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Defendant’s Objections to Presentence Report and Sentencing Memorandum — No. 2:21-cr-00520 (Dkt. 224, D. Utah)

Summary

Objections to the presentence report and sentencing memorandum filed September 30, 2024 by the Federal Public Defender for Allison Marie Baver, convicted at trial and planning an appeal. Baver objects to the report's factual account in paragraphs 7-54 and asks that her own narrative be added: she formed Allison Baver Entertainment, LLC in October of 2019 to produce the reality show America's Angels and films including Monsters, learned of the Paycheck Protection Program in April 2020, and was approved for $10,000,000 after applying with Meridian Bank. The memo argues her offense level should rest on a gain of more than $95,000 but less than $150,000. It asks for credit for time served and three years of supervision, citing her health, mental and emotional condition, and aberrant behavior.

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“Defendant’s Objections to Presentence Report and Sentencing Memorandum — No. 2:21-cr-00520 (Dkt. 224, D. Utah).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/defendant-s-objections-to-presentence-report-and-sentencing-memorandum-f89147e010/, SHA-256 122039930bbdd228923d375fa14ecd528c198df03ff7fb496fc2454156823aa2.

Full text

Case 2:21-cr-00520-JNP Document 224 Filed 09/30/24 PageID.3375 Page 1 of 35




SCOTT KEITH WILSON, Federal Public Defender (#7347)
KRISTEN R. ANGELOS, Assistant Federal Public Defender (#8314)
ROBERT K. HUNT, Assistant Federal Public Defender (#5722)
ROBERT STEELE, First Assistant, Federal Public Defender (#5546)
OFFICE OF THE FEDERAL PUBLIC DEFENDER
DISTRICT OF UTAH
Attorneys for Defendant
46 West Broadway, Suite 110
Salt Lake City, Utah 84101
Telephone: (801) 524-4010
Email: kris_angelos@fd.org, robert_hunt@fd.org, robert_steele@fd.org


                        IN THE UNITED STATES DISTRICT COURT

                                      DISTRICT OF UTAH


  UNITED STATES OF AMERICA,
                                                        DEFENDANT’S OBJECTIONS TO
                  Plaintiff,                             PRESENTENCE REPORT AND
                                                        SENTENCING MEMORANDUM
  v.

  ALLISON MARIE BAVER,                                    Case No. 2:21-cr-00520-001 JNP

                  Defendant.



   Defendant, Allison Marie Baver, (“Ms. Baver), by and through her attorneys of record,

Kristen R. Angelos, Robert K. Hunt, and Robert Steele, submits the following objections to the

Presentence Report (“PSR”) and sentencing memorandum.

                                     OBJECTIONS TO PSR

   I.      Ms. Baver Objects to the Factual Recitation Outlined in Paragraphs 7-54.

        As the Court is aware, Ms. Baver took this case to trial arguing against these facts. While

the jury ultimately determined that Ms. Baver was guilty, she intends to appeal. Accordingly, Ms.

Baver objects to these facts to preserve any issues on appeal. Ms. Baver asks this Court to order

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probation to put the first three sentences of this paragraph under the Offense Conduct section,

prior to paragraph 7 in the PSR (without the language “[a]s the Court is aware”). Additionally,

Ms. Baver asks that prior to every paragraph in the offense conduct section, the following

language be added in bold: “Ms. Baver objects to the factual recitation in this paragraph.”

   II.      Ms. Baver Asks the Following Factual Assertions Regarding the Offense
            Conduct Be Added After Paragraph 54.

         In 2019, Ms. Baver began pitching the idea of America’s Angels, a reality television show

focused on women entrepreneurs. She began pitching this idea to different networks, and after

several meetings, A & E network gave her a proposal to air “America’s Angels” on the A & E

Network in Q4 of 2020.

         Based on this proposal, Ms. Baver formed Allison Baver Entertainment, LLC (“ABE”),

in October of 2019. She obtained an IRS EIN number shortly thereafter and hired a lawyer to

aid with negotiations and agreements. She also began discussions with Castel Studios in

Romania to help with the production of a film called Dead Princesses which ABE wanted to film

oversees. And in early February 2020, ABE engaged in discussions with the executive producer

of a film called Monsters.

         Ms. Baver was new to the industry and was learning from others as she went. Although

she lacked knowledge of other industry insiders, and possibly the time necessary to move

production into principal filming in 2020, she honestly believed she could make it happen.

         Beginning in 2020, COVID-19 began to spread, and a potential investor Ms. Baver was

taking meetings with grew concerned about investing with the virus spreading. Pre-production

momentum of Monsters, America’s Angels, and Dead Princess stopped in Spring 2020 as

COVID-19 halted the country.


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       In late March 2020, the CARES Act came out, and with it a lifeline for business owners.

Known as the Paycheck Protection Program (or PPP), this newly created loan program allowed

businesses to apply for a business loan for payroll and other eligible expenses. The loan could be

forgiven if the business owner used the money as intended.

       Ms. Baver became aware of the PPP program in April 2020 inadvertently. Ms. Baver had

emailed a Small Business Administration (“SBA”) representative based in San Diego and

received a reply email informing her that he understood it was hard to get financing in the

entertainment industry. He suggested that the PPP loan may be available to her and her company

and attached a recently-created-SBA document entitled Paycheck Protection Information Sheet

that was meant to provide some early guidance to borrowers.

       After reviewing this Paycheck Protection Information Sheet, Ms. Baver believed she was

eligible for the loan. Between April 13th and April 26th, Ms. Baver provided information to

Lendio through a portal that was eventually forwarded to Northwest Bank in PPP application

form. Additionally, she applied to Meridian Bank.     Because this was a new loan program, Ms.

Baver was unsure how to calculate her payroll and number of employees as she was requesting

the loan for future planned projects that she believed had been disrupted by COVID-19.

Accordingly, between April 13th and April 26th, Ms. Baver’s application information changed as

she tried to understand how to correctly input the information. With the information submitted

to Lendio and the application submitted to Meridian, Ms. Baver provided a “Good Faith” letter

and supporting documents for the three planned projects. She also spoke with Jason Kirkham at

Lendio regarding the fact that these were future planned projects. However, this information was

not relayed to Northeast Bank. Northeast Bank never contacted Allison Baver regarding her

application except once by text to inquire if she still needed the loan. See attached, Exhibit 1,

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Transcript of Brian Pinheiro, pg. 258, lines 4-25, pg. 259, lines 1-25; pg. 260. Lines 1-6. In

response to the text, Ms. Baver indicated no.

       When applying with Meridian Bank, Ms. Baver (through another individual) sent an

email to Rocco Perate that was forwarded to Nick Patel who handled Ms. Baver’s Meridian Bank

application. The email informed Mr. Perate, and subsequently Mr. Patel, that Ms. Baver was a

new business and that she “had only paid an attorney for the projects in operations” that she was

requesting the loan amount for. At trial, Mr. Patel testified that he didn’t read through the full

email, even though it was forwarded to his email by Mr. Perate. See attached, Exhibit 2,

Transcript of Nick Patel, pg. 17-25.

       Ms. Baver applied on April 25, 2020, with Meridian Bank, mere weeks after the PPP loan

came into existence. She based her Meridian Bank loan application on future hires for Monsters,

America’s Angels and Dead Princess, and provided an ABE “Payroll Budget” noting Spring

2020. Additionally, she provided a “Season Payroll Audit” dated April 22. 2020. Further, she

provided a 7a Program Calculator that listed 2020 dates, suggesting future employment. Finally,

as discussed previously, she provided a “Good Faith” letter.

       Ms. Baver believed she was eligible for the PPP program because in the “gig” industry

(the entertainment industry), film and television production was essentially a “project based”

business where the actual filming portion, where all the hiring occurs, is only about two to three

months long – as is a season in a seasonal business model. Luke Watson, a witness at trial,

likened the “gig” industry to an accordion, something that expands and contracts depending on

where the business is in the production. See attached, Exhibit 3, Transcript of Luke Watson. Pg.

469, line 25; pg. 470, lines 1-15.



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       Ms. Baver also believed she was eligible because she was a new business. As a new,

seasonal business, she was applying for the PPP loan based on the hiring of future employees

(when COVID-19 ended), for the productions of Monsters, Dead Princess, and America’s

Angels, productions and filming that she believed could have been happening in Spring 2020,

but for COVID-19. Ms. Baver did the best she could when applying.

       Indeed, Kandace Zelaya, an SBA employee who testified at trial and helped create the

PPP loan applications with other SBA attorneys testified that the issuance of the rules was fast,

rules were issued without the normal notice and public comment period, and the Frequently

Asked Questions (FAQ’s) that were provided by the SBA were being updated frequently. See

attached, Exhibit 4, Transcript of Kandace Zelaya, page (“pg.”) 111-112. Specifically, that there

were updates on April 6th, April 8th, April 14th, April 23rd, and April 24th, with either new

questions or answers or revisions of previous questions and answers during the time periods Ms.

Baver was applying for the PPP loan on behalf of ABE. See Exhibit 4, pg. 113-114. Ms. Zelaya

also testified that there was some confusion about how this PPP program worked and

acknowledged that during this time period most SBA offices were closed. See Exhibit 4, pg. 114,

lines 11-25, pg. 115, lines 1-2. She also testified that the Frequently Asked Questions (“FAQ”)

provided to borrowers were not law and conceded that the first interim rule clarifying how to

calculate for a seasonal business was released on April 30th (after Ms. Baver had applied). See

Exhibit 4, pg. 119-120; see also pg. 125, lines 13-24 (interim rules are not the same as a law that

is passed by Congress). Further, she testified that there was a need for further clarification

surrounding seasonal businesses because businesses were confused on how to calculate it. See

Exhibit 4, pg. 120, lines 23-25; pg. 121, lines 1-4. Moreover, Ms. Zelaya acknowledged that

what a lawyer intends to say when writing is not always understood by others who are reading it

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– such that even if the SBA attorneys writing the FAQ’s understood what they were saying --- a

lay person may not. See Exhibit 4, pg. 127, lines 16-25; pg. 128, lines 1-25; pg. 129, lines 1-29;

pg. 131, lines 11-19. Finally, Ms. Zelaya acknowledged that the boxes where borrowers were

supposed to put the number of employees and payroll on the PPP loan application did not state:

“number of employees have” or “number of employees had.” See Exhibit 4, pg. 134, lines 18-

25; pg. 135, lines 1-24.

       Shortly after Ms. Baver applied with Meridian Bank, she was approved for $10,000,000

after layers of review by Meridian Bank personnel.

       After receiving this money, Ms. Baver began to try and move Monsters, America’s

Angels, and Dead Princess’ productions along --- with anticipated filming sometime in late 2020

or Q1 of 2021 (barring COVID-19 issues). She reached out almost immediately to A & E to

reengage them regarding America’s Angels and a new proposal. She also engaged with the

Monster’s writer, hiring her to edit the script, and direct the film. She also engaged the services

of a line producer, Peter Phok, in order to try and get a tax credit with the State of California to

film Monsters in the state. That request was denied in July of 2020. She also hired an

accountant to keep spending records and hired an attorney to aid in the America’s Angels’

project.

       Unfortunately, the entertainment industry was still shut down during the Spring and

Summer of 2020, with COVID-19 protocols in place for those in production, with entertainment

industry unions requiring productions to covid test actors, directors, and hair and makeup people

frequently. As a result, film and tv budgets increased substantially because of this requirement

and many in the entertainment industry decided to wait out COVID-19 instead of paying for the

extra COVID-19 protocols required.

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    During this waiting period, the producers of NO MAN OF GOD reached out to ABE about

their dilemma surrounding the extra COVID-19 protocols placed on their production scheduled

to begin filming and inquired if ABE would be willing to supplement the budget by $150,000.

ABE agreed to provide this money with the intent that the money be used to hire COVID-19-

protocol employees. Ms. Baver later asked the producer for a letter confirming this. Moreover,

Luke Watson, an employee of ABE, testified that there were discussions within the company

regarding this money, believing that providing it to the NO MAN OF GOD production would be

in the “spirit” of the PPP loan because ABE believed it would be used for COVID-19 protocol

employees. See attached, Exhibit 5, Transcript of Luke Watson, pg. 483, lines 1-25; 484, lines 1-

25; pg. 485, lines 1-6.

       Pursuant to the PPP loan, Ms. Baver paid herself a W-2 wage of $41,666.65. See

attached, Exhibit 6, Allison Baver W-2. She also paid $57,589.91 to Lash Media, a company

Ms. Baver owned, which was for her executive producer services on America’s Angels. See

attached, Exhibit 7, Allison Baver Lash Media 1099. Both amounts were within the guideline

limits on employee spending that the PPP program allowed for. 1

       ABE hired several employees during the Summer of 2020 to help aid in moving the three

productions forward to principal filming. ABE also paid 1099 employees including the

accountant ($7875), an attorney from Greenburg Traurig ($5,000), an advertising and marketing

specialist ($1350), and the line producer ($5,000). However, most of the PPP money was saved

and intended to be used when the three productions moved into principal filming where the bulk

of the 430 employees would be hired.



1
 ABE also paid $18,558.00 to High Rise Realty, a property rental company which was
associated with Ms. Baver at the time.
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       In October 2020, Ms. Baver was in California with Lauren Magura, an employee with

ABE, meeting with the writer and director of Monsters, and also taking business meetings, when

the Government seized around $9,500,000 of the PPP loan, essentially breaking ABE and halting

any/all movement of the three productions, America’s Angels, Monsters, and Dead Princess.

       The Government thereafter indicted Ms. Baver on numerous counts of False Statement to

a Bank, in violation of 18 U.S.C. §1014 and one count of Money Laundering, in violation of 18

U.S.C. §1957. After indictment, the Government through the Grand Jury process subpoenaed

ABE bank records. On June 10, 2022, ABE filed a motion to quash the subpoena. The district

court denied ABE’s motion on June 14, 2022. Thereafter, Ms. Baver attempted to intervene in

the matter, and on June 28, 2022, the district court denied her request and ordered her to produce

the bank records by June 30, 2022, indicating that as a limited liability company, Ms. Baver was

not entitled to the protections afforded a sole proprietor.

        ABE then filed a motion asking the Tenth Circuit Court to intervene on this issue. On

August 30, 2022, the Tenth Circuit Court dismissed Ms. Baver’s appeal on jurisdictional

grounds, determining that ABE must first be held in civil contempt in order for the higher court

to address the issue. On September 14, 2022, the Court issued an order to Show Cause as to

why Ms. Baver and ABE should not be held in contempt. As the costs to Ms. Baver’s and ABE’s

private counsel mounted, they filed a motion to stay the judge’s orders on September 29, 2022,

and filed a request to withdraw from the case on November 4, 2022. Between these two

motions, the Government indicted ABE and Ms. Baver on criminal contempt charges. The

indictment occurred prior to any civil contempt determination by the district court judge.

       Unfortunately, Ms. Baver and ABE ran out of money and could not hire new counsel.

See attached, Exhibit 8, Transcript of Blake Hamilton, pg. 351, lines 8-12. Accordingly, Ms.

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Baver and ABE could not pursue further arguments in the civil matter. However, Blake

Hamilton, Ms. Baver and ABE’s previous private counsel, testified during trial that ABE had

additional arguments that could have been pursued had ABE and Ms. Baver had the means to pay

private counsel.    See Exhibit 8, pg. 350, lines 13-24.

   III.      Ms. Baver Objects to the Two-Level Enhancement in Paragraph 67 for
             Obstruction of Justice for Ms. Baver’s Contempt Conviction Since Contempt is
             Either a Misdemeanor or Sui Generis.

          Courts have long struggled with how best to characterize contempt. As such, Ms. Baver

submits that contempt under §401 is a misdemeanor or sui generis.

          The punishment makes the contempt. When the line between civil and criminal contempt

is difficult to draw, the punishment determines the type of contempt: the “critical features” in

determining whether contempt is criminal or civil are “the substance of the proceeding and the

character of the relief that the proceeding will afford.” Hicks on Behalf of Feiock v. Feiock, 485

U.S. 624, 631, 108 S. Ct. 1423, 1429, 99 L. Ed. 2d 721 (1988).

          The absence of a statutory maximum ordinarily has a different significance: “[T]he

sensible rule of statutory construction [is that] the absence of a specified maximum simply means

that the maximum is life imprisonment. By declining to limit the penalty, Congress gives

maximum discretion to the sentencing court.” United States v. Turner, 389 F.3d 111 (4th

Cir.2004). Authorizing a maximum penalty of life imprisonment ordinarily represents a

legislative determination that the offense warrants the most serious punishment: “In ordinary

criminal prosecutions, the severity of the penalty authorized, not the penalty actually imposed, is

the relevant criterion. In such cases, the legislature has included within the definition of the

crime itself a judgment about the seriousness of the offense.” Frank v. United States, 395 U.S.

147, 149, 89 S. Ct. 1503, 1505, 23 L. Ed. 2d 162 (1969). An offense with a statutory maximum

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punishment of life typically represents a legislative judgment that the offense is of the most

serious sort, a Class A felony. See 18 U.S.C. § 3559(a)(1) (“An offense that is not specifically

classified by a letter grade in the section defining it, is classified if the maximum term of

imprisonment authorized is life imprisonment, or if the maximum penalty is death, as a Class A

felony.”).

       But the general rule does not apply to contempt; in this, as in other areas, contempt is sui

generis. The absence of a statutory maximum gives judges sentencing discretion concomitant to

the wide range of conduct captured by the contempt statute:

       [A] person may be found in contempt of court for a great many different types of
       offenses, ranging from disrespect for the court to acts otherwise criminal. Congress,
       perhaps in recognition of the scope of criminal contempt, has authorized courts to impose
       penalties but has not placed any specific limits on their discretion; it has not categorized
       contempts as ‘serious’ or ‘petty.’ 18 U.S.C. ss 401, 402.1. Accordingly, this Court has
       held that in prosecutions for criminal contempt where no maximum penalty is authorized,
       the severity of the penalty actually imposed is the best indication of the seriousness of the
       particular offense.

Frank, 395 U.S. at 149 (emphasis added). The extraordinarily wide net cast by the contempt

statute means that it inevitably catches sins both venial and mortal: “[M]any contempts are not

serious crimes but petty offenses not within the jury trial provisions of the Constitution.” Bloom,

391 U.S. at 209. See also United States v. Kozel, 908 F.2d 205, 206 (7th Cir. 1990) (“But ‘petty’

crimes or offenses are not subject to the jury trial clauses, and criminal contempt can be a petty

offense.”).

       Most circuits that have considered the question have followed Bloom and Frank in

categorizing contempt convictions according to the punishment imposed. See In re Solomon, 465

F.3d 114, 119 (3d Cir. 2006) (“Most federal crimes are classified by felony or misdemeanor letter

grades on the basis of the maximum sentence that can be imposed. Contempt, however, cannot


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be classified in this manner because there is no maximum sentence imposed by statute. Instead,

to classify Solomon’s criminal contempt we look to the actual sentence imposed.”) (citing Frank,

395 U.S. at 149); United States v. Twentieth Century Fox Film Corp., 882 F.2d 656, 661–62 (2d

Cir. 1989) (“In ordinary criminal prosecutions, a relevant standard for gauging the severity of an

offense is the maximum penalty authorized by law….[F]ederal courts have consistently looked to

the maximum authorized punishment as the principal benchmark for distinguishing between

petty and serious crimes. However, the Supreme Court has acknowledged that this measure of

severity is inapplicable in federal criminal contempt cases because there are no statutory limits

on the maximum allowable penalties. In criminal contempt prosecutions, courts “are to look to

the penalty actually imposed as the best evidence of the seriousness of the offense.”) (quoting

Bloom, 391 U.S. at 211); United States v. Linney, 134 F.3d 274, 280 (4th Cir. 1998) (“[C]riminal

contempt is unique in that legislative bodies frequently authorize punishment without stating the

extent of the penalty which can be imposed. Thus, where no legislative penalty is specified and

sentence is left to the discretion of the judge, as is often true in the case of criminal contempt, the

penalties or seriousness of the contempt will be judged by the penalty actually imposed.”)

(quotation and citation omitted); United States v. Soderna, 82 F.3d 1370, 1380 (7th Cir. 1996)

(“Note that ‘when the legislature has not expressed a judgment as to the seriousness of an offense

by fixing a maximum penalty’ (such as for criminal contempt), the Court ‘look[s] to the penalty

actually imposed as the best evidence of the seriousness of the offense.’”) (quoting Bloom, 391

U.S. at 211)(emphasis added); United States v. Time, 21 F.3d 635, 642 (5th Cir. 1994) (“When no

maximum penalty has been affixed through legislation, the courts look to the penalty actually

imposed as the best evidence of the seriousness of the crime.”) (citing Bloom); United States v.

Zakharia, 418 F. App’x 414, 419 (6th Cir. 2011) (“The offense of misdemeanor contempt of

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court, 18 U.S.C. § 401(1), is unique in that it carries no maximum penalty, either with regard to

fines or imprisonment… Thus, the penalty actually imposed determines the seriousness of the

offense.”) (citing Bloom, 391 U.S. at 194) (emphasis added to all).

       A court in this district has also observed that contempt “may be considered a felony,

depending on the type of punishment imposed.” United States v. Bjarnson, No. 2:22-CR-00481-

DBB, 2023 WL 7413730, at *3 n. 29 (D. Utah Nov. 9, 2023) (citing Bloom and Frank)

(emphasis added).

       Two circuit decisions warrant special mention. 2 The Eleventh Circuit has concluded that

§ 3559 does not apply to the federal contempt statute. United States v. Cohn, 586 F.3d 844 (11th

Cir. 2009) (per curiam). Section 3559 increases the level of felony with the increasing

seriousness of conduct. But the range of conduct and the range of permissible penalties for

contempt are both too wide to be captured by 3559’s broad categories. Id. at 848. Cohn also

observed that there is no single sentencing guideline for contempt: “Because misconduct

constituting contempt varies significantly and the nature of the contemptuous conduct, the

circumstances under which the contempt was committed, the effect the misconduct had on the



       2
          The Ninth Circuit has staked out yet another approach. The Ninth Circuit concluded that
it would be unreasonable to assume Congress meant to make all contemnors felons and (pre-
Booker) determined the seriousness of a contempt with reference to the range for the most
analogous offense under the Sentencing Guidelines. United States v. Carpenter, 91 F.3d 1282,
1284 (9th Cir.1996) (per curiam). After Booker, the Ninth Circuit partially overruled Carpenter,
linking the severity of the contempt to the statutory maximum penalty of the most analogous
offense. United States v. Broussard, 611 F.3d 1069 (9th Cir.2010). While the Ninth Circuit has
the virtue of recognizing that contempt comes in many varieties, its attempt to substitute a
mechanical process linked to the Guidelines is unmoored from both the statute and common law.
Nor is it clear that the most analogous guideline will invariably be easy to determine; indeed,
there may not be one. Moreover, “maximum penalties are established by statute, not the
Sentencing Guidelines. It is far from clear whether a district court, in classifying a criminal
contempt, should use the maximum penalty called for by the base offense level or the total
offense level, including all possible enhancements.” Cohn, 586 F.3d at 847 n. 7.
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administration of justice, and the need to vindicate the authority of the court are highly context

dependent.” 586 F.3d at 848 (citing U.S.S.G. § 2J1.1, comment. (n.1). As such, contempt is a sui

generis offense and is best characterized as such “rather than a felony or misdemeanor.” Cohn,

586 F.3d at 848. And as such, the federal contempt statute does not fall “within the ambit of §

3559’s classification scheme.” Id. See also Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S. Ct.

1523, 1526, 16 L. Ed. 2d 629 (1966) (contempt is “an offense sui generis.”).

       The First Circuit has since come to the opposite conclusion. United States v. Wright

concludes that the plain meaning of § 3559 means that contempt is a Class A felony. 812 F.3d 27

(1st Cir. 2016). Wright is based on a simple syllogism: “Under the plain reading of the statute,

the maximum penalty for criminal contempt should … be life imprisonment. Under 18 U.S.C. §

3559(a), that makes it a Class A felony.” Wright, 812 F.3d at 32. Wright makes only a passing

reference to the Supreme Court’s treatment of contempt as sui generis: “[W]e find no basis to

conclude from the fact that the Supreme Court has referred to an offense as ‘sui generis’ that

Congress could not have intended for an offense with a maximum term of life imprisonment to

be classified as a Class A felony for § 3559(a) purposes. Id. at 34.

       But that is precisely what the Supreme Court does mean by designating contempt as sui

generis:

       In ordinary criminal prosecutions, the severity of the penalty authorized, not the penalty
       actually imposed, is the relevant criterion…Accordingly, this Court has held that in
       prosecutions for criminal contempt where no maximum penalty is authorized, the severity
       of the penalty actually imposed is the best indication of the seriousness of the particular
       offense.

Frank, 395 U.S. at 149 (emphasis added). Ordinary crimes are categorized under § 3559(a);

contempt is not.


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       Moreover, Wright’s approach ignores the Supreme Court’s express treatment of contempt

in favor of a plain-language approach to § 3559. But Congress “legislates against a background

of common-law adjudicatory principles.” Lozano v. Montoya Alvarez, 572 U.S. 1, 10, 134 S. Ct.

1224, 1232, 188 L. Ed. 2d 200 (2014). And the contempt and its peculiarities are of venerable

antiquity:

       For laws, without a competent authority to secure their administration from disobedience
       and contempt, would be vain and nugatory. A power…in the supreme courts of justice to
       suppress such contempts, by an immediate attachment of the offender, results from the
       first principles of judicial establishments…Accordingly we find it actually exercised, as
       early as the annals of our law extend.
William Blackstone, Commentaries on the Laws of England, Vol. IV, 186 [282–83]. The

procedures associated with contempt are similarly venerable—and unique: “this method…is not

agreeable to the genius of the common law in any other instance.” Id. at 187 [284]. Contempt is

unique, and there was ample historical evidence—and caselaw—saying as much when Congress

drafted § 3559.

       Finally, designating an offense as a Class A felony has real consequences for a judge’s

sentencing discretion:

       Subjecting § 401 to § 3559 actually deprives [district courts] of the ability to flexibly
       sentence contempt. Forcing a district court to pigeonhole a criminal contempt into a
       felony or misdemeanor category would impinge on its ability to impose appropriate
       sentences. Pursuant to § 3559, different classifications prescribe various periods of
       imprisonment and supervised release and fines. Due to the variety of conduct which may
       be punished as criminal contempt, it is important that the district courts have flexibility in
       sentencing. For example, a court may be inclined to impose a short period of
       imprisonment but a lengthy term of supervised release or a steep fine. Section 3559's
       classification system would not permit this flexibility.
Cohn, 586 F.3d 844, 848 n. 9 (11th Cir. 2009). Wright’s approach thus deprives district courts of

sentencing flexibility precisely where they need it most, in sentencing a crime with an

extraordinarily broad reach. See Frank, 395 U.S. at 149 (“[A] person may be found in contempt


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of court for a great many different types of offenses, ranging from disrespect for the court to acts

otherwise criminal. Congress, perhaps in recognition of the scope of criminal contempt, has

authorized courts to impose penalties but has not placed any specific limits on their discretion; it

has not categorized contempts as ‘serious’ or ‘petty.’ 18 U.S.C. ss 401, 402.1.”). 3

       Clearly courts have struggled to deduce the proper classification of contempt under §401.

Recently, in United States v. Jessop, District Court Judge Shelby granted the defendant’s motion

--- a motion stipulated by the government – to remove the felony designation from the charging

document and judgment. See United States v. Don Carlos Jessop, 4:22-CR-00085-RJS, Doc. 38,

December 18, 2023 (“Order Granting Stipulated Motion to Amend Judgment to Remove

Reference to the Conviction as a Felony”). In addition, Judge Shelby at sentencing for contempt

under § 401(3)—the same statutory provision at issue here—imposed a special assessment fee of

$25, the amount applicable to misdemeanors. This reinforces Ms. Baver’s position that courts as

well as prosecutors have struggled to treat contempt consistently.

       There is uncertainty in contempt law. As such, this Court should apply the well-

established doctrine that ambiguities in criminal statutes must be resolved in favor of lenity.

Rewis v. United States, 401 U.S. 808, 812 (1971); see also United States v. Rentz, 777 F.3d 1105


       3
          Wright also runs headlong into one of the well-understood dangers of the contempt
power: ‘That contempt power over counsel, summary or otherwise, is capable of abuse is certain.
Men who make their way to the bench sometimes exhibit vanity, irascibility, narrowness,
arrogance, and other weaknesses to which human flesh is heir.’” Bloom, 391 U.S. at 202 n.4.
(string cite omitted). See also Bloom, 391 U.S. at 203 (“This open-ended authority to deal with
contempt, limited only as to mode of punishment, proved unsatisfactory to Congress. Abuses
under the 1789 Act culminated in the unsuccessful impeachment proceedings against James
Peck, a federal district judge who had imprisoned and disbarred one Lawless for publishing a
criticism of one of Peck's opinions in a case which was on appeal. The result was drastic
curtailment of the contempt power in the Act of 1831.”). Every offense against the dignity of the
court is not a Class A Felony. Indeed, according to the Supreme Court, some are petty offenses.


                                                 15
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(en banc) (Gorsuch, J.) (if Congress’s directions “are unclear, the tie goes to the presumptively

free citizen and not the prosecutor.”). This principle applies to sentencing as well as substantive

provisions. Simpson v. United States, 435 U.S. 6, 14-15 (1978). Based on the rule of lenity, this

Court must find that § 401(3) does not constitute a felony nor is it punishable by life

imprisonment and sentence Ms. Baver accordingly. 4

      IV.      Ms. Baver Objects to The Two-Level Enhancement In Paragraph 67 Since
               United States Sentencing Guidelines (USSG) §3C1.1, Application Note 7,
               Indicates That It Is Not To Be Applied To The Offense Level If The Defendant Is
               Convicted Of An Offense Covered By §2J1.1 (Contempt).

      USSG, §3C1.1, Application Note 7 provides:

            Inapplicability of Adjustment in Certain Circumstances – If the defendant is convicted of
            an offense covered by §2J1.1 (Contempt) . . . this adjustment is not to be applied to the
            offense level for that offense except if a significant further obstruction occurred during
            the investigation, prosecution, or sentencing of the obstruction offense itself (e.g. if the
            defendant threatened a witness during the course of the prosecution for the obstruction
            offense).

Id. In the present instance, Ms. Baver was convicted of Contempt, in violation of 18 U.S.C.

§401. According to the guidelines, 18 U.S.C. §401’s guidelines are determined pursuant to

USSG §2J1.1. See USSG, Appendix A.

            Thereafter, looking at USSG §2J1.1, this section informs that §2X5.1 (Other Offenses)

should be applied. See USSG §2J1.1. §2X5.1 provides:

            If the offense is a felony for which no guideline expressly has been promulgated, apply
            the most analogous offense guideline. If there is not a sufficiently analogous guideline,
            the provisions of 18 U.S.C. §3553 shall control, except that any guidelines and policy
            statements that can be applied meaningfully in the absence of a Chapter Two offense
            guideline shall remain applicable.

Id.


4
 If this Court declines to deem § 401(3) a felony, there is no need to seek out the most analogous
guideline since guideline provisions only apply to felonies.

                                                     16
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       Relooking at USSG §2J1.1, there does appear to be an analogous guideline --- §2J1.2.

USSG §2J1.1, Application Note 1, provides that “[i]n certain cases, the offense conduct will be

sufficiently analogous to §2J1.2 (Obstruction of Justice) for that guideline to apply.” Id. §2J1.2

“Background” section indicates:

       [t]his section addresses the obstruction of justice generally prosecuted under the above
       statutory provisions [including 18 U.S.C. §1001, 1591, etc.]. Numerous offenses of
       varying seriousness may constitute obstruction of justice [including] . . .obstructing a
       criminal investigation . . .

Id. This would be the most analogous to Ms. Baver’s conduct since she refused to provide ABE

bank records to the Grand Jury. 5

       With the above in mind, USSG §2J.2 provides a base offense level 14. The additional

special enhancements do not appear to apply to Ms. Baver’s conduct. Thereafter, since Ms.

Baver was convicted of four counts including wire fraud, money laundering, and contempt,

multiple counting rules must come into play. See USSG §3D1.1-§3D1.5.

       Currently, Ms. Baver’s PSR, without the 2 levels for obstruction of justice pursuant to

§3C1.1, would provide for a total offense level of 28 (adding paragraphs 63, 64, and 65). Under

multiple counting rules, if this Court finds that Ms. Baver’s offense level falls under §2J.2 for the

Contempt conviction, Ms. Baver’s total offense level for that conduct would be 14. Pursuant to

USSG §3D1.4, there is a difference of 14 levels between the separate counts and the Court must

disregard any group that has “9 or more levels less serious than the Group with the highest




5
  §2J1.2 Application Note 2(A) also suggests that §3C1.1 (Obstructing or Impeding the
Administration of Justice) does not apply, unless the defendant obstructed the investigation,
prosecution, or sentencing “of the obstruction of justice count,” i.e., unless Ms. Baver obstructed
the Government’s prosecution of the Contempt count – which she did not.
                                                 17
Case 2:21-cr-00520-JNP Document 224 Filed 09/30/24 PageID.3392 Page 18 of 35




level.” See USSG, §3D1.4(c). 6 Accordingly, Ms. Baver’s Offense Level is 28 (before the 0-

point offender reduction is added).

                               SENTENCING MEMORANDUM

                                   REQUESTED SENTENCE

         Ms. Baver asks this Court to sentence her to CTS and three years of supervision to

follow. This takes into consideration 18 U.S.C. §3553 factors including: 1) Ms. Baver’s history

and characteristics; 2) the nature and circumstance of the offense; 3) Ms. Baver is likely to

continue her law-abiding life and is unlikely to reoffend; 4) to provide just punishment for the

offense; and 5) to afford adequate deterrence to criminal conduct. This requested sentence also

takes into consideration §5H1.4 related to Ms. Baver’s health, §5H1.3 related to Ms. Baver’s

mental and emotional condition, that this was aberrant behavior under §5K2.20, and that there

are extraordinary circumstances not considered pursuant to §5K2.0.

                                      18 U.S.C. §3553 FACTORS

    I.      Background Law

         As required by the Sentencing Reform Act, courts must ‘impose a sentence sufficient, but

not greater than necessary’ to accomplish the goals of sentencing, including ‘to reflect the

seriousness of the offense,’ ‘to promote respect for the law,’ ‘to provide just punishment for the

offense,’ ‘to afford adequate deterrence to criminal conduct,’ and ‘to protect the public from

further crimes of the defendant.’” Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 570

(2007) (quoting 18 U.S.C. § 3553(a)). In determining a sentence that is “sufficient, but not



6
 Ms. Baver would concede that she may be subject to an additional three-level enhancement
because the Contempt charge was committed while she was on pretrial release pursuant to
U.S.S.G. §3C1.3. However, if these three-levels were added, Ms. Baver’s total offense level
would be 17, which is still 9 or more levels less serious than the group with the highest level.
                                                 18
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greater than necessary,” 18 U.S.C. §3553 further directs the sentencing court to consider the

nature and circumstances of the offense, the history and characteristics of the defendant, the

sentencing range and any pertinent policy statements issued by the Sentencing Commission, the

kinds of sentences available, the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct, and the need to

provide restitution to any victims of the offense. 18 U.S.C. § 3553(a); accord Kimbrough, 128

S.Ct. at 570.

   II.      History and Characteristics.

         Ms. Baver was born on August 11, 1980. See PSR, ¶ 84. Ms. Baver’s biological father

appears to have left the family when she was just a baby, and unfortunately it appears that Ms.

Baver and her biological father have no relationship. See PSR, ¶ 84. Ms. Baver was lucky

though, as she was adopted by her stepfather, who with her mother have been consistent figures

in her life, encouraging her and her life endeavors, especially in sports. See PSR, ¶ 84-85.

         Ms. Baver was a natural at sports, excelling in rollerblading, inline skating, and ice-

skating, she had a natural talent that her parents allowed to flourish, sacrificing for her, often

working two jobs to make sure Ms. Baver could compete in her beloved sports. See PSR, ¶ 85.

         With grit, determination, and drive, success came early for Ms. Baver, and she moved up

the national rankings in the United States, qualifying for the US Olympic Junior Team in short

track speed skating in 2000. Thereafter, she moved to Michigan to train with the US Olympic

Development Team and first secured a spot on the United States Olympic Team in 2002.

Continuing this trend of success, she secured a spot on the United States Olympic team in 2006

and 2010 also, winning a bronze medal at the Olympics in Vancouver, Canada in 2010. See

PSR, ¶ 86-89.

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Case 2:21-cr-00520-JNP Document 224 Filed 09/30/24 PageID.3394 Page 20 of 35




       Winning a bronze medal in 2010 was not assured, as Ms. Baver broke her leg in an

international competition one year prior to the 2010 Vancouver Olympics. She began recovery

one day after the break, and during the next year, continued to train with one thing in mind – an

Olympic gold medal as her goal. See https://www.denverpost.com/2009/08/08/broken-leg-cant-

shatter-bavers-spirit/. Although others doubted her, Ms. Baver believed that if she worked and

trained hard enough, anything was possible. In the sports arena, this motto was certainly true for

Ms. Baver.

       This motto has not always been true for Ms. Baver during the years after retiring from her

sport. That dedication and drive that she showed so aptly in her sport, that brought her immense

success and accolades - that persistence that if you try hard enough anything is possible ---- has

not always paid off professionally and has actually hurt her in the instance offense. Unlike

sports, where listening to detractors or individuals say something can’t be done, is a positive

motivation to work harder to prove the nay-sayers wrong, in professional life and work,

suggestions of caution or concern about certain actions, must oftentimes be listened to in order to

comport with rules, regulations, and fiduciary responsibilities that surround work and life.

Unfortunately, Ms. Baver, because of this narrow understanding of how one attains success,

lacks the ability to see those cautions through an objective lens. No does not necessarily mean

no.

       In the context of the PPP loan, Ms. Baver reviewed the program FAQ’s, determined that

she fell under a new-seasonal business model, and determined that she was eligible for the loan

for three projects that she believed would be in production, but for COVID-19. This belief

became unwavering, and Ms. Baver’s entire focus became getting the loan for ABE through



                                                20
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persistence, determination, and an unwavering commitment, applying lessons learned in sport to

her professional life – unfortunately, it appears based on the jury decision, to her detriment.

   III.      Nature and Circumstances of the Offense.

          Ms. Baver applied within two weeks of the CARES Act and PPP loan being enacted.

During the time Ms. Baver applied, all that was required by the CARES Act was that the

business be in operation on February 15, 2020, the business owner have employees for whom the

business paid salaries and payroll taxes or paid independent contractors as reported on a 1099-

MISC, and the business must have less than 500 employees. See Jury Instruction No. 24, Docket

178.

          The SBA was charged with implementing the PPP loan program under the CARES Act.

See Jury Instruction No. 24, Docket 178. As discussed previously, between April 7, 2020, and

April 24, 2020, the SBA provided numerous updates to FAQ’s that were sent to borrowers and

lenders to try and understand the PPP program and how to apply. As noted previously, these

FAQs were not law and the interim rules also released by the SBA during this time period had

not gone through the notice and comment period usually required prior to an agency rule

becoming effective. Moreover, SBA attorneys were designing the PPP application, often using

words such as retain and maintain, that may have had different meanings to them than to the lay

business owners who were trying to decipher their meaning. See Exhibit 4, pg. 136, lines 9-25;

pg. 137, lines 1-7.

          Not only were borrowers confused, so were lenders:

          I want to be very clear here – I do not know – I can take a guess, but like you I am in the
          dark. Each bank is interpreting things differently. Each payroll provider is giving people
          different report totals. This is a mess and none of what follows is gospel or is being
          shared for any reason other than we are in crisis.


                                                  21
Case 2:21-cr-00520-JNP Document 224 Filed 09/30/24 PageID.3396 Page 22 of 35




See attached, Exhibit 10, Information provided by Jason Kirkham with Lendio to Ms. Baver.

       Interim rules for seasonal businesses did not come out until April 30, 2020, after ABE

had applied. See Exhibit 4, pg. 120, lines 2-25, pg. 121, lines 1-4. Moreover, there were about

3100 new lenders who were being exposed to SBA rules and guidance when trying to help

businesses apply. See Exhibit 4, pg. 124, lines 2-14. Finally, as discussed previously, the PPP

application in effect from April 2020 to June 2020, in the box where employees went, did not say

“number of employees had” or “number of employees have.” The PPP loan application was

ambiguous.

       During all this confusion and chaos, Ms. Baver, on behalf of ABE, applied as a new-

seasonal business, with information and documents submitted to Lendio and Meridian Bank

between April 13, 2020, and April 26, 2020. Ms. Baver provided a “Good Faith” letter to Lendio

(which forwarded it to Northeast Bank). Ms. Baver also discussed the submitted information

with Jason Kirkham with Lendio, however, Northeast Bank never reached out to Ms. Baver

regarding the specifics of her application once it was forwarded from Lendio to Northeast.

Additionally, Ms. Baver provided a “Good Faith” letter and email to Rocco Perate (forwarded to

Nick Patel), informing Meridian that at the time of ABE submitting the PPP application, the

company had only hired one attorney. Unfortunately, Nick Patel testified that he did not

remember reviewing the email that was forwarded to him. See attached, Exhibit 2, pg. 17-25.

       ABE received $10,000,000 after Meridian Bank funded the PPP loan. Ms. Baver and

ABE began trying to move the productions forward that the PPP loan was based on, but the

pandemic precluded any production in Summer of 2020. The entertainment industry was

subjected to COVID-19 protocols that increased budgets for those wanting to film during the

pandemic. When the Government seized the money in October of 2020, Ms. Baver was in

                                               22
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California meeting with the director of Monsters and taking meetings in order to move

production forward. The Government seized over $9,500.000 of the PPP loan. The remaining

amount went to employees ($177,000), to Ms. Baver as an employee of ABE (W-2 wage of

$41,666) and as an executive producer of America’s Angels ($57,589.81), and to 1099

employees including a lawyer for ABE and a line producer for Monsters. In short, Ms. Baver

spent the money how it was intended – to hire employees for pre-production and saved the

remaining money to hire future employees for the three projects when the entertainment industry

allowed – similar to an accordion, expanding employee hires when in actual production.

    IV.      Mr. Baver Is Likely to Continue Her Law-Abiding Life and Is Unlikely to Re-
             Offend.

          As Congress mandated in Section 3553(a), a court must consider the defendant’s

likelihood of recidivism when determining an appropriate sentence. 7 Considering that Ms. Baver

was a law-abiding citizen prior to the instant offense, there is every reason to believe that she

will continue to be a contributing member of society and will not recidivate in the future. Ms.

Baver has no prior criminal history and has no history of alcohol or drug abuse. Moreover, she

has been on pretrial release since January 18, 2022, maintaining a stable residence, traveling

outside the state only after obtaining permission from probation, and prior to going on disability

was employed with a retail business for most of last year.




7
  See 18 U.S.C. §3553(a) (court shall consider “need for the sentence imposed . . . to afford
adequate deterrence to criminal conduct.”); United States v. Estrada-Lozano, 221 Fed. Appx. 742
(10th Cir. 2007)(considering need for sentence to promote respect for the law); United States v.
Nellum, 2005 WL 30073 (N.D. Ind. 2005)(basing, in part, defendant’s 60-month departure on
defendant’s unlikelihood of recidivating).
                                                 23
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        Indeed, even before being indicted, she actively engaged with the government discussing

her conduct involving the PPP loan. In 2020, Ms. Baver and her first attorney met with the

Government and provided several items to the Government including emails, phone records,

information regarding people she had talked with regarding the PPP loan, and any other

information the Government requested in an effort to explain her understanding and belief

surrounding the PPP loan.

        Moreover, Ms. Baver prior to this current offense, has spent much of her life giving back

to the community and country whose colors she proudly wore in the Olympics. For example,

Ms. Baver served as one of the Vice Presidents of the Olympic and Paralympic Association,

served on the Athlete Advisory Council, Athlete Support and Resource Allocation Task Force,

and served on the U.S. Speedskating Board of Directors. See PSR, ¶ 105. Ms. Baver also

founded the Allison Baver Foundation ----Off the Ice Program in 2010 – a non-profit

organization that provides skating and sports and educational programs for youth. See

https://www.charitybuzz.com/support/allisonbaver.

        With the above in mind, it is clear that Ms. Baver will continue her law-abiding life and is

not likely to re-offend. As such, a lesser sentence is warranted.

   V.      Provide Just Punishment for the Offense

   The sentence must provide punishment that is tailored to the offense and the defendant.

Retribution is one of the classic justifications for punishment. See Toni M. Massaro, Shame,

Culture, and American Criminal Law, 89 Mich L. Rev. 1880, 1890 (June 1991). 18 U.S.C. §

3553(a)(2)(A); “promotes this goal, requiring that each sentence ‘reflect the seriousness of the

offense . . . [and] provide just punishment for the offense . . . .’” United States v. Hendrickson,

25 F. Supp. 3d 1166, 1173 (N.D. Iowa 2014). The retributive focus is a backward look at the

                                                 24
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crime itself and the loss that an offender has inflicted on society. Massaro at 1891. Retribution is

the price an offender must pay to rejoin society and enjoy its full protections once again. If “an

individual deserves punishment[,] when he engages in behavior that conveys disrespect for

important values,” then retributive justice helps the offender reaffirm those values to the

satisfaction of society. See Dan M. Kahan, What do Alternative Sanctions Mean? 63 U. Chi. L.

Rev. 591, 602 (1996). Therefore, loss of economic opportunities through the payment of fines or

restitution, loss of freedom through incarceration, or loss of absolute liberty through probation

are both the punishments for an offender’s behavior and the mechanism by which that offender

hopes to regain his place in society.

       In the present instance, Ms. Baver is asking for CTS with supervision to follow. If the

Court grants Ms. Baver’s request, this certainly doesn’t mean that Ms. Baver will not suffer “just

punishment.” She will continue to suffer the loss of absolute liberty with the imposition of

supervised release. Further, in repaying restitution or forfeiting the monies based on the current

preliminary forfeiture court order, she will both lose economic opportunities and repay society

for the loss it suffered when she took money with the PPP loan.

       Moreover, the very public process of being brought into court, of being on supervised

pretrial release with all of its time demands and intrusion into her personal life, of publicly being

found guilty, and being sentenced brings its own retributive punishment, in the form of public

shaming. Massaro at 1933-34. It is sometimes described as ‘losing face’ and involves the loss

of social value leading to a fear of abandonment or isolation. Massaro at 1902-03.

       Ms. Baver has already been publicly shamed and continues to be publicly shamed based

on the notoriety this case has had in the media. Ms. Baver’s reputation in the fashion and

entertainment industry has been forever harmed. All that a prospective investor or entertainment

                                                 25
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executive need do is google Ms. Baver’s name and several stories regarding Ms. Baver being

charged and found guilty of this federal offense can be found. 8 Accordingly, it is likely that any

future work in the entertainment industry will be severely limited, if at all. Defense counsel also

understands that Ms. Baver has been removed as Vice-President of the Olympic and Paralympic

Committee as a result of her conviction.

        Moreover, Ms. Baver has been punished for the past four years as she had had to fight

this matter on several fronts, including an In Rem civil forfeiture proceeding, 9 litigating quashing

Grand Jury subpoenas, 10 and this current criminal charge. When the Government seized the

$9,500,000 in ABE’s accounts, Ms. Baver used her own money and borrowed money from her

family to hire private counsel for the litany of civil litigation that transpired prior to the criminal

case that is before this Court. She also hired private counsel prior to an indictment in this matter,

and hired new private counsel once an indictment was returned against her and ABE. Where the

Government has had an unlimited amount of money to spend, Ms. Baver has been left with using

the entirety of her savings and her parents retirement income. At this juncture, Ms. Baver has

very little left.

        With the above just punishment already served, it is reasonable for this Court to order

CTS and a period of supervision in lieu of incarceration as the above losses felt by Ms. Baver

serves as a part of retributive justice that the Court must consider under 3553(a)(2)(A).




8
  See https://www.abc4.com/news/crime/utah-olympian-speedskater-convicted-for-nearly-10-
million-fraud/ https://kutv.com/news/local/utah-olympian-found-guilty-of-10m-worth-of-ppp-
loan-fraud-allison-marie-baver-allison-baver-entertainment-llc-covid-19-2020;
https://www.readingeagle.com/2023/07/05/berks-county-native-and-former-olympian-found-
guilty-of-pandemic-loan-fraud/.
9
  See Case No. 2:22-cv-00070.
10
   See Case No. 2:22-sc-00091 (Sealed).
                                                   26
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   VI.      To Afford Adequate Deterrence to Criminal Conduct

         There is very little general deterrent effect to be gained from lengthy prison sentences. It

is the certainty of punishment, not “increases in the severity of punishments” that has a general

deterrent effect. See Michael Tonry, Purposes and Functions of Sentencing, 34 Crime and

Justice: A Review of Research 28-29 (2006); and see Cesare Beccaria, Dei Dvincetti e delle Pene

(On Crimes and Punishment) (first published in 1764 it remains to this day a vital work on the

subject)

                No one doubts that having a system of punishment has crime-
                preventive effects. The important question is whether changes in
                punishments have marginal deterrent effects [. . . .] Imaginable
                increases in severity of punishments do not yield significant (if
                any) marginal deterrent effects.
Tonry at 28-29, citations omitted. Even the Department of Justice acknowledges that certainty of

punishment has a greater general deterrent effect than severity of punishment in a fact sheet that

summarizes current social science data regarding general deterrence. This fact sheet makes four

points that are relevant here: 1) The certainty of being caught is a vastly more powerful deterrent

than the punishment; 2) Sending an individual convicted of a crime to prison isn’t a very

effective way to deter crime; 3) Police deter crime by increasing the perception that criminals

will be caught and punished; and 4) Increasing severity of punishment does little to deter crime.

U. S. Department of Justice, Office of Justice Programs, National Institute of Justice, Five

Things About Deterrence (2016), available at https://www.ncjrs.gov/pdffiles1/nij/247350.pdf;

see also United States v. Staats. 2020 U.S. Dist. LEXIS 219946 at page 8.

         Given the restrictive nature of an extended period of supervision “it is difficult to

imagine, let alone readily apparent, that other offenders will adopt a cavalier attitude” to such a

sentence. United States v. Stall, 581 F.3d 276, 286 (6th Cir. 2009). Anyone in a situation similar

                                                  27
Case 2:21-cr-00520-JNP Document 224 Filed 09/30/24 PageID.3402 Page 28 of 35




to Ms. Baver will be deterred by the fact of a conviction alone, which by itself can have a life

altering effect. Ms. Baver’s arrest, prosecution, and inevitable sentence serve as adequate

warning to others that such activity has a serious consequence.

                                 DOWNWARD DEPARTURES

                      THE NEUROPSYCHOLOGICAL EVALUATION


   I.      Health Related Departure (Pursuant to U.S.S.G. § 5H1.4 & 5K2.0)
        Under U.S.S.G. § 5H1.4 the defendant’s

               physical condition or appearance, including physique, may be
               relevant in determining whether a departure is warranted, if the
               condition or appearance, individually or in combination with other
               offender characteristics, is present to an unusual degree and
               distinguishes the case from the typical cases covered by the
               guidelines.


see United States v. Collins, 122 F.3d 1297 (10th Circuit 1997). Included with this memorandum

is the following: Neuropsychological Evaluation by Angela Eastvold, PhD, ABPP. See attached,

Exhibit 9. Ms. Baver has a “Mild Neurocognitive Disorder due to multiple traumatic brain

injuries.” See Exhibit 9, pg. 26. Based on having suffered repeated concussions from accidents

while skating and in multiple car accidents, Ms. Baver has “cognitive deficits in sustained

attention, working memory, verbal fluency, auditory learning and memory, and executive

functions.” Id. at pg. 23.

           Executive functions refer to higher order cognitive skills related to reasoning,
           problem solving, planning, organization, abstract thinking, ability to think flexibly,
           ability to see and appreciate the big picture, make reasonable decisions, understand
           consequences of actions, engage in appropriate self-control/inhibition of behavior,
           and appropriately self-monitor and adjust behavior in response to changing
           environmental cues/demands. Allison’s test results, and specifically the objectively
           identified executive dysfunction on testing, explains and validates Allison’s legal
           team’s concerns regarding her cognitive functioning. These results explain why

                                                28
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             Allison has difficulty integrating and reasoning through information, seeing the
             bigger picture in relation to her case, and why she presents with poor insight, rigid
             and perseverative thinking, all of which was directly observed throughout this
             evaluation.
Id. Ms. Baver struggles in day-to-day life because of the brain dysfunction resulting from

repeated injuries. In the present case she found herself along with the rest of the world in a

completely new and baffling situation in March of 2020. She latched on to the PPP loan process,

a new and ill-defined process at that time, to try and put her company’s projects on a better

footing. She was unable to make the process work.

         In Collins the Tenth Circuit applied a departure based on 64-year-old defendant’s medical

problems, which included heart disease, high blood pressure, ulcers, arthritis, and prostatitis. In

U. S. v. Slater, 971 F.2d 626, 634 (10th Cir. 1992) a departure was based on the defendant’s

mental retardation, spondylosis, scoliosis, and major depressive disorder. Because Ms. Baver

has an extraordinary combination of medical conditions, this Court should allow for a downward

departure.

         Should the Court discount Ms. Baver’s medical condition as a ground for a traditional

departure, it can be considered as part of a 3553(a) analysis. See U.S. v Ryder, 414 F.3d 908, 920

(8th Cir. 2005) allowing for the consideration of health-related circumstances that did not rise to

the level of departures in fashioning a reasonable sentence below the guideline range.

   II.       Mental and Emotional Condition (U.S.S.G. § 5H1.3)

         Under U.S.S.G. § 5H1.3 the defendant’s

                [m]ental and emotional conditions may be relevant in determining
                whether a departure is warranted, if such conditions, individually
                or in combination with other offender characteristics, are present to
                an unusual degree and distinguish the case from the typical cases
                covered by the guidelines.


                                                  29
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United States v. Rivera, 192 F.3d 81, 85 (2nd Cir. 1999); cited with approval by United States v.

Browning, 252 F.3d 1153 (10th Cir. 2001).

        Ms. Baver suffers from “Other Specified Personality Disorder (strong features of

narcissism)” Id. at pg. 26. Healthy narcissism has served her well as an athlete “as high self-

confidence, belief in one’s abilities, and belief in achieving challenging goals is what drives them

to succeed at an elite level.” Id. at pg. 24.

            Unhealthy narcissism can manifest as competitive, challenging, and demanding
            behavior, though this often remains outside of the person’s level of awareness. When
            such individuals are in trouble, it is other people’s fault. They blame others, provide
            lists of grievances of what others have done to them, and write people off. They tend
            to lack a sense of personal responsibility and lack insight and understanding of how
            their behavior impacts others, always seeing the world through the lens of how others
            are impacting them. They tend to harbor anger about how they have been treated in
            the past. Such individuals commonly evidence grandiosity, though this is really a
            mask for deep insecurity. Such individuals are frantic to hold onto their sense of
            reality and maintain their sense of dominance and superiority as a way of staying
            safe, and avoid feelings of vulnerability, helplessness, and shame. Grandiosity feels
            good; they are not in pain, they do not have problems, it is everyone around them that
            does – this is a strong defense mechanism. Such individuals tend to be dismissive in
            response to challenges and confrontations, again reflecting a defense mechanism to
            maintain their superiority and their perceived sense of self. Such individuals often
            struggle with introspection and self-awareness. They can’t see things in themselves
            and often evidence an array of contradictions between their words and their actions.
            They tend to see themselves as a victim, one who has been wronged by others. People
            working with such individuals often experience a counter transference reaction of
            dislike and sometimes fear of being devalued, dismissed, or fired. Narcissistic people
            are easy to dislike. It is also easy to miss the underlying pain and existential crisis
            they experience when their outer world does not match their inner dialogue.

Id. at pg. 25. Where most people would have considered changing their approach, when the PPP

loan process collapsed on her, Ms. Baver to an almost miraculous degree seemed unable to re-

approach her situation in a more flexible manner. Her narcissistic approach to difficulties, which

had served her so well in the past, put solutions to her problems out of reach. She dug in and

doubled down leading to her current situation.

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          Even if these mental and emotional health conditions do not rise to the level of

supporting a ground for a traditional departure, they can be considered as part of the 3553(a)

analysis. See United States v. Brady, 417 F.3d 326, p. 336 (2d Cir. 2005); see also United States

v. Gray, 453 F.3d 1323 (11 Cir. 2006). In Gray the presence of a depressive disorder supported a

variance below the recommended guideline range.

   III.      Conclusion

          Ms. Baver did not choose her personality style. It was nurtured in her and led to a great

deal of success early in her life. She did not choose her injuries, which have changed her life,

while she was moving through the pain to such startling success. These things, however, do

explain how she ended up in front of this Court for sentencing.

             In the context of narcissistic personality traits and a mild neurocognitive disorder,
             much of Allison’s behavior starts to make sense. After her retirement from skating,
             Allison was unable to establish herself professionally. She desperately wanted to be
             important, to succeed, and accomplish big things, but none of her efforts panned out.
             She was also experiencing increasing financial desperation starting in 2018. Her outer
             world was not matching her internal perception of who she was. This dissonance
             created extreme stress. Stress that she was not able to identify and work through in a
             healthy or effective manner. She fully suppressed the reality of her situation. This was
             evident in multiple aspects of her life, both professionally and personally, as reflected
             throughout her therapy notes. Rather, she continued to desperately seek out
             connections and opportunities to make her goals a reality. Allison stated that when
             COVID hit, she “had one job – to save my company, it was sink or swim.” She
             applied her tenacity to that goal, and she saw the PPP loan as her company’s lifeline.
             She developed tunnel vision, and she has since been unable to see this situation from
             any other perspective. Her narcissism prevents her from being able to see the reality
             of her current situation clearly, and she still does not seem to fully grasp that a jury
             has found her guilty. This is merely a demonstration of how strongly defended she is.
             The more others try to help her see where she may be in the wrong (which is
             associated with shame, vulnerability, and lack of control), the more strongly she
             commits to the reality she has constructed.

Id. As part of any supervision Ms. Baver will need to engage in long term individual

psychotherapy with a therapist experienced in working with her constellation of problems. Id.

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“[W]ith dedicated engagement in therapy . . . Allison is capable of change and positive growth.”

Id. at 26.

                                 ADDITIONAL DEPARTURES

    I.       §5k2.20 – Aberrant Behavior.

    The Sentencing Guidelines allow for a departure where a defendant’s criminal conduct shows

a marked deviation from an otherwise law-abiding life, and the Tenth Circuit has found that “the

aberrance of a criminal act is an encouraged factor for departure.” U.S.S.G. §5K2.2; United

States v. Benally, 215 F.3d 1068, 1072 (10th Cir. 2000). Under the guideline section, there are

several requirements, including that the offense was committed without significant planning, was

of limited duration, did not involve serious bodily injury or death, and was not a serious drug

trafficking offense; the defendant did not discharge or use a firearm, and does not have more than

one criminal history point. U.S.S.G. §5K2.20(b)-(c). This court may also consider the

defendant’s mental and emotional condition, employment record, prior good works, motivation

for committing the offense, and efforts to mitigate the effects of the offense. U.S.S.G. §5K2.20,

Application Note 3. However, even if the defendant does not meet these specific requirements, a

departure for aberrant behavior is still available, under 18 U.S.C. §3553(a), when considering the

history and characteristics of a defendant. United States v. McCarthy, 840 F.Supp. 1404, 1407

(D. Colo. 1993)(included in court’s consideration of history and characteristics of the defendant

is defendants aberrational acts); United States v. Howard, 2008 WL 5459194 (E.D.N.Y.

2008)(considering aberrant nature of defendant’s actions in 3553(a) analysis).

         Ms. Baver has no criminal history and for her entire life has been a law-abiding citizen.

She has always been an extremely hard worker, showing her work ethic by making the 2002,

2006, and 2010 U.S. Olympic Team in short-track speed skating. See PSR, ¶ 87-88. She has
                                                 32
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served in leadership positions throughout her adult years including serving as a Vice President of

the Olympic and Paralympic Association, on the U.S. Speedskating Board of Directors, Safety

Commission, and serving on the Athlete Advisory Council, Athlete Support and Resource

Allocation Task Force. See PSR, ¶ 105.

         Further, family members and friends have suggested that Ms. Baver has always tried to

be a good role model, has done a lot of work in the community, has a work ethic and level of

commitment that is extraordinary, and has been a great influence on the younger female

generation, specifically in relation to one family friend’s daughters. See PSR, ¶ 90-93.

         Rather than committing offenses throughout her life, Ms. Baver has instead been a

functioning member of society, always working and always willing to help and influence others

through sports and other endeavors. As such, the instant offense is completely aberrant in nature.

Accordingly, a departure or variance is warranted.

   II.      §5K2.0 – Circumstances of a Kind Not Adequately Taken into Consideration.

   Pursuant to §5K2.0(a)(3):

         A departure may be warranted in an exceptional case, even though the circumstance that
         forms the basis for the departure is taken into consideration in determining the guideline
         range, if the court determines that such circumstance is present in the offense to a degree
         substantially in excess of, or substantially below, that which ordinarily is involved in that
         kind of offense.
   Id.

         In the present instance, Ms. Baver’s guideline offense level calculation is based on

intended loss, application of USSG §2B1.1, and Tenth Circuit caselaw. “USSG” §2B1.1(b)(1)

provides that if loss exceeded $6,500, increase the offense level based on the amount of the loss.

Id. The guideline itself does not define what constitutes loss. See USSG §2B1.1. However,




                                                  33
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application notes associated with the guidelines indicate that the general rule is that “loss is the

greater of actual loss or intended loss.” USSG §2B1.1, Application Note 3.

          Notwithstanding this rule, “[t]he court shall use the gain resulted from the offense as an

alternative measure of loss only if there is a loss, but it reasonably cannot be determined.” USSG

§2B1.1, Application Note 3(B).          Unfortunately, in the present instance, intended loss can

reasonably be determined such that this Court cannot go to “gain” in determining the appropriate

offense level. In spite of this, this Court could consider that Ms. Baver’s actual gain be considered

a circumstance of a kind not adequately considered which warrants a downward departure.

          In the present instance, this Court has just entered a preliminary order of forfeiture of over

$9,650,000 against Ms. Baver. Assuming a final order of forfeiture, the SBA will be receiving

this money back from the PPP loan. The SBA has already made Meridian Bank whole. Of the

remaining monies, $177,000 was used for payroll to employees.

          The only monies Ms. Baver personally received from ABE’s $10,000,000 loan was

$41,666.65 which Ms. Baver earned as a W-2 employee, $57,589.81 which Lash Media received

for Ms. Baver’s executive producer fee for America’s Angels, and $18,558 to High Rise Realty, a

company associated with Ms. Baver. Applying §2B1.1, Ms. Baver’s offense level would be an 8

based on gain (more than $95,000, but less than $150,000). With a base offense level 7, a specific

offense level of 8 based on gain, an additional 1 level based on the money laundering count, Ms.

Baver’s total offense level (without the two-level adjustment for obstruction based on the above

arguments), with the two-level reduction for 0- point offender, would be 14. With a criminal

history category of I, Ms. Baver’s guidelines would be 15-21 months. If this Court considers this

circumstance, a downward departure is warranted under §5K2.0. 11


11
     This could also be considered under 18 U.S.C. §3553 factors.
                                                   34
Case 2:21-cr-00520-JNP Document 224 Filed 09/30/24 PageID.3409 Page 35 of 35




                                         CONCLUSION

       With the above in mind, Ms. Baver asks this Court to sentence her to CTS and three years

of supervision to follow. This takes into consideration 18 U.S.C. §3553 factors including Ms.

Baver’s history and characteristics, the nature and circumstances of the offense, that she is likely

to continue her law-abiding life and is unlikely to reoffend, to provide just punishment for the

offense, and to afford adequate deterrence to criminal conduct. This requested sentence also

takes into consideration § 5H1.4 related to Ms. Baver’s health, §5H1.3 related to Ms. Baver’s

mental and emotional condition, that this was aberrant behavior under §5K2.20 and that there are

extraordinary circumstances not considered pursuant to §5K2.0.

       RESPECTFULLY SUBMITTED this 30th day of September, 2024.



                                                      /s/ Kristen R. Angelos
                                                      KRISTEN R. ANGELOS
                                                      Assistant Federal Public Defender


                                                      Robert K. Hunt
                                                      ROBERT K. HUNT
                                                      Assistant Federal Public Defender


                                                      Robert L. Steele
                                                      ROBERT L. STEELE
                                                      Assistant Federal Public Defender




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