DOJ Letter re Murphy sentencing (document 516)

		U.S. Department of Justice United States Attorney Eastern District of New York

DRA:BMR:JL		One Pierrepont Plaza
F.#2002R00892		Brooklyn, New York 11201
	Mailing Address:	147 Pierrepont Street
		Brooklyn, New York 11201
		March 25, 2005

U.S. Probation Officer Patricia A. Sullivan
U.S. Probation Department Eastern District of New York 75 Clinton Street, Room 405 Brooklyn, New York 11201-4201

Re: United States v. Daniel J. Murphy, et al.
Criminal Docket No. 03-191 (S-6) (SJ)

Dear Ms. Sullivan:

We write to address certain factual discrepancies/issues set forth in the Presentence Report (“PSR”) for the defendant Daniel J. Murphy. Additionally, it is our position that Murphy’s’ Guideline range should be 27-33 months, not 33-41months as set forth in the PSR. The 27-33 month range reflects a three, rather than two, level reduction for acceptance of responsibility and a one-level reduction for global disposition.

Referring to page 6, paragraph 2, as we have indicated, a fair estimate of the amount of loss is just under $400,000,i.e., $399,631.56.

Referring to page 7, paragraph 5, forfeiture payment should be sent to the attention of Special Assistant U.S.Attorney Douglas Leff, rather than Adam Schwartz.

At pages 7-8, paragraph 6, the PSR indicates its disagreement with a one-level reduction for global resolution, noting the PROTECT Act and stating that United States v. Garcia,926 F.2d 125 (2d Cir. 1991), is distinguishable. Rather than limiting the sentencing discretion given to judges by Garcia to a narrowly focused set of facts, in cases quite different from Garcia’s factual core, the Second Circuit has expressly permitted Guideline reductions or downward departures based on a conservation of judicial resources. See, e.g., United States v. Agu, 949 F.2d 63, 67 (2d Cir. 1991) (holding that “cooperationwith the government in respects other than the prosecution of

others or cooperation with the judicial system can, inappropriate circumstances, warrant a departure”). It is thus our position that a one-level reduction for global disposition is within the Court’s discretion.

At page 10, paragraph 17, the end of the second sentence should read “and had no-show jobs.” Also, we note that while most of the mail fraud schemes in this case did involve business agents getting kick-ups, this particular scheme involving Murphy did not.

At page 10, paragraph 18, the second sentence should be deleted because the indicated mailings were not sent to contractors.

At page 12, paragraph 24, it should be payments and deliveries “of money.”

At page 15, paragraph 36, we agree that restitution is inappropriate, but it was necessary to advise Thomas McGuire of his maximum exposure in that regard. As indicated elsewhere in his plea agreement, the money is to be paid as forfeiture.

Referring to page 16, paragraph 37, the PSR indicates a discrepancy between restitution owed and amount of loss for Thomas McNamara, which we will address to the extent necessary in response to McNamara’s PSR.

Referring to page 16, paragraph 38, the PSR indicates that Murphy’s restitution liability is $400,000, not $300,000. $300,000 was the amount that the parties could agree to as the appropriate amount of restitution.

Referring to page 16, paragraph 39, the PSR indicates that Quaranta’s restitution liability is $145,200 (the loss figure), not $18,000. Quaranta is being held responsible for the amount he personally illegally earned, i.e., the money he received from Recine Materials at the Starrett City job - his second overlapping job. Others, i.ee., Ralph Garguilo and Joel J. Cacace, Jr., are responsible for their part of the greater loss figure.

Referring to page 16, paragraph 42, we have forwarded the names of the victim contractors and estimated loss to Probation.

As to page 17, paragraphs 43 and 44, the company name is Soil Solutions, plural. It was Vito Volpicelli (not Vopicelli) who typically accumulated the receipts; for example, Volpicelli would purchase supplies for the work being done for Murphy, giving the receipts for his purchased to Soil Solutions.

As to page 18, paragraph 49, the proof shows that McNamara should receive a three- as opposed to two-level increase for role in the offense. McNamara agreed to the three-level enhancement in his plea agreement. We will further address this point to the extent necessary in our response to McNamara’s PSR.

Referring to page 22, paragraph 79, we did not advise that Murphy did not plead guilty in a timely matter. Please note that in the plea agreement we indicated that Murphy would be deserving of a three-level reduction for acceptance of responsibility if he pled guilty on or before November 8, 2004. Murphy met that condition, pleading on November 8. Thus, he should receive a three-level reduction for acceptance of responsibility.

Referring to page 30, paragraph 112, it is our position that Murphy’s total offense level should be 18 because he should receive the third point off for acceptance of responsibility and he should also receive a one-level reduction based on the global plea. Total offense level 18, with Criminal History Category I, yields a Guideline range of 27-33 months.

In conclusion, we respectfully submit that Murphy should be sentenced within the Guideline range of 27 to 33 months.

Very truly yours,

ROSLYNN R. MAUSKOPF
UNITED STATES ATTORNEY

__________________
By: Bridget M. Rohde/Joey Lipton
Assistant United States Attorneys
(718) 254-6348/6125

cc: Clerk of the Court (SJ)
Herald P. Fahringer, Esq.