Opinion
CASE NO. 11-CR-00283-PAB-04
10-09-2012
UNITED STATES OF AMERICA, Plaintiff, v. 4. ELIZABETH WHITNEY, Defendant.
JUDGE PHILIP A. BRIMMER
COURTROOM MINUTES
Courtroom Deputy: Kathy Preuitt-Parks
Court Reporter: Janet Coppock
Probation Officer: Justine Kozak
Time: 3 hours and 14 minutes
Interpreter: n/a
Counsel
Richard Hathaway
Kathryn Stimson
CONTINUED SENTENCING
8:40 a.m. COURT IN SESSION
APPEARANCES OF COUNSEL. Defendant is present and on bond. ORDERED: The statement of facts in the Presentence Report and its Addendums to the Presentence Report are not disputed by the parties and are adopted in the Court's factual findings in this case. The report is incorporated by reference as part of the Court's findings and conclusions. Discussion regarding defendant's base offense level. Comments by Ms. Stimson. Comments by Mr. Hathaway. Court concludes that defendant's base offense level is six. Court will hear argument regarding the scope of the defendant's participation inthe conspiracy and the issue of loss amount. 8:50 a.m. Argument by Mr. Hathaway. 8:56 a.m. Argument by Ms. Stimson. Questions by the Court. Court states its findings and conclusions. In light of the Court's ruling Ms. Stimson on behalf of the defendant's moves to withdraw her guilty plea. ORDERED: Court will take a brief recess.
9:14 a.m. COURT IN RECESS
9:35 a.m. COURT IN SESSION
Ms. Stimson advises the Court that after conferring with her client, the defendant does not want to withdraw her guilty plea and wishes to proceed with sentencing. Discussion regarding counsels' proffers as to what evidence would be presented regarding the loss amount. Defendant's exhibits A through Q (inclusive) identified, offered and ADMITTED. 9:57 a.m. Direct examination of Government's witness Timothy Chase by Mr. Hathaway. Government's exhibit 1-13 identified, offered and ADMITTED. Government's exhibit 1-17 identified, offered and ADMITTED. Government's exhibit 1-31 identified, offered and ADMITTED. Government's exhibit 1-35 identified, offered and ADMITTED. Government's exhibit 1-30 identified, offered and ADMITTED. 10:39 a.m. Cross examination by Ms. Stimson. Defendant's exhibit R identified, offered and ADMITTED. 11:05 a.m. Questions to the defendant by the Court. Witness excused. 11:06 a.m. Direct examination of Government's witness Robert Spivey by Mr. Hathaway. Government's exhibit 1-20 identified, offered and ADMITTED. Government's exhibit 1-21 identified, offered and ADMITTED. Government's exhibit 1-23 identified, offered and ADMITTED. Government's exhibit 1-24 identified, offered and ADMITTED. Government's exhibit 1-25 identified, offered and ADMITTED. Government's exhibit 1-32 identified, offered and ADMITTED. Government's exhibit 1-33 identified, offered and ADMITTED. Government's exhibit 20-6 identified, offered and ADMITTED over objection by Ms. Stimson. 11:42 a.m. Cross examination by Ms. Stimson.
12:03 p.m. COURT IN RECESS
1:33 p.m. COURT IN SESSION
Court will address defendant's objections to the Presentence Investigation Report. 1:34 p.m. Argument by Ms. Stimson. 1:45 p.m. Argument by Mr. Hathaway. 1:54 p.m. Rebuttal argument by Ms. Stimson. Court states its findings and conclusions. Discussion regarding Government's Motion for Downward Departure Pursuant to 5K1.1. Comments by Mr. Hathaway. Comments by Ms. Stimson. Court states its findings and conclusions. ORDERED: Government's Motion for Downward Departure Pursuant to 5K1.1 (Doc #122) is GRANTED. Argument by Ms. Stimson in support of defendant's Motion for Sentence of Probation and comments addressing sentencing. Argument by Mr. Hathaway and comments addressing sentencing. Defendant addresses the Court. Questions by the Court. Court states its findings and conclusions. ORDERED: Defendant's Motion for Sentence of Probation )Doc #131) is GRANTED. Statement by the Court regarding defendant's offense level, criminal history level and sentencing guidelines range. Defendant entered her plea on May 22, 2012 to count 1 of the Superseding Indictment. ORDERED: Defendant's plea of guilty is ACCEPTED. Court considers statutory factors of 18 USC § 3553(a) in arriving at sentence. ORDERED: Defendant shall be placed on probation for a period of 5 years. ORDERED: Conditions of Probation are that:
(X) Defendant shall not commit another federal, state or local crime.ORDERED: Special Condition of Probation are that:
(X) Defendant shall not illegally possess controlled substances.
(X) Defendant shall not possess a firearm or destructive device.
(X) Defendant shall comply with standard conditions recommended by U.S. Sentencing Commission.
(X) Defendant shall refrain from the unlawful use of a controlled substance and submit to one drug test within 15 days of sentencing and at least two periodic drug tests thereafter for use of a controlled substance.
(X) Defendant shall cooperate in the collection of a DNA sample from the defendant as directed by the probation officer.
() Mandatory drug testing provisions of 18 U.S.C. § 3583(d) are WAIVED because defendant has not shown any evidence of drug use.
(X) Defendant shall participate in and successfully complete a program of testing and/or treatment for substance abuse as directed by the probation officer until such time as defendant is released from the program by the probation officer. Defendant shall abstain from the use of alcohol or other intoxicants during the course of treatment. Defendant will be required to pay the cost of treatment as directed by the probation officer. (X) Defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer, unless the defendant is in compliance with the periodic payment obligations imposed pursuant to the Court's judgment and sentence. (X) As directed by the probation officer, the defendant shall apply any monies received from income tax refunds, lottery winnings, inheritances, judgments, and any anticipated or unexpected financial gains to the outstanding court ordered financial obligation in this case. (X) Defendant shall perform 500 hours of community service as directed by the probation officer.ORDERED: Defendant shall pay $100.00 to Crime Victim Fund (Special Assessment), to be paid immediately. ORDERED: No fine is imposed because defendant has no ability to pay a fine. ORDERED: Defendant shall make restitution as follows:
(X) The special assessment and restitution obligations are due immediately. Any unpaid restitution balance shall be paid in monthly installment payments during the term of probation. The monthly installment payment will be calculated as at least 10 percent of the defendant's gross monthly wages.
Name/Address of Victim AmountRestitution is ordered jointly and severally with the following defendants:
FTC $572,522.38
Federal Reserve Bank Of New York
Appropriation: 29 x 6013
Medical Recovery Services/R. Neiswonger
Matter No. x970012
33 Liberty Street
New York, New York 10045
Name Case NumberORDERED: Interest on restitution is WAIVED. ORDERED: Government's Motion to Dismiss Remaining Counts will be GRANTED, upon the filing of the appropriate motion and proposed order. ORDERED: Defendant advised of right to appeal. Any notice of appeal must be filed within 10 days. ORDERED: A copy of the presentence report shall be forwarded to the U.S. Bureau of Prisons and the U.S. Sentencing Commission. ORDERED: Bond is exonerated.
ROBERT MCALLISTER 11-cr-00283-PAB-01
RICHARD NEISWONGER 11-cr-00283-PAB-02
SHANNON NEISWONGER 11-cr-00283-PAB-03