Case 3:01-cr JBA Document 288 Filed 09/22/11 Page 1 of 7 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

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1 Case 3:01-cr JBA Document 288 Filed 09/22/11 Page 1 of 7 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA : Case No. 01-cr-263 (JBA) : v. : : JOSEPH P. GANIM : September 21, 2011 OPPOSITION TO DEFENDANT S MOTION TO TERMINATE SUPERVISED RELEASE The Government objects to the defendant s motion to terminate supervised release because the defendant has not established any new and compelling circumstances that would justify a modification to the terms of his sentence and, perhaps more importantly, has failed to demonstrate he is even participating in a program approved by the Probation Office for inpatient or outpatient substance abuse treatment and testing one of the conditions of his supervised release. I. Procedural History On March 19, 2003, after a ten-week trial, the defendant was convicted of sixteen counts of racketeering, racketeering conspiracy, extortion, mail fraud, bribery, conspiracy, and filing false income tax returns. [Dock. # 204.] On July 1, 2003, this Court sentenced the defendant to 108 months (9 years) in prison, to be followed by 36 months of supervised release. [Dock. ## ] The Second Circuit affirmed the defendant s convictions and sentence, United States v. Ganim, 510 F.3d 134 (2d Cir. 2007), and on April 14, 2008, the Supreme Court denied his petition for a writ of certiorari, 552 U.S (2008). At the time of sentencing, the Court imposed several standard and mandatory conditions of supervised release. In addition, the Court ordered, as a special condition of supervised release, that the defendant pay restitution to the victims of his crimes and pay his fine. [Dock. # 216.]

2 Case 3:01-cr JBA Document 288 Filed 09/22/11 Page 2 of 7 Over six years later, on October 9, 2009, while the defendant was still serving his term of incarceration, the Court modified the defendant s conditions of supervised release and ordered that the defendant participate in a program approved by the Probation Office for inpatient or outpatient substance abuse treatment and testing, and further provided that the defendant pay all or part of the costs of this treatment based on his ability to pay as determined by the probation officer. [Dock. # 284. (emphasis added)]. The defendant served approximately 6 years and 10 months in prison. According to the Bureau of Prisons, he was released July 19, Thus, at this time, the defendant has served less than half (approximately 14 months) of his 36-month supervised release term. On September 1, 2011, the defendant filed an ex parte motion to terminate his supervised release. II. Governing Law Title 18 U.S.C authorizes the Court to grant early termination of supervised release in certain circumstances. That section provides: The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(b), (a)(2)(c), (a)(2)(d), (a)(4), (a)(5), (a)(6), and (a)(7) (1) terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice. 18 U.S.C. 3583(e)(1). The section 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed (B) to afford adequate deterrence to criminal conduct; 2

3 Case 3:01-cr JBA Document 288 Filed 09/22/11 Page 3 of 7 (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (4) the kinds of sentence and the sentencing range established for (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines issued by the Sentencing Commission... ; and that... are in effect on the date the defendant is sentenced; or (B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission....; 18 U.S.C. 3553(a). (5) any pertinent policy statement issued by the Sentencing Commission... that... is in effect on the date the defendant is sentenced; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. Given this statutory framework, early termination of supervised release is not warranted as a matter of course. United States v. Herrera, 1998 WL at *2 (S.D.N.Y., Sept. 30, 1998). Instead, [s]uch relief is warranted only occasionally, when changed circumstances for instance, exceptionally good behavior by the defendant or a downward turn in the defendant s ability to pay a fine or restitution imposed as conditions of release will render a previously imposed term or condition of release either too harsh or inappropriately tailored to serve the general punishment goals 3

4 Case 3:01-cr JBA Document 288 Filed 09/22/11 Page 4 of 7 of section 3553(a). United States v. Weintraub, 371 F. Supp. 2d 164, 166 (D. Conn. 2005) (Arterton, J.) (quoting United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997)). The defendant, accordingly, bears the burden of demonstrating that the circumstances warrant early termination. United States v. Rasco, 2000 WL at *3 (S.D.N.Y. Jan. 19, 2000) ( Neither the statute nor the relevant case law places an affirmative obligation upon the government to make a showing of compelling penal need before a defendant will be required to complete a validly imposed term of supervised release. If the defendant desires to have that period shortened he must show that the circumstances warrant it, not that the government cannot prove otherwise. ). Where the defendant presents no new or exceptional circumstances, early termination is not warranted. Id. ( While Rasco s good behavior in prison and on supervised release is laudable, I am not satisfied that his conduct has been so unusual as to merit the early termination of his supervised release. ); Herrera, 1998 WL at *2 ( Although Herrera seems to have adjusted well to probation, there are no new or exceptional circumstances sufficient to warrant a termination of his probation term. ); United States v. Martin, 1992 WL at *1 (S.D.N.Y., July 13, 1992) ( The factors that led to imposition of the original sentence, however, remain unchanged[.] This court does not find, nor does defendant even offer, the existence of new circumstances that merit a modification of the original sentence. ). Frankly, full compliance with the terms of supervision is expected and does not justify early termination. Weintraub, 371 F. Supp.2d at 167 (denying 77-year old defendant s motion for early termination of supervised release in the absence of exceptionally good behavior or exceptional illness); Rasco, 2000 WL at *2; United States v. Medina, 17 F. Supp. 2d 245, 247 (S.D.N.Y. 4

5 Case 3:01-cr JBA Document 288 Filed 09/22/11 Page 5 of ) (if simple compliance with conditions of supervised release were sufficient to terminate supervised release, the exception would swallow the rule ). III. Argument The defendant has not met his burden of demonstrating that this Court should terminate his supervised release. The defendant points to his conduct while incarcerated and on supervised release as evidence supporting his motion, but none of this conduct presents new or changed circumstances. For example, he points to his good behavior and volunteer activities while in prison, and to his payment of all criminal monetary penalties, but model prison conduct and compliance with the conditions of supervised release do not warrant early termination of supervised release. Weintraub, 371 F. Supp. 2d at (quoting Rasco, 2000 WL 45438, at *2). He also highlights his efforts to re-establish employment in the legal profession, including his work as a paralegal, his participation 1 in continuing legal education programs, and his application for re-admission to the Connecticut bar. While these efforts are commendable, the defendant s activities are more aptly characterized as acceptable, for they fall into the category of what the defendant should be doing. Stated differently, the defendant s conduct does not rise to the level of exceptional behavior. Indeed, the defendant is required to maintain employment as a condition of his supervised release. Similarly, the defendant s volunteer activities and financial donations to various non-profit organizations, while laudable, hardly constitute exceptional behavior that warrants termination of more than half of the courtimposed term of supervised release. 1 The defendant s willingness to provide 1800 hours of pro-bono legal work upon readmission to the bar is completely speculative at this juncture because it is not clear that an attorney convicted of serious federal felonies, including racketeering, racketeering conspiracy, extortion, mail fraud, bribery, conspiracy, and filing false income tax returns will ever have his license to practice law reinstated. 5

6 Case 3:01-cr JBA Document 288 Filed 09/22/11 Page 6 of 7 In sum, the defendant s motion fails to identify any factors that justify special consideration to terminate supervised release. Weintraub, 371 F. Supp. 2d at 167. The defendant s ex parte request fails for a second, equally compelling reason: the defendant has not demonstrated that he is in full compliance with all of the conditions of supervised release. Conspicuously absent from the defendant s motion is any reference to the court-imposed requirement that he participate in substance abuse treatment and testing. In the absence of any evidence that he has complied with this condition a condition the defendant agreed to just two years ago the defendant has not met his burden of showing factors warranting the early termination of supervised release. Assuming arguendo that the defendant has been actively and regularly participating in substance abuse treatment for the initial 14 months of his supervised release, a second showing is necessary: the defendant should also demonstrate that continued substance abuse treatment and testing (for the 22-month balance of his supervised release) will be of no benefit to the defendant as he endeavors to become a productive and law-abiding member of society. See e.g. 18 U.S.C. 3553(a)(2)(D) (one factor guiding a court s determination of the length of supervised release is to provide the defendant with the needed... medical care... or other correctional treatment in the most effective manner[.] ) 6

7 Case 3:01-cr JBA Document 288 Filed 09/22/11 Page 7 of 7 IV. Conclusion For the foregoing reasons, the Court should deny the defendant's motion to terminate supervised release. Respectfu lly submitted, DAVID B. FEIN UNITED STATES ATTORNEY SANDRA S. GLOVER ASSISTANT U.S. ATTORNEY Federal Bar No. ct Church Street, 23'd Floor New Haven, CT Tel.: (203) 82r-3700 Fax: (203) /44/.fupqr* MICHAEL J. GUSTAFSON ASSISTANT U.S. ATTORNEY Federal Bar No. ct Church Street, 23'd Floor New Haven, CT Tel.: (203) Fax: (203) CERTIFICATE OF SERVICE I hereby certifr that on this 21st day of September, 20II, a true and correct copy of the foregoing Opposition was served by first-class mail and electronic mail upon defense counsel: Michael Stanton Hillis Dombroski Hillis, LLC 129 Whitney Ave. New Haven, CT MHillis@dkh-law.com ffi('fu/* U.S. Attorney