United States v. Smith

Full title: UNITED STATES OF AMERICA v. SHERMAN S. SMITH

Court: United States District Court, N.D. California

Date published: Feb 24, 2004

Case Number: CR-02-0265-01 SI (N.D. Cal. Feb. 24, 2004)

Opinion

Case Number: CR-02-0265-01 SI

February 24, 2004

JUDGMENT IN A CRIMINAL CASE (For Offenses Committed On or After November 1, 1987)

SUSAN ILLSTON, District Judge

THE DEFENDANT:

[X] pleaded guilty to count(s): 19 of the Indictment.

[ ] pleaded nolo contenders to count(s) ___ which was accepted by the court.

[ ] was found guilty on count(s) ___ after a plea of not guilty.

ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offense(s):

Title Section Nature of Offense Date Offense Count Number(s) Concluded 15 U.S.C §§ 78J

(B), 78ff;17 Securities Fraud 2/01 19 C.F.R. § 240.10b-5 The defendant is sentenced as provided in pages 2 through 12 of this judgment. The sentence is imposed pursuant to the. Sentencing Reform Act of 1984.

[ ] The defendant has been found not guilty on count(s) ___.

[x] Count(s) 1-18 and 20-25 of the Indictment (is)(are) dismissed on the motion of the United States.

IT IS FURTHER ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution, the defendant shall notify the court and United States attorney of any material change in the defendant's economic circumstances.

Defendant's Soc. Sec. No.: 4220

Defendant's Date of Birth: 4/30/46

Defendant's USM No.: 92496-011

Defendant's Residence Address: 2850 Pinewood Dr., Napa, CA 94558

Defendant's Mailing Address: February 13, 2004

Signature of Judicial Officer

Honorable Susan Illston, U.S. District Judge

Name Title of Judicial Officer

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of 37 months.

[x] The Court makes the following recommendations to the Bureau of Prisons:

The defendant shall be desiganted to a correctional facility located close to Napa, CA so that he may be near his family.

[ ] The defendant is remanded to the custody of the United States Marshal. [ ] The defendant shall surrender to the United States Marshal for this district.

[ ] at ___ on ___.

[ ] as notified by the United States Marshal.

[x] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

[x] before 2:00 p.m. on 4/9/04.

[ ] as notified by the United States Marshal.

[ ] as notified by the Probation or Pretrial Services Officer.

RETURN

I have executed this judgment as follows: ______________________________________________ ______________________________________________ ______________________________________________

Defendant delivered on ___ to ___ at ___, with a certified copy of this judgment.

UNITED STATES MARSHAL

By

Deputy U.S. Marshal

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of 3 years.

While on Supervised Release you shall not commit another federal, state or local crime and shall not illegally possess a controlled substance. Revocation of supervised release is mandatory for possession of a controlled substance.

The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter.

[ ] The above drug testing condition is suspended based on the courts determination that the defendant poses a low risk of future substance abuse. (Check if applicable.)

[ ] The defendant shall not possess a firearm, destructive device, or any other dangerous weapon.

Revocation of supervised release in mandatory for refusal to comply with drug testing imposed as a condition of supervision. 18 U.S.C. § 3565(b)(3) and 3583(g)(3)

You shall pay the assessment imposed in accordance with 18 U.S.C. § 3013, and shall immediately notify the probation officer of any change in your economic circumstances that might affect your ability to pay a special assessment, fine, restitution, or co-payments ordered by the Court.

If the judgment imposed a fine or a restitution obligation, it shall be a condition of supervision that you pay any such fine or restitution that remains unpaid at the commencement of the term of supervision in accordance with any Schedule of Payments set forth in the Criminal Monetary Penalties sheet of the judgment. In any case, the defendant shall cooperate with the probation officer in meeting any financial obligations

STANDARD CONDITIONS OF SUPERVISION

It is the order of the Court that the defendant shall comply with the following standard conditions:

1) The defendant shall not leave the judicial district or other specified geographical area without permission of the Court or the probation officer;

2) The defendant shall report to the probation officer as directed by the Court or the probation officer, and shall submit a truthful and complete written report within the first five days of each month;

3) The defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;

4) The defendant shall support his or her dependants and meet other family responsibilities, including but not limited to, compliance with the terms of any court order or administrative process pursuant to the laws of a state, the District of Columbia, or any other possession or territory of the United States, requiring payments by the defendant for the support and maintenance of any child or of a child and the parent with whom the child is living;

5) The defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons;

6) The defendant shall notify the probation officer at least ten (10) days prior to any change in residence or employment;

7) The defendant shall consume no alcohol if sentenced to the special condition that the defendant is to participate in a drug/alcohol program;

8) The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substance, except as prescribed by a physician;

9) The defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered;

10) The defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer;

11) The defendant shall permit a probation officer to visit the defendant at any time at home or elsewhere, and shall permit confiscation of any contraband observed in plain view by the probation officer;

12) The defendant shall notify the probation officer within seventy-two (72) hours of being arrested or questioned by a law enforcement officer;

13) The defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the Court;

14) The defendant shall notify third parties of risks related to the defendant's criminal record, personal history, or characteristics, and shall permit the probation officer to make such notifications and/or confirm the defendant compliance with this notification requirement

SPECIAL CONDITIONS OF SUPERVISION

1) The defendant shall not be employed in any capacity in which without the prior approval of the probation officer.

2) The defendant shall provide the probation officer access to any requested financial information.

3) The defendant shall not open any new lines of credit and/or incur new debt without the prior permission of the probation officer.

4) The defendant shall not maintain a position of fiduciary capacity without the prior permission of the probation officer.

5) The defendant shall file all past tax returns and accurately file all future income tax returns timely required by law during the term of supervision, unless an extension of time is granted by the IRS.

6) The defendant shall submit his/her person, residence, office, vehicle, or any property under his/her control to a search. Such a search shall be conducted by a United States Probation Officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release. Failure to submit to such a search may be grounds for revocation. The defendant shall warn any residents that the premises may be subject to searches.

7) As of the date of incarceration begins, the defendant shall not conduct business dealing with Royal Resorts as a partner.

8) The defendant shall cooperate with the sale of the property located in Kentucky.

9) The defendant shall not engage in any business dealings or open any new business without the approval of the probation officer.

10) The defendant shall pay any fine and special assessment that is imposed by this judgment and that remains unpaid at the commencement of the term of supervision.

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal monetary penalties in accordance with the schedule of payments directly following the Monetary Penalties section.Assessment Fine Restitution $5,083,913.98 Totals: $100.00 $ [ ] The determination of restitution is deferred until ___. An Amended Judgment in a Criminal Case (AO 245C) will be entered after such determination.

[ ] The defendant shall make restitution (including community restitution) to the following payees in the amounts listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportional payment unless specified otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid in full prior to the United States receiving payment. ^_ Name of Payee Amount of Loss Restitution Ordered Percentage of Payment Amount of Loss Restitution Ordered Percentage of Payment Totals: 5.083.913.98

_ Finding for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994, but before April 23, 1996.

Total Amount of Priority Order or 1) Anita Walter-3600 Southern $1,768,300, less Pines Drive, Middleburg, FL any amount already 32068 paid 2) Joseph E. Anselmi — 9404 $25,000 Hinshaw Road, Wake Forrest, NC 27587 3) Elizabeth Carver — P. O. Box 103, $10,000 Breezewood, PA 15533 4) Phyllis A. Cox-18901 Hidden $15,000 Valley Road, Middletown, CA 95461 5) Margo L. Fogarty — 1203 San Juan $29,149 Drive, Roswell, NM 88201-8356 6) Olive A. Bowen Harris — 109 $25,000 Charles Court, Vallejo, CA 94591 7) Joe F. Hammond — 103 Casswall Street, Napa, CA 94558 $47,750 8) Ordean Hebb — 46 Eastland Circle, $15,000 Waynesboro, PA 17268 9) Freda Inglis (Donald Royce Inglis $270,041 for Freda Inglis) — 2115 West Park, Napa, CA 94558 $30,000 10) D. Curtis Mummert — 8887 Stottlemyer Road, Waynesboro, PA 17268 11) Roy and Beverly McGuire — 708 $104,000 Ranch Road, Connersville, IN 47331 12) William Poss — 930 Elinor Avenue, $22,250 Marysville, CA 95901 13) Sally and Joseph Siler — 3553 $302,540 Bonari Court, Concord, CA 94519 14) Jerry D. Walsh — 1308 Eastwood $15,000 Avenue, Vallejo, CA 94591-4815 15) James Leatherman — 120 Jolly $257,374 Rancher Drive, Martinsburg, WV 25401 16) Susie Sedgwick — 970 Lescon $156,500 Circle, Reno Nevada 89509 17) Robert and Barbara Jones — 12 $91,385.98 White Oaks Drive, Martinsburg, WVA 25401 18) Joan McCorkle — 2300 Dickerson $29,045.00 Road #21, Reno, Nevada 85923 19) Donnie Havermale — 2094 Eagle $219,490 School Road, Martinsburg, WVA 25401 20) Dennis Barber — 999 South Valley Road, Chrystal Springs, PA 15536 $70,526 21) Terry Jones — Rt. 3 Box 111A, $5,500 Martinsburg, WVA 25401 22) John Kendig — 2911 Scrabble $10,000 Road, Martinsburg, WVA 25401 23) Daniel Moler — 378 Sapwood Drive, Hedgesville, WVA 25427 $1,000 24) Robert Porter, Sr.-1811 $10,000 Hardman Ave, Napa, CA 94558 25) Eric Jones — Rt.3 Box 111 A, $11,000 Martinsburg, WVA 25401 26) Don Smith — 96 Chaplewood $30,063 Court, Martinsburg, WVA 25401 27) Dean Hebb — 46 Eastland Circle, $1,000,000 Waynesboro, PA 17268 28) Michael Molar — 673 $57,000 Conservation Drive, Hedgesville, WVA 25427 29) Michael Molar Jr.-Rt.5 Box 307, $7,500 Martinsburg, WVA 25401 30) Richard Martin — 20927 $40,000 Leitersburg Pike, Hagerstown, PA 21742 31) Chris (Hebb) Miller — 46 Eastland $5,000 Circle, Waynesboro, PA 17628 32) Dale Seabrook — 550 W. 8th $10,000 Street, Waynesboro, PA 17628 33) Harry Butle r — 894 Files $170,000 Crosssroads Road, Martinsburg, WVA 25401 34) Joanne Smith — 96 Chapelwood $10,000 Court, Martinsburg, WVA 25401 35) James Leatherman Sr. — 109 $10,000 Windy Trail, Martinsburg, WVA 36) Daniel R. Molar — 378 Sapwood $3,500 Drive, Martinsburg, WVA 25401 37) Shari Lotspiech — 2531 Oakhaven $50,000 Drive, West Harrison, IN 47060 38) Wolfram Lutz — 2175 Calais $150,000 Lane, Fernandina Beach, FL 32034 $___ $

[ ] If applicable, restitution amount ordered pursuant to plea agreement $___

[ ] The defendant shall pay interest on any fine or restitution of more than $2,500, unless the fine or restitution is paid in full before the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(1). All of the payment options on Sheet 5, Part B may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

[ ] The court determined that the defendant does not have the ability to pay interest, and it is ordered that:

[ ] the interest requirement is waived for the [ ] fine and/or [ ] restitution.

[ ] the interest requirement for the [ ] fine and/or [ ] restitution is modified as follows:

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties shall be due as follows:

A [x] Lump sum payment of $100.00 due immediately, balance due

[ ] not later than ___, or

[x] in accordance with ( ) C, ( ) D, or (x) E below; or

B [ ] Payment to begin immediately (may be combined with ( ) C, ( ) D, or ( ) E below); or

C [ ] Payment in ___ (e.g. equal, weekly, monthly, quarterly) installments of $___ over a period of ___ (e.g., months or year(s)), to commence ___ (e.g., 30 or 60 days) after the date of this judgment; or

D [ ] Payment in ___ (e.g. equal, weekly, monthly, quarterly) installments of $___ over a period of ___ (e.g., months or year(s)), to commence ___ (e.g., 30 or 60 days) after release from imprisonment to a term of supervision; or

E [x] Special instructions regarding the payment of criminal monetary penalties: as directed by the probation officer.

It is further recommended that, pursuant to Title 18 U.S.C. § 3664 (i), which states that if the court finds that more than one victim has sustained a loss requiring restitution by a defendant the court may provide for a different payment schedule for each victim based on the type and amount of each victim's loss and accounting for the economic circumstances of each victim, restitution be paid in full to Anita Walter in the amount of $1,768,300, less any amount already paid. Restitution is to be paid to the remainder of the victims in the amounts listed after Anita Walter has been paid.

Unless the court has expressly ordered otherwise in the special instruction above, if this judgment imposes a period of imprisonment, payment of criminal monetary penalties shall be due during the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons' Inmate Financial Responsibility Program, are made to the clerk of the court, unless otherwise directed by the court, the probation officer, or the United States attorney.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

[ ] Joint and Several

Payments shall be applied in the following order (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) community restitution, (6) fine interest, (7) penalties, (8) costs, including cost of prosecution and court costs. (including Defendant Defendant Name Amount Number)

Case Number Joint and Several [ ] The defendant shall pay the cost of prosecution.

[ ] The defendant shall pay the following court cost(s):

[ ] The defendant shall forfeit the defendant's interest in the following property to the United States:

Payments shall be applied in the following order (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal, (5) community restitution, (6) fine interest, (7) penalties, (8) costs, including cost of prosecution and court costs.

AGREEMENT OF SHERMAN AND KATHY SMITH

Sherman and Kathy Smith agree to cooperate with the United States in an execution sale of his property under 28 U.S.C. § 3203, and waive any right to notice of the sale and the requirement of a 90 day delay in sale of 28 U.S.C. § 3205(g)(A)(i).

Sherman and Kathy Smith agree to and will supply counsel for the United States with the most recent appraisal of the property known as 4299 Mt. Horeb Pike, Lexington, KY 40511.

Sherman and Kathy Smith agree to and will supply counsel for the United States with the most recent title report available for this property.

Sherman and Kathy Smith agree to and will supply counsel for the United States with a copy of any promissory note, deed of trust, or mortgage connected with or relating to the property.