You are on page 1of 9

Case 3:10-cr-00196-AVC Document 18 Filed 03/01/11 Page 1 of 9

UNITED STATES DISTRICT COURT


District of Connecticut

UNITED STATES OF AMERICA :

VS. : 3:10-cr-00196 (AVC)

VIRGINIA MAZZARO : March 1, 2011

DEFENDANT MAZZARO S REPLY TO


GOVERNMENT S MEMORANDUM IN AID OF SENTENCING

On February 24, 2011, the government filed its memorandum in aid of sentencing. Mrs.

Mazzaro offers this brief reply thereto.

The government s memorandum ( GM ) makes repeated mention of a fact integral to

Mrs. Mazzaro s guilty plea and uncontested in these proceedings: over a five year period

(2004-2008) Mrs. Mazzaro failed to report $1,807,221 in taxable income. See GM 1, 2, 8, 11.

As a result of this admitted misconduct, Mrs. Mazzaro failed to pay approximately $669,000 in

federal taxes. Id. 3, 9, 11. Accordingly, and consistent with her prompt and total acceptance

of responsibility, Mrs. Mazzaro paid $1,412,102.37 in federal back taxes, penalties and interest

(or more than $740,000 originally owed) contemporaneous to pleading guilty. Id. 2, 4. Having

satisfied fully her outstanding federal and state tax obligations, Mrs. Mazzaro is not now

subject to a restitution order, as the government suggests. See Id. 1.

Rather than contest the individual merits of the several bases for a below guidelines

sentence that Mrs. Mazzaro offers the Court through her sentencing memorandum, the

government speaks in generalities, suggesting that nothing about this case sets it apart from

the mine run of tax offense cases. In the government s view, Virginia Mazzaro is

indistinguishable from most other white-collar criminals and there are no factors unique to

[her] that would support a conclusion that a non-Guidelines sentence is appropriate. GM 6,


Case 3:10-cr-00196-AVC Document 18 Filed 03/01/11 Page 2 of 9

9. Respectfully, the government is not only wrong, but its arguments are unfair to Mrs.

Mazzaro, to her family and to the myriad people who took the time to write on Mrs. Mazzaro s

behalf.

Trusting that the Court has reviewed or will review Mrs. Mazzaro s memorandum in its

entirety prior to Thursday s hearing, we shall not reiterate the recognized grounds supporting a

below guideline sentence in this case. Instead, we point out what should be abundantly

obvious about Virginia Mazzaro: while she has committed a white collar offense she is far

from a white collar defendant. The letters submitted for the Court s consideration establish

unambiguously that Ginny Mazzaro is about as blue collar as a defendant comes in that her

life is defined by rolling up her sleeves and working hard, day-after-day, week-after-week,

month-after-month and year-after-year without vacation or a desire for recognition. What does

Mrs. Mazzaro (and her family) have to show for more than five decades hard work? The

goodwill of a community and a considerable savings, largely invested in less than risky CDs,

that grows annually because neither she nor her family spend money commensurate with what

they earn. In this regard, the government s contention that Mrs. Mazzaro spent substantial

sums is without merit. GM 11. There is absolutely no evidence to support such a claim, and

the government cites none.

Similarly, the government offers platitudes about the value of punishing tax offenders

severely while offering limited support and failing to address the individualized sentence that

the law, § 3553(a), compels in this case. For instance, the government contends, without

attribution, that A prison sentence would rebut the commonly expressed sentiment that

cheating on your taxes is no big deal. Mrs. Mazzaro has never taken that position. To the

contrary, Mrs. Mazzaro knows quite well what a big deal failing to pay one s taxes is. She

2
Case 3:10-cr-00196-AVC Document 18 Filed 03/01/11 Page 3 of 9

acknowledges the error of her ways and has paid dearly for it. She has acknowledged that to

the legion of people who have come forward to support her. The Court may recall her

demeanor at the plea hearing. Her remorse and shame were evident in her emotional reaction

to being found guilty of this offence. This was sincere. Ginny Mazzaro gets it and has told

that to all she knows.

The government also makes much of the notion that a prison sentence will serve the

end of general deterrence. Three aspects of this argument are immediately notable. First, the

government does not claim, because it cannot credibly, that a prison sentence will further the

end of specific deterrence (i.e., the Court must imprison Virginia to prevent her from

committing future crimes). Such argument would be well beyond the pale. Second, the

putative need for a deterrent effect in sentencing tax offenders is the limited number of

criminal tax prosecutions. GM 11, 12, 13. In other words, the government s position is that

because it fails to vigorously prosecute tax offenders (such prosecutions are relatively rare ),

courts should sentence more harshly those typically nonviolent, first-time offenders that the

government puts before them. Id. 11.

Finally, the government rests on the notion that stringent sentences promote

deterrence. Id. 11. However, [g]enerally speaking, legal and sociological scholars have

raised serious questions about the power of any punishment to deter crimes. See Kittrie, et

al., Sentencing, Sanctions and Corrections: Federal and State Law, Policy, and Practice, 29

(2d ed. 2002) (citation omitted). A large reason for the weakness of general deterrence theory

is the underlying assumption that people weigh rationally the consequences of their behavior.

Arthur W. Campbell, Law of Sentencing, § 2:2 (2d ed. 1991) (citations omitted). Any argument

that whatever sentence is imposed here will prevent another from engaging in criminal conduct

3
Case 3:10-cr-00196-AVC Document 18 Filed 03/01/11 Page 4 of 9

is suspect, at best. Moreover, the counterbalance, which the government conveniently

ignores, is that tempering justice with mercy not only promotes respect for the law but makes

the most appropriate use of an overburdened federal criminal justice system one where the

federal Bureau of Prisons has operated consistently at around 40 percent rated capacity the

past several years without any relief in sight. As set forth in Mrs. Mazzaro s sentencing

memorandum, the 24-30 month guideline range is no more than a starting point, an initial

benchmark lacking the force of law that is to be consulted; but, it is ultimately no more than

one of numerous factors to be weighed when selecting a disposition that is sufficient, but not

greater than necessary, to satisfy the purposes and goals set forth in 18 U.S.C. § 3553(a). See

Gall v. United States, 552 U.S. 38, 49-50 (2007); Kimbrough v. United States, 552 U.S. 85, 90

(2007); United States v. Dovree, 616 F.3d 174, 187 (2d Cir. 2010); 18 U.S.C. § 3553(a)(4).

In closing, Mrs. Mazzaro wishes to take exception with the authority upon which the

government relies. First, the government cites the Eleventh Circuit s pre-Booker decision in

United States v. Burgos, 276 F.3d 1284 (11th Cir. 2001). GM 11-12. Respectfully, the portion

of the footnote the government quotes in its parenthetical provides an incomplete perspective

on the larger point that the Burgos court was attempting to make regarding courts appropriate

consideration of § 3553(a) factors:

Obviously, a judge may give one goal more weight than others in a
particular case. For example, a judge may consider punishment
the primary goal for a defendant convicted of homicide; whereas,
specific deterrence may be the goal heavily weighted in fashioning
a sentence for a recidivist. For a judge sentencing a defendant
convicted of tax evasion, the chief concern may be general
deterrence, and, if sentencing a defendant who is a one-time
offender, a judge may avoid incarceration and focus on
rehabilitative programs. Further, we have explained elsewhere
that, [f]or purposes of determining the need for incarceration,
Congress specified that only the first three goals, punishment,
general deterrence, and specific deterrence, could be considered.

4
Case 3:10-cr-00196-AVC Document 18 Filed 03/01/11 Page 5 of 9

While Congress prohibited incarcerating an offender for purposes


of rehabilitation, an offender's need for rehabilitation may be
considered in prescribing the conditions of probation or supervised
release.

Burgos, 276 F.3d at 1290 n.6 (citations omitted; bold emphasis added).

Second the government cites United States v. Trupin, 475 F.3d 71 (2d Cir. 2007), a

case involving a tax fraud [that] occurred over six years and accounted for over six million

dollars in unreported income. Trupin accomplished his tax evasion through a complex network

of corporate shells, phony paper trails, and foreign transactions-efforts that required him to

take advantage of his wife and daughter. Id. 76; see GM 12. As noted in the procedural

history of that opinion, Trupin was originally sentenced to 41 months imprisonment, but the

sentence was remanded for resentencing under advisory sentencing guidelines. On remand,

the Court sentenced Trupin to seven months imprisonment, seven months home confinement

and three years supervised release, therein giving rise to the appeal upon which the

government here now relies. Id. 73 ( The district court noted general statistics indicating that

recidivism declines consistently as age increases, leading it to conclude that Trupin is [not]

going to go out and commit any more crimes of the sort he's done. ). What the government

fails to note is that the Trupin court s decision vacating the seven-month sentence was itself

vacated due to the Court of Appeals s de novo review and its rejection of the district court s

policy disagreements with the Guidelines, which concerned generalized objections to

imprisonment and the Guidelines in particular. United States v. Trupin, 128 S.Ct. 862 (2008);

United States v. Trupin, 475 F.3d at 76; see United States v. Trupin, 291 Fed.Appx. 449 (2d

Cir. 2008). A review of the Southern District s docket shows that the Supreme Court s action

had the effect of reinstating the seven month sentence the government s apparent

continuing opposition notwithstanding. See Docket No. 1:97-cr-00097-LMM.

5
Case 3:10-cr-00196-AVC Document 18 Filed 03/01/11 Page 6 of 9

Finally, the government relies heavily on United States v. Tomko, 498 F.3d 147 (3d Cir.

2007), GM 12-13, but that decision was also vacated. Following a rehearing en banc, the

Court of Appeals held that the district court did not commit procedural error in failing to

consider meaningfully general deterrence and did not abuse its discretion in imposing a

probationary sentence. United States v. Tomko, 562 F.3d 558 (3d Cir. 2009). As to the

former, the government in Tomko, like the government here, exhaustively asserted, directly in

front of the District Court, that a probationary sentence would adversely affect general

deterrence. Id. 568. Inasmuch as the court sentenced Tomko [a]lmost immediately after the

Government made these statements , the en banc panel found that the District Court heard

the Government's impassioned plea, considered general deterrence, and handed down

Tomko's sentence , meaning there was no procedural error. Id. (emphasis in original).

The Court of Appeals further rejected the government s claims regarding the

substantive reasonableness of Tomko s sentence, affirming the district court s finding that

probation was warranted because of Tomko's negligible criminal history, his record of

employment, his community ties, and his extensive charitable works. Id. 570.

The District Court's reasons are also logical and consistent with the
factors set forth in section 3553(a). They are fully supported by the
record. The Government does not dispute that Tomko had a
negligible criminal history and that, because of his prominence in
the company, his incarceration would threaten the jobs of Tomko,
Inc.'s over-300 employees. As for Tomko's charitable works, even
the Government conceded at oral argument that [t]he district court
was entitled to give it whatever weight the district court wanted.
Several dozen letters written on Tomko's behalf prior to his
sentencing also demonstrate Tomko's community ties and
extensive charitable works. These letters indicate that Tomko
performed pre-indictment charitable acts that involved not only
money, but also his personal time.

We cannot say that, in absolute terms, the variance here was so


large that it was per se unreasonable. In Gall, the Supreme Court

6
Case 3:10-cr-00196-AVC Document 18 Filed 03/01/11 Page 7 of 9

affirmed a district court's probationary sentence where the advisory


Guidelines range was thirty to thirty-seven months of imprisonment.
Similarly, post- Gall, a number of courts of appeals, including our
own, have affirmed sentences that involved greater variances or
departures than the one here. It will be a rare case when it is clear
that no acceptable reasoning can justify a given sentence. This is
not one of them.

The Government claims that affirming Tomko's sentence promotes


sentencing disparities and, in turn, undermines general deterrence.
Whatever the merits of this possibility, it does nothing to change our
disposition. The Government's concern is not new; it has been a
point of constant focus throughout sentencing review's evolution.
Before the Guidelines existed, [s]erious disparities in sentences ...
were common. When Congress created the mandatory Guidelines
system, it did so to provide certainty and fairness in meeting the
purposes of sentencing, [while] avoiding unwarranted sentencing
disparities ... [and] maintaining sufficient flexibility to permit
individualized sentences when warranted. When the Supreme
Court rendered the Guidelines advisory, it was fully aware that
sentencing disparities would likely increase.

Despite that awareness, the Booker Court was confident that the
advisory Guidelines system would continue to move sentencing in
Congress' preferred direction, helping to avoid excessive
sentencing disparities while maintaining flexibility sufficient to
individualize sentences where necessary. In Gall, the Court
reaffirmed that a more deferential abuse-of-discretion standard
could successfully balance the need to reduce unjustified
disparities' across the Nation and consider every convicted person
as an individual.

Id. 571-74 (citations omitted). With each of the above, individualized factors being among

those present for Virginia Mazzaro, it is striking that the government attempts to argue there is

no basis for a below Guidelines sentence in this case.

We recognize that in the midst of tax season, the government would like to be able to

hold Virginia Mazzaro as an exemplar of a tax cheat severely punished (imprisoned).

However, what is right and true under the law, not prosecutor s press releases, define justice.

Respectfully, as set forth more fully in our sentencing memorandum, a probationary sentence

7
Case 3:10-cr-00196-AVC Document 18 Filed 03/01/11 Page 8 of 9

is right and true in this instance because such a disposition accounts fairly for the panoply of

§ 3553(a) considerations that this case presents.

Respectfully submitted,

BY: /s/ Richard Meehan


Richard T. Meehan, Jr., CT 06029
MEEHAN, MEEHAN & GAVIN
76 Lyon Terrace
Bridgeport, CT 06604
(203) 333-1888; Fax: (203) 331-0107
rtm@meehanlaw.com

8
Case 3:10-cr-00196-AVC Document 18 Filed 03/01/11 Page 9 of 9

CERTIFICATE OF SERVICE

I hereby certify that on March 1, 2011, a copy of the foregoing was filed
electronically and served by mail on anyone unable to accept electronic filing.
Notice of this filing will be sent by e-mail to all parties by operation of the Court s
electronic filing system or by mail to 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/ Richard Meehan


Richard T. Meehan, Jr.

You might also like