the sentencing court to impose a sentence “sufficient, but not greater than necessary” to comply with the four purposes of sentencing set forth in Section
3553(a)(2) (i.e., retribution, deterrence, incapacitation and rehabilitation).
The “sufficient, but not greater than necessary” requirement is often referred to as the
“Parsimony Provision,” and the Supreme Court has referred to it as the “overarching instruction” of
18 U.S.C. § 3553(a). United States v. Olhovsky, 562 F.3d 530, 487-48 (3d Cir. 2009), citing
Kimbrough, 128 S.Ct. at 563; see generally United States v. McCaa, 2009 WL 1867937 (2d Cir.
June 30, 2009); United States v. Tann, 2009 WL 1605124 (2d Cir. Jun 9, 2009); United States v.
Williams, 475 F.3d 468, 476-78 (2d Cir. 2007) (citations omitted); United States v. Ministro-Tapia,
160 470 F.3d 137, 138, 140-42 (2d Cir. 2006). The Parsimony Provision is not simply another “factor” that sentencing courts must consider, but, rather, creates an independent limit on the sentence a court may impose. United States v. Denardi, 892 F.2d 269, 276-77 (3d Cir. 1989) (Becker, J., concurring in part, dissenting in part); see also United States v. Rodríguez, 527 F.3d 221, 227-28 (1st Cir. 2008)
(describing Section 3553(a) as a “tapestry of factors, through which runs the thread of an overarching
... parsimony principle” that “instructs district courts to impose a sentence sufficient, but not greater than necessary to accomplish the goals of sentencing”; internal quotation marks and citation omitted).
We respectfully submit that a sentence of home detention reflects an individualized sentence that takes into consideration the nature and circumstances of Mr. Seminerio’s offense and his personal background, while imposing a sentence that is sufficient, but not greater than necessary, to comply with the purposes of sentencing set forth in Section 3553(a)(2).
b. THE SENTENCING FACTORS SET FORTH IN 18 U.S.C. SECTION 3553(A).
We respectfully submit that there are a number of unique circumstances in Mr. Seminerio’s case that, when measured cumulatively, demonstrate that this case is outside the “heartland” of cases under the Guidelines.29 While these circumstances are sufficient to warrant a substantial downward departure under the advisory Guidelines, in the post-Booker world the more appropriate context within which to address these factors is 18 U.S.C. Section 3553(a).
29Because exceptional circumstances may be considered both individually and in combination with each other, the Second Circuit has held that a “district court may downwardly depart when a number of facts that, when considered individually, would not permit a downward departure, combine to create a situation that ‘differs significantly from the “heartland” cases covered by the Guidelines.’” United States v. Rioux, 97 F.3d 648, 663 (2d Cir. 1996) (citations omitted).
161 As the Sixth Circuit stated, “many of the very factors that used to be grounds for a departure under the Guidelines are now considered by the district court – with greater latitude – under section
3553(a).” United States v. McBride, 434 F.3d 470, 476 (6th Cir. 2006)30 (emphasis added).
Similarly, the Tenth Circuit recently explained that, in the context of departures, pursuant to
Guidelines policy statements, “the district court has a freer hand when it comes to variances and may consider these factors [previously considered departures] as part of the nature and circumstances of the offense and the history and characteristics of the defendant in fashioning a reasonable sentence consistent with the overall objectives of § 3553(a).” United States v. Tom, 2009 WL 1705604, *3
(10th Cir. 2009) (emphasis added), citing United States v. Davis, 537 F.3d 611, 616-17 (6th Cir.
2008); see also United States v. Cavera, 550 F.3d 180, 188 (2d Cir. 2008) (“A sentencing judge has very wide latitude to decide the proper degree of punishment for an individual offender and a particular crime.”); Kimbrough, 128 S.Ct. at 570 (noting that the “Government acknowledges that the Guidelines ‘are now advisory’ and that, as a general matter, ‘courts may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines’”; citations omitted).
The unique circumstances in Mr. Seminerio’s case discussed earlier, are summarized as follows:
• Mr. Seminerio has taken full responsibility and blames no one but himself for the isolated crime he committed; and Mr. Seminerio fully understands that there is no excuse for his crime – but he is not guilty of all of the horrible allegations made against him by the Government.
30The McBride case, decided by the Sixth Circuit, has been cited numerous times by trial courts as well as appellate courts throughout the United States, including the United States Court of Appeals for the First Circuit, Third Circuit, Fourth Circuit, Fifth Circuit, Sixth Circuit, Tenth Circuit and the District of Columbia Circuit.
162 • The criminal conduct to which Mr. Seminerio pleaded guilty represents an extremely aberrant and atypical episode during the otherwise unblemished 74 years of his life and nearly 50 years of dedicated public service. Until the action which brought him before this Court, Mr. Seminerio was proud of the life he led; proud of who and what he was; and proud of what he had accomplished for his family, his community and his many friends.
• For nearly five decades, as a Correction Officer and Union leader, and as a 16-time elected New York State Assemblyman, Mr. Seminerio selflessly dedicated himself to serving the needs of others – and, in doing so, Mr. Seminerio personally helped to change and improve the lives of literally thousands of people.
• This aberrant episode involved Mr. Seminerio, on a single occasion, in connection with a New York State agency, advocating on behalf of his consulting client, Jamaica Hospital, without disclosing that consulting relationship to the New York State agency. Mr. Seminerio praised and promoted Jamaica Hospital, which is what he pleaded guilty to; and Mr. Seminerio knew that what he did was wrong and illegal. This was not a premeditated act by Mr. Seminerio – rather, it was an angry response (albeit an unthinking angry response) to Senator Carl Kruger’s misuse of Mr. Seminerio’s name to advance his (Senator Kruger’s) own agenda.
• Mr. Seminerio’s motive for his criminal conduct, although in no way an excuse, was that he became angered that another politician had misused his name to achieve what Mr. Seminerio believed would not have been in best interests of the members of his community – the financial benefit was never his primary motivating factor. However, Mr. Seminerio clearly knew that it was wrong and illegal not to disclose that he was a paid consultant.
• Mr. Seminerio knows that because of the wrong decision that he, and he alone, has made in his life, he has undermined his ability to spend whatever time he has left with his wife, children and grandchildren.
• There is also the serious matter of Mr. Seminerio’s health. Mr. Seminerio has been advised by his doctor that, given his extraordinary health problems, he is at high risk for recurrent congestive heart failure, myocardial infarct, stroke and even death, and will likely not live out a prison sentence. (See Exh. F, Sept. 29, 2009 Medical Report of Calogero Tumminello, M.D.) Indeed, at the age of 74, and with his whole life behind him, Mr. Seminerio is already a prisoner, because although his mind is functioning, he is trapped in a body that both does not work and is failing him badly.
163 • Mr. Seminerio understands that any period of incarceration will likely mean that he dies in prison. On the other hand, if this Court imposes a sentence of home detention, Mr. Seminerio will be punished in such a way that he will be able to spend at least some of the rest of his life with his family.
• Mr. Seminerio realizes how terribly he has hurt his family, friends, constituents and the community in which he lives. Mr. Seminerio now stands before Your Honor, an old and broken man – a convicted felon – who has lost the respect which had meant so much to him and which he had spent the better part of his life earning. Whatever sentence is imposed upon him, Mr. Seminerio will never be able to change the fact that he will forever be labeled a convicted felon in the eyes of his wife, his children and his grandchildren.
Assuming, arguendo, that the Court calculates Mr. Seminerio’s adjusted offense level to be greater than level 4, then, in asking this Court to depart from the Guidelines calculation in the case of Mr. Seminerio, we also recognize that this Court is being asked to determine the appropriate magnitude of a departure from the recommended Guidelines range. The United States Supreme
Court, in United States v. Gall, 552 U.S. 38, 128 S.Ct. 586 (2007), which addressed this very issue
– i.e., what is the appropriate magnitude of a departure – made clear that:
• Sentencing courts do, in fact, have the authority to consider sentences other than imprisonment, notwithstanding the recommended Guidelines range;
• There is no per se rule that requires “extraordinary” circumstances to justify a sentence outside the Guidelines range;
• The “use of a rigid mathematical formula” has been rejected in determining the appropriate sentence to impose in a criminal case; and
• There is no presumption that a sentence outside the Guidelines range is unreasonable.
In the Gall case, the defendant was convicted of drug-related offenses, and notwithstanding the recommended Guidelines range of 30 to 37 months, the district court sentenced him to 36 months
164 probation. 128 S.Ct. at 589. In determining the appropriate sentence to impose, the district court considered, among other things: the seriousness of Gall’s offense; evidence that Gall would not engage in criminal conduct in the future; Gall was not a threat to society; the criminal conduct had occurred while Gall was in college; after withdrawing from the drug conspiracy, Gall neither sold nor used drugs; and Gall had worked steadily since graduating from college. Id. at 589-90, 592-93.
In imposing a sentence of probation, rather than incarceration, the district court further explained:
“Any term of imprisonment in this case would be counter effective by depriving society of the contributions of [Gall] who, the Court has found, understands the consequences of his criminal conduct and is doing everything in his power to forge a new life. [Gall’s] post-offense conduct indicates neither that he will return to criminal behavior nor that the [Gall] is a danger to society. In fact, [Gall’s] post-offense conduct was not motivated by a desire to please the Court or any other governmental agency, but was the pre-Indictment product of [Gall’s] own desire to lead a better life.” Id. at 593 (citations and quotations omitted).
The Eighth Circuit reversed the district court on the ground that a departure from the
Guidelines range must be – and was not in the Gall case – supported by extraordinary circumstances.
The Supreme Court rejected the Eighth Circuit’s reasoning and reversed. In finding that the district court’s sentence of probation was reasonable, the Supreme Court explained in part, and with particular relevance to the case of Mr. Seminerio, that:
• “In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may therefore take the degree of variance into account and consider the extent of a deviation from the Guidelines. We reject, however, an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.” Gall, 128 S.Ct. at 595 (emphasis added).
• “We also reject the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” Id.
165 • There is no presumption of unreasonableness for sentences outside the Guidelines range, and there is no presumption that a Guidelines sentence is reasonable. Id. at 595, 597 (citations omitted).
• “The mathematical approach [to sentencing] also suffers from infirmities of application. On one side of the equation, deviations from the Guidelines range will always appear more extreme-in percentage terms-when the range itself is low, and a sentence of probation will always be a 100% departure regardless of whether the Guidelines range is 1 month or 100 years. Moreover, quantifying the variance as a certain percentage of the maximum, minimum, or median prison sentence recommended by the Guidelines gives no weight to the ‘substantial restriction of freedom’ involved in a term of supervised release or probation.” Id. at 595.
• “We recognize that custodial sentences are qualitatively more severe than probationary sentences of equivalent terms. Offenders on probation are nonetheless subject to several standard conditions that substantially restrict their liberty....Probationers may not leave the judicial district, move, or change jobs without notifying, and in some cases receiving permission from, their probation officer or the court. They must report regularly to their probation officer, permit unannounced visits to their homes, refrain from associating with any person convicted of a felony, and refrain from excessive drinking....Most probationers are also subject to individual ‘special conditions’ imposed by the court....” Id. (citations and footnote omitted).
• “‘It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.’ ... The uniqueness of the individual case, however, does not change the deferential abuse-of-discretion standard of review that applies to all sentencing decisions.” Id. at 598 (footnote and citations omitted).
• “Section 3553(a)(2)(A) requires judges to consider ‘the need for the sentence imposed ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.’” Id. at 598-99.
• “ ... the Guidelines are not mandatory, and thus the ‘range of choice dictated by the facts of the case’ is significantly broadened. Moreover, the Guidelines are only one of the factors to consider when imposing sentence, and § 3553(a)(3) directs the judge to consider sentences other than imprisonment.” Id. at 602.
166 We respectfully submit that there are sound reasons to depart from the advisory Guidelines in the case of Mr. Seminerio and impose a term of home detention, in light of the Supreme Court’s recent decision in the Gall case – which confirms the sentencing court’s broad discretion to consider non-Guidelines sentences; rejects a per se rule that requires “extraordinary” circumstances to justify non-Guidelines sentences; and rejects the presumption that non-Guidelines sentences are unreasonable.
On the same day the Gall case was decided, December 10, 2007, the United States Supreme
Court also issued its decision in United States v. Kimbrough, 552 U.S. 85, 128 S.Ct. 558 (2007).
Consistent with the Gall decision, the Supreme Court found that the sentencing court’s substantial deviation from the Guidelines range, by reducing the defendant’s sentence 4.5 years below the bottom of the Guidelines range of 19 to 22.5 years for drug related offenses (i.e., crack cocaine), was not an abuse of discretion.
In determining the appropriate sentence to impose in the Kimbrough case, the district court considered, among other factors: the Guidelines were “higher than ... necessary to do justice in this case”; the nature and circumstances of the crime; the defendant’s history and characteristics, including no criminal history and prior military service; and the defendant’s steady history of employment. 128 S.Ct. at 565, 575 (citations omitted). Significantly, the district court found that the recommended Guidelines range of 19 to 22.5 years would have been greater than necessary to accomplish the purpose of sentencing set forth in 18 U.S.C. Section 3553(a) (i.e., retribution, deterrence, incapacitation and rehabilitation). Kimbrough, 128 S.Ct. at 560, 563.
167 The Supreme Court explained that the “ultimate question in Kimbrough’s case is ‘whether the sentencing was reasonable – i.e., whether the District Judge abused his discretion in determining that the § 3553(a) factors supported a sentence of [15 years] and justified a substantial deviation from the Guidelines range.’” 128 S.Ct. 576 (citations omitted). “Giving due respect to the District
Court’s reasoned appraisal,” the Supreme Court found that a reviewing court could not rationally conclude that the district court’s substantial deviation from the Guidelines range was an abuse of discretion. Id. at 576 (citations omitted).31
We respectfully submit that the Supreme Court’s recent decision in the Kimbrough case further supports the conclusion that a sentence of home detention is warranted in the case of Mr.
Seminerio where, as in the Kimbrough case, the imposition of a non-Guidelines sentence would be consistent with the sentencing mandate of Section 3553(a) to impose a sentence that is sufficient, but not greater than necessary.
Accordingly, in light of the now advisory and not mandatory nature of the Guidelines, the factors set forth in 18 U.S.C. Section 3553(a) and the Supreme Court’s decisions in the Gall and
Kimbrough cases, we respectfully submit that there are sound reasons to depart from the Guidelines, and sentence Mr. Seminerio to a term of home detention.
31See also United States v. Jones, 460 F.3d 191, 193, 198 (2d Cir. 2006) (In affirming the district court’s non-Guidelines sentence of 15 months, notwithstanding the Guidelines range of 30 to 37 months, and in addressing the reasonableness of the non-Guidelines sentence, the Second Circuit explained: “Although the sentencing judge is obliged to consider all of the sentencing factors outlined in section 3553(a), the judge is not prohibited from including in that consideration the judge’s own sense of what is a fair and just sentence under all the circumstances. That is the historic role of sentencing judges...”; emphasis added).
168 c. AN INDEPENDENT BASIS EXISTS TO DEPART FROM THE ADVISORY GUIDELINES BECAUSE MR. SEMINERIO’S CRIMINAL CONDUCT WAS “ABERRANT BEHAVIOR.”
Assuming, arguendo, that the Court calculates Mr. Seminerio’s adjusted offense level to be greater than level 4, Your Honor has the discretion to depart downward, pursuant to U.S.S.G. Section
5K2.20, based upon Mr. Seminerio’s “aberrant behavior.” “Aberrant behavior” is defined as “a single criminal occurrence or transaction that: (1) was committed without significant planning; (2) was of limited duration; and (3) represents a marked deviation by the defendant from an otherwise law-abiding life.” U.S.S.G. Section 5K2.20(b).
Pursuant to Section 5K2.20, a downward departure for “aberrant behavior” is permitted only if: (1) the offense did not involve serious bodily injury or death; (2) the defendant did not discharge a firearm or otherwise use a firearm or dangerous weapon; (3) the offense is not a serious drug trafficking offense; (4) the defendant does not have more than one criminal history point; and (5) the defendant does not have a prior federal or state felony conviction. U.S.S.G. Section 5K2.20(b). We respectfully submit that Mr. Seminerio satisfies all of the technical requirements set forth in Section
5K2.20:
• Mr. Seminerio’s criminal conduct did not involve serious bodily injury or death;
• Mr. Seminerio did not discharge a firearm or otherwise use a firearm or dangerous weapon;
• Mr. Seminerio’s criminal conduct did not involve or relate to a serious drug trafficking offense;
• Mr. Seminerio does not have more than one criminal history point; and
• Mr. Seminerio does not have a prior federal or state felony conviction.
169 See United States v. Ogando, 547 F.3d 102, 107 (2d Cir. 2008) (reversed and remanded, but noting that the District Court [Block, J.], had granted downward departure, pursuant to Section 5K2.20, based upon defendant’s “aberrant” behavior notwithstanding the fact that the defendant was convicted of four counts of drug-related crimes); United States v. Patterson, 281 F. Supp.2d 626,
627-28 (E.D.N.Y. 2003) (Weinstein, J.) (granting downward departure, pursuant to Section 5K2.20, based upon defendant’s “aberrant” behavior); United States v. Caldwell, 2008 WL 4522609, **1,
4 (5th Cir. Oct. 9, 2008) (sentencing court granted downward departure, pursuant to Section 5K2.20, based upon defendant’s “aberrant” behavior notwithstanding the fact that defendant was convicted after a sting operation of attempting to export through a fake company, and aiding and abetting the attempted export of, among other things, HAWK missile parts; United States v. Bonczek, 2009 WL
2924550, *4 (S.D.N.Y. Sept. 8, 2009) (Crotty J.) (denying departure, pursuant to Section 5K2.20, where there was no evidence that the defendant’s conduct was aberrational or a “singular, out-of- character act”); cf. United States v. Carson, 560 F.3d 566, 590 (6th Cir. 2009) (affirming sentence, noting that the district court determined that – whether or not it applied a three-level reduction for aberrant conduct, pursuant to Section 5K2.20 – in the context of Section 3553[a]’s factors, a sentence below the Guidelines was warranted based upon the defendant’s aberrant conduct).
Moreover, as we have already demonstrated, Mr. Seminerio’s criminal conduct was, in fact,
“aberrant behavior” as evidence by the following facts:
• Mr. Seminerio has taken full responsibility and blames no one but himself for the isolated crime he committed; and Mr. Seminerio fully understands that there is no excuse for his crime – but he is not guilty of all of the horrible allegations made against him by the Government.
• The criminal conduct to which Mr. Seminerio pleaded guilty represents an extremely aberrant and atypical episode during the otherwise unblemished
170 74 years of his life and nearly 50 years of dedicated public service. Until the action which brought him before this Court, Mr. Seminerio was proud of the life he led; proud of who and what he was; and proud of what he had accomplished for his family, his community and his many friends.
• This aberrant episode involved Mr. Seminerio, on a single occasion, in connection with a New York State agency, advocating on behalf of his consulting client, Jamaica Hospital, without disclosing that consulting relationship to the New York State agency. Mr. Seminerio praised and promoted Jamaica Hospital, which is what he pleaded guilty to; and Mr. Seminerio knew that what he did was wrong and illegal. This was not a premeditated act by Mr. Seminerio – rather, it was an angry response (albeit an unthinking angry response) to Senator Carl Kruger’s misuse of Mr. Seminerio’s name to advance his (Senator Kruger’s) own agenda.
• Mr. Seminerio’s motive for his criminal conduct, although in no way an excuse, was that he became angered that another politician had misused his name to achieve what Mr. Seminerio believed would not have been in best interests of the members of his community – the financial benefit was never his primary motivating factor. However, Mr. Seminerio clearly knew that it was wrong and illegal not to disclose that he was a paid consultant.
Accordingly, we respectfully submit that a downward departure in the case of Mr. Seminerio is warranted based upon his aberrant behavior, pursuant to Sections 5K2.20.
d. MR. SEMINERIO’S EXTRAORDINARY MEDICAL CONDITIONS.
Bluntly stated, in light of Mr. Seminerio’s advanced age and extraordinary medical conditions, the imposition of any prison sentence will be tantamount to a life prison term in Mr.
Seminerio’s mind and for his body. Therefore, we respectfully submit that a downward departure in the case of Mr. Seminerio is warranted based upon his extraordinary medical conditions, pursuant to Sections 5H1.1 and 5H1.432; and that this Court should impose a sentence of home detention.
32Section 5H1.1 states, in relevant part, that age, although “not ordinarily relevant ... may be a reason to impose a sentence below the applicable guideline range when the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as (continued...)
171 Indeed, as one court recently observed, with language particularly relevant to the case of Mr.
Seminerio:
“There is a worthy tradition that death in prison is not to be ordered lightly, and the probability that a convict will not live out his sentence should certainly give pause to a sentencing court....Death is by a universal consensus a uniquely traumatic experience, and prison often deprives defendants that ability to be with their families or to otherwise control the circumstances of death.”
United States v. Wurzinger, 467 F.3d 649, 652 (7th Cir. 2006) (dicta; emphasis added)33; see also
United States v. Jackson, 835 F.2d 1195, 1200 (7th Cir. 1988) (Posner, J., concurring) (observing that “[a] civilized society locks up [certain defendants] until age makes them harmless but it does not keep them in prison until they die”).
32(...continued) and less costly than incarceration.” (Emphasis added.) Section 5H1.4 states, in relevant part, that physical condition, although “not ordinarily relevant ... an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.” (Emphasis added); see also United States v. Bates, 2007 WL 2780551, *10 (E.D.Mich. Sept. 20, 2007) (“even if a defendant’s medical condition does not warrant a departure [pursuant to U.S.S.G. Section 5H1.4], the Court may grant a variance from the guideline range under 18 U.S.C. § 3553(a)(2), which requires the Court to impose a sentence that provides a defendant with needed medical care”; citations omitted); United States v. Smith, 445 F.3d 1, 5 (1st Cir. 2006) (holding that district court’s consideration at sentencing of defendant’s age was not inappropriate and noting that even though “a factor is discouraged or forbidden under the guidelines,” that “does not automatically make [the factor] irrelevant when a court is weighing the statutory factors apart from the guidelines”).
33The Seventh Circuit, in Wurzinger, 467 F.3d at 652 also cites and relies upon, inter alia, the following authorities: United States v. Gigante, 989 F. Supp. 436, 442-43 (E.D.N.Y. 1998) (Weinstein, Sr. J.) (observing that “the principle of modifying a sentence to take account of a defendant’s frailty has strong and ancient roots” predicated, in part, on a court’s duty not to impose sentences that are excessively cruel); John A. Beck, Compassionate Release From New York State Prisons: Why Are So Few Getting Out?, 27 J.L. MED. & ETHICS 216, 223-24 (1999); and Jason S. Ornduff, Releasing the Elderly Inmate: A Solution to Prison Overcrowding, 4 ELDER L.J. 173, 192 (1996).
172 Sentencing courts are permitted to take into account a defendant’s “age and frailty”; and, moreover, Section 5H1.4 expressly recognizes that “an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range.” Koon v. United States, 518
U.S. 81, 95-96 (1996); see also United States v. Jimenez, 212 F. Supp.2d 214, 216 (S.D.N.Y 2002)
(Lynch, J.); Gigante, 989 F. Supp. at 442-43 (citations omitted); United States v. Rioux, 97 F.3d 648,
662-63 (2d Cir. 1996) (departure granted based upon defendant’s medical condition and prior civic good deeds); United States v. Roth, 1995 WL 35676, *1 (S.D.N.Y. Jan. 30, 1995) (Sweet, J.) (63- year-old defendant’s neuro-muscular disease warranted departure); cf. Gall, 128 S.Ct. at 600-01
(quoting sentencing court, stating that a sentencing court should account for age when inquiring into the conduct of a defendant; citations omitted).
In that regard, and as chronicled earlier in this Memorandum (pp. 55-58, supra), Mr.
Seminerio is faced with the following extraordinary medical history and conditions:
Mr. Seminerio’s extraordinary medical conditions include, among other things:
• Mr. Seminerio suffers from atrial • Mr. Seminerio suffers from fibrillation; hypokalemia;
• Mr. Seminerio suffers from coronary • Mr. Seminerio suffers from artery disease; hypocalcemia;
• Mr. Seminerio suffers from chronic • Mr. Seminerio suffers from diastolic heart failure; thrombocytopenia;
• Mr. Seminerio has a history of • Mr. Seminerio has a history of quadruple coronary artery bypass pulmonary hypertension; surgery;
173 • Mr. Seminerio suffers from • Mr. Seminerio has a history of hypertension; gastro-intestinal bleeding;
• Mr. Seminerio suffers from morbid • Mr. Seminerio has a history of obesity; tricuspid valve regurgitation;
• Mr. Seminerio has a history of • Mr. Seminerio has a history of hiatal obstructive sleep apnea; hernia;
• Mr. Seminerio suffers from • Mr. Seminerio suffers from stasis hypothyroidism; dermatitis; and
• Mr. Seminerio suffers from • Mr. Seminerio suffers from dyslipidemia; cardiomegaly.
(See Exh. F, Sept. 29, 2009 Medical Report of Calogero Tumminello, M.D.)
In addition to Mr. Seminerio’s now-somewhat routine doctor (and hospital) appointments, it would not be an exaggeration to say that Mr. Seminerio is left the rest of the week, on a daily basis, managing his diet and his heavy regimen of more than a dozen medications and dealing with his medical conditions. Mr. Seminerio’s daily regimen of medications includes:
• Altace, 10 mg once daily (for • Verapamil, 180 mg twice daily (for treatment of congestive heart failure treatment of hypertension and angina); and hypertension); • Matenolol, 100 mg twice daily (for • Coumadin, 4 mg once daily (for treatment of hypertension and angina, prevention of heart attacks, strokes and reduction of mortality from and blood clots); myocardial infarction);
• Levothyroxine, .025 mg once daily • Furosemide, 80 mg twice daily (for (for hypothyroid activity); treatment of edema and hypertension);
• Combivent inhaler, 2 puffs every six • Simvastatin, 80 mg once daily (for hours (for treatment of chronic treatment of high cholesterol); obstructive pulmonary disease);
174 • Synthroid, 25 mg once daily (for • Temazepam, 15 mg once daily (for hypothyroid activity); insomnia);
• Ferrous sulfate, 325 mg once daily (for • Vitamin B complex, once daily; treatment of iron deficiency anemia); • Potassium, 10 mEq, once daily; and • Aspirin, 81 mg once daily (for prevention of heart attacks, strokes and • Vitamin C, 500 mg twice daily. blood clots);
(See Exh. F, Sept. 29, 2009 Medical Report of Dr. Calogero Tumminello, M.D.)
Mr. Seminerio has been advised by his doctor that, given his extraordinary health problems, he is at high risk for recurrent congestive heart failure, myocardial infarct, stroke and even death, and will likely not live out a prison sentence:
“Based on the evidence and physical findings, it is of my opinion that Mr. Anthony Seminerio has multisystem disorders including pulmonary emphysema, coronary artery disease, atrial fibrillation, syndrome x comprised of morbid obesity, hypercholesteremia, and increased abdominal girth, hypothyroidism, sleep apnea, peripheral vascular disease, venous stasis dermatitis, left ventricular dysfunction, peripheral edema, and is at high risk for recurrent congestive heart failure, myocardial infarct and stroke and even death.
It is in my medical opinion of twenty one years of practice that if Mr. Anthony Seminerio is imprisoned there is a high risk that he will die during the time in which he will serve out his sentence.” (Id.; emphasis added).
Indeed, although his mind is functioning, Mr. Seminerio is trapped in a body that both does not work and is failing him badly. Stated in Mr. Seminerio’s own words in his letter to Your Honor:
“Facing sentencing before Your Honor causes me to think about life in a way that I never have before. During this dark period, I saw my life slipping away from me. I gained a true sense of mortality; a sense of clarity about my life, my family and the great privilege it is simply to be alive – this was a clarity that I had never had before. In many ways, I am already a prisoner, because although my mind is functioning, my body does not work and is failing me badly.
175 I can only thank God that my family continues to stand by me because without them, my life would be meaningless. Whatever years I have left in my life, I would like to spend them caring for my wife and my family – they mean everything to me. Of course, I understand all too painfully that Your Honor will be sentencing me, and that any real sentence of imprisonment would mean that I die in jail. But I accept full responsibility for what I have done.” (Exh. A, Letter of Mr. Seminerio)34
Concededly, applying the facts of Mr. Seminerio’s case, or a given set of facts of any criminal case, to sentences imposed in prior criminal cases, can often be challenging given the matrix-like interplay of factors such as seriousness of the offense, individual characteristics of the defendant, remorse, prior criminal history, etc. Morever, the case law addressing medical-related downward departures, for the most part, is not particularly helpful because Section 3553(a) requires the
“individualized assessment” of each defendant in every criminal case, and expressly rejects the presumption that all Guidelines-range sentences are reasonable. Gall, 128 S.Ct. at 590 (citations omitted); see also Kimbrough, 128 S.Ct. at 577-78. We nonetheless address below two cases that are particularly informative, in which the courts analyzed the nature of the defendants’ medical
34The literally dozens of letters submitted on behalf of Mr. Seminerio from his family, friends and constituents make clear that people are genuinely concerned and worried about Mr. Seminerio’s health and the extraordinary medical complications he has endured in recent years, and continues to face every day of his life. (See Exh. J, Tab 1 [Letter of Catherine Seminerio, wife]; Exh. J, Tab 5 [Letter of Mabel C. Kurtz, daughter]; Exh. J, Tab 4 [Letter of Frank Seminerio, brother]; Exh. J, Tab 236 [Letter of Anthony Russo, cousin]; Exh. J, Tab 42 [Letter of James J. Boyle, friend]; Exh. J, Tab 224 [Letter of Paula M. Reardon, friend and colleague]; Exh. J, Tab 52 [Letter of Cav. Peter Cardella, constituent]; Exh. J, Tab 102 [Letter of Carol Felsen, colleague]; Exh. J, Tab 106 [Letter of Margaret Finnerty, friend and colleague]; Exh. J, Tab 112 [Letter of Ira H. Futterman, Esq., friend]; Exh. J, Tab 109 [Letter of Assemblyman Michael J. Fitzpatrick, colleague]; Exh. J, Tab 162 [Letter of Lamarian Lesperance, colleague]; Exh. J, Tab 169 [Letter of Lisa Loughlin, colleague]; Exh. J, Tab 179 [Letter of Kathryn and Eugene Maroney, friends]; Exh. J, Tab 212 [Letter of Assemblywoman Audrey I. Pheffer, colleague]; Exh. J, Tab 254 [Letter of Steven M. Sinacori, friend]; Exh. J, Tab 269 [Letter of Natalie J. Trichilo, colleague]; Exh. J, Tab 32 [Letter of Thomas F. Barraga, colleague].)
176 circumstances, so that this Court has a framework through which to evaluate the appropriateness of granting Mr. Seminerio a downward departure, pursuant to U.S.S.G Sections 5H1.1 and 5H1.4.
First, in United States v. Jimenez, 212 F. Supp.2d 214, 216 (S.D.N.Y 2002) (Lynch, J.), the defendant had pleaded guilty to illegally reentering the United States after deportation following the defendant’s prior conviction for burglary. Jimenez’ adjusted offense level was 21 with a criminal history category of IV, which corresponded to a sentencing range of 57 to 71 months. Jimenez also had an extensive criminal record, including a number of drug-related offenses, which prior prison sentences had failed to deter.
Jimenez requested that Southern District Court Judge Gerard E. Lynch grant a downward departure because she (Jimenez) had suffered from, among other things: a bleeding artery in her brain, which required neurosurgery to correct; severe memory loss; loss of strength in her right arm; headaches; and blurred vision. The Government objected to a Section 5H1.4 departure, arguing that:
(1) a medical departure is only warranted where a defendant’s physical conditions cannot adequately be cared for by the Bureau of Prisons (“BOP”); and (2) because of the high standard of medical care available by the BOP to care for Jimenez, a medical departure was prohibited. Jimenez, 212 F.
Supp.2d at 216-17 (internal citations omitted).
Judge Lynch found that Jimenez’ physical condition was “exceptional,” leaving her seriously infirm, and “seriously erod[ing] her capacity to threaten society.” Id. at 216-17, citing U.S.S.G.
Section 5H1.4 and Koon, 518 U.S. at 95. Moreover, Judge Lynch rejected the Government’s argument that a departure was prohibited, pursuant to Section 5H1.4, because the BOP could adequately care for the defendant, stating that:
177 “There is ... no basis in law for the Government’s contention. First, the specific language of § 5H1.4 not only fails to mention any such limitation, but appears expressly to reject it. The only example given in the Guidelines of circumstances in which a physical impairment would justify a departure is not one in which a prisoner’s health would be threatened by the inability of prison authorities to provide adequate health care, but instead suggests a completely different rationale. The example instructs that departure would be warranted because ‘in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.’ U.S.S.G. § 5H1.4. This suggests a rather different, and penologically quite sound, rationale for departure. Where an extremely infirm defendant is so incapacitated that the ordinary purposes of incapacitation and deterrence of recidivism do not justify the expense of extended incarceration, some lesser degree of punishment is permissible, and indeed specifically authorized, by the Sentencing Commission.”
Jimenez, 212 F. Supp.2d at 216-17 (emphasis added); see also United States v. Barbato, 2002 WL
31556376, **4-5 (S.D.N.Y. Nov 15, 2002) (Kram, J.) (notwithstanding Government’s claim that defendant’s hypertension, heart disease and other ailments could be adequately treated by the BOP,
District Court granted departure, pursuant to U.S.S.G. Section 5H1.4, noting that although it may be relevant, it is not always controlling whether the BOP can provide adequate care for a defendant), citing, inter alia, Jimenez; cf. United States v. Crumbliss, 2003 WL 223457 (4th Cir. 2003)
(Notwithstanding Guidelines range of 37 to 46 months, court imposed non-Guidelines sentence of probation and 364 days of home detention with electronic monitoring based, in part, on Section
5H1.4 departure, where defendant had diabetes, two toes amputated and suffered weakness and pain in legs and hips. Fourth Circuit rejected Government’s argument that defendant’s medical condition cannot be extraordinary because BOP had the ability to provide appropriate medical treatment).
In the Jimenez case, Judge Lynch concluded that a downward departure and a sentence below the Guidelines range were warranted, and that long-term imprisonment, which would otherwise be
178 justified to protect the public, “is wasteful and unnecessary” in light of the extraordinary medical conditions of the defendant. Judge Lynch concluded, with particular relevance to the case of Mr.
Seminerio:
“Where an extremely infirm defendant is so incapacitated that the ordinary purposes of incapacitation and deterrence of recidivism do not justify the expense of extended incarceration, some lesser degree of punishment is permissible, and indeed specifically authorized, by the Sentencing Commission....
....
At any rate, in the present case, the Bureau’s ability to treat defendant’s medical condition is not to the point, since her condition is relevant to the purposes of sentencing not because imprisonment will endanger her health, but because it reduces her danger to society and renders lengthy imprisonment, in the words of § 5H1.4, less ‘efficient’ and more ‘costly’ than necessary to meet the goals of punishment.” 212 F. Supp.2d at 216-17, 219-20 n.1 (emphasis added).35
35Judge Lynch’s holding in the Jimenez case and reliance on Section 5H1.4’s language – “less efficient and more costly than necessary” – is further supported by other cases decided by District Courts in the Second Circuit, as well as other courts, which have declined to impose Guidelines sentences on some defendants who were over the age of forty at the time of sentencing. See infra, pp. 200-01 (discussing cases). The Jimenez case and Section 5H1.4 further make clear that in the case of a seriously infirm defendant, such as Mr. Seminerio, home detention may be as efficient as, and less costly than, imprisonment in light of the lower recidivism rates among older defendants and because older prisoners may require triple the cost of healthcare than younger prisoners. Notes, A Matter Of Life And Death: The Effect Of Life-Without-Parole Statutes On Capital Punishment, 119 HARV. L. REV. 1838, 1852-53 (Apr. 2006) (citations and footnotes omitted); Ryan J. Huschka, Sorry For The Jackass Sentence: A Critical Analysis Of The Constitutionality Of Contemporary Shaming Punish Punishments, 54 U. KAN. L. REV. 803, 810 nn. 61-66 (Apr. 2006), citing Judi Villa, Growing Old in Prison –Aged Inmates’ Care Puts Stress on State, ARIZ. REPUBLIC, May 8, 2005, at A1, and Sunny Kaplan, Health Care Costs Rising As Prison Population Grows and Ages, Stateline.org (June 24, 1999) (http://www.stateline.org/live/ViewPage.action?siteNodeId=136& languageId=1&content Id=13721); see also Crumbliss, 2003 WL 223457, at **3-4 (discussed supra, confirming that “‘It costs the taxpayers of this country a lot of money to keep a healthy person in prison. Quite obviously, the cost is compounded when that person is in such physical constraints that it’s going to cause a lot of hospitalizations, medication, and treatment.’”).
179 We respectfully submit that Judge Lynch’s holding in the Jimenez case is equally applicable to the case of Mr. Seminerio, and demonstrates, by comparison, that a medical departure and non-
Guidelines sentence are warranted because the ordinary purposes of incapacitation and deterrence of recidivism do not justify the expense of incarceration in light of the fact that: Mr. Seminerio is faced with extraordinary medical conditions; and for any period of incarceration, Mr. Seminerio’s medical care will be inestimable (indeed, over the last twelve months alone, Mr. Seminerio has had more than 70 doctor appointments).
Second, in United States v. Rioux, 97 F.3d 648, 662-63 (2d Cir. 1996), the Second Circuit also concluded that it was not an abuse of discretion for the district court to conclude that a downward departure was appropriate in light of the defendant’s medical condition and charitable and civic good deeds. Rioux had been convicted in connection with corrupt Government-related practices (i.e., payoff-related offenses). At sentencing, the district court reduced Rioux’ offense level from 20 to 10 based upon his charitable fund-raising efforts, civic accomplishments and physical condition, which included: a kidney transplant approximately 20 years ago; bone problems requiring a double hip replacement; and regular doses of medication and blood tests. On appeal, the
Government argued that the district court’s downward departure, based on Rioux’ medical condition and good deeds, was improper. Id.
The Second Circuit rejected the Government’s argument and found that the district court did not abuse its discretion when it concluded that Rioux’ case differed significantly from the heartland of Guidelines cases. The Second Circuit stated, in relevant part:
“Physical condition is not ordinarily relevant to determining whether the defendant should receive a departure from the applicable guideline range....But, an ‘extraordinary physical impairment’ may be
180 reason enough to impose a sentence below the guideline range. Id. Such conditions are ones that render the defendant ‘seriously infirm.’ ... So too, civic, charitable, and public service and similar prior ‘good works are not ordinarily relevant’ in determining whether the defendant should receive a downward departure....
The district court did not abuse its discretion when it concluded that Rioux’[] case differed significantly from the heartland of guideline cases. Rioux had a kidney transplant over 20 years ago, and his new kidney is diseased. Although his kidney function remains stable, he must receive regular blood tests and prescription medicines. As a complication of the kidney medications, Rioux contracted a bone disease requiring a double hip replacement. Although the replacement was successful, it does require monitoring. While many of Rioux’[] public acts of charity are not worthy of commendation, he unquestionably has participated to a large degree in legitimate fund raising efforts. Of particular moment are Rioux’[] efforts to raise money for the Kidney Foundation.”
Rioux, 97 F.3d at 662-63 (citations omitted); see also United States v. Nektalov, 461 F.3d 309, 313,
319 (2d Cir. 2006) (defendant convicted of money laundering, and notwithstanding Guidelines range of 41 to 51 months, Second Circuit affirmed District Court Judge Peter K. Leisure’s split sentence of five months imprisonment and five months home confinement, including downward departure based upon defendant’s “age, weakened condition and history of exemplary public service.”)
We respectfully submit that if a downward departure was warranted in the Rioux case, then a downward departure is equally warranted in the case at bar based upon Mr. Seminerio’s medical conditions. (As in the Rioux case, Mr. Seminerio’s good works and acts of charity warrant an additional downward departure, pursuant to U.S.S.G. Section 5H1.11 [discussed infra, pp. 183-94].)
Finally, as noted earlier, applying prior criminal cases to a given set of facts of another criminal case, such as Mr. Seminerio’s, can often be challenging given the need to achieve individualized justice by imposing a sentence that is sufficient, but not greater than necessary.
181 Nonetheless, we briefly address below several additional cases which further demonstrate, by comparison, that a downward departure is warranted in the case of Mr. Seminerio, pursuant to
U.S.S.G. Sections 5H1.1 and 5H1.4. Those cases are as follows:
• United States v. McClean, 822 F. Supp. 961 (E.D.N.Y. 1993) (Weinstein, Sr. J.) (Court granted downward departure based upon defendant’s poor health and vulnerability, where he had a severely crippled left leg due to childhood polio and required crutches and the BOP had refused to provide defendant with the metal crutches he needed because they might constitute weapons and prisoners had, in fact, attempted to seize his crutches to use in fights);
• United States v. Shadduck, 889 F. Supp. 8 (D. Mass. 1995) (Court granted downward departure based upon defendant’s serious medical problems, which included diabetes, hypothyroidism, diabetic retinopathy, and hypertension);
• United States v. LiButti, 1994 WL 774647 (D.N.J. 1994) (Court granted downward departure, pursuant to U.S.S.G. Section 5H1.4, based in part on coronary disease, and physical or emotional strain subjected defendant to possible risk of a catastrophic cardiac event);
• United States v. Moy, 1995 WL 311441 (N.D.Ill. 1995) (Court granted downward departure due to defendant’s extraordinary physical condition – defendant was very old, and suffered from severe depression and from a serious coronary artery disease; and district court found that defendant’s life would be both threatened and shortened if he was incarcerated for the Guidelines range. Defendant’s extraordinary physical impairment was likely to degenerate with time, making him a likely candidate for future coronary artery bypass, coronary angioplasty and other various procedures, and, therefore, a more limited period of incarceration was appropriate and would both serve all imprisonment goals and be less costly and more efficient);
• In United States v. Moore, 2002 WL 1790142 (4th Cir. 2002) (Defendant who was convicted of being accessory after the fact to interstate kidnapping was sentenced to 12 months home detention and three years supervised release. Without discussing the defendant’s physical impairment, the Fourth Circuit affirmed the district court’s downward departure, pursuant to U.S.S.G. Section 5H1.4, stating that Moore’s severe physical limitations restricted her mobility and necessitated extensive and individualized medical care and, therefore, it was not an abuse of discretion to sentence Moore to home detention); and
182 • United States v. Maltese, 1993 WL 222350 (N.D.Ill. June 22, 1993) (Court granted defendant, age 62, downward departure pursuant to U.S.S.G. Sections 5H1.1 and 5H1.4, where defendant suffered from liver cancer, prognosis was poor, and defendant would likely not live more than one year).
The cases discussed above that have addressed medical departures support, by comparison, the conclusion that a downward departure, pursuant to Sections 5H1.1 and 5H1.4, is also warranted in the case of Mr. Seminerio. Mr. Seminerio can only hope that Your Honor considers his entire life, his motivations, his health and his circumstances, and fashions a sentence that punishes him in a way that he might spend at least some of the rest of his life with his family.
e. MR. SEMINERIO’S EXCEPTIONAL GOOD WORKS AND ACTS OF CHARITY IN HIS COMMUNITY.
As detailed earlier in this Memorandum, in addition to his duties and responsibilities during the more 50 years he served his community and the people of the State of New York, it would not be an exaggeration to say that not a day has gone by in Mr. Seminerio’s life where he has not done a good, unselfish deed for someone. Indeed, Mr. Seminerio’s entire adult life has been spent serving the public – both in his professional life and in his personal life – volunteering in his community; dedicating himself to helping other people less fortunate than himself; repeatedly engaging in selfless acts to assist others in their time of need; and constantly giving of himself in ways that far exceeded what would ordinarily be expected of a relative, friend, neighbor, citizen and even an elected official.
Accordingly, we respectfully submit that Mr. Seminerio’s exceptional good works and acts of charity in his community warrant an additional downward departure, pursuant to U.S.S.G. Section 5H1.11.
183 Indeed, the detailed testimonials, contained in the hundreds of letters written to Your Honor, demonstrate Mr. Seninerio’s extraordinary commitment to helping others in need, including and only by way of example:
• John Kotowski, Director of City Relations for the City University of New York, writes on behalf of Mr. Seminerio as someone who “has always been available and willing to assist others less fortunate and in need of support.” Mr. Kotowski first met Mr. Seminerio over 20 years ago while working for the Queens Outreach Program, which helps adolescents and teens cope with problems related to substance abuse. Mr. Kotowski is thankful for the support Mr. Seminerio gave to the program and how he often visited and acted as a role model for the program participants. Through his position at the City University of New York, Mr. Kotowski is also aware of Mr. Seminerio’s efforts to help young people achieve more through education. Mr. Kotowski concludes his letter by respectfully asking Your Honor, “ ... [P]lease take into consideration the many wonderful and altruistic deeds that Mr. Seminerio has been responsible for. I would ask that you weigh the overwhelmingly positive actions associated with this man’s life. His love of family and friends, his commitment to public service and the many lives that were blessed and touched by his good will.” (Exh. J, Tab 157)
• Jennie Knox writes on behalf of her former Assemblyman, Mr. Seminerio, “Whatever problem anyone would have, Tony would take the time to hear it and try to resolve it. (From our youth to senior citizens) Mr. Seminerio has donated buses for senior trips, donated and attended fund-raisers for Saint Rose’s Home and countless other events....You can tour the Richmond Hill area and see how much Mr. Seminerio has help[ed], such as Forest Park, roadway repairs, catch basins being cleaned etc. All you had to do was call his office and things would get done.” (Exh. J, Tab 154)
• Patricia Lavvas writes to express her appreciation for Mr. Seminerio, who “gratuitously volunteered” to help her son, John, obtain information regarding his admission to Queens College. (Exh. J, Tab 161)
• Doreen Connell writes to express her appreciation for Mr. Seminerio’s “guidance and encouragement” in finding the best possible high school for her daughter, Patricia, to attend. (Exh. J, Tab 70)
• William A. Riepe writes to express his appreciation to Mr. Seminerio, who was always “most attentive to the needs of the veterans and acted on their behalf whenever the opportunity arose.” (Exh. J, Tab 229)
184 • Kathleen Gould writes to express her appreciation for Mr. Seminerio’s efforts to help her get in touch with a Department of Education counselor when she was being denied graduate credits from a business college she had attended. (Exh. J, Tab 124)
• Marjorie Ehrlich writes to express her appreciation for Mr. Seminerio’s efforts in finding a vascular specialist and setting up an examination when her current doctors told her that she would have to have her leg amputated. The vascular specialist was able to save Ms. Ehrlich’s leg. (Exh. J, Tab 97)
• Joseph M. Ruggiere writes on behalf of his former Assemblyman, Mr. Seminerio, “My business is located in the district he represent[ed] in the State of New York. It is safe to say that I have known Anthony for over twenty-five [years]....I have known him to be a caring, thoughtful man very concerned with his neighborhood and the people who live and work here....His help over the years to the South Queens Boys & Girl’s club particularly and the youth of our community have always made him more than a politician and that’s why I call him friend.” (Exh. J, Tab 235)
• Pat Esposito writes to express his appreciation for Mr. Seminerio’s efforts in fighting “for community projects and help[ing] people locate affordable apartments in the neighborhood.” (Exh. J, Tab 100)
• Lois S. Sullivan writes to express her appreciation for Mr. Seminerio, who sent homemade trays of ravioli to Ms. Sullivan’s family when they were just starting out in the restaurant business and times were tough, and who provided emotional support and advice to Ms. Sullivan’s father when he needed to find a nursing home for her grandmother. (Exh. J, Tab 266)
• Robert and Rose Aurora write to express their appreciation for Mr. Seminerio’s efforts in helping to place their daughter (who was born with multiple, serious physical and mental disabilities) in the most appropriate children’s hospital, residential school and, ultimately, adult care facility for her needs. (Exh. J, Tab 25)
• Vincent Romeo writes to express his appreciation for Mr. Seminerio’s efforts in helping his daughter find a new job after having a metal cage inserted into her back and undergoing weeks of recovery and rehabilitation. (Exh. J, Tab 233)
• Tom Mastanduono writes to express his appreciation for Mr. Seminerio, who provided Mr. Mastanduono with much needed support and encouragement when he was opening his pharmacy, and invited him to
185 community health fairs and introduced him to people in the health care field. (Exh. J, Tab 181)
• Patricia Marshall writes to express her appreciation for Mr. Seminerio’s efforts in speaking to her insurance company on her behalf when her insurance company unfairly refused to honor her claim. (Exh. J, Tab 180)
• Tara M. Adams writes to express her appreciation for Mr. Seminerio’s efforts in helping her disabled brother get on social security, helping her father get into one of the best hospices in New York when he was dying of cancer and supporting her when grandfather passed away from cancer. (Exh. J, Tab 18)
• Joan Bachert writes to express her appreciation for Mr. Seminerio’s support of the One-Stop Richmond Hill Community Center, providing funding necessary to allow the community center to continue to offer its various educational programs and outreach services to the community. (Exh. J, Tab 27)
• Peter Cardella writes to express his appreciation for Mr. Seminerio’s efforts in providing grants to serve homebound seniors and seniors with special needs. (Exh. J, Tab 52)
• Thomas G. Hickey writes to express his appreciation for Mr. Seminerio’s consistent support of the Historic Commands of the American Revolution, especially his instrumental efforts in organizing the Remsen Day re- enactment event. (Exh. J, Tab 131)
• Michael V. Kaplen, Esq., writes to express his appreciation for Mr. Seminerio, who provided him with the inspiration, and subsequent support and counsel, he needed to pursue a career in law when he was young, “fatherless and search of direction.” (Exh. J, Tab 146)
• Frank A. Kotnik, Jr., writes to express his appreciation for Mr. Seminerio’s efforts in assisting the Glendale Civilian Observation Patrol with state grants to help the organization and to better ensure the safety of the community. (Exh. J, Tab 156)
• John Naja writes to express his appreciation for the “invaluable and re- assuring” advice and counsel Mr. Seminerio provided to him and his family, which enabled them to buy the house in which Mr. Naja had grown up. (Exh. J, Tab 199)
186 • Sandra Palma writes to express her gratitude for Mr. Seminerio’s guidance in the process of buying a home, and for the many accommodations he made for her, as his employee, when she was battling cancer. (Exh. J, Tab 208)
• Maureen Caulfield writes to express her gratitude to Mr. Seminerio, who offered financial assistance to her after her home was destroyed in a fire, and thereafter helped her deal with the process of obtaining Section 8 housing assistance. (Exh. J, Tab 57)
• Barry Sudiker writes to express his gratitude for Mr. Seminerio’s efforts in supporting the Crime Victims Rights Organization. (Exh. J, Tab 264)
• Margaret Polino writes to express her gratitude to Mr. Seminerio for giving her father “a reason to live when he was at the point of giving up on life” by asking her father to be an office “volunteer” after he had suffered a disabling stroke at the age of 58 and could no longer work. (Exh. J, Tab 214)
• Carol Speary writes to express her gratitude for Mr. Seminerio’s efforts in providing information and assistance to her neighbors to help them deal with the process of being evicted. (Exh. J, Tab 262)
• Simcha Waisman writes to express his gratitude for Mr. Seminerio’s “untiring” support of the One-Stop Richmond Hill Community Center and their many educational programs and efforts to assist the community. (Exh. J, Tab 276)
• Lawrence A. Faulstich writes to express his gratitude for Mr. Seminerio’s volunteer efforts on behalf of the local Boy Scout Troop, including, for example, Mr. Seminerio’s three driving trips back and forth between Queens and Suffolk County in a nighttime storm to ensure that all the scouts got home safely. (Exh. J, Tab 101)
• Sookhdeo Budha writes to express his gratitude for Mr. Seminerio’s many efforts in assisting his family, such as: arranging to have the garbage left by the previous residents of Mr. Budha’s home removed from his property; arranging to have Mr. Budha’s yard shoveled every winter; consistently offering to help with errands; and providing Mr. Budha with guidance and advice in securing the best possible education for his children. (Exh. J, Tab 45)
• Natanel and Julia Yusupov write to express their gratitude for Mr. Seminerio’s support, guidance and advice in helping Natanel earn a college degree when the Yusupovs were newly arrived immigrants, desperate and
187 without jobs, education or sufficient public assistance to survive. (Exh. J, Tab 288)
• Adelina Yusupova writes to express her gratitude for Mr. Seminerio’s efforts in providing her with information and encouragement to help her pursue a higher education and, ultimately, a Doctor of Pharmacy degree. (Exh. J, Tab 289)
• Steven Wong writes to express his gratitude for Mr. Seminerio’s generous offer to lend Mr. Wong money when his restaurant was destroyed in a fire. (Exh. J, Tab 282)
• Robert H. Wedinger writes to express his gratitude for Mr. Seminerio’s efforts in addressing the needs of both active and retired members of the Untied States Military and their families. (Exh. J, Tab 278)
• Antoinette DeMarco writes to express her gratitude for Mr. Seminerio’s generosity as a landlord – having charged her only $260 per month for the 25 years that she has lived in his home, even though he could rent the space for much more money. (Exh. J, Tab 81)
• Thomas C. Ferstler writes to express his gratitude for Mr. Seminerio’s generosity in welcoming Mr. Ferstler into his home and allowing his home to be a “refuge” for Mr. Ferstler when he was young and his parents were going through a difficult divorce. (Exh. J, Tab 105)
• Captain Richard P. Hayman writes to express his gratitude for Mr. Seminerio’s efforts in preventing the potential destruction of his home, the James Brown House (a designated City landmark), due to the construction of a water mane. (Exh. J, Tab 130)
• Jody Rickert writes to express her gratitude to Mr. Seminerio, whom she describes as her “Guarding Angel,” for giving her a job and giving her hope after she and her husband had lost their business and lost their home. (Exh. J, Tab 228)
• Virginia A. Daly, Principal of the Saint Aloysius School in Ridgewood, New York, wrote to thank Mr. Seminerio for his “kind and generous donation” to the Saint Aloysius School. (Exh. K, Tab 24)
• Frances Falzetta, Walkathon Committee Chairperson for the Glenridge Senior Citizen Multi-Service and Advisory Center, wrote to thank Mr.
188 Seminerio for his donation to the Glenridge Senior Citizen Multi-Service and Advisory Center’s Fourth Annual Walkathon. (Exh. K, Tab 25)
• Sandy Montalto, Journal Chairperson for the Peter Cardella Senior Citizen Center, wrote to thank Mr. Seminerio for his support and contribution to the Peter Cardella Senior Citizen Center. (Exh. K, Tab 26)
• Kate Mooney, Church of the Holy Child Jesus Blood Drive Coordinator, wrote on behalf of her parish and the Long Island Blood Services, to thank Mr. Seminerio for his monetary gift to their blood drive, which allowed her parish to offer a healthy breakfast to blood donors. (Exh. K, Tab 27)
• Frederick Beekman, Vice President of Ambulatory Care Services at Jamaica Hospital Medical Center, wrote to thank Mr. Seminerio for his “generous donation” of children’s toys to the Jamaica Hospital Medical Center. (Exh. K, Tab 28)
• Frances DeLuca, Principal of Our Lady of Perpetual Help School in South Ozone, wrote to thank Mr. Seminerio for donating New York Mets baseball tickets to the students of Our Lady of Perpetual Help School. (Exh. K, Tab 29)
• Mindy Gilbert, Parent Facilitator at the Cambridge School, P.S. 68 in Queens, wrote to thank Mr. Seminerio for his financial contribution toward the Cambridge School’s parent/volunteer recognition ceremony. (Exh. K, Tab 30)
• Eileen P. Metzing, Secretary for the St. Benedict Joseph Labre Conference, wrote to thank Mr. Seminerio for his generosity in donating to the St. Benedict Joseph Labre Conference. (Exh. K, Letter Tab 31)
• Charles G. Kzewski, Chairman of St. Margaret’s Boy Scout Troop 119, wrote on behalf of Boy Scout Troops Numbers 119, 106 and 427 to thank Mr. Seminerio for his generous donation which would be used to subsidize transportation for future Boy Scout trips. (Exh. K, Tab 32)
• Rosemary Heggers, Site Manager for the Richmond Hill Senior Center, wrote to thank Mr. Seminerio for his generosity in supplying a bus to enable the members of the Richmond Hill Senior Center to attend the Annual Senior Citizen Picnic in Sunken Meadow Park. (Exh. K, Tab 33)
• Elisabeth Hlawaty and Robert G. Sonnenberg, Treasurer and Music Director of the Sacred Music Chorale of Richmond Hill, wrote to thank Mr.
189 Seminerio for his donation to the 2006 concert season of the Sacred Music Chorale, which presents choral concerts with orchestra for the community. (Exh. K, Tab 34)
In addition to the hundreds of letters that have been written to Your Honor, which attest to
Mr. Seminerio’s exceptional good works and acts of charity in his community, Mr. Seminerio’s unwavering commitment to helping others and serving the needs of his constituents, his local community, the Corrections community, the public of the City of New York and the State of New
York has earned him many awards and honors over the last 30 years from organizations including, but not limited to:
• Correction Officers Benevolent Association, City of New York;
• Long Island Correction Association;
• Theresa Giordano Memorial Fund, Inc., Queens Chapter;
• Office of Catholic Education Human Life Office, Diocese of Brooklyn;
• Queens Soccer Club;
• New York State Supreme Court Officers Association;
• Crime Victims’ Political Platform;
• Forest Park Senior Citizens;
• Columbia Association of the Department of Correction, City of New York;
• The City University of New York;
• Forest Park Senior Citizens;
• The Police Benevolent Association, Metropolitan Transit Authority – Long Island Railroad Police;
• Richmond Hill Block Association;
190 • New York State Parole Officers Association;
• Community Mayors of New York State, Inc.;
• 102nd Precinct Community Council;
• Bridge and Tunnel Officers;
• New York City Housing Patrolmen’s Benevolent Association;
• New York State Court Officers Association;
• New York State Corrections Officers, Locale No. 2398 A.K.C.F.;
• Friends of the Legion;
• Ozone Park Soccer Club;
• National Council of Churches Association in Civil Service;
• Jamaica Hospital (Trustees and Administrative Staff);
• Wakefield Little League;
• The Ferrini Welfare League;
• Ozone Howard Little League;
• Court Officers Benevolent Association of Nassau County;
• New York Sheriff’s Association;
• New York State Federation of Police;
• Detectives Crime Clinics;
• New York State Association of Counties;
• New York State Deputies Association, Inc.;
• Metropolitan Police Conference;
• Concerned Women for America;
191 • Troy Police Benevolent Association;
• Woodhaven Residents Block Association;
• The Vic Palcic Summer Basketball Memorial;
• Wyckoff Heights Hospital;
• Kiwanis Club of Woodhaven;
• Suffolk County Police Conference;
• Detective’s Association, Inc.;
• The South Queens Boys and Girls Club, Inc.;
• The Greater Woodhaven Development Corporation;
• Detectives’ Endowment Association Police Department of the City of New York;
• Coalition of Italo-American Associations, Inc.;
• International Association of Firefighters;
• Community Violence Prevention Program;
• The Community of Woodhaven;
• The Woodhaven Residents’ Security Patrol;
• Suffolk County Detective Investigators;
• Police Benevolent Association;
• Battalion Chief Eligibles, Fire Department of New York;
• Ridgewood Bushwick Senior Citizens Council, Inc. – Respite Care Program;
• Richmond Hill South Civic Association;
• New York Honorary Fire Chiefs Association, Inc.;
192 • Queens Kiwanis Sports Association;
• Federazione Italo-Americana of Greater New York;
• The Conservative Party of New York State;
• Italian Charities of America;
• New York City Housing Police Department;
• New York State Correctional Superintendents Legislative Committee;
• The Federazione Italo-Americana Di Brooklyn and Queens, Inc.;
• New York Constitutional Freedoms;
• The Friends of the Middle Village Library;
• Queens County Council Veterans of Foreign Wars;
• The Greater Ridgewood Youth Council;
• Flushing Hospital Medical Center;
• A Way Out, Inc.;
• Columbia Association;
• Fiorello La Gaurdia Good Government Committee, Inc.;
• New York State Conference of Italian American State Legislators;
• 104th Precinct Community Council;
• Glendale Civilian Observation Patrol (GCOP);
• New York City Department of Correction;
• Comunita Italo-Americana;
• National Council of Columbia Association in Civil Service;
193 • The Bone Marrow Bowl-A-Thon;
• Queens County Conference Knights of Columbus; and
• City of New York Parks & Recreation.
Although acts of charity “and similar good works are not ordinarily relevant in determining whether a departure is warranted,” U.S.S.G. Section 5H1.11, where such acts have been
“exceptional” – as in the case of Mr. Seminerio – a downward departure, or non-Guidelines sentence is warranted. Cases decided in both the pre-Booker and post-Booker era, in which good deeds have been deemed exceptional enough to merit a downward departure, further demonstrate that Mr.
Seminerio’s extraordinary commitment to helping others through his extensive volunteer efforts and unselfish acts qualify as “exceptional,” warranting a downward departure under the Guidelines.
For example, in United States v. Canova, 412 F.3d 331, 358-59 (2d Cir. 2005), the Second
Circuit remanded the case for re-sentencing, but rejected the Government’s argument that the district court had abused its discretion in granting a downward departure for the “exceptional degree” of
Canova’s public service and good works. Id., quoting Koon v. United States, 518 U.S. 81, 96
(1996), and citing U.S.S.G. Section 5H1.11; cf. United States v. Fishman, 2009 WL 1940742, *5
(S.D.N.Y. June 29, 2009) (Maccero, J.) (recognizing holding in Koon and Canova, supra). Canova’s good deeds included: volunteering in college for the Marine Corps; serving as a volunteer firefighter more than 20 years ago; and, more recently, acting as a “Good Samaritan” by administering CPR to an elderly man and a priest, and assisting a woman who fainted on a public street. Id.; see also
United States v. Canova, 485 F.3d 674, 678-79 (2d Cir. 2007) (remanding the case again for re- sentencing, and again rejecting the Government’s claim that the district court abused its discretion in granting a downward departure for exceptional public service and good works).
194 In United States v. Rioux, 97 F.3d 648, 663 (2d Cir. 1996), the Second Circuit concluded that it was not an abuse of discretion for the district court to conclude that Rioux’ participation in fund- raising efforts, particularly for the Kidney Foundation, contributed to a downward departure.
Similarly, in United States v. Somerstein, 20 F. Supp.2d 454, 463 (E.D.N.Y. 1998) (Spatt, J.), the district court granted a departure based, in part, on the defendant’s numerous acts of charity such as: catering fund-raising events at no charge or discounted prices; donating leftover food to soup kitchens and shelters; and volunteering for charitable organizations.36
A final observation is appropriate in this regard. Concedely, courts are somewhat reluctant to grant downward departures based solely on the charitable and civic good deeds of “affluent or professionally successful defendants” because – it has become somewhat usual and ordinary for a white collar criminal defendants to engage in substantial charitable efforts; and “[m]ore is expected of [those] who enjoy sufficient income and community status[, as] ... they have the opportunities to engage in charitable and benevolent activities” – thereby making such efforts not sufficiently unusual to warrant a downward departure. United States v. Barbera, 2005 WL 2709112, *12 (S.D.N.Y. Oct.
21, 2005) (Sweet, J); United State v. Cooper, 394 F.3d 172, 176-77 (3d Cir. 2005) (citations and quotation marks omitted).37
36See also United States v. Ocampo, 2008 WL 501295 (2d Cir. Feb. 25, 2008) (affirming district court’s sentence and, without discussing specific facts, approved two-year sentencing reduction in consideration of the defendant’s “charitable activities”); United States v. Adler, 52 F.3d 20, 22 (2d Cir. 1995) (affirming district court’s sentence and, without discussing specific facts, approved departure where the record indicated “unusual family circumstances and a record of community service”); United States v. Woods, 159 F.3d 1132, 1136 (8th Cir. 1998) (upholding a downward departure for defendant’s charitable activities, including bringing two troubled young women into her home).
37See also United States v. McClatchey, 316 F.3d 1122, 1135 (10th Cir. 2003) (“excellent (continued...)
195 For example, in Cooper, the Third Circuit affirmed the sentencing court’s four-level downward departure based upon Cooper’s charitable donations and activities, including running a youth football team, mentoring his players and assisting players with their educational needs.
Cooper was sentenced to six months of house arrest and another 30 months of probation. Relying on 24 letters requesting leniency in light of Cooper’s charitable donations and activities, the sentencing court noted that Cooper’s “community and charitable activities have been truly exceptional, and that’s just not the amount of money he spent on the things, but also the amount of personal effort, and work, and help that he has given to so many people.” Id. at 175.
In the Cooper case, the Third Circuit affirmed the decision of the sentencing court and explained, with particular relevance to the case of Mr. Seminerio:
“[Cooper’s acts were] not the detached acts of charity one might ordinarily expect from a wealthy business executive. They [were,] in a very real way, hands-on personal sacrifices, which have had a dramatic and personal impact on the lives of others....[In addition,] when compared with a similarly-situated defendant who received a downward departure based on good works, Cooper fares well.” Id. at 177 (emphasis added; citations omitted).
Similarly, in United States v. Serafini, 233 F.3d 758, 773-75, 776 (3d Cir. 2000), the Third
Circuit concluded that it was not an abuse of discretion and affirmed the sentencing court’s downward departure for exceptional community work where the defendant-politician, Serafini, was convicted of, inter alia, violating election finance laws. Serafini’s exceptional community work was
37(...continued) character references are not out of the ordinary for an executive who commits white-collar crime; one would be surprised to see a person rise to an elevated position in business if people did not think highly of him or her”); United States v. Morkin, 133 F.3d 628, 630 (8th Cir. 1998) (Eighth Circuit reversed departure for high-profile businessman who worked with local businesses, assisted young people with employment, and fundraised for charities – where good works were neither “exceptional nor out of the ordinary for someone of his income and preeminence”) (citations omitted).
196 confirmed in several letters submitted to the sentencing court. The sentencing court found that the facts presented to the court depicted Serafini “as an exceptionally giving person,” who “extended himself ... in unique and meaningful ways during times of serious need,” and whose community and charitable activities were “exceptional” when compared to what an average person in Serafini’s circumstances would have done.
In the Serafini case, the Third Circuit affirmed the decision of the sentencing court and explained, with even greater relevance to the case of Mr. Seminerio:
“The District Court concluded that the letters and testimony demonstrated that Serafini had distinguished himself, ‘not by the amount of money [he has] given, but by the amount of time that [he has] devoted.’...The District Court found that these efforts made Serafini's community and charitable activities ‘exceptional’ when compared to what an average person in Serafini’s circumstances would have done:
Those weren’t acts of just giving money, they were acts of giving time, of giving one’s self. That distinguishes Mr. Serafini, I think, from the ordinary public servant, from the ordinary elected official, and I had ample testimony, today, that says that Mr. Serafini distinguishes himself, that these are acts not just undertaken to assure his re-election, but are taken because of the type of person he is....” Id. at 775 (internal citations omitted).
We respectfully submit, that Mr. Seminerio’s exceptional good deeds far exceeded any obligation he had as an elected official, and certainly have never been the result of a high-level business position, exceptional wealth or extraordinary resources – which distinguish Mr. Seminerio’s case from other cases in which courts have denied a downward departure for ordinary and typical good deeds. Accordingly, if the charitable efforts described in the above-cited cases warranted a downward departure and consideration in imposing a non-Guidelines sentence, then certainly Mr.
197 Seminerio’s exceptional commitment to helping others through his extensive volunteer efforts and unselfish acts of kindness also provide a sound basis to impose a sentence below the Guidelines range.
Accordingly, we respectfully submit that Mr. Seminerio should benefit from the extraordinary life he has led, which is so antithetical to, and out of character with, the aberrational conduct which brings him before this Court.
3. A SENTENCE OF HOME DETENTION WOULD BE SUFFICIENT AND NOT GREATER THAN NECESSARY, TO ENSURE THAT THE PURPOSES OF SENTENCING HAVE BEEN SATISFIED.
Earlier (see pp. 127-28, supra), we also observed that recent Supreme Court decisions have infused a degree of flexibility to the sentencing process which requires courts to analyze the sentencing factors set forth in 18 U.S.C. Section 3553(a). Thus, although the Guidelines are one of the factors to be considered in imposing a sentence, a sentencing court should ensure that the purposes of sentencing – i.e., retribution, deterrence, incapacitation and rehabilitation – have been satisfied. Furthermore, the sentencing court should be mindful that the overarching purpose of sentencing requires that courts impose a sentence “sufficient, but not greater than necessary” to satisfy these four purposes.
We respectfully submit that the purposes of retribution, deterrence, incapacitation and rehabilitation would be fully satisfied with a term of home detention for Mr. Seminerio. Among other things:
• As to retribution (i.e., punishment), Mr. Seminerio has surely already been punished and paid a high price. He has resigned from the New York State Assembly. He has been branded a criminal a felon in front of his family, his community, his constituents and colleagues. Each day that he faces his wife, children and
198 grandchildren, he suffers the very real pain of knowing, in his own mind, that he will never be held in the same regard as he was before. We respectfully submit that these very real factors, along with the home detention, constitute a fair measure of retribution for this aberrant episode in Mr. Seminerio’s life.
• As to deterrence, the public has seen the consequences of every aspect of Mr. Seminerio’s very public criminal case. As to those who would even begin to contemplate an act of political misconduct, the case of Mr. Seminerio would present those people with classic question: “Do you really want to lose your job, lose your future, become a federal felon, etc ....” The serious consequences of political misconduct do not become less compelling because someone might say: “Well, Mr. Seminerio had his sentence reduced from some time in prison and to home detention.....” We respectfully submit that any rational person contemplating committing political-related misconduct will be deterred because of the havoc it has wreaked on Mr. Seminerio’s life.
• As to incapacitation, surely no one could, has, or would argue that society needs to have Mr. Seminerio incapacitated in prison in order to protect the public. The criminal conduct to which Mr. Seminerio pleaded guilty represents an extremely aberrant and atypical episode during the otherwise unblemished 74 years of his life and nearly 50 years of dedicated public service.
• Finally, as to rehabilitation, the process of Mr. Seminerio’s prosecution has imbedded into the fiber of his character the life- lesson that – not matter how angry you become, no matter how wrong you think someone else has acted – there is never a justification for breaking the law. We respectfully submit that a prison sentence will not accomplish any further rehabilitation for Mr. Seminerio.
As Southern District Court Judge Robert W. Sweet explained, “[i]n particular, section
3553(a)(2)(C) requires the court to consider the need to protect the public from future crimes of the defendant.” United States v. Carmona-Rodriguez, 2005 WL 840464, *4 (S.D.N.Y. Apr. 11, 2005).
Indeed, even before the Guidelines became “advisory,” the Honorable Jack B. Weinstein aptly observed:
199 “Despite the rigidity of the Guidelines, a sentencing court must still independently judge each criminal before it, while fully protecting the community. This is never a completely mechanistic or facile process. At every sentencing, the trial judge must:
‘Struggle with assessing whether an offender is beginning or ending a criminal career, appears to be dangerous or harmless ... or ... will not offend again.’”
United States v. Gigante, 989 F. Supp. 436, 440 (E.D.N.Y. 1998) (citations omitted); see also United
States v. Barbato, 2002 WL 31556376, *5 (S.D.N.Y. Nov 15, 2002) (Kram, J.), citing Gigante, supra; United States v. Bellomo, 2002 WL 1267996, *1 (E.D.N.Y. Apr 10, 2002) (Glasser, J.), citing
Gigante, supra; United States v. Blarek, 7 F. Supp.2d 192, 212 (E.D.N.Y. 1998) (Weinstein, J.), citing Gigante, supra.
In addressing recidivism-related concerns and the question of whether an offender is beginning or ending a criminal career, sentencing courts are permitted to take into account a defendant’s age. Gigante, 989 F. Supp. at 443; U.S.S.G. §§ 5H1.1 and 5H1.4; see also Gall, 128
S.Ct. at 600-01 (quoting sentencing court, stating that “[w]hile age does not excuse behavior, a sentencing court should account for age when inquiring into the conduct of a defendant”; citations omitted). Indeed, “[a]ge may be a reason to impose a sentence below the applicable guideline range when the defendant is elderly and infirm and where a form of punishment such as home detention might be equally efficient as and less costly than incarceration.” U.S.S.G. § 5H1.1.
Thus, District Courts in the Second Circuit, as well as other courts, have declined to impose
Guidelines sentences on some defendants who were over the age of forty at the time of sentencing based upon: (1) the fact that older defendants exhibit lower rates of recidivism in comparison to younger defendants; (2) the factors set forth in 18 U.S.C. Section 3553(a), including the need to
200 protect the public from future crimes; and (3) the sentencing mandate of Section 3553(a) to impose a sentence “sufficient, but not greater than necessary,” to comply with the four purposes of sentencing, i.e., retribution, deterrence, incapacitation and rehabilitation.
For example, in the following cases, sentencing courts have specifically considered the likelihood of recidivism in fashioning an appropriate sentence:
• United States v. Ruiz, 2006 WL 1311982, *4 (S.D.N.Y. 2006) (Sweet, J.) (non-Guidelines sentence imposed on 46-year-old defendant based, in part, on lower recidivism rates for older defendants, noting that recidivism rate for defendants who are between the ages of 31 and 40 is nearly double the recidivism rate for defendants between the ages of 41 and 50), citing U.S. Sentencing Comm., “Measuring Recidivism: The Criminal History Computation Of The Federal Sentencing Guidelines,” at 28 (2004) (www. ussc.gov/publicat/Recidivism_General.pdf, hereinafter “2004 U.S. Sentencing Comm. Recidivism Rates”);
• United States v. Carmona-Rodriguez, 2005 WL 840464, **4-5 (S.D.N.Y. Apr. 11, 2005) (non-Guidelines sentence imposed on 54-year-old defendant based, in part, on lower recidivism rates for older defendants, and the fact that defendant Carmona-Rodriguez suffered serious medical problems such as high blood pressure, diabetes, anxiety and depression), citing 2004 U.S. Sentencing Comm. Recidivism Rates;
• Simon v. United States, 361 F. Supp.2d 35, 40, 42, 48 (E.D.N.Y. 2005) (Swifton, Sr. J.) (non-Guidelines sentence imposed on 43-year-old defendant based, in part, on lower recidivism rates for older defendants, and because defendant Simon suffered medical problems such as glaucoma, colitis and abdomen and colon related problems); and
• United States v. Nellum, 2005 WL 300073, **3-4 (N.D.Ind. Feb. 3, 2005) (non-Guidelines sentence imposed on 57-year-old defendant based, in part, on lower recidivism rates for older defendants, and defendant Nellum’s serious medical problems such as high blood pressure, a blocked prostate, and having suffered a heart attack), citing 2004 U.S. Sentencing Comm. Recidivism Rates.38
38Cf. United States v. Ferranti, 928 F. Supp. 206, 216 (E.D.N.Y. 1996) (Weinstein, Sr. J.) (defendant’s life expectancy taken into account in determining appropriate sentence to impose where (continued...)
201 We respectfully submit that the purposes of retribution, deterrence, incapacitation and rehabilitation would be fully satisfied with a term of home detention for Mr. Seminerio based upon the nature and circumstances of Mr. Seminerio’s offense and his personal background, his advanced age and his health.
E. THE GOVERNMENT’S LOSS CALCULATION IS ILL-CONCEIVED AND IS NOT SUPPORTED BY THE LAW OR THE EVIDENCE.
1. INTRODUCTION.
In its June 24, 2009 Pimentel Letter (Exh. D) and September 24, 2009 Loss Memorandum
(Exh. E), the Government: (1) sets forth its position with respect to the “loss amount,” pursuant to
Section 2C1.1(b)(2) of the Guidelines, attributable to the crime to which Mr. Seminerio pleaded guilty; and (2) summarizes the evidence the Government expects to present at the October 20, 2009
Fatico hearing in this case. Relying on a mosaic of charged conduct and uncharged conduct, the
Government has calculated Mr. Seminerio’s adjusted offense level to be 33, which is principally
38(...continued) sentence was required to be less than life imprisonment); United States v. Moy, 1995 WL 311441, *29 (N.D.Ill. 1995) (where defendant’s “life would be both threatened and shortened if he was incarcerated for” the period suggested by the Guidelines, “a more limited period of incarceration would both serve all imprisonment goals and be less costly and more efficient.”); but see United States v. Trupin, 475 F.3d 71, 75-76 (2d Cir. 2007) (in imposing non-Guidelines sentence, District Court [McKenna, J.] had placed “unjustified reliance” on the defendant’s age and family circumstances, explaining that defendant’s presence to care for his wife was not sufficiently unique; and concluding that “[a]ging clearly has not increased [defendant’s] respect for the law” because, notwithstanding that recidivism rates decline with age, defendant had “proven himself to be the exception” insofar as he was 54 years old when he committed the offenses; he is now 69 years old and in good health; he refused to complete a financial affidavit for the Probation Department; and at sentencing, he continued to profess his innocence). The facts of the Trupin case are not analogous to the facts of Mr. Seminerio’s case.
202 guided by the Government’s loss calculation of $2,163,232, pursuant to U.S.S.G. Sections 1B1.3,
2B1.1 and 2C1.1(b)(2).39
For the reasons more fully set forth below, we respectfully submit that the Government’s
Guidelines calculation – driven by the Government’s unrealistic theory of prosecution – is not supported by credible evidence and cannot be squared with the now-historical facts underlying this case. We respectfully submit that the Government has not met its burden40 with respect to its proffered “loss” calculation; and at the October 20, 2009 Fatico hearing before this Court, the defense stands ready to further address all factual issues relevant to sentencing, including, but not limited to, rebutting the factual claims set forth in the Government’s Loss Memorandum. See United
States v. Ware, 2009 WL 102215 (S.D.N.Y. Jan. 14, 2009) (affording the defendant an opportunity to rebut the Government’s sentencing-related allegations), citing and quoting United States v. Guang,
511 F.3d 110, 122 (2d Cir. 2007); United States v. Phillips, 431 F.3d 86, 93 (2d Cir. 2005) (same).
39See generally United States v. Adekoya, 2007 WL 186659, *1 (2d Cir. 2007) (affirming the District Court’s determination that the conduct was “relevant” to sentencing pursuant to U.S.S.G. Section 1B1.3, explaining that the loss was properly included in the Guidelines’ loss calculation where the loss was part of the “same course of conduct” because of the similarity, regularity and timing of the schemes; citation omitted); Contino v. United States, 2007 WL 4591999, *11 (S.D.N.Y. Dec. 28, 2007) (Buchwald, J.) (“loss” under the Sentencing Guidelines is a broader concept, and encompasses all relevant conduct; citations omitted).
40See generally United States v. Legros, 529 F.3d 470 (2d Cir. 2008) (applying preponderance of the evidence standard); United States v. Fermin, 2008 WL 1984261 (2d Cir. May 6, 2008) (same); United States v. Brennan, 395 F.3d 59 (2d Cir. 2005) (same; citation omitted).
203 2. THE GOVERNMENT HAS UNFAIRLY AND ERRONEOUSLY ATTEMPTED TO REMOVE MR. SEMINERIO’S CASE FROM THE “HEARTLAND” OF THE ADVISORY GUIDELINES APPLICABLE TO NON-BRIBERY HONEST SERVICES FRAUD CASES.
We respectfully submit that the Government has unfairly and erroneously attempted to removed Mr. Seminerio’s case from the “heartland” of the advisory Guidelines applicable to non- bribery Honest Services Fraud cases involving the failure to disclose a conflict of interest. The only crime with which the Government charged Mr. Seminerio is 18 U.S.C. Sections 1341 and 1346,
Honest Services Fraud – which is a peculiar creature. Courts have recognized that the concept of
“honest services” – nowhere defined by the statute – is less than a model of clarity. See United
States v. Giffen, 326 F. Supp.2d 497, 504-06 (S.D.N.Y. 2004) (Pauley, J.); Sorich v. United States,
No. 08410, 555 U.S. (Feb. 23, 2009) (Scalia, J., dissenting from denial of certiorari).41
Section 1346’s intent to criminalize Honest Services Fraud is not disputed by the defense – but in the decades since Congress adopted Section 1346, courts have continually struggled to understand what that statute actually means – a very real problem recently highlighted by Justice
Scalia. See Sorich, slip op. at 1-6 (Scalia, J., dissenting from denial of certiorari) (noting “the conflicts among the Circuits; the longstanding confusion of the scope of [18 U.S.C. § 1346]; and the serious due process and federalism interests affected by the expansion of criminal liability” under the statute). Understanding the scope and intended reach of Section 1346 presents an even greater
41In fact, earlier this summer, the United States Supreme Court agreed to review the very relevant question of “whether, to convict a state official for depriving the public of its right to the defendant’s honest services through the non-disclosure of material information, in violation of the mail-fraud statute (18 U.S.C. §§ 1341 and 1346), the government must prove that the defendant violated a disclosure duty imposed by state law.” Weyhrauch v. United States, 548 F.3d 1237 (9th Cir. 2008), granting cert., in part, by 129 S.Ct. 2863 (Jun. 29, 2009).
204 challenge where, in the case of Mr. Seminerio, the Government seeks to sculpt the charged crime of Honest Services Fraud in its Loss Memorandum through the allegations of uncharged acts that, supposedly, are relevant conduct to the sole Charge in the Indictment – Honest Services Fraud.
Taken on its face, the concept of Honest Services Fraud is virtually limitless, embracing conduct far removed from the bribery-type offenses that form the doctrine’s “core.” See United
States v. Urciuoli, 513 F.3d 290, 294 (1st Cir. 2005) (identifying bribery as a core example of Honest
Services Fraud). However, almost any act by a public or private officer involving a trace of dishonesty, a remote elhement of self-interest, or a mistake made in the course of an officer performing his or her official duties can be re-characterized as a failure to live up to the fiduciary obligation to provide “honest services”:
“If the ‘honest services’ theory – broadly stated, that officeholders and employees owe a duty to act only in the best interests of their constituents and employers – is taken seriously and carried to its logical conclusion, presumably the statute also renders criminal a state legislator’s decision to vote for a bill because he expects it will curry favor with a small minority essential to his reelection; a mayor’s attempt to use the prestige of his office to obtain a restaurant table without a reservation; a public employee’s recommendation of his incompetent friend for a public contract; and any self-dealing by a corporate officer. Indeed, it would seemingly cover a salaried employee’s phoning in sick to go to a ball game....Quite a potent federal prosecutorial tool.”
Sorich, slip op. at 2-3 (Scalia, J., dissenting from denial of certiorari); see also United States v.
Thompson, 484 F.3d 877, 882 (7th Cir. 2007) (Easterbrook, J.) (“When the Supreme Court reverses a court of appeals, it is apt to say ... that public officials have failed to implement the law correctly.
Does it follow that judges who are reversed have deprived the United States of their honest services and thus committed mail fraud?”).
205 Indeed, every New York citizen, registered voter, public employee, not-for-profit organization, etc., has “interests” before the New York State Legislature. If the Honest Services
Fraud theory is as all-encompassing as the Government’s theory of prosecution suggests, then every private transaction by a New York State legislator poses a potential conflict requiring disclosure or the risk of an Honest Services Fraud prosecution.42
Garden variety fraudulent conduct, such as securities fraud and embezzlement, involves property – falling under the typical rubric of the fraud statutes. But Section 1346’s “intangible right of honest services” is not normally measurable, because no gain or loss is necessary except the loss of trust. Indeed, money is not the measure here, where there is no credible evidence of “bribes for votes” or “cash for favors.” Nonetheless, we briefly address below the Government’s ill-conceived
Guidelines loss calculation, which has the effect of removing Mr. Seminerio’s case from the
“heartland” of non-bribery Honest Services Fraud cases involving the failure to disclose a conflict of interest.
The Third Circuit has observed, with particular relevance to the Government’s strained and unrealistic theory of prosecution in the case of Mr. Seminerio:
42See United States v. Kincaid-Chauncey, 556 F.3d 923, 941-42 (9th Cir. 2009) (“The political system functions because lobbyists and others are able to persuade elected officials of the wisdom or error of policy proposals. We echo the admonition that ‘[s]uch endeavors ... are protected by the right “to petition the Government for a redress of grievance[s]” guaranteed by the First Amendment of the United States Constitution.’ Attempts to persuade or mere favoritism, evidenced by a public official’s willingness to take a lobbyist’s telephone call or give a lobbyist greater access to his appointment schedule, are not sufficient to demonstrate either the lobbyist’s or the public official’s intent to deprive the public of honest services.”), citing, inter alia, United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404-06 (1999) (acknowledging that there are some noncriminal gifts given to public officials in order “to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future”).
206 “The most obvious form of honest services fraud is outright bribery of a public official. But because it is often difficult to prove bribery directly, courts have recognized a second form of honest services fraud, involving the failure by a public official to disclose a conflict of interest. United States v. Antico, 275 F.3d 245, 262-63 (3d Cir. 2001). The danger of the second form of honest services fraud [i.e., failure to disclose a conflict of interest] is that it may be overly broad: minor conflicts of interest that an elected official cannot help but encounter could conceivably subject the official to criminal liability for honest services fraud.”
United States v. Carbo, 572 F.3d 112, 115 (3d Cir. 2009) (emphasis added), citing United States v.
Kincaid-Chauncey, 556 F.3d 923, 940 (9th Cir. 2009); United States v. Bloom, 149 F.3d 649, 654
(7th Cir. 1998).
The “danger” described in the Carbo case is, in fact, the very path the Government takes, through its unrealistic and strained view of the facts – attempting to paint Mr. Seminerio’s case as a typical “cash for favors” case, which falls under 18 U.S.S.G. Section 2C1.1, governing Honest
Services Fraud involving bribery. (See Exh. E, Gov. Memo., pp. 1-3, 5; Exh. B, Indictment.)
Indeed, the gravamen of Mr. Seminerio’s case is that, on a single occasion, in violation of N.Y.
Public Officers Law Section 74(2), he deprived the people of the State of New York of his honest services by advocating in favor of and promoting the interests of Jamaica Hospital, without disclosing that he had a conflict of interest by virtue of his business-consulting relationship with
Jamaica Hospital. The criminal conduct committed by Mr. Seminerio is expressly included within the intended reach of U.S.S.G. Section 2C1.3 – “Conflict of Interest” offenses.
The Government’s strained theory of prosecution in this case is underscored by the complete lack of evidence – typically present in an Honest Services Fraud prosecution – establishing that Mr.
Seminerio took or solicited a bribe or an illegal gratuity, took kickbacks, engaged in threats or
207 extortion. The Indictment charged Mr. Seminerio with Honest Services Fraud based upon the unrealistic theory that, since 1998, Mr. Seminerio was corrupt at every turn and in virtually everything he did; and that Mr. Seminerio engaged in a decade-long corrupt scheme of “selling his
[political] office.” (See Exh. E, Gov. Memo., pp. 2-3; Exh. B, Indictment.) However, the
Government’s unrealistic theory, disregards the very real likelihood that “[n]ot every gift, favor or contribution to a government or political official constitutes bribery. It is well-accepted that bribery occurs only if the gift is coupled with a particular intent.” United States v. Harvey, 532 F.3d 326,
335 (4th Cir. 2008), quoting United States v. Arthur, 544 F.2d 730, 734 (4th Cir. 1976); see also
Thompson, 484 F.3d at 882 (“[N]o one really thinks that § 1346 treats all legal errors by public employees as criminal”); United States v. Welch, 327 F.3d 1081, 1107 (10th Cir. 2003) (Section
1346 is “not violated by every breach of contract, breach of duty, conflict of interest, or misstatement made in the course of dealing”).
In fact, “State legislators often have careers and businesses beyond their roles as a state official. Such legislators are not guilty of honest services mail fraud just because they engage in business with a company that may be involved in the legislative process.” United States v. Walker,
490 F.3d 1282, 1298 n.17 (11th Cir. 2007). Notwithstanding the Government’s claims to the contrary, Mr. Seminerio did, in fact, provide real consulting services to real clients, who had real needs. As we have already demonstrated: Mr. Seminerio had a wealth of relevant prior experience in the business areas where he provided consulting services; Mr. Seminerio knew he was not allowed to perform consulting services in connection with any New York State matter; Mr. Seminerio knew the rules and for twelve years, with one and only one exception, he lived by those rules.
208 We respectfully submit that the Government’s extraordinarily strained view of the facts is not supported by credible evidence and cannot be squared with the now-historical facts underlying this case. The Government’s theory of prosecution has, as a result, inappropriately removed the case of Mr. Seminerio from the “heartland” of non-bribery Honest Services Fraud cases involving the failure to disclose a conflict of interest, resulting in the Government’s unreasonable Guidelines calculation – and which advisory Guidelines range was not intended in a case such as Mr.
Seminerio’s.
As Judge Rakoff aptly observed, with particular relevance to the Government’s unreasonable
Guidelines calculation in the case of Mr. Seminerio:
“What this exposed, more broadly, was the utter travesty of justice that sometimes results from the guidelines’ fetish with abstract arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense....To put this matter in broad perspective, it is obvious that sentencing is the most sensitive, and difficult, task that any judge is called upon to undertake. Where the Sentencing Guidelines provide reasonable guidance, they are of considerable help to any judge in fashioning a sentence that is fair, just, and reasonable. But where, as here, the calculations under the guidelines have so run amok that they are patently absurd on their face, a Court is forced to place greater reliance on the more general considerations set forth in section 3553(a), as carefully applied to the particular circumstances of the case and of the human being who will bear the consequences.”
United States v. Adelson, 441 F. Supp.2d 506, 512-15 (S.D.N.Y. 2006) (Rakoff, J.); see also United
States v. Parris, 573 F. Supp.2d 744, 751 (E.D.N.Y. 2008) (Block, J.) (“ ... [I]t is difficult for a sentencing judge to place much stock in a guidelines range that does not provide realistic guidance.
My search for more relevant guidance, therefore, had to proceed in other directions, although I would
209 have much preferred a sensible guidelines range to give me some semblance of real guidance.”), quoting and citing Adelson, supra.
We respectfully submit that the Government, in its Loss Memorandum, has attempted to apply its strained and unrealistic view of the facts in Mr. Seminerio’s case to its calculation of Mr.
Seminerio’s adjusted offense level – which is principally guided by the Government’s flawed loss calculation – and corresponding advisory sentencing range, pursuant to the Guidelines. However, the actual and only crime that Mr. Seminerio committed (i.e., his failure to disclose on a single occasion his conflict of interest) bears no resemblance to the bribery-type offenses that courts have considered to be the “core misconduct” criminalized by Section 1346.
Accordingly, we submit that Government has unfairly and erroneously attempted to remove
Mr. Seminerio’s case from the “heartland” of the advisory Guidelines applicable to non-bribery
Honest Services Fraud cases involving the failure to disclose a conflict of interest.
3. THIS COURT DOES NOT NEED TO ULTIMATELY DETERMINE THE LOSS AMOUNT IN THE CASE OF MR. SEMINERIO.
As a preliminary matter, this Court does not need to ultimately determine the loss amount in the case of Mr. Seminerio. Although the Second Circuit has explained that advisory Guidelines are an important consideration for a sentencing court (see Rattoballi, 452 F.2d 132-33), which will usually require a Guidelines calculation (see Crosby, 397 F.3d at 111), the Court in the Crosby case also stated, with particular relevance here, that such a Guidelines loss calculation will not always be required:
“Now that the duty to apply the applicable Guidelines range is not mandatory, situations may arise where either of two Guidelines ranges, whether or not adjacent, is applicable, but the sentencing
210 judge, having complied with section 3553(a), makes a decision to impose a non-Guidelines sentence, regardless of which of the two ranges applies. This leeway should be useful to sentencing judges in some cases to avoid the need to resolve all of the factual issues necessary to make precise determinations of some complicated matters, for example, determination of monetary loss. Similarly, close questions may sometimes arise as to the precise meaning or application of a policy statement authorizing a departure, and a judge who has considered policy statements concerning departures need not definitively resolve such questions if the judge has fairly decided to impose a non-Guidelines sentence.”
Crosby, 397 F.3d at 112.
More recently, the Second Circuit confirmed that a Guidelines loss calculation will not always be required:
“Given ... ambiguities [with respect to loss amounts] and the contradictory positions the government took at trial and at sentencing, we believe the judge overlooked another permissible approach under our post-Booker jurisprudence. In United States v. Crosby, 397 F.3d 103, 112 (2d Cir. 2005), we stated that ‘precise calculation of the applicable Guidelines range may not be necessary [in making a sentencing determination] .... [S]ituations may arise where either of two Guidelines ranges, whether or not adjacent, is applicable, but the sentencing judge, having complied with section 3553(a), makes a decision to impose a non-Guidelines sentence, regardless of which of the two ranges applies.’ ‘This leeway,’ we wrote, ‘should be useful to sentencing judges in some cases to avoid the need to resolve all of the factual issues necessary to make precise determinations of some complicated matters, for example, determination of monetary loss.’”
United States v. Dhafir, 577 F.3d 411, 2009 WL 2500127 (2d Cir. Aug. 18, 2009), citing United
States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (stating that omission of the Guidelines calculation may sometimes be justified, citing Crosby, supra), and Cavera, 550 F.3d at 200 n.4
(Raggi, J., concurring) (explicitly reaffirming approach taken in Crosby, supra).
211 Mr. Seminerio’s case presents precisely the circumstances identified by the Second Circuit in Crosby. As we have demonstrated in this Memorandum, the aberrant and isolated nature of Mr.
Seminerio’s criminal conduct and the extraordinary set of mitigating circumstances in this case have been lost on the Government, resulting in a sharp disagreement between the Government and the defense with respect to the advisory Guidelines calculation in this case – due in large part to the parties’ disparate views of the loss calculation. The Government has calculated the adjusted offense level to be 33 based upon a loss figure of $2,163,232; and the defense submits that the correct adjusted offense level is 4, where there is no loss calculation pursuant to Section 2C1.3.
This Court, however, need not engage in a granular analysis of the loss calculation, because, as explained earlier, we respectfully submit that the case of Mr. Seminerio warrants the application of a non-Guidelines sentence regardless of the resolution of the loss amount issue based upon the factors set forth in 18 U.S.C. Section 3553 and the totality of circumstances of this case, including the nature of Mr. Seminerio’s offense and the history and characteristics of his entire life; and a sentence of home detention is “sufficient, but not greater than necessary” to comply with the four purposes of sentencing set forth in Section 3553(a)(2) (i.e., retribution, deterrence, incapacitation and rehabilitation).
If this Court does attempt to decipher the loss amount in this case, the burden is on the
Government to prove the loss figure. We address below the Government’s loss calculation, and we respectfully submit that the Government has not met its burden with respect to proving any loss amount in the case of Mr. Seminerio. The defense stands ready to further address at the October 20,
2009 Fatico hearing all relevant sentencing factors, including, but not limited to, the factual claims set forth in the Government’s Loss Memorandum.
212 4. THE GOVERNMENT’S STRAINED AND UNREALISTIC THEORY OF PROSECUTION IS NOT SUPPORTED BY CREDIBLE EVIDENCE AND CANNOT BE SQUARED WITH THE NOW-HISTORICAL FACTS UNDERLYING THIS CASE.
a. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MARC CONSULTANTS’ BANK RECORDS PROVE FRAUD – IS WITHOUT MERIT.
To date, the Government has produced to the defense literally thousands of pages of documentary evidence, including financial-related documents such as bank records, cancelled checks and financial ledger-related documents. (See Gov. Memo., pp. 2, 5.) The Government claims that the “Bank Records” for an account held in the name of “Marc Consultants” (the “Marc Bank
Account”) somehow prove that: first, Marc Consultants was nothing more than a “shell company”; and, second, Mr. Seminerio used the Marc Bank Account “not to handle payments and receipts relating to a true consulting business, but rather as an account through which to receive corrupt payments in connection with official acts and to fund his personal expenses.” (Gov. Memo., p. 5)
We respectfully submit the Government’s supposed proof fails to prove any wrongdoing or fraudulent or illegal conduct on the part of Mr. Seminerio.
The Government’s supposed proof of Mr. Seminerio’s criminal scheming is that:
• The Marc Bank Account used Mr. Seminerio’s “home address”;
• Mr. Seminerio and his wife were the sole individuals with signature authority for the Marc Bank Account; • There were no disbursements from the Marc Bank Account to any employees or to any payroll companies; and
• The Marc Bank Account reflects the following disbursements, among others:
< Numerous checks, for an aggregate amount of approximately $232,820, payable to “Seminerio,” which appear to have been
213 signed by Mr. Seminerio and either cashed or deposited by Mr. Seminerio in one or more personal bank accounts;
< Numerous checks, for an aggregate amount of approximately $60,121, payable to “Cash,” which appear to have been signed by Mr. Seminerio and then endorsed by Mr. Seminerio;
< Numerous checks, for an aggregate amount of approximately $112,955, payable to “American Express,” which appear to have been signed by Mr. Seminerio and used to pay credit card expenses; and
< Several checks to family members or friends of Mr. Seminerio.
Suffice it to say, the Government has presented no evidence whatsoever which proves, much less suggests, that Mr. Seminerio improperly used the Marc Bank Account to: illegally hide money from the Government; disguise “cash for favors” or “bribes for votes”; secrete assets; avoid disclosing his consulting business; etc. Mr. Seminerio’s taking of income from his own business does not suggest anything nefarious; Mr. Seminerio was legally entitled to use the income from his consulting company; and Mr. Seminerio paid taxes on the income he earned from his consulting company.
b. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO EXTORTED ARLENE PEDONE, RESULTING IN AN ESTIMATED LOSS OF $350,000 – IS WITHOUT MERIT.
In its Indictment (pp. 4-5, paras. 5-6) as part of the “Overview Of The Scheme To Defraud,” the Government claims (but does not charge as a crime), that Mr. Seminerio attempted to extort his former business partner, Arlene Pedone. In its Loss Memorandum (pp. 38-39), the Government further claims that, as a result of Mr. Seminerio’s supposed extortion, Ms. Pedone suffered an
214 estimated loss of $350,000; and the Government has included the $350,000 as part of its Guidelines loss calculation, pursuant to U.S.S.G. Section 2C1.1(b)(2). We respectfully submit that the
Government’s strained view of the facts is simply not supported by credible evidence and cannot be squared with the now-historical facts underlying this case.
The real facts relating to the beginning and end of Mr. Seminerio’s business relationship can be summarized as follows:
• In about 1996, Ms. Pedone, one of Mr. Seminerio’s trusted colleagues, discussed with Mr. Seminerio the fact that she had her own consulting business, Neighborhood Marketing. Ms. Pedone also discussed the possibility of Mr. Seminerio doing some consulting work with her and her company. Mr. Seminerio had known Ms. Pedone since the late-1970s through her involvement in local community activities and, over time, Mr. Seminerio introduced her to other community leaders. Eventually, Ms. Pedone became the President of the Richmond Hill Block Association, and later became a District Leader. In fact, Mr. Seminerio trusted Ms. Pedone so completely that he made her the Treasurer of his campaign election fund, “Friends of Seminerio.”
• In 1996, Mr. Seminerio decided to enter into a consulting business with Ms. Pedone. His decision to do consulting work was straightforward. As Mr. Seminerio writes in his letter to Your Honor, “I believed that I could help people and, in doing so, I could earn some additional income to provide for my family. Throughout my career, without compensation, I had tried to help businesses by making introductions and opening doors for them to other people I knew.” (Exh. A, Letter of Mr. Seminerio)
• In approximately 1998, Mr. Seminerio received a very troubling telephone call from someone who worked at HeartShare (a company that provides, among other things, medical services to children with disabilities); and Mr. Seminerio learned for the first time that HeartShare had hired Ms. Pedone and Mr. Seminerio to perform certain consulting work. This individual further told Mr. Seminerio that: Ms. Pedone had promised that both she and Mr. Seminerio would provide certain consulting services to HeartShare; HeartShare had paid $85,000 directly to Ms. Pedone for those consulting services; and those consulting services had never been provided by Ms. Pedone, Mr. Seminerio or anyone else.
215 • Mr. Seminerio was shocked by this information; and when the person from HeartShare asked Mr. Seminerio what had happened, Mr. Seminerio simply apologized and told the individual the truth – that he did not know anything about what Ms. Pedone had said or done in connection with this consulting matter. Bluntly stated, Ms. Pedone stole $85,000 from their consulting client, HeartShare, and Mr. Seminerio. Mr. Seminerio confronted Ms. Pedone about the extremely troubling information he had learned; and when he asked Ms. Pedone about the $85,000, she simply said, “I was going to tell you about the money – I guess I forgot.”
• At this point, there was no question in Mr. Seminerio’s mind that he had to terminate his business and political relationship with Ms. Pedone – and that is exactly what he did.
After working together for several years, in approximately 1998, Mr. Seminerio and Ms.
Pedone had a falling out – as a direct result of Ms. Pedone’s dishonest and unethical conduct – which ended their business relationship and their political affiliation. Mr. Seminerio told Ms.
Pedone that he wanted nothing more to do with her; he ended their consulting business relationship; and he removed her as the Treasurer of his “Friends of Seminerio” campaign election fund.
Furthermore, to be absolutely sure that Ms. Pedone could no longer use his name to steal money from other people, Mr. Seminerio sent a letter to his donors making it clear that Ms. Pedone was no longer involved with his campaign.
The Government has claimed that Mr. Seminerio engaged in a scheme to collect corrupt payments from Ms. Pedone through extortion, political blackmail and strong-arm tactics and, later, retaliation. (See Exh. E, Gov. Memo., pp. 1-5, 7; Exh. B, Indictment.) The Government’s strained view of the facts simply is not supported by credible evidence and cannot be squared with the now- historical facts underlying this case.43
43In its Loss Memorandum (pp. 14-15), the Government also makes several claims, in connection with the Pedone-related claims, that, supposedly, Mr. Seminerio attempted to extort (continued...)
216 Accordingly, we respectfully submit that there is no factual or legal basis to include any loss figure in the Guidelines calculation in the case of Mr. Seminerio based upon the Government’s claim that Mr. Seminerio, supposedly, extorted Ms. Pedone. In the event that this Court disagrees, the defense is prepared to further address the Government’s allegations relating to Ms. Pedone at the
October 20, 2009 Fatico hearing.
c. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO ESTABLISHED A CORRUPT RELATIONSHIP WITH MEDISYS AND ITS CONSTITUENT ENTITIES – IS WITHOUT MERIT.
In its Loss Memorandum (pp. 6-14), the Government claims that, supposedly, Mr. Seminerio entered into a corrupt relationship with Medisys and its constituent entities, Jamaica Hospital and
Neighborhood Health Providers, LLC. The Government claims that as part of Mr. Seminerio’s corrupt scheme to defraud the public, between April 2000 and March 2008, Mr. Seminerio, through
Marc Consultants, received $310,000 from Jamaica Hospital and approximately $80,834 from
Neighborhood Health Providers, LLC. We respectfully submit that the Government’s strained view of the facts simply is not supported by credible evidence and cannot be squared with the now- historical facts underlying this case.44
43(...continued) Parkway Hospital. However, the Government does not include in its loss calculation any loss figure supposedly related to the Parkway Hospital extortion claims. (Gov. Memo., p. 39) Accordingly, we will not address these claims, which, suffice it to say, are not supported by credible evidence and cannot be squared with the now-historical facts underlying this case. In the event that this Court determines that the Government’s allegations regarding Parkway Hospital are, in fact, relevant to the issue of the loss calculation, the defense is prepared to address the Government’s allegations at the October 20, 2009 Fatico hearing.
44As discussed earlier, the gravamen of Mr. Seminerio’s case is that on one, and only one, occasion in July 2008, Mr. Seminerio violated N.Y. Public Officers Law Section 74(2), when he (continued...)
217 Specifically, in its Loss Memorandum, the Government makes the following claims which, supposedly, prove that Mr. Seminerio was engaged in an ongoing corrupt and illegal relationship with Jamaica Hospital as part of a decade-long scheme to defraud the public:
• First, in its Loss Memorandum (pp. 9-10), the Government claims that, supposedly, in February 2002, Mr. Seminerio and New York State Senator Serphin Maltese improperly secured a $25,000 grant for Jamaica Hospital as part of the 2001–2002 New York State Budget. Mr. Seminerio denies that he personally took any discretionary action in his official capacity as a New York State Assemblyman to assist Jamaica Hospital in securing the $25,000 grant.
• Second, in its Loss Memorandum (p. 10), the Government claims that, supposedly, Mr. Seminerio illegally advised Jamaica Hospital in connection with obtaining $19 million in loan forgiveness in 2006. Mr. Seminerio denies that he personally took any discretionary action in his official capacity as a New York State Assemblyman to assist Jamaica Hospital in obtaining $19 million in loan forgiveness.
• Third, in its Loss Memorandum (p. 11), the Government claims that, supposedly, Mr. Seminerio illegally sponsored legislation in 2006 to provide financing for Jamaica Hospital (A11773/S8167) in the New York State Legislature. The proposed legislation was not specifically for Jamaica Hospital; Mr. Seminerio was not the prime sponsor of the proposed legislation; Assemblywoman Barbara Clark was the prime sponsor of the proposed legislation; Mr. Seminerio was not the first and was one of five Assembly Members to sponsor the proposed legislation; Mr. Seminerio has no recollection whatsoever of ever advocating on behalf of the proposed legislation; Mr. Seminerio never advocated on behalf of Jamaica Hospital in connection with the proposed legislation; and Mr. Seminerio denies that he personally took any discretionary action in his official capacity as a New York State Assemblyman to assist Jamaica Hospital in connection with proposed legislation in 2006 (A11773/S8167) to provide financing for Jamaica Hospital.
44(...continued) advocated in favor of and promoted the interests of Jamaica Hospital, without disclosing that Jamaica Hospital had paid him a consulting fee. For purposes of brevity and economy, we will not repeat here the facts and circumstances relating to Mr. Seminerio’s criminal conduct.
218 • Fourth, in its Loss Memorandum (p. 10), the Government claims that, supposedly, Mr. Seminerio illegally supported Jamaica Hospital’s drive for discretionary funding from the New York State Assembly in April 2008. Mr. Seminerio denies that he personally took any discretionary action in his official capacity as a New York State Assemblyman to assist Jamaica Hospital’s drive for discretionary funding from the New York State Assembly in April 2008.
• Fifth, in its Loss Memorandum (pp. 12-14), the Government claims that, supposedly, Mr. Seminerio illegally advocated for Jamaica Hospital’s interests in the August 2008 New York State budget deliberations. Mr. Seminerio denies that he personally took any discretionary action in his official capacity as a New York State Assemblyman to assist or advocate on behalf of Jamaica Hospital’s interests in the August 2008 New York State budget deliberations.
It is particularly troubling that, in its Loss Memorandum (p. 7), the Government claims that in exchange for the payments Mr. Seminerio received from Jamaica Hospital, “[Mr.] Seminerio provided no legitimate, bona fide consulting services.” The now-historical facts relating to Mr.
Seminerio’s consulting business, Marc Consultants, make it absolutely clear that Mr. Seminerio did, in fact, provide real consulting services to real clients, who had real needs – including Jamaica
Hospital. For example, and only by way of example, Mr. Seminerio provided very real services to
Jamaica Hospital, which services assisted Jamaica Hospital in a number of local and federal matters and brought certain opportunities to Jamaica Hospital’s attention.
Among the matters for which Mr. Seminerio provided assistance were:
• The 90-09 Van Wyck Property. In early-1999, Mr. Seminerio introduced Jamaica Hospital to officials of the New York City Economic Development Corp., and informed Jamaica Hospital of the availability of a piece of property located at 90-09 Van Wyck Expressway, in Queens, New York, which is directly across the street from Jamaica Hospital on the Van Wyck service road. Mr. Seminerio’s involvement in Jamaica Hospital’s acquisition of the 90-09 Van Wyck building went far beyond the introduction. Mr. Seminerio was involved in meetings with City officials and followed-up on the legal issues that were involved in acquiring the property. Jamaica
219 Hospital paid $375,000 for the 90-09 Van Wyck building – and today the building is estimated to be worth more than ten times that value, nearly $4 million. In fact, the billboards on top of the 90-09 Van Wyck building produce yearly revenues of $150,000 for Jamaica Hospital.
• Ambulance Districts. The Fire Department, City of New York, is responsible for determining ambulance territories. For Jamaica Hospital, the greater the number of ambulance districts in a territory, the more business the hospital does. Jamaica Hospital now has one of the largest Emergency Medical Services territories in New York City, in large part due to the efforts of Mr. Seminerio.
• New York Police Department – Back To Work Physicals. Mr. Seminerio introduced Jamaica Hospital to contacts at the New York City Police Department in connection with a proposal whereby Jamaica Hospital would perform “back-to-work” physicals for police officers. Ultimately, the deal was not consummated, but there were extensive negotiations.
• Bio-Terrorism Grant. Jamaica Hospital is one of four bio-terrorism treatment centers in New York City. Mr. Seminerio introduced Jamaica Hospital to a former New York City Office of Emergency Management official who Mr. Seminerio thought might be able to help advise Jamaica Hospital on how to pursue federal grant money for the bio-terrorism treatment unit.
• HUD Officials. In two instances, Mr. Seminerio made introductions for Jamaica Hospital to United States Department of Housing and Urban Development (“HUD”) officials. One introduction involved a project by Jamaica Hospital to build an ambulatory care clinic in Astoria, Queens. The building that housed the clinic was HUD-owned, and Mr. Seminerio introduced hospital personnel to people at HUD. The second incident involved Mr. Seminerio helping to resolve a logjam at HUD relating to the capital financing of Jamaica Hospital’s new nursing home facility.
• Planning Board 9 And Zoning. Mr. Seminerio introduced Jamaica Hospital to a number of leaders on the community board in connection with two zoning-related matters: Jamaica Hospital’s ten-story parking garage; and the building of Brady House, Jamaica Hospital’s traumatic brain injury residence, which had to overcome NIMBY (“Not In My Backyard”) resistance.
• Parking Garage. In addition to the zoning issues that Jamaica Hospital faced with respect to the parking garage, Mr. Seminerio assisted Jamaica Hospital in connection with financing the construction of the parking garage
220 through NYCIDA (Industrial Development Agency, part of New York City’s Economic Development Corp.).
• Richmond Hill Block Association. Mr. Seminerio was active in the Richmond Hill Block Association, which Jamaica Hospital used to conduct health fairs to market its services to a large segment of the community. In at least one instance, Jamaica Hospital was not in the position to pay the usual fee for a booth at a health fair, and Mr. Seminerio dealt with the Block Association to make sure that Jamaica Hospital could still participate and pay a reduced fee.
• Military Associates. Mr. Seminerio introduced Military Associates to Jamaica Hospital, a relationship that gave Jamaica Hospital access to the Tricare insurance network; and Mr. Seminerio suggested that Jamaica Hospital should pursue Tricare opportunities serving returning Iraq veterans with traumatic brain injury (TBI) and/or mental health issues.
• School-Based Health Programs. Jamaica Hospital was involved in approximately a dozen school-based health programs, and Mr. Seminerio introduced Jamaica Hospital to various school superintendents and principals.
• Traffic Re-Routing. Because Jamaica Hospital is located on the one-way frontage road to the Van Wyck Expressway, access to Jamaica Hospital can easily be disrupted during construction projects. Mr. Seminerio interceded with officials at the New York City Department of Transportation and/or the New York City Police Department to help with traffic re-routing patterns during periods of construction. This occurred when there was construction on the Van Wyck overpass and the construction interfered with ambulances getting to Jamaica Hospital.
• Factoring Of Jamaica Hospital’s Receivables. Mr. Seminerio introduced Jamaica Hospital to somebody who would help “factor” Jamaica Hospital’s receivables to improve cash flow, although no deal ever came to fruition.
• Military Physicals. Mr. Seminerio provided information to Jamaica Hospital regarding a potential contract for Jamaica Hospital to perform Army physicals at Jamaica Hospital, although no deal every came to fruition.
• Property Close To Hospital. There was a property that Jamaica Hospital was interested in purchasing (a fence company was occupying the property at the time). Mr. Seminerio obtained information about the property and provided it to Jamaica Hospital, although no deal ever came to fruition.
221 • Opportunities Related To Other Hospitals. Mr. Seminerio provided information to Jamaica Hospital about other hospital facilities that could potentially be acquired or used, such as St. John’s in Smithtown and a Veterans Hospital at St. Albans.
• Winston Financial. Mr. Seminerio introduced Jamaica Hospital to Winston Financial, which provided supplemental insurance to Jamaica Hospital’s employees.
• Assistance With Construction Projects. Mr. Seminerio had been instrumental in dealing with local agencies in connection with Jamaica Hospital’s numerous construction projects throughout the years.
We respectfully submit that the Government’s claims regarding the supposedly corrupt relationship between Mr. Seminerio and Medisys and its constituent entities, Jamaica Hospital and
Neighborhood Health Providers, LLC – simply are not supported by credible evidence and cannot be squared with the now-historical facts underlying this case. Moreover, we respectfully submit that the now-historical facts, discussed above, make it absolutely clear that Mr. Seminerio did, in fact, provide real consulting services to real clients, who had real needs – facts which further demonstrate that the Government’s theory of prosecution is truly unrealistic.45
Accordingly, we respectfully submit that there is no factual or legal basis to include any loss figure in the Guidelines calculation in the case of Mr. Seminerio based upon the Government’s claim that Mr. Seminerio entered into and maintained a corrupt relationship with Medisys and its
45In its Loss Memorandum (pp. 11-12), the Government addressed the specific conduct to which Mr. Seminerio pleaded guilty in connection with Jamaica Hospital. As we discussed earlier in this Memorandum (pp. 143-46) (which discussion will not be repeated here), on one, and only one, occasion in July 2008, Mr. Seminerio violated N.Y. Public Officers Law Section 74(2), when he advocated in favor of and promoted the interests of Jamaica Hospital, without disclosing that Jamaica Hospital had paid him a consulting fee. See United States v. Hasner, 340 F.3d 1261, 1276 (11th Cir. 2003) (approving the district court’s decision to apply U.S.S.G Section 2C1.3 and, therefore, concluding that “[t]he district court ... err[ed] by relying on section 2B1.1 to enhance [the defendant’s] sentence [based upon a supposed “loss” amount]. Section 2C1.3 provides no cross-reference to section 2B1.1.”).
222 constituent entities, Jamaica Hospital and Neighborhood Health Providers, LLC. In the event that this Court disagrees, the defense is prepared to further address the Government’s allegations relating to Medisys and its constituent entities at the October 20, 2009 Fatico hearing.
d. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO EXTORTED THE JAMAICA CHAMBER OF COMMERCE – IS WITHOUT MERIT.
In its Loss Memorandum (p. 14), the Government claims that, supposedly, Mr. Seminerio extorted the Jamaica Chamber of Commerce; and that as a result of Mr. Seminerio’s extortionist conduct, Jamaica Chamber of Commerce paid him $21,000 over a two-year period for consulting services. In support of its claim, the Government alleges, among other things, that:
• Mr. Seminerio repeatedly contacted and threatened Robert Richards, the President of the Jamaica Chamber of Commerce;
• Mr. Seminerio falsely informed Mr. Richards that Ms. Pedone had stolen funds from Mr. Seminerio, and warned that he would “bury” Mr. Richards for dealing with Ms. Pedone;
• Mr. Seminerio pressured Mr. Richards into becoming a client of Marc Consultants; and
• Mr. Seminerio warned that if Mr. Richards failed to hire him, Mr. Seminerio would “kill” any bill that Mr. Richards tried to pass in Albany.
We respectfully submit that the Government’s claims relating to the Jamaica Chamber of
Commerce are not supported by credible evidence and cannot be squared with the now-historical facts underlying this case. Accordingly, there is no factual or legal basis to include any loss figure in the Guidelines calculation in the case of Mr. Seminerio based upon the Government’s claim that
Mr. Seminerio extorted the Jamaica Chamber of Commerce. In the event that this Court disagrees,
223 the defense is prepared to further address the Government’s allegations relating to the Jamaica
Chamber of Commerce at the October 20, 2009 Fatico hearing.
e. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO HAD A CORRUPT RELATIONSHIP WITH WINSTON FINANCIAL – IS WITHOUT MERIT.
In its Loss Memorandum (pp. 16-23), the Government claims that, supposedly, Mr.
Seminerio had a corrupt relationship with Winston Financial. The Government claims that as part of Mr. Seminerio’s corrupt scheme to defraud the public, supposedly, Mr. Seminerio: entered into a corrupt relationship with Winston Financial, which provided insurance brokerage services to hospitals (including Wyckoff Heights Medical Center [“Wyckoff”] and Jamaica Hospital); corruptly offered to take and took official action on behalf of those hospitals with which Winston Financial did business; and provided no consulting services to Winston Financial. The Government further claims that, supposedly, between 2000 and 2008, Mr. Seminerio received illegal fees from Winston
Financial totaling $176,512, which represents 25% of the total fees that Winston Financial earned from business generated with Wyckoff – and, therefore, the Government claims that the total loss attributed to Winston Financial is $705,048. We respectfully submit that the Government’s strained view of the facts simply is not supported by credible evidence and cannot be squared with the now- historical facts underlying this case.
Specifically, in its Loss Memorandum, the Government makes the following claims which, supposedly, prove that Mr. Seminerio was engaged in an ongoing corrupt and illegal relationship with Winston Financial as part of a decade-long scheme to defraud the public:
• First, in its Loss Memorandum (pp. 16-17), the Government claims that, supposedly, Mr. Seminerio illegally used his influence to pressure Wyckoff to keep Winston Financial as a client in 2004.
224 • Second, in its Loss Memorandum (pp. 17-19), the Government claims that, supposedly, in 2007 and 2008, when Winston Financial’s relationship with Wyckoff was threatened, Mr. Seminerio illegally lobbied a New York State Executive Official on behalf of Wyckoff in order to protect Winston Financial’s relationship with Wyckoff.
• Third, in its Loss Memorandum (p. 20), the Government claims that, supposedly, Mr. Seminerio engaged in criminal conduct when he “noted” that Wyckoff should be paying Winston Financial because Wyckoff had just received New York State funds.
• Fourth, in its Loss Memorandum (pp. 20-23), the Government claims that, supposedly, Mr. Seminerio engaged in criminal conduct when he guaranteed Jamaica Hospital continued business if Winston Financial started paying Mr. Seminerio instead of his supposed business partner, George Kalkines.
We respectfully submit that the Government’s claims relating to Mr. Seminerio’s supposedly corrupt relationship with Winston Financial are not supported by credible evidence and cannot be squared with the now-historical facts underlying this case. Accordingly, there is no factual or legal basis to include any loss figure in the Guidelines calculation in the case of Mr. Seminerio based upon the Government’s claim that Mr. Seminerio had a corrupt relationship with Winston Financial. In the event that this Court disagrees, the defense is prepared to further address the Government’s allegations relating to Winston Financial at the October 20, 2009 Fatico hearing.46
46In its Loss Memorandum (p. 33), the Government also alleges that, supposedly, Mr. Seminerio engaged in a corrupt working relationship with Wyckoff in connection with an entity called “397 Himrod” and Mr. Seminerio’s efforts to illegally lobby the Deputy Mayor of New York City in connection with the purchase of a piece of real estate; and, in connection those efforts, Mr. Seminerio, supposedly, received illegal consulting fees totaling at least $15,000. However, the Government does not include in its loss calculation any loss figure supposedly related to the Wyckoff/“397 Himrod” claims. (Gov. Memo., p. 38) Accordingly, we will not address these claims, which, suffice it to say, are not supported by credible evidence and cannot be squared with the now- historical facts underlying this case. In the event that this Court determines that the Government’s allegations regarding Wyckoff and “397 Himrod” are, in fact, relevant to the issue of the loss calculation, the defense is prepared to address the Government’s allegations at the October 20, 2009 (continued...)
225 f. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO HAD A CORRUPT RELATIONSHIP WITH CHARLES CALLAHAN AND PLAZA COLLEGE – IS WITHOUT MERIT.
In its Loss Memorandum (pp. 23-25), the Government claims that, supposedly, Mr.
Seminerio had a corrupt relationship with Plaza College and Charles Callahan, and as part of that corrupt scheme to defraud the public:
• Supposedly, between 2000 and 2007, Collegiate Management Associates, a shell company funded by Plaza College, paid illegal consulting fees totaling approximately $170,350 to Mr. Seminerio.
• Supposedly, Mr. Seminerio introduced legislation in the New York State Assembly (see, e.g., the 2007 “Candidacy Bill” [A1966]) for the express purpose of benefitting Plaza College.
• Supposedly, Mr. Seminerio illegally played a role in advocating that Mr. Callahan be appointed to various New York State positions.
• Supposedly, the facts, the flow of money and legislative efforts prove that Mr. Seminerio’s value to Mr. Callahan was Mr Seminerio’s ability to influence New York State Government on matters of great financial importance to Plaza College.
We respectfully submit that the Government’s claims relating to Mr. Seminerio’s supposedly corrupt relationship with Plaza College and Mr. Callahan are not supported by credible evidence and cannot be squared with the now-historical facts underlying this case. Accordingly, there is no factual or legal basis to include any loss figure in the Guidelines calculation in the case of Mr. Seminerio based upon the Government’s claim that Mr. Seminerio had a corrupt relationship with Plaza
College and Mr. Callahan. In the event that this Court disagrees, the defense is prepared to further
46(...continued) Fatico hearing.
226 address the Government’s allegations relating to Plaza College and Mr. Callahan at the October 20,
2009 Fatico hearing.
g. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO HAD A CORRUPT RELATIONSHIP WITH BERNARD GORDON EHRLICH – IS WITHOUT MERIT.
In its Loss Memorandum (pp. 25-31), the Government claims that, supposedly, Mr.
Seminerio had a corrupt relationship with Bernard Gordon Ehrlich. The Government claims that as part of Mr. Seminerio’s corrupt scheme to defraud the public, two companies controlled by Mr.
Ehrlich, Ridge Associates and Wingfoot, paid Mr. Seminerio approximately $233,364 in connection with Mr. Seminerio’s efforts to persuade hospitals to retain his services through Ridge Associates,
Wingfoot and Mr. Ehrlich. We respectfully submit that the Government’s strained view of the facts simply is not supported by credible evidence and cannot be squared with the now-historical facts underlying this case.
Specifically, in its Loss Memorandum, the Government makes the following claims that, supposedly, prove that Mr. Seminerio was engaged in an ongoing corrupt and illegal relationship with Mr. Ehrlich as part of a decade-long scheme to defraud the public:
• First, in its Loss Memorandum (pp. 27-28), the Government claims that, supposedly, Mr. Seminerio entered into a corrupt relationship with Evenflo Transportation, Inc., which company provided transportation services for patients of Jamaica Hospital until at least 2006 and, at some point, Mr. Seminerio and Mr. Ehrlich became affiliated with Evenflo.
• Second, in its Loss Memorandum (pp. 29-30), the Government claims that, supposedly, Mr. Seminerio and Mr. Ehrlich illegally pressured Wyckoff to do business with them (Mr. Seminerio and Mr. Ehrlich).
227 • Third, in its Loss Memorandum (pp. 30-31), the Government claims that, supposedly, Mr. Seminerio and Mr. Ehrlich illegally pressured Jamaica Hospital to do business with them (Mr. Seminerio and Mr. Ehrlich).
We respectfully submit that the Government’s claims relating to Mr. Seminerio’s supposedly corrupt relationship with Mr. Ehrlich are not supported by credible evidence and cannot be squared with the now-historical facts underlying this case. Accordingly, there is no factual or legal basis to include any loss figure in the Guidelines calculation in the case of Mr. Seminerio based upon the
Government’s claim that Mr. Seminerio had a corrupt relationship with Mr. Ehrlich. In the event that this Court disagrees, the defense is prepared to further address the Government’s allegations relating to Mr. Ehrlich at the October 20, 2009 Fatico hearing.
h. THE GOVERNMENT’S CLAIM THAT, SUPPOSEDLY, MR. SEMINERIO HAD A CORRUPT RELATIONSHIP WITH LONG ISLAND RAIL ROAD – IS WITHOUT MERIT.
In its Loss Memorandum (pp. 31-33), the Government claims that, supposedly, Mr.
Seminerio had a corrupt relationship with the Long Island Rail Road (“LIRR”), and that Mr.
Seminerio used his position as an Assemblyman to secure jobs for friends and associates at the LIRR in exchange for securing State funds for the transit system. The Government’s claim is, in effect, that because Mr. Seminerio assisted the LIRR in receiving certain New York State funds and, thereafter, Mr. Seminerio assisted a handful of constituents and family friends with obtaining jobs with the LIRR – Mr. Seminerio somehow engaged in a corrupt scheme to defraud the public. The
Government estimates that the loss amount attributable to Mr. Seminerio’s corrupt “funding for jobs” scheme is $500,000.
228 We respectfully submit that the Government’s claims relating to Mr. Seminerio’s supposedly corrupt activity relating to the LIRR are not supported by credible evidence and cannot be squared with the now-historical facts underlying this case. Accordingly, there is no factual or legal basis to include any loss figure in the Guidelines calculation in the case of Mr. Seminerio based upon the
Government’s claim that Mr. Seminerio engaged in corrupt activities involving the LIRR. In the event that this Court disagrees, the defense is prepared to further address the Government’s allegations relating to the LIRR at the October 20, 2009 Fatico hearing.
i. THE GOVERNMENT’S CLAIMS RELATING TO MR. SEMINERIO’S SUPPOSED CORRUPT WORK FOR AN FBI UNDERCOVER AGENT.
In its Loss Memorandum (pp. 33-35), the Government claims that between January 2008 and
September 2008, an FBI special agent working in an undercover capacity (the “Undercover”), retained Mr. Seminerio as a consultant; the Undercover paid Mr. Seminerio fees totaling $25,000; and, supposedly, in exchange for the consulting payments, Mr. Seminerio provided illegal consulting services to the Undercover. Specifically, the Government claims that, supposedly, Mr. Seminerio provided illegal consulting services as follows:
• First, in connection with the “Probation Services Privatization Scheme,” the Government claims that the Undercover told Mr. Seminerio that he represented a group of investors interested in financing a new venture that wanted to administer probation supervision to a certain category of non- violent offenders in New York State (Gov. Memo., pp. 34-35); and
• Second, in connection with the “Brownfield Redevelopment Proposal,” the Government claims that the Undercover asked Mr. Seminerio for help with a business venture involving opportunities to invest in Brownfield Redevelopments, which involved a New York State program that provided government assistance in connection with the clean-up and development of environmentally contaminated lands.
229 We respectfully submit that the Government’s claims relating to Mr. Seminerio’s supposedly corrupt activity relating to the Probation Services Privatization Scheme and the Brownfield
Redevelopment Proposal are not supported by credible evidence Accordingly, there is no factual or legal basis to include any loss figure in the Guidelines calculation in the case of Mr. Seminerio based upon the Government’s claim that Mr. Seminerio engaged in corrupt activities relating to the
Probation Services Privatization Scheme and the Brownfield Redevelopment Proposal. In the event that this Court disagrees, the defense is prepared to further address the Government’s allegations relating to the Probation Services Privatization Scheme and the Brownfield Redevelopment Proposal at the October 20, 2009 Fatico hearing.
F. CONCLUSION.
We respectfully submit that, based upon the actual and only crime that Mr. Seminerio committed – and there is no additional relevant conduct in this case – this Court should adopt the defense’s adjusted offense level Guidelines calculation of 4, pursuant to the Guidelines’ “Conflict of Interest” provision, U.S.S.G. Section 2C1.3, which corresponds to an advisory Guidelines range of 0 to 6 months. For the reasons discussed in this Memorandum, we will ask this Court to impose a sentence of home detention, pursuant to U.S.S.G. Section 5F.1.2.
We respectfully submit that a sentence of home detention is consistent with the advisory
Guidelines and is warranted in the case of Mr. Seminerio based upon the factors set forth in 18
U.S.C. Section 3553 and the totality of circumstances of this case, including the nature of Mr.
Seminerio’s offense and the history and characteristics of his entire life; and a sentence of home detention is “sufficient, but not greater than necessary” to comply with the purposes of sentencing set forth in Section 3553(a)(2) (i.e., retribution, deterrence, incapacitation and rehabilitation).
230