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No. CR 14-00580 PJH U.S.' SENT'g MEM. for MICHAEL MARR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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No. CR 14-00580 PJH U.S.' SENT'g MEM. for MICHAEL MARR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 4:14-cr-00580-PJH Document 348 Filed 10/11/17 Page 1 of 34 1 ALBERT B. SAMBAT (CSBN 236472) MICAH L. RUBBO (CSBN 267465) 2 ALEXIS J. LOEB (CSBN 269895) MICHAEL A. RABKIN (ILRN 6293597) 3 U.S. Department of Justice 4 Antitrust Division 450 Golden Gate Avenue 5 Box 36046, Room 10-0101 San Francisco, CA 94102 6 Telephone: (415) 934-5300 [email protected] 7 8 Attorneys for United States of America 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 OAKLAND DIVISION 12 13 UNITED STATES OF AMERICA, CASE NO. CR 4:14-00580 PJH 14 UNITED STATES’ SENTENCING 15 MEMORANDUM FOR DEFENDANT v. MICHAEL MARR 16 MICHAEL MARR, Court: Hon. Phyllis J. Hamilton 17 Date: October 18, 2017 Defendant. Time: 2:30 p.m. Place: Courtroom 3, 3rd Floor 18 19 20 21 22 23 24 25 26 27 28 No. CR 14-00580 PJH U.S.’ SENT’G MEM. FOR MICHAEL MARR Case 4:14-cr-00580-PJH Document 348 Filed 10/11/17 Page 2 of 34 1 TABLE OF CONTENTS 2 TABLE OF AUTHORITIES………..........................................................................................................iii 3 INTRODUCTION .......................................................................................................................................1 4 PROCEDURAL HISTORY .........................................................................................................................2 5 SUMMARY OF FACTS .............................................................................................................................2 6 I. Marr’s Businesses ............................................................................................................................2 7 II. Marr’s Participation In The Bid-Rigging Conspiracy .....................................................................3 8 ARGUMENT ...............................................................................................................................................6 9 I. Guidelines Calculations ...................................................................................................................6 10 A. Marr’s Guidelines Range Is 46 to 57 Months ......................................................................6 11 1. Marr’s Volume of Commerce Is Above $50 Million ..........................................................6 12 2. The Standard One-Point Adjustment for Submission of Non-Competitive Bids is Appropriate Here ..............................................................................................................9 13 3. Marr Should Receieve A Four-Level Upward Adjustment For His Role As A 14 Leader or Organizer .............................................................................................................9 15 4. No Adjustment for Acceptance of Responsibility Applies ................................................20 16 B. Marr’s Fine Range is $796,000.77-$3,980,003.85 ............................................................25 17 C. Marr Owes $1,785,403.88 in Restitution ...........................................................................25 18 II. Sentencing Recommendation.........................................................................................................26 19 1. The Government’s Proposed Sentence Reflects The Seriousness Of The Offense, Promotes Respect For The Law, And Provides Just Punishment .......................27 20 2. The Proposed Sentence Affords Adequate Deterrence ......................................................29 21 3. The Proposed Sentence Avoids Unwarranted Sentencing Disparities ..............................30 22 4. No Downward Variance is Warranted ...............................................................................30 23 CONCLUSION ..........................................................................................................................................31 24 25 26 27 28 No. CR 14-00580 PJH i U.S.’ SENT’G MEM. FOR MICHAEL MARR Case 4:14-cr-00580-PJH Document 348 Filed 10/11/17 Page 3 of 34 1 TABLE OF AUTHORITIES 2 Cases 3 American Needle Inc., v. National Football League, 560 U.S. 183 (2010) .............................................. 16 4 Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984) .................................................... 16 5 United States v. Ali, 620 F.3d 1062 (9th Cir. 2010).................................................................................. 25 6 United States v. Barnes, 993 F.2d 680 (9th Cir. 1993) ............................................................................. 11 7 United States v. Burrows, 36 F.3d 875 (9th Cir. 1994) ............................................................................ 24 8 United States v. Carter, 560 F.3d 1107 (9th Cir. 2009)............................................................................ 30 9 United States v. Carty, 520 F.3d 984 (9th Cir. 2008) ............................................................................... 31 10 United States v. Koenig, 952 F.2d 267 (9th Cir. 1991) ............................................................................. 11 11 United States v. Nielsen, 371 F.3d 574 (9th Cir. 2004) ............................................................................ 20 12 United States v. Schales, 546 F.3d 965 (9th Cir. 2008) ............................................................................ 21 13 Statutes 14 18 U.S.C. § 3553 ................................................................................................................................ passim 15 18 U.S.C. § 3583(d) .................................................................................................................................. 25 16 18 U.S.C. § 3663 ....................................................................................................................................... 25 17 Rules 18 U.S.S.G. §2B1.1 ...................................................................................................................................... 6, 7 19 U.S.S.G. §2R1.1 ................................................................................................................................. passim 20 U.S.S.G. §3B1.1 ................................................................................................................................. passim 21 U.S.S.G. §3E1.1 .............................................................................................................................. 6, 20, 24 22 23 24 25 26 27 28 No. CR 14-00580 PJH ii U.S.’ SENT’G MEM. FOR MICHAEL MARR Case 4:14-cr-00580-PJH Document 348 Filed 10/11/17 Page 4 of 34 1 INTRODUCTION 2 In a multi-year bid-rigging conspiracy perpetrated by dozens of individuals in Alameda and 3 Contra Costa County, Michael Marr stands out as the most culpable of all. Marr ran the organization 4 that was the largest player in both conspiracies – yet he was hardly hands off, directing multiple 5 employees on a daily basis to rig bids, organize rounds, and make payoffs. He orchestrated the 6 corruption of over 1,000 auctions for foreclosed homes worth tens of millions of dollars. 7 He was also the glue that kept the conspiracies together. The bid rigging occurred on a daily (or 8 near-daily) basis for almost three years and involved a large cast of players and thousands of 9 transactions. Marr perpetrated the conspiracies with a team of employees who, at his direction, were 10 among the most prolific bid-riggers on the courthouse steps. He also held everyone in the conspiracy 11 accountable for their participation. His employees often created the round sheets that recorded the 12 outcome of each bid rig, and his organization kept careful running tabs of what he and his coconspirators 13 owed each other. He made sure these debts were not forgotten, organizing meetings with coconspirators 14 to settle up and making sure, for lesser participants, that the appropriate payments were made and 15 received at the courthouse steps. Even though he might buy millions of dollars’ worth of properties in a 16 few days, Marr was not above tracking the dollars and cents of every individual payoff in which his 17 organization was involved – and making sure those precise amounts were paid. This was a natural role 18 for him because his organization was present in, if not organizing, almost all of the bid-rigging 19 agreements that took place. 20 Tabulating Marr’s involvement in the conspiracy produces staggering numbers, and these 21 numbers reflect only what was captured in documents that the government managed to collect. Marr’s 22 organization rigged the bidding for over 1100 properties. His total volume of commerce, reflecting the 23 purchase price of the properties and payouts owed for each property purchased, is $79,600,077.01. And 24 his organization earned nearly $2 million in payoffs from hundreds of other properties it rigged. No 25 other organization even comes close to these numbers. Because of the gravity of the harm his 26 organization caused and the pivotal role he played in the conspiracy, the government recommends that 27 the Court sentence Marr to a term of custody of 57 months and fine him $3,980,003.83, a high-end 28 // No. CR 14-00580 PJH 1 U.S.’ SENT’G MEM. FOR MICHAEL MARR Case 4:14-cr-00580-PJH Document 348 Filed 10/11/17 Page 5 of 34 1 Guidelines sentence. The government further recommends that Marr be ordered to pay $1,785,403.88 2 in restitution, representing the illegal payoffs he was owed. 3 PROCEDURAL HISTORY 4 On November 19, 2014, a grand jury returned
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