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X United State V 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
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