3 4 5 8 0 3 4 5 THOMAS M. HOIDAL (appearing pro hac vice) Law Office of Thomas M. Hoidal, P.L.C. W. Monroe St., Suite 0 Phoenix, AZ 85003 thoidal@hoidallawoffice.com AZ State Bar No. 004 Telephone: (0) 4-0 Facsimile: (0) 4-0404 Mark E. Vovos, P.S. Attorneys at Law Suite 00, Delphi Building 30 W. Dean Ave. Spokane, WA mvovos@concentric.net Telephone: (50) 3-50 Facsimile: (50) 3-5 Attorneys for Defendant Novak UNITED STATES OF AMERICA, VS. RICHARD JOHN NOVAK, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Plaintiff, Defendant. No. CR-05-000-LRS-003 SENTENCING MEMORANDUM Defendant, Richard Novak, by and through his counsel, Thomas M. Hoidal, hereby submits the attached Sentencing Memorandum in connection with the sentence to be imposed on Tuesday, September 30, 08. RESPECTFULLY SUBMITTED this 5th day of September, 08. Law Office of Thomas M. Hoidal, P.L.C. s/ Thomas M. Hoidal THOMAS M. HOIDAL --
3 4 Mark B. Vows, P.S. si Mark B. Vows MARK E. VOVOS Attorneys for Defendant NOVAK 5 8 0 3 4 5 --
MEMORANDUM On March, 0 Richard John Novak waived indictment and plead guilty to a 3 two count superseding Information charging the defendant with Conspiracy to Commit 4 Wire Fraud and Mail Fraud and to violate the Foreign Corrupt Practices Act, in violation 5 of U.S.C. 3, 34 and 343 and 5 U.S.C. 8dd-(a) and with the violation of the Foreign Corrupt Practices Act in violation of 5 U.S.C. 8dd-(a). Both of these offenses are Class D felonies with a maximum sentence of 5 years imprisonment. The 8 parties have stipulated to a factual basis that defendant Novak agreed to work for Dixie Ellen Randock by traveling from Arizona to Washington, D.C. to obtain documents for St. 0 Regis University and other diploma mill universities operated by Dixie Randock. Later, Dixie Randock directed Novak to seek accreditation for St. Regis University and others from the Republic of Liberia. Defendant Novak made numerous trips to Washington, D.C. 3 and to Africa in order to obtain letters of accreditation. He paid numerous government 4 officials and other persons in order to maintain the accreditation. 5 The government has agreed to dismiss the charges against Richard Novak in the pending indictment at the time of sentencing and not to file any additional charges against the defendant or his wife based upon information in the government's possession at the time of the plea agreement. The government may also file a Motion for Downward Departure pursuant to U.S.S.G. 5Kl. based upon the defendant's substantial assistance in the investigation and prosecution of this case. The defendant has provided information at numerous debriefings which has been complete, accurate and truthful. It is expected that the government will file a Motion for Downward Departure from the guideline range found by the Court. Since the plea was entered in this case, however, the Supreme Court and the Ninth Circuit have decided several cases which expand this court's discretion to sentence the defendant in accordance with U.S.C. 3553 and below the Guideline range found by the court. Because there exist numerous mitigating factors in this case which the -3-
Guidelines do not appropriately take into account, the defendant submits that a sentence probation is appropriate. 3 Iv' The Guidelines Are Advisory and Only One Factor for the Court to Consider 4 In Blakely v. Washington, 54 U.S. (04), the Supreme Court held that the 5 relevant statutory maximum is the maximum a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant in a change of plea. On January, 05, the Supreme Court issued majority and remedial opinions in United States v. 8 Booker, 543 U.S. 0 (05). The Court held that Blakely v. Washington applied to the Federal Sentencing Guidelines and that the Sixth Amendment's jury trial guarantee 0 prevented judges from finding facts that exposed the defendant to increased prison time. As a remedy, a different majority of the Court excised the provisions of the Sentencing Reform Act that made the Guidelines mandatory. U.S.C. 3553(b). The remedial 3 majority held that the district courts must still consider the guideline range, but must also 4 consider other directives set forth in U.S.C. 3553(a). 5 Under U.S.C. 3553(a) the court is required to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph ()..." The latter section states the purposes of sentencing as: (A) to reflect the seriousness of the offense, to promote the respect for law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with the needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. Section 3553(a) further directs sentencing courts to consider () the nature and circumstances of the offense and the history and characteristics of the defendant; () the kinds of sentences available; (3) the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct; and (4) the need to provide restitution to any victims of the offense. See United States v. Ameline, 40 F.3d 03, 0 ( th Cir. 05) (en banc) (Wardlaw, J., concurring in part and dissenting in part). 0
3 4 5 8 0 3 4 5 In a series of decisions last year the Supreme Court elaborated on the advisory nature of the Guidelines and upheld substantial downward variances from the guideline range. First, in Rita v. United States, U.S. -, S. Ct. 5 (0). the court held that a Court of Appeals may presume that a sentence is reasonable when a district judge's discretionary decision accords with the sentencing guideline range established by the sentencing commission.' Thereafter, in two cases decided on the same day, the Supreme Court held that the appellate courts must review all sentences, within and without the guideline range, under the same deferential abuse of discretion standard and that all Guidelines serve simply as one factor that the district court must consider in determining an appropriate sentence. Gall v. United States, - U.S., S. Ct. 58 (0); Kimbrough v. United States, - U.S., S. Ct. 558 (0). In Gall the Supreme Court upheld a variance from a guideline range of 30-3 months to a sentence of probation. The Court rejected an appellate rule that would require extraordinary circumstances to justify a sentence outside the guideline range. Rather, the Court held that "all sentences - whether inside, just outside or significantly outside of the guideline range" are reviewed under a "deferential abuse-of-discretion standard". The Court set forth the procedure to be undertaken by a District Court in post-booker sentencing: As we explained in Rita, a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. See 55 U.S., at, S. Ct. 5. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the 3553(a) factors to determine whether they support the sentence requested by a In this circuit, however, Rita is inapplicable because the Court of Appeals has declined to adopt the "presumption" of reasonableness for a sentence imposed within the Guideline range. United States v. Catty, 5 F.3d 84 (th Cii. 08) -5-
3 4 5 8 0 3 4 5 Id. at 5- party. In so doing, he may not presume that the Guidelines range is reasonable. See id., at, S. Ct. 5. He must make an individualized assessment based on the facts presented. If he decides that an outside-guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. Id., at, S. Ct. 5 In Kimbrough, supra, the Supreme Court upheld an even greater variance from the sentencing guideline range and held that under Booker the cocaine Guidelines, like all others, are advisory only, and serve as one factor among several that the district court must consider in determining an appropriate sentence. The Supreme Court upheld a 4 year downward variance and concluded the district court may consider, inter alia, the disparity between the Guidelines treatment of crack and powder cocaine in deciding to impose a below Guidelines sentence. S. Ct. at 54. Booker, Gall and Kimbrough make it clear that the court may no longer uncriti apply the Guidelines. Rather, the court is now directed to consider all of the Section 3 553(a) factors, many of which the Guidelines either rejected or ignored. For example, under Section 3553(a)() a sentencing court must consider the "history and characteristics of the defendant." The Guidelines, of course, generally forbid the court to consider the defendant's age, U.S.S.G. 5H., his education and vocational skills, 5H., his mental and emotional condition, 5H.3, his physical condition including drug or alcohol dependence, 5Hl.4, his employment record, 5H.5, his family ties and responsibilities, 5H., his socioeconomic status, 5-.0, his civic and military contributions, 5H., and his lack of guidance as a youth, 5H.. No longer can the court ignore Eel
these factors and only consider the defendant's criminal history was formerly required b the Sentencing Guidelines. 3 In a sweeping decision following the Supreme Court opinions, the Ninth Circui 4 overruled all prior sentencing cases to the extent that they are inconsistent with Rita, Gal 5 and Kimbrough. United States v. Carty, supra, 5 F.3d 84, n.5 (th Cir. 08). Th I Court of Appeals directed the district courts to "consider the 3 553(a) factors to decide they support the sentence suggested by the parties". Id. at. The district court may no 8 presume that the guideline range is reasonable. Nor should the guideline factor "be giver more or less weight than any other". When a defendant raises a specific argument for 0 particular sentence under the 3 553(a) factors, the court is required to explain why i accepts or rejects the defendant's position. Id. at -3. The district court retain, discretion to impose an outside the Guidelines sentence and the extent of the deviation i 3 simply a consideration and should not prevent the district court from imposing th 4 sentence sought by the defendant. In determining the substantive reasonableness of th 5 sentence, the Court of Appeals considers the totality of the circumstances and the cour may not reverse just because it thinks a different sentence is appropriate. Id. at 3. Se also United States v. Whitehead, 53 F.3d (th Cir. 08) (sentence of probatior reasonable for defendant who sold over $ million worth of counterfeit TV access card,, even though Guideline range calculated at 4-5 months imprisonment) B. A Sentence of Probation is Appropriate in Defendant Novak's Case The clear import of Gall and Kimbrough is that the advisory sentencing Guideline are but one of the 3553 factors that should be considered. They can be outweighed in ar individual case by other 3553 factors, including the need to avoid unwarranted sentenc disparities among defendants. See U.S.C. 3553 (a)(). Several of these factors clean) support a sentence of probation for Rick Novak. The following factors were specificall) approved by the Court in Gall and Kimbrough. --
3 4 5 8 0 3 4 5 I. Disparities Between Co-Defendants In Gall the Supreme Court endorsed the district court's consideration of the sentences of other defendants and the need to avoid unwarranted "similarities among other co-conspirators who were not similarly situated." Gall v. United States, supra, S. Ct. at 00. Gall had voluntarily withdrawn from the conspiracy and changed his life considerably since the offense conduct. Clearly, avoiding unwarranted disparity in this case would call for a sentence of probation for Rick Novak. Co-defendants Dixie and Steven Randock, the architects of the fraudulent scheme and the primary beneficiaries, have been sentenced by this court to 3 years imprisonment. While they reaped millions of dollars as a result of the diploma mills which they established, defendant Novak was paid a small sum, less than $50,000, for his work over 3 years. (see PSR, para. 34, p. ) Co-defendant Heidi Lorhan has received a sentence of a year and a day and was the highest paid "advisor" for the Randock businesses. She received compensation far in excess of the meager amounts paid to Rick Novak for his work in obtaining apostilles and authentications and seeking accreditation from the Liberians. This does not even take into account the cooperation which Rick Novak provided in assisting the government in the prosecution of the Randocks. A sentence of probation to avoid unwarranted sentencing disparity clearly outweighs the advisory guidelines in this situation.. Military Service In Kimbrough, the Supreme Court endorsed the sentencing judge's evaluation of the defendant's history and characteristics in upholding the sentence outside the Guidelines, including his service in combat and honorable discharge from the Marine Corps. Kimbrough v. United States, supra, S. Ct. at 55. The presentence report documents Rick Novak's service in the U.S. Army during the Vietnam war and his honorable In the Ninth Circuit the Court of Appeals had approved downward departures to avoid sentencing disparity prior to Gall and Kimbrough. See, e.g., United States v. Tzoc-Sierra, 38 F3d, 80-8 (th Cir. 04); United States v. Daas, 8 F.3d, 0-8 (th Cir. )..
discharge. Combined with his lack of any prior felony convictions and steady history employment, he clearly qualifies for a substantial deviation from the sentencing guidelines 3 in this case. Under Kimbrough, a sentence of probation is reasonable. 4 3. Extraordinary Family Responsibilities 5 In Gall the Supreme Court noted that the government conceded that extraordinary family circumstances and responsibilities would be a valid basis to impose a non-custodial sentence of probation, outside of the Guideline range. Gall v. United States, supra, S. 8 Ct. at 0. The government had stated that these extraordinary circumstances would be present "where individuals will be very badly hurt in the defendant's family if no one is 0 available to take care of them." Id. The Ninth Circuit has long approved sentences well below the Guideline range for extraordinary family circumstances. See United States v. Menyweather, 44 F.3d (th Cir. 0) (eight level downward departure to probation 3 for diminished capacity and the fact the defendant was the sole parent and primary source 4 of financial support for her year old daughter), United States v. Leon, 34 F.3d ( th 5 Cir. 03) (six level downward departure to split sentence of eight months imprisonment and eight months home detention for a defendant who was the sole caretaker of his wife); United States v. Aguirre, 4 F.3d (h Cir.), cert. denied, 53 U.S. 0 (00) (four level downward departure for extraordinary family circumstances based on the fact that the defendant's common-law husband had died and left her son without a custodial parent). Indeed, the Circuit has made it clear that in the post-booker sentencing, extraordinary family circumstances, when balanced against the other 3553 factors, warrants a sentence outside of the guidelines. United States v. Meneather, supra, 44 F.3d 34. The presentence report notes that Jean Novak, Rick's wife, had polio and is getting worse. She uses crutches and a scooter to get around the house. (See PSR, para. at p. 55.) She commented to the probation officer that she needs Rick's assistance for the activities of daily living and is concerned how she will manage financially if Rick is incarcerated. (See PSR, para. 3, p. 55). in
Attached hereto as Exhibit A are letters from Jean Novak and Rick's other family members which attest to the dire consequences should Rick Novak be incarcerated and 3 I unable to assist. Jean Novak tells the court that she does not know how she will survive 4 without Rick as she has come to depend on him not just emotionally but physically as well. 5 She describes in detail the diagnosis of "Post-Polio Syndrome" and the fact that she has frequent falls and is unable to get up without assistance. Rick's sister, Vicky Rae Warner describes how Jean is unable to walk without crutches and braces on her legs and unable to 8 handle many of the activities of daily living. She points out that Rick does everything for Jean and that she would be lost without him. Rick's son and daughter-in-law, Brad and 0 Angela Novak, also describe Jean's reliance on Rick for physical assistance. They mention that "it is crucial that Rick be able to work to contribute to the household" and that no one is available who can truly care for Jean if Rick is not there. Rick's son Chad 3 and daughter-in-law Susan Novak also describe the situation if Rick were not available to 4 assist Jean with the activities of daily living. 5 These letters make it clear that there are extraordinary family circumstances "where individuals will be very badly hurt in the defendant's family if no one is available to take care of them." Such extraordinary family circumstances clearly outweigh any of the other 3553 factors including the Sentencing Guidelines. The Ninth Circuit has concluded as much in its opinions on this issue. For this reason alone, not even considering the other mitigating circumstances in this case, a sentence of probation is clearly appropriate. -0-
CONCLUSION For the reasons stated, the defendant respectfully requests that the Court impose a 3 sentence of probation with appropriate conditions that will allow him to continue to 4 provide financial and physical support for his family. 5th 5 RESPECTFULLY SUBMITTED this day of September, 08. Law Office of Thomas M. Hoidal, P.L.C. 8 s/ Thomas M. Hoidal THOMAS M. HOIDAL 0 Mark E. Vovos, P.S. s/ Mark E. Vovos MARK E. VOVOS 3 Attorneys for Defendant NOVAK 4 5 --
3 4 5 8 0 3 4 5 CERTIFICATE OF SERVICE I hereby certify that on September 5, 08, I electronically filed the foregoing with the Clerk of the Court using the CM!ECF System which will send notification of such filing to the following: George J.C. Jacobs, III Assistant United States Attorney Brenda G. Challinor U.S. Sentencing Guidelines Specialist John 0. Cooney Christina L. Hunt Peter S. Schweda Timothy D. Treageser Richard D. Wall Leslie Richard Weatherhead Phillip J. Wetzel I Law Office of Thomas M. Hoidal, P.L.C. s/ Thomas M. Hoidal THOMAS M. HOIDAL Attorney for Defendant NOVAK (appearing pro hac vice) Law Office of Thomas M. Hoidal, P.L.C. W. Monroe St., Suite 0 Phoenix, AZ 85003 thoidal@hoidallawoffice.com AZ State Bar No. 004 Telephone: (0) 4-0 Facsimile: (0) 4-0404 --