Reply to the Government's Sentencing Memorandum

8/2/2019 Reply to the Government's Sentencing Memorandum

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Reply to the Governments Sentencing Memorandum

CASE NO.: 1:09-CR-00142-LJO

ANTHONY P. CAPOZZI, CSBN: 068525NICHOLAS A. CAPOZZI, CSBN: 275568LAW OFFICES OF ANTHONY P. CAPOZZI1233 W. Shaw Avenue, Suite 102Fresno, California 93711Telephone: (559) 221-0200Facsimile: (559) 221-7997

E-mail: [email protected]

Attorney for Defendant,Michael S. Ioane

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA, FRESNO

UNITED STATES OF AMERICA,

Plaintiff,

vs.

Michael S. Ioane,

Defendant.

)

)))))))))

Case No.: 1:09-CR-00142-LJO

REPLY TO THE GOVERNMENTSSENTENCING MEMORANDUM

DATE: 1/3/2012TIME: 2:00 pmHon. Lawrence ONeill

TO THIS HONORABLE COURT AND TO THE UNITED STATES ATTORNEYFOR THE EASTERN DISTRICT OF CALIFORNIA:

Defendant, Michael S. Ioane, by and through his attorney

of record, Anthony P. Capozzi, hereby Replies to the

Governments Sentencing and Supplemental Sentencing

Memorandum.

The Recommended Sentence Violates the Spirit and Intent of

United States Sentencing Guidelines

The Government obviously agrees with the PSR that

recommends a 121 month sentence. However, the recommendation

clearly violates the BASIC APPROACH (Policy Statement)

Case 1:09-cr-00142-LJO Document 180 Filed 01/27/12 Page 1 of 7


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pursuant to Chapter One, Part A, Section 3 of the Guidelines

which states in pertinent part:

. . . The basic objective is to combat crime

through as effective, fair sentencing system.

Congress sought uniformity and proportionality

in sentencing.

In United States v. Booker and Fan Fan 543 US 220, 253

125 S.Ct. 738, 761 (2005) the court stated,

. . . Congress basic goal in passing the

Sentencing Act was to move the sentencing

system in the direction of increase uniformity

. . . That uniformity does not consist simply

of similar sentences for those convicted of

violations of the same statute . . . consists,

more importantly, of similar relationships

between sentences and real conduct . . .

The recommended sentence for Dr. Booth is approximately

37 months. The recommended sentence of 121 months for

Michael Ioane stains the fabric of reason beyond any spirit

and intent of the U.S. Guidelines and case law.

Criminal History

The defense is not arguing, as the Government alleges,

that all of the Defendants convictions are not to be

counted.

The Court is requested to apply 4A1.3(b)(1) of the

Guidelines in determining that the Defendants criminal



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history over represents the seriousness of any criminal

activity.

Exhibit Asubmitted by the Government is irrelevant and

has absolutely nothing to do with the Defendants criminal

history. This involved a dispute in a civil case and is an

attempt to tarnish and prejudice this Defendant with the

Court. It is respectfully requested that Exhibit A be

deleted from the record.

Amount of Loss

The tax due was not proven at trial by the Exhibits

displayed by the Government in its Sentencing Memorandum.

Exhibit B is a NOTICE OF DEFICIENCY not a statement of taxes

due and owing. Exhibits C and D are requests to rescind the

Notice of Deficiency and Objections to the Notice of

Deficiency. These documents cannot be considered evidence of

a tax due. In United States v. Robinson, 920 F.2d 1157, 1158

(3rd Cir. 1991) in a taxpayer action to quiet title alleging

that the IRSs failed to comply with statutory procedures for

creating a lien, the court stated:

When the IRSs believes that the taxpayers

have not paid all or any part of their income

tax due, the following procedures apply:

The IRSs mails a Notice of Deficiency to the

taxpayers by certified or registered mail. 26

U.S.C. 6212(a) Once this Notice is mailed,

the taxpayers have 90 days in which to file a

petition for redetermination in the tax

court. 26 U.S.C. 6213.



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The court went on to state that:

TheNotice of Deficiency, sometimes called a

Ninety Day letter, is the taxpayers ticketto the Court to litigate the merits of the

deficiency determination, (citations omitted)

and is a jurisdictional prerequisite to a suit

in that forum. (citation omitted) Until 90

days have passed, the IRSs can neither make an

assessment nor utilize court procedures for

collection. (citation omitted) If the

taxpayers file in the Tax Court within that

period, the restraint on the IRSs continues

until the decision of the court becomes

final. 26 U.S.C. 6213(a)(emphasis added).

If the taxpayers do not file a petition in the Tax

Court within the specified time, the IRSs makes an

assessment. 26 U.S.C 6213(c) Within 60 days after making an

assessment, the IRSs must issue a Notice and Demand Letter

to the taxpayers, specifying the amount due and demanding a

payment. 26 U.S.C. 6303.

The important and relevant part to the issue here is:

The Notice is a pivotal feature of the codes

assessment procedures; (citation omitted)

because it serves as a prerequisite of a valid

assessment by the IRSs . . . By providing an

opportunity to litigate the merits of the

deficiency in the tax court without requiring

payment of the full amount allegedly owed, the

statute provides substantial benefits to thetaxpayers. Robinson, 920 F.2d at 1158.



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This review of Robinson, 920 F.2d at 1158 supra, is

clear evidence that the Notice of Deficiency does not

establish a tax due.

Sophisticated Means

The arguments set out in Defendants Objections to the

PSR on pages 4-7 adequately cover this topic. The

Defendants actions may have covered minimal planning but his

actions were elementary, foolish, and unsophisticated.

Clearly, if this enhancement were not applied to Dr. Booth, a

sentencing disparity would occur since Dr. Booth was theperson who requested that Defendant act for him and who

benefitted from these actions. 18 U.S.C. 3553(a).

Role Enhancement

The Government has the burden to establish that the

Defendant qualifies for an aggravating role increase. United

States v. Jones, 356 F.3d 529 (4th Cir. 2004). If anyone

should receive a role enhancement pursuant to 3B1.1 it should

be Dr. Booth not Michael Ioane. In United States v. Mickle,

464 F.3d 804 (8th Cir. 2006), the court upheld a leadership

role where the defendant recruited accomplices, planned the

offense and received a substantial share of the proceeds.

This description fits Dr. Booth not Michael Ioane. Michael

Ioane followed the direction of Dr. Booth, who already had

trusts in place and advisors informing him of how to evade

his taxes and payment of his taxes. Dr. Booth recruited the

accomplices, and received the benefits not Michael Ioane.



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The Government has not cited one case to support its

argument. The cases cited in Defendants objections,

United States v. May, 343 F.3d 1 (1st Cir. 2003);

United States v. Kilkenny, 493 F.3d 122 (2nd Cir. 2007);

United States v. Wilson, 240 F.3rd 39 (D.C. Cir. 2001);

United States v. Litchfield, 959 F.2d 1514 (35 Fed. R. Evid.

280 (10th Cir. 1992);

United States v. Sostre, 967 F.2 728 (1st Cir. 1992); and

United States v. Parmelee, 42 F.3 387, (7th Cir. 1994).

All reject any enhancement for Michael Ioane and support

such an enhancement for Dr. Booth.

Obstruction of Justice Enhancement

The Governments rendition of Michael Ioanes testimony

is not accurate as it relates to the obstruction enhancement

pursuant to 3C1.1. Michael Ioane testified as to what he did

as a result of Dr. Booths request. He did what he did in

good faith from his own perspective. This is not testifying

falsely nor is it obstruction.

The declaration of Patrick Jennings should be stricken as

it is unrelated to any obstruction enhancement in the case.

The Governments Declaration of Richard Ceraolo and Jay

Steven alleges they are victims of Defendants trust scheme.

The declarations should be stricken. None of this evidence

was used at trial as prior similar acts or as any type of

criminal activity. The Government is attempting to tarnish

Michael Ioane.



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The Government attempts to discredit Michael Ioane by

referring to his personal tax case which has nothing to do

with this case.

In its Supplemental Memorandum the Government submits a

Notice of Tax Due and Owing to Michael Ioane. This has

nothing to do with 3C1.1 which relates to the obstruction or

impeding of the investigation, prosecution or sentencing of

the instant offense of conviction. Nothing in the

Supplemental Memorandum related to the instant case and

should not be considered.

Conclusion

It is respectfully requested that the Court consider

these arguments in the sentencing of Michael Ioane.

Respectfully submitted,

DATED: January 27, 2012

/s/ Anthony P. Capozzi

Anthony P. CapozziAttorney for,Michael S. Ioane


Reply to the Government's Sentencing Memorandum

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