Government's Sentencing Reply Memorandum — No. 3:22-cr-00033 (Dkt. 290, D. Conn.)

Summary

The government's sentencing reply memorandum as to defendant John Trasacco, dated March 29, 2023 and filed as Document 290 in United States v. Trasacco, Case No. 3:22cr33 (OAW), in the U.S. District Court for the District of Connecticut. It responds to points in the defendant's reply (Doc. 285) after the government's initial memorandum of March 21, 2023 (Doc. 275). The government argues that a sentence above the Guidelines range is warranted under § 3553(a) because Trasacco participated in the conspiracy with DiMassa in a way the Guidelines do not capture, citing West Haven's COVID funds and the L&H and JIL frauds. It also relies on his prior convictions and states that the parties agree he is properly scored in CHC II.

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       Case 3:22-cr-00033-OAW Document 290 Filed 03/29/23 Page 1 of 8




                      UNITED STATES DISTRICT COURT
                        DISTRICT OF CONNECTICUT


UNITED STATES OF AMERICA                   :       Case No. 3:22cr33 (OAW)
                                           :
             v.                            :
                                           :
JOHN TRASACCO                              :       March 29, 2023


          GOVERNMENT'S SENTENCING REPLY MEMORANDUM

                                I.         Introduction

      On March 21, 2023, the government submitted its initial sentencing

memorandum (Doc. 275). On March 24, 2023, the defendant replied. (Doc. 285).

The government files this additional brief to address points raised in that

memorandum.

                                     II.       Discussion

      A. A Sentence Above The Guidelines Range Is Warranted Under 18
                               U.S.S.C. 3553(a)

   Simply put, a sentence above suggested Guideline range is warranted because

the defendant participated in the conspiracy with DiMassa in way that is neither

captured nor accounted for under the Sentencing Guidelines. Trasacco learned of

DiMassa’s seemingly unfettered access to West Haven’s COVID funds from

Bernardo and – on his own – decided to exploit it for his own gain. Unlike the

schemes with Mrs. DiMassa and Bernardo, Trasacco initiated the frauds, provided

all of the invoices, kept the crimes going by intimidating DiMassa, and kept

virtually all of the proceeds for himself. He was the driving force behind both the

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L&H and JIL frauds. This unique scenario is not quantitively captured by § 2B1.1

of the Guidelines. These facts, coupled with the defendant’s criminal history, prior

incarceration and the heighten need for specific deterrence, indicate that a sentence

above the range suggested in the Guidelines is warranted in this case for this

defendant.

   In his reply memo, the defendant argues his criminal category does not

underrepresent the seriousness of his criminal past because his criminal history

score is calculated correctly. But this argument misses the point. The parties

appear to agree that the defendant is properly scored in CHC II under the

Guidelines. While a number of Trasacco’s prior convictions do not count for his

criminal history score under the Guidelines, pursuant to § 3553(a) the Court must

consider the history and characteristics of the defendant. Here, the defendant has

led a life largely outside of the law. He has multiple prior convictions. He spent a

significant time in prison. He was released from special parole on October 28, 2014

(see PSR ¶¶ 48, 49) and has now been convicted of yet another serious crime. He

has no visible means of support, “no current stable income” and apparently supports

himself “with gifts from friends and occasional apparel sales.” PSR ¶ 79.

Although Trasacco provides the Court with several photographs of what he claims is

an apparel business, see Defendant’s Sentencing Memo. [doc. no. 267] at 3 and

Exhibit 2 to Defendant’s Sentencing Memo [doc. no. 269], the documentation of

proceeds from his business appears to be non-existent. During the PSR interview,

the defendant “had difficulty recalling all of his work history.” PSR ¶ 77. His


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financial statement is remarkedly replete with handwritten question marks (“?”)

and ambiguous remarks such as “don’t know how to,” “guessing,” and multiple

notations of “approx” related to outstanding balances. The Connecticut

Department of Labor has no employment record for the defendant for the last five

years, but he reported gross monthly business income. PSR ¶¶ 83, 86. Trasacco’s

failure to be fully forthcoming to the Court about his business income, especially

when he claims that business is a reason to mitigate his sentence, Defendant’s

Sentencing Memo. at 7, supports a sentence above the recommended Guideline

range. Although the probation officer requested additional information related to

Trasacco’s employment situation, PSR ¶ 77, Trasacco has not provided any

additional information.

   Further, it appears that the defendant did not file any tax returns for either

L&H or JIL between 2017-2021. The IRS has no record of him filing a personal

return for the tax years 2017, 2018, 2020, and 2021. In 2019, the defendant filed a

personal federal return form 1040 that reported no wages and one dollar ($1) in

taxable interest income.

   Next, the defendant attempts to discredit a portion of DiMassa’s testimony that

describes the conspiracy in way that inculpates the defendant. But the jury heard

the same testimony and convicted the defendant of both crimes and the uncontested

facts support DiMassa’s testimony. The bank records clearly show all of the money

from Trasacco’s frauds went to Trasacco. Trasacco created and delivered all the

invoices. Trasacco never delivered the vast majority of materials he listed on the


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L&H invoices, even after the investigation went overt. Trasacco never did

anything to fulfill the JIL invoice until after he learned that federal authorities

were actively investigating West Haven’s dispersal of COVID funds. By that time,

all of the 184K was gone. Such are the hallmarks of fraud.

   And the defendant’s arguments concerning DiMassa’s testimony miss the forest

for the trees. The defendant points to three specific incidents described by

DiMassa that he claims are untrue. All of these events are not ends in themselves,

but describe why DiMassa was afraid of Trasacco and continued the fraud despite

not receiving significant amounts of cash. The ultimate conclusion that DiMassa

was afraid of Trasacco was clearly articulated by DiMassa.


                    Q.     Are you scared of John Trasacco?

                    A.     Yes, I am.


DiMassa Trial Testimony at 185.

   The defendant next argues that the fact that he kept virtually all of the proceeds

of the L&H and JIL frauds is adequately addressed “by the entry of a restitution

order in the amount of $411,982 covering all of Mr. Trasacco’s gains minus the

$20,000 that Mr. DiMassa claims Mr. Trasacco paid to Mr. DiMassa and Mr.

Bernardo as kickbacks for the L&H contract.” 1 Def’s Reply Brief at 9. But this

argument ignores the fundamental differences between the schemes in these

related cases. In the Compass Investment scheme and Youth Services scheme, all


1 The defendant apparently credits this portion of DiMassa’s testimony.


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of the co-conspirators stood to gain from the fraud. Lauren DiMassa kept some of

the proceeds, eventually depositing an entire check into her account. Bernardo set

up a fake payroll plan to hide his proceeds. But the L&H and JIL schemes were

designed by Trasacco to benefit only himself. He opportunistically learned of the

utter lack of financial controls West Haven had concerning its distribution of

COVID funds and that DiMassa could access the money. Trasacco exploited that

access for his own benefit and instigated both the L&H and JIL schemes.

      Further, the defendant argues that he is “being punished” because he did not

receive the adjustment for acceptance of responsibility after being convicted at trial.

Def’s Reply Memo. at 10. This is just simply incorrect. In the PSR, the probation

officer did not recommend an adjustment for acceptance of responsibility because

the defendant “has not clearly demonstrated acceptance of responsibility for his

offense.” PSR ¶ 40. The defendant would still be eligible for this reduction if, prior

to sentencing, he demonstrated acceptance of responsibility for both counts of

conviction. As of the filing of this memo, he has not done so. This is a choice, not

a punishment.

   The defendant also argues his criminal category does not underrepresent the

seriousness that his criminal past because it is calculated correctly.   This

argument misses the point. The parties appear to agree that the defendant is in

CHC II. While a number of his prior convictions do not count against Trasacco

under his criminal history score, pursuant to § 3553(a), the Court must consider the

entire history and characteristics of the defendant. Here, the defendant has led a


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life largely outside of the law. He has multiple prior convictions. He spent a

significant time in prison and then committed this crime. He has no visible means

of support, “no current stable income” and apparently supports himself “with gifts

from friends and occasional apparel sales.” PSR ¶ 79. He has never filed a tax

return for that business, a fact that is not accounted for under the calculation of his

Guideline range under § 2B1.1 or the calculation of his CHC.

                 B. The Defendant Was Not A Minor Participant

   Against this backdrop, it is plain that Trasacco was not a minor player in the

scheme to defraud the citizens of West Haven through L&H and JIL. The

defendant’s principal theory appears to be that he is less culpable than Bernardo

because without Bernardo, who introduced Trasacco to DiMassa, “Mr. Trasacco

would never have had access to public funds at all.” Def’s Reply Memo. at 5.

   This argument has no merit. It is true that Bernardo introduced Trasacco to

DiMassa at a cigar bar. And it is true that all three of them frequented Doma.

And it is also true that Trasacco did not have direct access to West Haven’s

payment system. But the reality is that the JIL and L&H frauds would have never

occurred but for the fact that Trasacco made them happen. Trasacco was the

architect of both the L&H and JIL frauds. He approached DiMassa with the L&H

scheme and he continued to give DiMassa unsolicited fraudulent invoices and

expected payment. Trasacco exploited DiMassa’s access to a poorly controlled

municipal financial operation to steal money for himself. This clearly sets his

conduct apart from the culpability of both Bernardo and Lauren DiMassa. It is


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        Case 3:22-cr-00033-OAW Document 290 Filed 03/29/23 Page 7 of 8


undisputed that Trasacco retained 95.4% of the proceeds of his fraud, and that

Michael DiMassa only received 2.3% of the fraudulent L&H/JIL funds. The small

amount of money that DiMassa received was in the form of unexpected cash

kickbacks from Trasacco. The differences in the schemes should lead to different

outcomes at sentencing.

                                 III.    Conclusion

      After considering the Sentencing Guidelines and the other sentencing factors

under 18 U.S.C. § 3553(a), the Court should impose a term of incarceration above

the advisory Guideline range and order the defendant to pay $411,982 in

restitution.



                               Respectfully submitted,

                               VANESSA ROBERTS AVERY
                               UNITED STATES ATTORNEY

                                        /s

                               RAY MILLER
                               ASSISTANT UNITED STATES ATTORNEY
                               FEDERAL BAR NO. CT 20451

                               DAVID J. SHELDON
                               FEDERAL BAR NO. CT 07997
                               ASSISTANT UNITED STATES ATTORNEY

                               157 CHURCH STREET, 23RD FLOOR
                               NEW HAVEN, CT 06510
                               (203) 821-3700




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        Case 3:22-cr-00033-OAW Document 290 Filed 03/29/23 Page 8 of 8




                            CERTIFICATE OF SERVICE

       This is to certify that on March 29, 2023 a copy of the foregoing

Memorandum was filed electronically. Notice of this filing will be sent by email to

all parties by operation of the Court’s electronic filing system or by mail on anyone

unable to accept electronic filing as indicated on the Notice of Electronic Filing.

Parties may access this filing through the Court=s CM/ECF System.



                                                      /s

                                              Ray Miller
                                              Assistant U.S. Attorney




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