Defendants’ Sentencing Memorandum — United States v. Tran (Dkt. 147, D. Mass.)

Summary

Defense lawyer Michael Walsh filed this sentencing memorandum for Dean Tran on 01/17/25 as Document 147 in Docket No. 23-CR-10299-FDS in the District of Massachusetts. It describes Dean Tran as a Republican State Senator from Fitchburg between 2017 and 2021 and disputes Probation's guideline calculation, objecting to a 6 point enhancement for loss more than $40,000 but less than $90,000 that counts approximately $7K in benefits from weeks on which the jury could not reach a verdict. The memo says Dean Tran is alleged to have received monies from the PUA program for 20 weeks, and argues the IRS loss should be $23,327. It proposes a sentence of probation of 2 years, with 5 months of home confinement, or a non-guideline sentence if the Guidelines do not allow probation.

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Case 1:23-cr-10299-FDS           Document 147         Filed 01/17/25      Page 1 of 15




                                     United States of America
                                     District of Massachusetts
Suffolk, ss.

United States

v.                                                            Docket No. 23-CR-10299-FDS

Dean Tran

                              Defendants’ Sentencing Memorandum

Who Is Dean Tran
      Dean Tran is a 50 year old male of Vietnamese descent. He an American Citizen and his

family fled the communist regime in Vietnam. Between 2017 and 2021 he was a Republican

State Senator from Fitchburg. Before this he served as a Fitchburg City Councilor for a number

of years.

       Mr. Tran holds a Bachelors Degree. He is married and has three dependents. One of his

children is of college-age, on is in 10th grade and one is in 7th grade. One of his children suffers

from a serious medical condition. Mr. Tran’s wife, primarily a home-maker, does have

employment (part time) with the school system. Mr. Tran is the bread-winner for his family and

has always been.

       Mr. Tran currently works as a quality manager for an autoparts store. Previous to his

Senate term, Mr. Tran worked for a computer company.

       Mr. Tran is an entrepreneurial spirit. He has taught that spirit to his children, as disclosed

at the trial. Mr. Tran, having worked since he was 19, is an industrious sort. He successfully

bought his childhood home as an investment property before he was 21.

       He is a dedicated fixture of his community. He is a youth sports coach. He has a strong

and deep commitment to educational programming in his community.

      Case 1:23-cr-10299-FDS          Document 147        Filed 01/17/25     Page 2 of 15




       Mr. Tran is politically active and civic minded. He is also a dedicated and sincere

member of his congregation. Attached herewith is a recommendation letter from his Pastor. He

and his siblings keep in touch with the Catholic priests who assisted the family in escaping

Vietnam.

       Mr. Tran is also a dedicated uncle. He regularly provides presents and emotional

connection to his nieces and nephews.

       In general, Mr. Tran is the posterchild of a family man. Self-made, he stands on his own

two feet, and teaches his children to do the same. He has worked his entire adult life. He

provides extensive support and educational and moral guidance to his children.

       Mr. Tran also labors with some mental issues. Included herewith is a letter of support

from his social worker, including confirmation of Mr. Tran’s PTSD diagnosis.



Defendant’s Sentencing Guideline Calculation Notes


Tax Returns

U.S.S.G. §2T1.1(a)(2) Offense level 6 (no tax loss)

       ===Constitutional objection to application of U.S.S.G. §2T1.1(c)(1)(A). Under Apprendi

v. New Jersey, 530 U.S. 466 (2000), and its progeny, any fact which increases a sentence must be

submitted and be decided upon by a jury. The jury was specifically instructed that “The

government does not have to prove that there was a tax due and owing for the years in issue.” Tr.

6-139. The Court also paused in the middle of witness examination to specifically tell the jury

that “the government does not have to prove that any actual tax was owing to prove the tax crime

with which he is charged.” Tr. 5-59. The verdict form did not request or ask the jury to make any

finding of actual loss. The jury did not determine any loss amount by the government. Considering

          Case 1:23-cr-10299-FDS                Document 147           Filed 01/17/25          Page 3 of 15




how they were instructed, that no finding of loss was required for this particular crime, there is no

verdict or finding by the jury. They were specifically not asked for such a finding. Since the

amount of loss apparently makes a significant difference in sentencing, the Court must treat this

as a case in which there is no tax loss. Where the Defendant made specific objections to the

Silverstein case and to instructions which told the jury they need not find loss, the Court cannot

proceed on the contested facts about loss—especially not found by the jury. 1

           ===The Court should, under the sentencing guidelines, credit Mr. Tran all the deductions

and exemptions he was fairly entitled to. U.S.S.G. §2T1.1 comment 3. Based on the accompanying

tax calculations, made by the Defendant’s accountant witness Mr. Terranova, the Defendant argues

that if given the deductions he was entitled to, the Government suffered no loss. The Government

suffered no loss and Mr. Tran cannot be sentenced as if there was loss.

           ====Both these arguments also hold true for any finding of Fines or Special Assessment

that would multiply the loss to arrive at a fine.



Wire Fraud

Offense Conduct
§2B1.1(a)(1) ---Offense Level 7
§2B1.1(b)C)----Add 4 (loss >$15K but <$40K) 2

Offense Level 11 (unless the loss objection is sustained, in which case is the level is 7. Resulting
in a Zone A sentence, recommended of 0-6 months).

No Criminal History Points.




1
    The argument about the Jury being required to find loss also holds true for the Wire Fraud counts.
2
    But See Note 1.

       Case 1:23-cr-10299-FDS               Document 147           Filed 01/17/25        Page 4 of 15




U.S.S.G. Sentencing Table C.5, pt.A produces a Zone B, Cat.1, recommended sentenced of 8-14

months. 3

** Here the Defendant objects strongly to the Probation calculation as wrong. In addition to related

objections about loss calculations, the Defendant objects to ¶56 of the PSI giving a 6 point

enhancement for loss more than $40,000 but less than $90,000. This relies on the inclusion of

approximately $7K in benefits received during weeks which the Jury did not convict the

Defendant, being unable to reach a verdict on Counts 1-5. If the money for weeks for which the

Defendant was not convicted are removed (as in the Defendant’s calculation) paragraph 56 is

erroneous and the offense level is lower by 6 points and materials changes from a Zone D offense

(probation ineligible) to a Zone B offense and maybe even a Zone A offense.


        In addition to the objections above, the Defendant objects that the PSI report includes

within loss and restitution numbers, payments during weeks which the jury did not reach a verdict

on. This is the same constitutional objection as holding acquitted conduct against a defendant. It

is fundamentally unfair, contrary to the efficacy of the jury right, and contrary to due process.

        The Government is also guilty of piling on. The Government sliced the indictment by week

instead of focusing on the alleged scheme. Despite the benefit of prosecutorial discretion, the

Government cannot benefit in sentencing from slicing the baloney sidewise instead of lengthwise.

It would constitutionally accord the executive too much power and deprive the Defendant of his

right to the constitutional protection of the judiciary.



Potential Downward Departures


3
 Here the Defendant’s calculation diverges from Probation’s. The Defendant calculates a Zone B sentence, under the
2024 U.S.S.G., for the conduct here. Probation calculates a Zone D sentence. This affects (1) the sentencing range
and (2) the potential eligibility, under the Guidelines, for a probation non-incarcerative sentence.

        Case 1:23-cr-10299-FDS                 Document 147             Filed 01/17/25          Page 5 of 15




         2B1.1 comment (n.21(C)) – “in a case in which the offense level substantially overstates

the seriousness of the offense.” The offense is, in this case, significantly overstated. Mr. Tran, as

the jury found, is alleged to have received monies from PUA program for 20 weeks. During the

first period he was genuinely unemployed. 4 In the second period, the Defendant was employed

part-time, which, as the Defense argued strenuously, was still eligible for




Objection to Obstruction Enhancement

The Defendant objects to any obstruction of justice enhancement, on both constitutional grounds

and on grounds covered by the Sentencing Guidelines. The Sentencing Guideline objections are:


                  ---§3C1.1 comment 2 “In applying this provision in respect to alleged false

                  testimony or statements by the defendant, the court should be cognizant that

                  inaccurate testimony or statements sometimes may result from confusion, mistake,

                  or faulty memory and, thus, not all inaccurate testimony or statements necessarily

                  reflect a willful attempt to obstruct justice”

                  ----§3C1.1 comment 5(B) “Example of conduct not ordinarily covered, Some types

                  of conduct do not warrant application of this adjustment…However, if the

                  defendant is convicted of a separate count for such conduct, this adjustment will

                  apply…(B) making false statements, not under oath, to law enforcement officers,

                  unless Application Note 4(G) above applies.”




4
  This was a point of the defendant’s affirmative case to the jury. It is also in the opinion of defense counsel, a likely
reason for the jury’s inability to reach a verdict on Counts 1-5 of Wire Fraud.

      Case 1:23-cr-10299-FDS           Document 147        Filed 01/17/25      Page 6 of 15




                ----§3C1.1 comment 7. “Inapplicability of adjustment to certain circumstances. If

                a defendant is convicted of an offense covered [obstruction or perjury], this

                adjustment is not to be applied to the offense level for that offense….”

The Defendant’s alleged obstruction, the focus of another hotly contested indictment, cannot be

used to enhance his sentence. It is, in the Defendant’s mind, already constitutionally objectionable

that such evidence was used to convict him of the underlying offense. However, if the Defendant

were to be sentenced on obstruction it would definitively violate double jeopardy. The Defendant

would suffer the ignominity of being punished in this case for the same conduct, on the same

evidence, that he will now be forced to defend himself, again, against.



Downward Departures

            •   The Defendant is entitled (and probation agreed) to the 2 point deduction in

                §4C1.1(a) as a zero point offender.

            •   The Defendant should be granted to a departure based on §5H1.6 comment 1(b)

                regarding loss of caretaking and financial support.         The Defendant is the

                breadwinner in his family. His wife has a part-time position with the schools, but

                has been a home-maker predominant and has worked intermittently during the

                marriage. The Defendant’s support of his family is irreplaceable. He has managed

                to find employment with a supportive employer, following his public service, but

                given the notoriety of his case he will be unlikely to obtain white-collar

                employment in any format.

            •   (Partial Necessity/Duress) The Defendant should be entitled to a downward

                departure based on §5K2.12 (policy statement). In cases where a defendant acts

      Case 1:23-cr-10299-FDS          Document 147        Filed 01/17/25      Page 7 of 15




                under pressures, not amounting to a complete legal defense, that mitigate the

                conduct, a departure may be justified. In this case, as the Defendant’s evidence

                before the jury suggested, necessity drove the conduct at issue. Mr. Tran is the

                breadwinner who was unsuccessful at a job search and needed to feed and house

                his family.   Faced with devasting losses to his family, Mr. Tran obtained

                government assistance. Not amounting to a complete defense, the conduct is

                nonetheless mitigated by pressing need. The decision is, if not forgivable, at least

                understandable.

            •   (Lesser Harm) The Defendant should be granted a downward departure based on

                §5K2.11 (policy statement). Where a Defendant acts to avoid a greater harm, or

                where the conduct does not traverse the evil the law seeks to prevent, a lesser

                sentence may be warranted.        Here the Defendant’s conduct prevented his

                homelessness or devasting impact to his family, even including food insecurity or

                deprivation. Like the classic thief who steals a loaf of bread to feed his family,

                Mr. Tran was in a box driven by necessity and need. The Wire Fraud Statute is not

                intended to stop this conduct, but to protect innocent consumers from fraud.



Proposed Sentence

       The Defendant proposes a sentence of probation of 2 years, with 5 months of home

confinement. The Defendant maintains that he is eligible for a probation sentence, under the

sentencing guidelines. This sentence would be just. It is commensurate with similar sentences

given to defendants in this district who have been convicted of similar conduct.

       Case 1:23-cr-10299-FDS          Document 147        Filed 01/17/25        Page 8 of 15




        The Defendant argues that this kind of sentence is fair for the conduct at issue here. In the

event that the Guidelines do not extend eligibility for probation, the Court should give a non-

guideline sentence.



        Supplemental Notes about the PSI Report By Paragraph – Of Defendant

        9. The Senate Ethics investigation is not relevant to any matter here.

        13. Any full-time offering was not permanent. The current role as a Sr Scrum Master was

temporary. Mr. Tran was in the middle of applying to hundreds of jobs and waiting for interviews

particularly, one with the help from LT Gov Polito. Gayle Lang mentioned that 1A Auto would

consider creating a Director of Quality position if Mr. Tran come onboard full time. Nothing was

guaranteed. Mr. Tran accepted 1A Auto full time in September after the position that LT Gov Polito

recommended me to fell through. Also, the Director position never was created. The prosecution

misinterpreted the evidence, finding a narrative of waiting for PUA to end before accepting the

full time.

        15. Mr. Tran denies committing wire fraud, because working part-time was a condition that

was eligible for PUA.

        16. Mr. Tran did not certify falsely. He merely marked the boxes directed by Jessica

Muradian until he was full-time employed.

        17. Mr. Tran marked off boxes accurately until he was working full-time. He maintains that

the jury disagreed with the notion that obtaining PUA and working part-time was fraudulent as the

Jury found no verdict on the first 5 wire fraud charges.

        18. The DUA ceased PUA payments because the DUA could not substantiate employment,

which was the same reason Mr. Tran was denied regular employment.

      Case 1:23-cr-10299-FDS           Document 147         Filed 01/17/25      Page 9 of 15




       19. DUA only needed the W2 and paystubs to substantiate employment and for eligibility

and payout. Mr. Tran did not need to submit anything else for eligibility and payout (leaving the

alleged misrepresentations gratuitous and superfluous).

       The Government did not show the original letter except for the revised job offer letter from

Mr. Tran’s sister. The original letter was dated 12/29 after Mr. Tran’s election loss. The revisions

were consistent with using it to negotiate for other employment offers especially the Director of

Quality position mentioned by 1A Auto. This was similar to the position offered in Mrs. Martin’s

job letter. The amount was consistent with what I was earning in the State Senate. Mr. Tran

submitted additional documents to show that he was looking for employment. The letter had no

bearing on his eligibility and payout, those were determined by the W2 and paystubs for

substantiation.

       20. There was nothing false about Mr. Tran’s children still learning remotely, and its impact

on Mr. Tran’s ability to seek employment was properly submitted. Part time consulting is not

employment by a company, nor is it accurate to call it self-employment since there was no

registered business. To this day, Mr. Tran has no idea how to accurate describe the situation other

than helping 1A Auto with project management.

       21. (i) Mr. Tran and his sister converse many times about a role and responsibilities. That

is part of the application. Mr. Tran also applied, it is undisputed, to hundreds of jobs. This

statement was not false. (ii) Mr. Tran several conversations with his sister about resume and past

employments as well as submitting his resume to hundreds of job listings. (iii) Mr. Tran’s sister,

who hires for her company, performs the HR role and is therefore HR. (iv.) Same as iii.

       Mr. Tran did not have to disclose this to the interview and it was irrelevant to his eligibility

and payout. All DUA had wanted was the W2 and paystubs.

        Case 1:23-cr-10299-FDS        Document 147        Filed 01/17/25     Page 10 of 15




         22. Nothing was concealed because they were not asked and were not topics of the

interview. The interview was to substantiate Mr. Tran’s W2 and paystubs from the State Senate

only.

         23.    The changes were made to reflect the facts and consistent with using it for job

negotiation, but Mr. Tran decided to submit it as additional documents. It is worth noting that the

time frame of the text was the same time frame when Mr. Tran was notified by 1A Auto that it was

considering a Director of Quality position.

         24.    DUA made it clear that the reversal of the decision was solely based on employment

substantiation with the W2 and paystubs.

         25.    PUA payments ended on September 9, 2021. September 9th was the same day that

Mr. Tran was scheduled for the job interview that Lt. Governor Polito recommended. This was the

position Mr. Tran was hoping for but did not get. September 20th saw Mr. Tran accepting a full

time position with 1A Auto. The Director of Quality position was never created. Mr. Tran’s position

was eliminated in 2024. Mr. Tran is currently helping with various projects.

         26.    Mr. Tran denies that the certifications were fraudulent. Nothing on the website or

in the process indicated that any other entity, besides the Commonwealth, operated PUA.

         31.    The rents were: 2020=$28,200 2021=$31,200 2022=$31,200.

         32.    (ii) 2018 and 2019 also showed that Mr. Tran was wrongly filing the single property

as two with everything else as two. Mr. Tran fixed these errors along with following advice from

an online forum on tax filing for investment property.

         33. (i) $13,444 (one unit) was not reported because mortgage payments totaled $17,523.73

         (ii) Only $15,600 (one unit) was not reported, NOT $16,555 because mortgage payments

totaled $15,818.52

     Case 1:23-cr-10299-FDS          Document 147        Filed 01/17/25     Page 11 of 15




       (iii) $15,600 (one unit) was not reported because the mortgage totaled $15,829.80.



       34.     2021 Rent underreported was $15,600

       35.     Nobody ever read these things and electronically filed.

       37.     Consult was new to Mr. Tran. The Title was recommended by 1A Auto HR based

on the service Mr. Tran provided. The template for the invoices was downloaded from the internet.

       39.     At the time Mr. Tran had no knowledge what a 1099-NEC form was. The company

had never produced and sent the form to Mr. Tran or the IRS. TaxAct software proceeds with the

boxes checked based on the forms Mr. Tran had, therefore TaxAct never asked about consultant

work or independent work. Mr. Tran received a W2 from 1A Auto and that was filed. Once Mr.

Tran learned about he 1099-NEC form, Mr. Tran immediately contacted 1A Auto for the form and

he amended tax year 2021. 1A Auto confirmed the form was never produced to Mr. Tran or the

IRS. The IRS did not have the form and therefore they did not audit Mr. Tran.

       40.     Mr. Tran denies that he underreported for 2017-2019. These years were not in the

indicted or submitted to the jury. There was no finding made. And Mr. Tran cannot be punished

for conduct that he was not convicted of, was not within the indictment, and he had no notice that

he was in jeopardy of. These acts are also beyond the statute of limitations. Like the other loss

objections, these may not be used against Mr. Tran.

       41.     At the trial, the Court instructed the prosecutors and jury that the rental expense

issues were not part of the indictment and irrelevant. The jury made no finding upon them and

was not asked to—the theory they were given by the government was the underreporting of the

rental income. Like the other loss objections, these may not be used against Mr. Tran.

       42. Objected as above.

      Case 1:23-cr-10299-FDS          Document 147         Filed 01/17/25      Page 12 of 15




       43. Like with the other loss calculations, this includes inapplicable monies. Specifically

this includes monies from counts which the jury did not reach a verdict on, as to DUA. It includes

years outside the indictment and statute of limitations as to the IRS. The IRS loss should be

$23,327.

       44. There was no obstruction of justice.         As objected herein, this enhancement is

unconstitutional and unfair.

       45. This is not relevant. The agents violated Mr. Tran’s right to counsel. There was no

false statement and which statement is alleged to be false is not identified with peculiarity.

       46.     The Defendant appreciates that the Probation office did not use Mr. Tran’s speech

against him. However, he objects to the inclusion and review. It chills free speech as his political

opinions cannot be held against him constitutionally nor can he be punished for his speech.

       49.     The Defendant denies perjury. The prosecution did not provide any proof that the

call-in system at DUA automatically records when a caller dials-in. Mr. Tran testified based on

his recollection, whether it was Debra Lerner or Jessica Muradian. Mr. Tran did mention his job

search and his sister’s job offer. Also this is an offense that the jury was not asked about and did

not make a finding.

       50.     The Defendant maintains that he accepted responsibility. He disclosed to the

probation department the tax issue in discussion, and the fact that the returns were amended

promptly. Mr. Tran also disclosed that the would have worked to rectify the issues, had anyone

contact him in the normal IRS course of audit notices or procedure.

       56.     Mr. Tran again disputes the money calculation amount. Compare $1,255 x 25

(counts) = $31,375 with $1,255 x 20 (counts) = $25,100.

       62. Previously objected.

     Case 1:23-cr-10299-FDS             Document 147        Filed 01/17/25    Page 13 of 15




       82. Pending charges, not proved beyond a reasonable doubt to a jury, are for sentencing

purposes constitutionally irrelevant.

       97. The Defendant’s daughter’s name is spelled Madilyn (no “e”).

       99. In 1999, Mr. Tran’s moved to 99 Harrison Ave in Fitchburg that is now the rental

property. The move to Tibbett Circle was in 2002.

       121.     The Defendant disputes the offense level.

       128      The Defendant disputes this Zone rating and ineligibility for probation.

       133.     The Defendant disputes this as in 56.



First Amendment

       The Government, in its sentencing submission, is unconstitutionally attempting to punish

Mr. Tran for his first amendment political speech. It is, in the first place, highly ironic that the

Government complains of publicity (and has several times) yet it started the matter and routinely

publicized Mr. Tran’s case both directly, in press conferences, and indirectly through leaks to the

Boston Globe.

       Even were Tran’s political statements not clearly protected, the Government openly seeks

to condemn Mr. Tran’s speech because they do not like its content. Gvt. Sentencing Memorandum,

at 13 (“Tran made…inflammatory and incredible statements that had no basis in fact. His

outrageous claims ring hollow with no evidence backing up his claims against the investigators

and prosecutors.”)

                [T]here are some purported interests — such as a desire to suppress
                support for a minority party or an unpopular cause, or to exclude the
                expression of certain points of view from the marketplace of ideas
                — that are so plainly illegitimate that they would immediately
                invalidate the rule. The general principle that has emerged from this
                line of cases is that the First Amendment forbids the government to

      Case 1:23-cr-10299-FDS         Document 147        Filed 01/17/25     Page 14 of 15




                regulate speech in ways that favor some viewpoints or ideas at the
                expense of others.

City Council of LA v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984). See Also RAV v. St. Paul,

505 U.S. 377, 391 (1992) (“The First Amendment does not permit St. Paul to impose special

prohibitions on those speakers who express views on disfavored subjects”); Rosenberger v.

University of Virginia, 515 U.S. 819, 829 (1995) (“When the government targets not subject

matter, but particular views taken by speakers on a subject, the violation of the First Amendment

is all the more blatant.”).



The Government is overzealous in its pursuit

        For example, the Government argues that “Tran claimed that DUA employee Debra Lerner

gave him permission to work while collecting PUA, a proposition that Lerner unequivocally

repudiated on the witness stand.” Gvt Sentencing Memo, at 17. Here it blends the Defendant’s

contention that an off-the-record conversation occurred (which Lerner denied) with unrelated

contentions that PUA allows him to work. In like turn, the Government also seeks to punish Mr.

Tran’s speech because they don’t like. Id. at 17-18 (Government finding fault in Mr. Tran’s

criticism of the Government prosecution).

A Just Sentence, balancing the Seriousness of the Offense and the culpability of the

Defendant, and the prospects of rehabilitation is Probation

The Statutory factors weigh in favor of granting Mr. Tran a sentence of probation with a period of

home confinement.

                                                            Respectfully Submitted,

                                                            Dean Tran
                                                            By his Attorney
                                                            /S/ Michel Walsh

     Case 1:23-cr-10299-FDS           Document 147        Filed 01/17/25      Page 15 of 15




                                                             Michael Walsh
                                                             BBO 681001
                                                             Walsh & Walsh LLP
                                                             PO Box 9
                                                             Lynnfield, MA 01940
                                                             617-257-5496
                                                             Walsh.lynnfield@gmail.com

Certificate of Service
I, Michael Walsh, certify that I have served a copy of this filing to all ECF/CM filers on this 17th
day of January, 2025.
/S/ Michael Walsh

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