Court filing
Sentencing Hearing Transcript — United States v. Chris Recamier
Filed November 23, 2022 in U.S. v. Recamier; one of 12 filings from this case.
Record facts
| Court | U.S. District Court, Southern District of New York |
|---|---|
| Filed | 2022-11-23 |
U.S. District Court, Southern District of New York · No. 1:21-cr-00746-MKV · Doc. 104 · 2022-11-23 · Docket on CourtListener
Full text
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SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
MAHDRECS
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x
UNITED STATES OF AMERICA,
v. 21 Cr. 746 (MKV)
CHRIS RECAMIER,
Defendant.
Sentence
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New York, N.Y.
October 17, 2022
11:00 a.m.
Before:
HON. MARY KAY VYSKOCIL,
District Judge
APPEARANCES
DAMIAN WILLIAMS
United States Attorney for the
Southern District of New York
BY: DANIEL GEORGE NESSIM, ESQ.
DAVID RUSSELL FELTON, ESQ.
JULIANA NEWCOMB MURRAY, ESQ.
Assistant United States Attorneys
QUINN EMANUEL URQUHART & SULLIVAN
Attorneys for Defendant
BY: MICHAEL LINNEMAN, ESQ.
MARC LAURENCE GREENWALD, ESQ.
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(Case called; appearances noted)
THE COURT: Alright. We're here today for the
sentencing of Mr. Recamier. Let me just confirm for the
record, sir, you do speak and understand English clearly?
THE DEFENDANT: Yes, ma'am.
THE COURT: You do not need the services of an
interpreter?
THE DEFENDANT: I don't.
THE COURT: You don't?
THE DEFENDANT: I don't.
THE COURT: Okay. When Mr. Recamier addresses the
Court, please put the microphone over in front of -- well,
counsel, you should keep one. Thank you.
Alright. Let me ask the government, at the outset
when we were here for the plea, I asked you if you had given
notice to victims and you told me I think you were in the
process. Have you taken care of that responsibility?
MR. NESSIM: Yes, your Honor.
THE COURT: All right. All victims entitled to notice
have received it?
MR. NESSIM: Yes.
THE COURT: Alright. Are there any victims who wish
to be heard today?
MR. NESSIM: There were two victim impact statements
that were submitted.
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THE COURT: Yes, one this morning roughly a half hour
ago --
MR. NESSIM: That's when we received it, your Honor.
We just received it.
THE COURT: It's your job to be in touch with these
people.
MR. NESSIM: They were notified weeks ago.
THE COURT: Alright.
MR. NESSIM: But we wanted to make sure the Court had
it for sentencing.
THE COURT: That's my point. A half hour before
doesn't make sure I get things in time for sentencing.
Does anyone wish to be heard?
MR. NESSIM: Besides those two submissions, no.
THE COURT: Is anyone going to address the Court?
MR. NESSIM: Besides those victims, no.
THE COURT: Mr. Recamier plead guilty on June 15,
2022, pursuant to an agreement with the government to one count
of major fraud against the United States, in violation of Title
18, United States Code section 1031. Since that date, the
Probation Office has completed its investigation and the
parties -- and the Probation Office have each filed -- the
Probation Office, the presentence report, and the parties,
their sentencing submissions.
So let me just reflect what it is that I have received
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and considered in connection with today's sentencing. I have
the final presentence report, which was filed on September 9th,
2022. That's filed at ECF No. 71.
I'll just note that apparently after probation
tendered the initial presentence report, there were some
objections filed by the defense. They were really more in the
nature of requests for clarification. They largely related to
a case against Mr. Recamier in which he's not charged -- I'm
sorry, a related case in which Mr. Recamier is not charged, and
probation's discussion of the defendant's personal history. A
number of revisions were made by the probation office.
There are no objections that I'm aware of by the
government, and the government consented to the revisions made
by probation in response to the defendant's submissions, which
I'll talk to you about individually in a moment to make sure
they have all been addressed and resolved.
I also have the defendant's sentencing submission,
which was filed on October 3rd, 2022. That's at ECF No. 76.
I just wish to confirm, counsel, that your letter
dated October 3rd, on the letterhead of Quinn Emmanuel, it's an
eight-page document, is the entirety of your sentencing
submission.
MR. LINNEMAN: That is correct, your Honor.
THE COURT: There are no letters or any attachments,
correct?
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MR. LINNEMAN: That is correct, your Honor.
THE COURT: I have the government's sentencing
submission filed at October 10, 2022. That's at ECF No. 78.
That submission attached one letter, a handwritten victim
impact statement from a Mark Heffron, and then I received, as I
just said a few moment ago, roughly 10:25 this morning a
further typewritten victim impact statement.
Has that been provided to the defense?
MR. NESSIM: Yes, your Honor.
THE COURT: Alright. Is there anything else that's
before me in connection with sentencing?
MR. NESSIM: The parties have also submitted a
proposed consent order of restitution.
THE COURT: Okay. I have that proposed order. Is it
different from what was submitted by your office, Mr. Nessim?
MR. NESSIM: No, besides it's now been executed by
defense counsel and defendant.
THE COURT: Alright. I'll talk to you about that in a
moment when we get to the substance of what we're here for
today.
So I also wanted to put on the record that I received
a request from the government that I adjourn today's sentencing
until after the trial of Mr. Recamier's codefendant, Mr. Ilori,
and I guess that's based on the government's speculation that
Mr. Recamier may be called to testify at Mr. Ilori's trial and
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that testimony might impact my sentencing of Mr. Recamier.
That was opposed by the defendant, and I denied that request.
So that's really just for the record. So that we are
proceeding today, unless there's anything further from either
side.
MR. NESSIM: Not from the government.
MR. LINNEMAN: Not from the defense.
THE COURT: Alright. Thank you.
So that is the entirety of what's before the Court,
correct?
MR. NESSIM: Yes, your Honor.
MR. LINNEMAN: Yes, your Honor.
THE COURT: Alright. Thank you.
So let me ask then to you, Mr. Linneman, have you had
the opportunity to read the presentence report and to lodge any
objections or comment?
MR. LINNEMAN: I have, Your Honor.
THE COURT: Alright. Mr. Recamier, have you reviewed
the presentence report; have you discussed it with your lawyer;
have you called to his attention any corrections or objections?
THE DEFENDANT: Yes, ma'am.
THE COURT: Alright. Thank you.
Has the government had the opportunity to read and
review the presentence report and to tender any objections?
MR. NESSIM: Yes, your Honor.
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THE COURT: Alright. A few things I want to discuss
with the parties before we get into the substance of things.
First, the parties stipulated in the plea agreement to
forfeiture of specific property, as well as restitution in the
amount of $1,114,464. At the change of plea hearing, I asked
for a preliminary order of forfeiture, and the government told
me you were not assessing forfeiture.
As I read some of the statutes, forfeiture and
restitution may well be mandatory. I received, in response to
an inquiry, an email from the government telling me that you
were not seeking forfeiture now, even though Mr. Recamier has
consented to forfeiture of specific bank accounts, as I
understand what you're telling me. Are you saying because
you're going to pursue that, if at all, in a separate civil
proceeding?
MR. NESSIM: No, your Honor. Major fraud against the
United States, the statute the defendant plead guilty to, does
not have a forfeiture provision, so there's no statutory
provision to impose forfeiture on that statute.
What Mr. Recamier did in his plea agreement is in
event his codefendant, Mr. Ilori, is convicted at trial -- he
is being charged with many offenses.
THE COURT: He being whom?
MR. NESSIM: Mr. Ilori. Many offenses allowing
criminal forfeiture. So we would seek forfeiture of those
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accounts.
THE COURT: Only if Mr. Ilori is convicted?
MR. NESSIM: Well, we will regardless, but the
statutory scheme, as our office understands it, does not allow
forfeiture on the count of conviction for Mr. Recamier. So in
the plea agreement he is acknowledging the money in those --
specific property in those accounts are subject to forfeiture
and violation of bank fraud, for example, which was cited in
the plea agreement, which he was not convicted of. He plead
guilty to Count 1, so he is acknowledging that it is properly
subject to forfeiture and he's making clear that to the extent
he could otherwise file a claim --
THE COURT: How is it properly subject to forfeiture
if you're just telling me he hasn't been convicted of a crime
that permits forfeiture?
MR. NESSIM: What that agreement does is it stops
Mr. Recamier --
THE COURT: From objecting. I get that part.
MR. NESSIM: So that's why we included that language.
We believed the plea to Count 1 was an appropriate plea to
extend, notwithstanding there's not a forfeiture component of
that statute. We are seeking restitution obviously in the
restitution order.
THE COURT: Yes. We'll get to that in one moment.
MR. NESSIM: So we can't seek forfeiture.
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THE COURT: Can't? Are you saying cannot?
MR. NESSIM: In Mr. Recamier's case, that is correct,
at least in the criminal forfeiture context.
THE COURT: As I read the statutes, if he can be
subject to civil forfeiture, then it can be imposed in a
criminal proceeding as well.
MR. NESSIM: Your Honor, I don't have the case law in
front of me or statutes at hand. I do know that the Department
of Justice's position is that the major fraud against the
United States does not support a forfeiture judgment in the
criminal case.
I'm happy to look into it.
THE COURT: Is it your view that he's not subject to
civil forfeiture either unless and until Mr. Ilori is
convicted?
MR. NESSIM: I don't believe that is the case. I
think a civil forfeiture action could be supported as a
separate collateral proceeding.
THE COURT: Right. Look. I'm just going to say this
on the record. The government needs to get its act together on
these issues. I don't know how many cases I've had where you
come in and -- why do you put in a plea agreement he's agreeing
to forfeiture and then you stand up to me and say, we don't
have a right to forfeiture? Don't put it in a plea agreement
if he's not subject to it. Just put that he won't object.
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MR. NESSIM: Your Honor, the plea agreement does not
say he's subject to forfeiture. It says he agrees the property
is forfeitable and that he won't object.
THE COURT: Alright. Next issue.
Is this amusing?
MR. NESSIM: No. No. I apologize, your Honor.
THE COURT: It's the government's decision what kind
of penalties to seek, so we'll leave it at that.
With respect to restitution -- and I'm telling you
right now, if you ever appear before me again and display that
kind of disrespectful behavior, there will be consequences.
MR. NESSIM: I apologize, your Honor. I intended no
disrespect.
THE COURT: With respect to restitution, why does the
dollar amount differ from what's in the plea agreement, dollar
amount in the proposed order that you gave me?
MR. NESSIM: The plea agreement had a rough
calculation of what we believed restitution to be at the time.
Since then, we've collected formal statements from the Small
Business Administration that includes a calculation of fees and
interest.
THE COURT: The number went down.
MR. NESSIM: The number did -- it did end up going
down.
THE COURT: Where is the schedule of victims that I
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need to attach to a judgment in the case? Is that attached to
the order you handed up?
MR. NESSIM: No, your Honor. Because there's only one
victim, the information on payment is included in section one
of the order.
THE COURT: It says a victim. Alright. I would like
the name of the victim as a Schedule A to this order, which I'm
going to attach and file under seal.
MR. NESSIM: Understood.
THE COURT: Once I receive it, I will sign the order
of restitution.
MR. NESSIM: Understood.
THE COURT: I'm not signing it until I have the name
of the victim.
MR. NESSIM: Understood.
THE COURT: Okay. Ms. Dempsey, here you go. Thank
you.
That order, in terms of the substance of it, Counsel,
for the defense is on consent?
MR. LINNEMAN: Yes, it is, Your Honor.
THE COURT: All right. Mr.Linneman, let me just
confirm with you. Have you reviewed with the defendant the
mandatory standard and special conditions of supervised release
that are contained in the PSR?
MR. LINNEMAN: I have, your Honor.
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THE COURT: And you are comfortable with my referring
to them generically as standard, special, and mandatory
conditions of release and not putting them on the record
verbatim?
MR. LINNEMAN: I am, Your Honor.
THE COURT: Alright. Specifically, the personal
conditions, are there any objections by the defendant to the
special conditions that were proposed by probation and that are
contained in the PSR at page 33?
MR. LINNEMAN: No, your Honor.
THE COURT: Alright. And, specifically, the probation
office is recommending a search condition pursuant to which
Mr. Recamier would subject his person and any property,
residence, vehicle, papers, computer or other electronic
communications, data storage devices, cloud storage, or media
and effects to a search by any United States probation officer
and, if needed, that the assistance of law enforcement can be
requested. That search would be conducted when there's a
reasonable suspicion concerning a violation of the condition of
supervision or any lawful conduct by the defendant.
Failure to submit to a search may be grounds for
revocation of release. And Mr. Recamier would be obligated to
warn any other occupants of his premises that the premises is
subject to search pursuant to this condition. Any search would
need to be conducted at a reasonable time and in a reasonable
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manner.
Understood?
MR. LINNEMAN: Understood and agreed to.
THE COURT: You've discussed it with Mr. Recamier?
MR. LINNEMAN: Yes, your Honor. We've gone over the
entire PSR with Mr. Recamier.
THE COURT: Alright. Thank you very much.
The other special conditions include an outpatient
treatment program, certain financial conditions, that the
defendant not incur new credit card charges or open new lines
of credit, that financial information be provided to the
probation officer, and that the defendant obey immigration laws
and comply with any directive of immigration authorities. In
addition, that he would be supervised by his district of
residence.
MR. LINNEMAN: Those are understood and agreed to.
THE COURT: Thank you.
Alright. So defense counsel, in its submission to me,
argues that several of the enhancements in the calculation of
the sentencing guidelines range, which I'll note the PSR, the
plea agreement, and my calculation of the sentencing guidelines
range are all in agreement, but, nonetheless, the defense
counsel argues that several of the enhancements overstate or
double count the offense conduct. I'll address those arguments
in a few minutes, but what I want to just clarify right now, is
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the defendant objecting to any particular enhancement or other
aspect of the guidelines calculation even though he stipulated
to that calculation in the plea agreement?
MR. LINNEMAN: No, your Honor. We are not objecting
to any of the guidelines calculation or seeking a variance or
departure.
THE COURT: You are seeking a variance?
MR. LINNEMAN: We're just asking for you to craft a
sentence within the 3553(a) factors below the stipulated
guideline range.
THE COURT: That's a variance, isn't it?
MR. LINNEMAN: I don't believe that's formally a
variance, but I might be mistaken.
THE COURT: Okay. Alright. Does the government still
agree that Mr. Recamier is entitled to a 2-level reduction in
the guidelines calculation by reason of acceptance of
responsibility?
MR. NESSIM: Yes, your Honor.
THE COURT: Alright. And does the government intend
to move for a further 1-level reduction pursuant to 3E1.1(b) by
reason of the defendant's timely notice of his intent to plead?
MR. NESSIM: Yes, your Honor.
THE COURT: Alright. That motion is granted, and I
have used the 3-level reduction in the -- my own guidelines
calculation, as I'll put on the record in a moment.
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So let me just turn to -- I don't know, frankly,
whether these are objections or just comments, so let me just
go through them with the defense to make sure there's nothing
that I need to rule on. As I mentioned earlier, the government
tendered no objections, correct, Mr. Nessim?
MR. NESSIM: Yes, your Honor.
THE COURT: Alright. The defense objected first to
paragraph 13, which I understand was changed to clarify -- let
me just pull it out. Changed to clarify that that paragraph is
not about Mr. Recamier; it is about Mr. Chancy, who's a
defendant in the related case involving Mr. Recamier's
codefendant, Mr. Ilori, in which Mr. Recamier is not charged.
Is that comment or objection resolved, counsel?
MR. LINNEMAN: It is, Your Honor.
THE COURT: All right. Paragraph 16 was added to
specify that Mr. Recamier is not charged in that related case,
and paragraph 48 was revised to correct typos and to mention
Mr. Ilori by name instead of generically calling him a
co-conspirator.
Are those paragraphs -- any comments or objections
resolved?
MR. LINNEMAN: They are, your Honor.
THE COURT: Alright. Are there any outstanding
objections concerning the discussion of the other case in this
district in which Mr. Ilori but not Mr. Recamier is charged?
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MR. LINNEMAN: We do not have any, your Honor.
THE COURT: Alright. Now, there are several
paragraphs that deal with Mr. Recamier's personal history, and
I'll call out the paragraph numbers. And I want you to tell me
on the record whether there are any outstanding issues,
alright? So if you need me to stop at any one, just tell me.
Alright. So it's paragraph 89.
MR. LINNEMAN: No objections, your Honor.
THE COURT: Ninety-four.
MR. LINNEMAN: No objections, your Honor.
THE COURT: You can stay seated. Ninety-six.
MR. LINNEMAN: No objections, your Honor.
THE COURT: Ninety-nine.
MR. LINNEMAN: No objections.
THE COURT: 101.
MR. LINNEMAN: No objections.
THE COURT: 107.
MR. LINNEMAN: No objections.
THE COURT: 109.
MR. LINNEMAN: No objections.
THE COURT: And 111.
MR. LINNEMAN: No objections.
THE COURT: Alright. No outstanding issues on those
paragraphs.
Then next, paragraph 116, which is mistakenly referred
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to as paragraph 115 in the section on objections, mentions an
Accurent report that lists six liens and judgments against
Christopher Recamier, or with different spellings, Christopher
Recamier, including two for which the creditor is Empire
Portfolios, LLC. And the defense objected that the defendant
is not familiar with something called Empire Portfolios, LLC,
and is unaware of any liens.
Probation has added a footnote reflecting the
defendant's position. Does that address the concern?
MR. LINNEMAN: Yes, your Honor.
Just to clarify, we don't have any basis to believe
that these are not true. We just could not verify the veracity
of any of these statements.
THE COURT: Alright. So is there an objection then to
that paragraph?
MR. LINNEMAN: There is not.
THE COURT: Okay. So it is my understanding that
there are no objections then to the PSR; is that correct,
Counsel?
MR. LINNEMAN: That is correct.
THE COURT: Alright. Mr. Nessim?
MR. NESSIM: Yes, your Honor.
THE COURT: Alright. So with that, the Court will
adopt the PSR and the factual findings and the guidelines
calculations contained therein. In a moment, I will put on the
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record my own guidelines calculation, but, as I said, it is in
accord with what's in the PSR and, frankly, was in accord with
the parties' plea agreement.
So I adopt the PSR in full, including the factual
guidelines and the guidelines calculations contained therein.
That PSR will be made part of the record in this matter. It
will be filed under seal. It will be made available to any
counsel on appeal. They may have access to that PSR without
any need for a further application to the Court.
So, at this time, does the government wish to be heard
further?
MR. NESSIM: Yes, your Honor.
The government believes that a guideline sentence is
appropriate here. And, as calculated as we understand by the
Court, that would be within 108 to 120 months' imprisonment.
We make some of these arguments in our sentencing submission,
and I will highlight some of the major considerations we think
should drive some of the Court's sentencing determination.
First is the seriousness of the defendant's conduct.
He took part in this broad fraud scheme for more than a year
with his codefendant Adedayo Ilori and, in the course of that
scheme, took advantage of the COVID pandemic and relief
programs set up to assist small businesses in coping with that
disruption, and in the case of the Paycheck Protection Program,
loans specifically to ensure that people were able to keep
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their jobs in that time of intense need.
He did that fraud conduct while he was facing charges,
state drug charges. He had been incarcerated in Rikers Island
where he actually met his codefendant, Mr. Ilori, and also took
part in this criminal conduct even as Mr. Ilori was arrested in
an earlier fraud scheme that Mr. Recamier also took part in.
So notwithstanding, you know, seeing in front of him
the very real risks of his criminal conduct, he agreed to
commit the serious fraud crime. He and Ilori successfully
obtained more than a million dollars in COVID-19 relief loans,
and they applied for an additional more than nine million
dollars, all under the names of -- assumed names of companies,
stolen identities of individuals.
And the individual identity theft is equally if not
more serious to the actual fraud conduct that the defendant
took part in. He used the names of more than a dozen
individuals to set up accounts to apply for these loans and to
obtain things by fraud. Some of these victims, you know, who
we expect will testify at trial next week, and some of whom
have submitted letters to the Court --
THE COURT: Two.
MR. NESSIM: Two have submitted letters to the Court,
have dealt with real consequences of the theft of their
identities. They've dealt with concerns of credit reporting,
an inability to get funding for certain things, and the general
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sense of panic and fear that someone, a stranger has access to
your personal information and can use it however they wish in
any connection to crime, as the case here.
And the seriousness of the conduct is only added to by
the other frauds that Mr. Recamier took part in with Mr. Ilori
as part of the same offense, just showing his total disregard
for these victims and the law. So some clear examples of that
are the leasing of the apartment in Long Island City under the
name of an identity theft victim.
That apartment, which was a subject of a search where
Mr. Recamier was arrested was basically an office for Ilori and
Recamier to commit this PPP and COVID-19 relief fraud on a
massive scale. There are scanners there, there's identity
documents, loan documents. It's as if almost every day, and
his post-arrest statement corroborates this, they were there to
apply for more fraudulent loans, obtain more fraudulent funds.
He also used the stolen identity of an identity theft
victim to lease a very valuable car that was used by Mr. Ilori
and Mr. Recamier over the course of their involvement in this
scheme, and that's an identity also used to apply for
fraudulent COVID-19 loans.
So his conduct over the year shows both in the fraud
conduct, the major fraud against the United States, but also
these other major identity theft and fraud schemes that
Mr. Recamier had no regard for the law, for the government, for
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the community grappling with the severe pandemic, and for the
identity theft victims whose identities he used however he
wanted.
So an incredibly serious offense worthy of a very
serious penalty. In addition, deterrence is very important
here. I highlighted, I mentioned some of the factors in
Mr. Recamier's case that show he is not able to modify his
conduct in light of societal strictures: The fact he was on
bail; the fact that he's seen his codefendant being arrested
and prosecuted federally for similar fraud and bank fraud
conduct, identity theft conduct; the fact that he is already an
old man who, as far as statistics, should age out of this kind
of criminal conduct. Nevertheless, he took part in this
repeatedly.
So specific deterrence is a very important concern
here, as is general deterrence. There are many news articles
of fraud in the COVID-19 relief loan space. Obviously, too
many people took advantage of an opportunity to make some extra
money on the backs of the government and the employees and
employers who are struggling to make ends meet.
I think one thing that actually separates this fraud,
COVID-19 relief fraud scheme apart from some others here is it
just was so rampant and so blatant and repeated. They applied
for these loans under all these stolen assumed identities,
making up information about how many people they employed and
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where they operated and what they did and what their bank
accounts looked like and what their tax returns looked like out
of full cloth.
In many of these cases, COVID-19 relief cases that
we've seen someone will misrepresent information about an
existing business, but the ramifications of their fraud are
somewhat limited because it's limited to a business that
they're at least ostensibly tied do. They're not going out and
creating and stealing identities of all these fraudulent
businesses like a domino scheme, just one after the next
falling, just trying to get any money you can from the
government.
So this is a case that's particularly serious and
particularly worthy of deterrence. And of course the
seriousness factors here also speak to the need to promote
respect for the law and provide just punishment for the
defendant's offense.
Unless the Court has any additional questions, I'll
rest on our papers, but the government does believe a guideline
sentence is appropriate here.
THE COURT: Thank you.
Alright. Counsel, would you wish to be heard?
MR. LINNEMAN: Yes, your Honor.
THE COURT: Alright. You can either remain seated or
speak from there or speak from the lectern, whatever you're
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more comfortable with.
MR. LINNEMAN: Maybe I'll move over here. Thank you,
your Honor.
THE COURT: Yes.
MR. LINNEMAN: Your Honor, we respectfully request
that you sentence Mr. Recamier to --
THE COURT: Keep your voice up.
MR. LINNEMAN: We respectfully request that you
sentence Mr. Recamier below the stipulated guidelines range to
60 months in prison. All of our reasons are set forth in our
sentencing memorandum, but much like the government, there's a
couple that I would like to highlight here.
The probation office itself recognizes that a
guideline sentence is not warranted here, and I believe there
are five additional reasons that I'd like to go over. The
first is Mr. Recamier's history and characteristics weigh in
favor of a 60-month sentence.
THE COURT: Meaning his personal history?
MR. LINNEMAN: Correct.
THE COURT: Okay.
MR. LINNEMAN: Those can be considered by your Honor
under section 3553(a)(1).
Second, the sentence is sufficient to achieve both
general and specific deterrence.
Third, Mr. Recamier has accepted responsibility for
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his actions.
Fourth, a 60-month sentence would be just punishment
for the crime.
And, fifth, a 60-month sentence will avoid unwarranted
sentencing disparities.
Beginning with Mr. Recamier's history and
characteristics, Mr. Recamier did not enjoy a privileged
upbringing. He grew up without the support of his father, and
his mother suffered from depressive episodes. Mr. Recamier
struggled in school and was kicked out several times, but
Mr. Recamier still tried to make the most of it.
For much of his adult life he was gainfully employed,
including in the French Air Force and in the private sector.
However, Mr. Recamier's drug abuse took its toll. Mr. Recamier
first began using drugs at the age of 13, and that included the
use of heroin. He eventually quit and was clean for decades.
He consistently held down a job, and in the 1990s, he was in a
stable relationship with a woman he loved. However, in 1996,
Mr. Recamier was away on a business trip. During this, his
girlfriend suddenly and tragically passed away. Mr. Recamier
turned to heroin in order to cope.
From then and until his arrest, Mr. Recamier used
heroin nearly every single day. Heroin has destroyed
Mr. Recamier's life and it has destroyed his health. He has
overdosed multiple times and even had to be revived.
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Mr. Recamier has also tried to quit using heroin. He
was only able to quit after he detoxed in MDC without medical
supervision. Mr. Recamier is also 59 years old. He has abused
heroin for decades, and that has had severe impacts on his
health.
He also suffers from bronchitis and emphysema. As
studies have shown older defendants do not fare well in prison
with respect to their health, a 60-month sentence for
Mr. Recamier is substantial given both his age and health.
Turning to deterrence, a 60-month sentence is adequate
to address both general and specific deterrence. With respect
to general deterrence, a 60-month sentence is a substantial
amount of time to spend in federal custody. That is five
years. This sends a message to anyone who wants to commit
major fraud against the United States, the consequences that
they will face.
With respect to specific deterrence, Mr. Recamier has
accepted responsibility for his actions and will not commit any
further crimes. Sixty months in prison will only further
cement this for Mr. Recamier. Additionally, defendants of
Mr. Recamier's age rarely recidivate. Moreover, Mr. Recamier
has accepted responsibility for his actions. He promptly plead
guilty after substituting his counsel, I believe two weeks
after that hearing. Mr. Recamier has also cooperated with the
probation office as your Honor directed him to do so.
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Furthermore, a 60-month sentence is just punishment.
Mr. Recamier does not dispute that this is a serious crime. He
does not dispute that this has affected the United States
Government during a pandemic condition, nor that this has
affected real people, the identity theft victims; but 60 months
is a serious sentence, and such a sentence is sufficient to
reflect the seriousness of the offense, promote respect for the
law, and provide just punishment.
And, finally, 60 months will avoid unwarranted
sentencing disparities. In the government's submission, it
argues that Mr. Recamier's -- for Mr. Recamier's range, the
average sentence is 83 months of incarceration and the median
sentence is 86 months of incarceration. Importantly, the
government's own argument shows that the sentence it seeks
within the stipulated guideline range is materially higher than
what other defendants would receive with the same guidelines
range.
Additionally, the data on which the government relies
does not account for important factors under 3553(a), such as
the defendant's history and characteristics. Given
Mr. Recamier's age, health, history of drug use, he is not like
the average offender.
And, finally --
THE COURT: Counsel, what is the average age of
defendants convicted of this offense?
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MR. LINNEMAN: I don't have that data, your Honor.
THE COURT: I just have to tell you, I don't find 59
all that old.
MR. LINNEMAN: And I'm not arguing necessarily that it
is.
THE COURT: You don't need to respond really.
MR. LINNEMAN: Thank you, your Honor.
And just one final point on the sentencing differences
is that 86 is a -- 86 months is actually a median, and that
means that half of defendants actually receive below 86 months.
And given Mr. Recamier's history and characteristics, he likely
has more in common with those receiving below than above.
And just one final point that I'd like to make is we
respectfully request that your Honor designation Mr. Recamier
for treatment in a drug treatment facility.
THE COURT: Yes. Let's talk about that after I impose
sentence. Okay.
MR. LINNEMAN: Of course.
THE COURT: I didn't mean to cut you off otherwise.
Are you otherwise concluding?
MR. LINNEMAN: Unless your Honor has any further
questions, we're happy to rest on our briefs.
THE COURT: No, I don't. We'll talk about designation
in a few minutes. Okay?
MR. LINNEMAN: Of course. Thank you, your Honor.
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THE COURT: Alright. Thank you.
Mr. Recamier, now is the opportunity, if you would
like to address the Court, you may. You're certainly not
obligated to do so, but if you wish to address the Court, I'm
happy to hear from you.
MR. LINNEMAN: Mr. Recamier would prefer to speak
through his counsel.
THE COURT: Alright. And as I say, Mr. Recamier, that
is your right and it in no way impacts the sentence that I
intend to impose. Your counsel has done a fine job speaking on
your behalf, so that's perfectly fine.
Alright. At this stage, I want to describe the
sentence that I intend to impose. The attorneys will have a
final opportunity to make any legal objections before sentence
is actually imposed.
So I have started, as I'm obligated to do, with my own
independent guidelines range calculation. As I said before, my
calculations match the calculation in the PSR, which also
matches what the parties stipulated to in the plea agreement,
and both sides, in fact, reflect that in the sentencing
memorandum that they submitted to me.
So, quickly, I used the 2021 guidelines manual. The
guideline applicable to the offense to which Mr. Recamier plead
guilty is section 2B1.1, and the base offense level is 6.
I added 20 levels, because the parties have agreed
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that the loss was more than 9.5 million but less than
25 million.
I then added two additional levels, because the
parties again agree that there were 10 or more victims. That's
pursuant to section 2B1.1(b)(2)(A)(I).
I added two levels because Mr. Recamier used
sophisticated means. That's 2B1.1(b)(10)(C).
I added an additional two levels because the offense
involved a production of a counterfeit access device or
authentication feature and the possession of five or more means
of identification that unlawfully were produced from or
obtained by the use of another means of identification. And
that's 2B1.1(b)(11).
There is an additional 2-level enhancement because
Mr. Recamier derived more than a million dollars in gross
receipts from one or more financial institutions as a result of
the offense. That's 2B1.1(b)(17)(A).
I then subtracted two levels based on the defendant's
clear acceptance of responsibility, section 3E1.1(a). And
pursuant to the motion which I granted earlier during today's
proceeding, I did include a further one level reduction based
on Mr. Recamier's early notice or timely unless of his intent
to plea, and that's section 3E1.1(b). And that produces an
offense level of 31.
According to the PSR, Mr. Recamier has zero criminal
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history points, although I do note he was charged in a drug
case in New York and he was out on bail when he participated in
the offense conduct giving rise to this case.
He is, according to the PSR, in Criminal History
Category 1. That offense level of 31 with a Criminal History
Category of 1 produces a range of 108 to 135 months. There is,
however, a statutory maximum of 10 years, and, therefore, the
guidelines range is 108 to 120 months.
I have also considered each of the 3553(a) factors,
and the need for any sentence that I impose to be sufficient
but not greater than necessary to serve the goals of sentencing
as set forth in 3552(a)(2).
So let me begin by just stating on the record that I
do intend to impose a guidelines range sentence, although the
lower end of the guidelines range.
This is my reasoning for the record. The conduct in
this case is incredibly serious. It is corrupt and it is,
frankly, cynical. Taking advantage of a national emergency to
enrich one's self by attempting to steal tens of millions of
dollars from the public coffers while Americans were dying en
mass is despicable behavior in the extreme.
Mr. Recamier is in this country illegally. You have
no right to be here by your own admission, and yet you decided
to help yourself to millions of dollars of American taxpayer
money that was intended to respond to one of the worst public
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health crises this country and, in fact, the world has ever
faced.
This is, moreover, not a case just about stealing
money from the American Government. You stole the identities
of individual people. You brazenly impersonated at least one
of your victims while you interacted with bank employees. You
jeopardized some of the very businesses this money was supposed
to help save. Your theft of people's identities had serious
and significant and lasting consequences for your victims. You
destroyed people's confidence and the good working order of our
system of law and order.
Now, I do appreciate that you had a somewhat difficult
life. Growing up without a father is undoubtedly difficult,
and I understand that your mother struggled with depression.
In addition, you have struggled with drug addiction from a
young age. You did manage apparently to get yourself clean.
You worked. You had a decent employment history. But then you
relapsed when a long-time girlfriend died tragically, and that
resulted in your relapsing and apparently multiple drug
overdoses.
So I understand that you have suffered some real
hardships, and I do take that personal history into account.
I'm also aware of your acceptance of responsibility for which
you were given credit in the guidelines calculation. I do also
take into account your adjustment to your presentencing
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detention in this case. I commend you for your efforts to
avail yourself of educational programs that were available at
the facility and for the job responsibilities that you have
undertaken. But the other 3553(a) factors, including the need
for a just punishment, the need to promote respect for the law,
the need for deterrence, and the need to reflect the
seriousness of the offense clearly outweigh any mitigation as a
result of your personal circumstances. So I cannot find that a
sentence below the guidelines range, whether you call it a
variance or something else, is warranted.
Now, your attorney argues there's no need for specific
deterrence in this case because you're old and you have some
health issues and you are subject to deportation. I don't find
any of those arguments compelling.
With respect to your age, I'll just say, first, I
don't find 59 particularly old. In any event, there are
certainly men who commit crimes when they're younger who seem
to age out of that conduct, but you are now 59 years old and
you recently engaged in very serious criminal conduct. There's
no basis for me to conclude, as your attorney suggested, that
you'll be any less inclined to commit fraud when you are 64
years old, which is what you would be at the age if I were to
impose the sentence your counsel is requesting.
Next, I do not know whether or if you will be
deported. I note that when the PSR was written, Immigration
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and Customs Enforcement had not lodged an immigration detainer.
That's reflected at page 30 of the PSR. I'm not sure, in any
event, that you even need to be physically present in the
United States for much of the type of conduct that's at issue
in this case. And, in any event, I cannot justify treating
someone who's here in the United States illegally less harshly
than a United States citizen. That would fly in the face of
the mandate to avoid unwarranted sentencing disparities.
There is clearly a need in this case for specific
deterrence, because you were out on pretrial release in a state
drug case when you took part in this crime. And your
co-conspirator was facing charges in a related case, and that
did not deter you either. The fact that you engaged in a
serious federal fraud while on pretrial release in a state case
and while your co-conspirator was facing charges in a related
case weighs in favor of a longer sentence to promote respect
for the rule of law.
I also find there is a need, strong need for general
deterrence. I have an obligation to send a message that the
United States will not tolerate this kind of fraud and abuse.
If you steal people's identities and you steal from the
government and its programs, you will face significant
punishment.
Finally, I just want to address defense counsel's
arguments that certain enhancements to which you stipulated
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unfairly magnify or double count your conduct. These arguments
as well are not persuasive to the Court. First, the government
permitted you to plead to one count out of six counts, and yet
you clearly have admitted facts underlying several of the other
charges. And, as I say, you agreed to these enhancements in
the plea agreement. Those enhancements and your stipulation to
them are part of the bargain you struck with the government
when it allowed you to plead to only one count instead of
facing a trial on all of the counts or some subset of those
counts. But let me talk specifically about some of those
enhancements.
With respect to the sophisticated means enhancement,
defense counsel argues in effect that you had to do things like
create shell companies to commit this type of fraud. This is
just baffling to me. Not every bank fraud involves
sophisticated means. This one clearly did. The application of
the sophisticated means enhancement is completely appropriate
and supported by the facts in the PSR, to which there is no
objection.
Next, there's nothing objectionable about the amount
of the loss calculation under the loss table pursuant to the
guidelines, section 2B1.1(b)(1)(K), or the application of the
enhancement under section 2B1.1(b)(17)(A), because you did
derive more than a million dollars in gross receipts from one
or more financial institutions as a result of the offense as
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you have stipulated.
Finally, you stipulated that the intended loss amount
was more than 9.5 million, and, as I say, you stipulated that
you received more than 1 million dollars from banks. It is
well established that the intended loss is an appropriate
measure of culpability, and the loss table and enhancement in
issue account for different aspects of your offense conduct.
You not only intended to steal 10 million dollars from the
government, you also successfully defrauded financial
institutions, banks, on a significant scale, and thereby
undermined the good working order of our financial system.
So, with all of that in mind, it is my intent to
sentence you, as I say, within the guidelines range, but at the
lowest end of that range, to 108 months of incarceration. I
find that such a sentence is sufficient but not greater than
necessary to serve the goals of sentencing set forth in section
3553(a)(2).
It's my intent to sentence you thereafter to three
years of supervised release on the standard mandatory and
special conditions of release, including the special conditions
that I previously reviewed with your counsel and with you on
the record and to which your counsel tells me you have no
objection. And, as I say, those conditions are set forth in
the PSR, pages 31 through 33.
There is a $100 mandatory special assessment per count
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that will be payable immediately. It is the Court's intent not
to impose a fine, because I do find, based on the PSR, that you
do not have an ability to pay a fine.
Restitution must be made in the amount set forth in
the consent order of restitution, which you signed earlier this
morning, so you will be obligated to pay restitution in the
total amount of $1,072,062.47 to the victim, which the
government is going to identify to me later on today.
MR. NESSIM: Yes, your Honor.
THE COURT: I will then sign that order of
restitution.
The government has advised that it is not seeking
forfeiture, so I will not be ordering any forfeiture as part of
the sentence in this case.
So that is my intent with respect to sentencing. Let
me ask each side, does the government know of any legal reason
that this sentence may not be imposed?
MR. NESSIM: No, your Honor.
THE COURT: Does the defense know of any legal reason
why the sentence may not be imposed as I've outlined?
MR. LINNEMAN: No, your Honor.
THE COURT: Alright. Thank you.
Mr. Recamier, would you please stand?
It is the judgment of the Court that you be remanded
to the custody of the Bureau of Prisons to serve a sentence, a
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term of incarceration of 108 months, and to be followed by a
three-year term of supervised release on the standard mandatory
and special conditions set forth in the PSR and the special
conditions that I specifically outlined earlier on the record.
You are obligated to pay a $100 mandatory special
assessment that is payable immediately. In addition, the
consent order of restitution that you signed earlier today will
be entered on the docket and included as part of judgment. And
I will not be ordering any fine or any forfeiture.
It is the Court's view that -- I'm sorry. You may be
seated, sir.
Alright. So, counsel, you earlier began to address
with me a request for a recommendation with regard to a
facility. I just want to say on the record that we have been
advised by the Bureau of Prisons not -- they won't entertain
from me a request for a specific facility, but they will
entertain requests with regard to location or services
available at particular facilities. And it's their job then --
You need to understand, Mr. Recamier, I do not
designate the facility where you will be incarcerated. That's
the Bureau of Prison's prerogative. But I will listen to
requests for any recommendations and include that in the
judgment.
Counsel, do you wish to be heard now?
MR. LINNEMAN: Yes, your Honor. Thank you.
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We just ask that you recommend the Bureau of Prisons
designate him to a facility with a drug treatment program. As
I said before, Mr. Recamier is serious about quitting his
addiction and recognizes that he cannot do this on his own.
THE COURT: Okay. I will certainly include that in
the request for recommendations.
Is there any request with regard to location?
MR. LINNEMAN: There is not, your Honor.
THE COURT: Okay. Alright. Is there a motion by the
government with respect to open counts?
MR. LINNEMAN: Yes, your Honor. The government moves
to dismiss the open counts against the defendant.
THE COURT: Alright. That motion will be granted.
Mr. Recamier, let me advise you before we adjourn for
the day that to the extent you haven't waived it in connection
with your plea agreement, you do have the right to appeal from
your conviction and from the sentence that I have just imposed.
If you're unable to pay the costs of any appeal, you may apply
for leave to appeal in forma pauperis.
Any notice of appeal must be filed within 14 days of
the judgment, which -- judgment of conviction, which will
include your sentence. I will file that as soon as we are able
to finalize it. It may be by the end of the day today, but
certainly in the next day or two at the very latest, so you
need to pay attention to when that gets filed. And as I say,
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any appeal must be filed within 14 days of entry of that
judgment.
So before we depart, Mr. Recamier, let me just say, as
I said before, I do commend you for your interest in
participating in educational programs that are available. I
also understand the difficulty of beating your drug habit, and
I wish you all the best in continuing on the path to better
health in beating that habit. Hopefully the prison where you
will be designated will have a program that will be beneficial
to you.
And it's my sincere hope that when you finish serving
your sentence, you will live a law-abiding life and not again
find yourself involved with our criminal justice system. So I
wish you well, sir.
I thank our court reporter for being with us today,
and we stand adjourned. Thank you.
(Adjourned)
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