UNITED STATES DISTRICT COURT CASE NO. CASE …...1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT...

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1 UNITED STATES DISTRICT COURTUNITED STATES DISTRICT COURTUNITED STATES DISTRICT COURTUNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDASOUTHERN DISTRICT OF FLORIDASOUTHERN DISTRICT OF FLORIDASOUTHERN DISTRICT OF FLORIDA

2 MIAMI DIVISIONMIAMI DIVISIONMIAMI DIVISIONMIAMI DIVISION CASE NO. CASE NO. CASE NO. CASE NO. 09-20346-CR-JEM09-20346-CR-JEM09-20346-CR-JEM09-20346-CR-JEM

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5 UNITED STATES OF AMERICA, UNITED STATES OF AMERICA, UNITED STATES OF AMERICA, UNITED STATES OF AMERICA,

6 Plaintiff,

7 vs.

8 Miami, FloridaJuly 30, 2010

9 JUAN JUAN JUAN JUAN DIAZDIAZDIAZDIAZ, , , ,

10 Defendant. _______________________________________________________________

11 TRANSCRIPT OF TRANSCRIPT OF TRANSCRIPT OF TRANSCRIPT OF SENTENCING SENTENCING SENTENCING SENTENCING HEARINGHEARINGHEARINGHEARING

12 BEFORE THE HONORABLE BEFORE THE HONORABLE BEFORE THE HONORABLE BEFORE THE HONORABLE JOSE JOSE JOSE JOSE E. E. E. E. MARTINEZMARTINEZMARTINEZMARTINEZUNITED STATES UNITED STATES UNITED STATES UNITED STATES DISTRICTDISTRICTDISTRICTDISTRICT JUDGE JUDGE JUDGE JUDGE

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14 APPEARANCES: APPEARANCES: APPEARANCES: APPEARANCES:

15 FOR THE PLAINTIFF: FOR THE PLAINTIFF: FOR THE PLAINTIFF: FOR THE PLAINTIFF: United States Attorney's Office

16 BY: BY: BY: BY: AURORA AURORA AURORA AURORA FAGANFAGANFAGANFAGAN, , , , A.U.S.A. A.U.S.A. A.U.S.A. A.U.S.A. 99 N.E. 4th Street

17 Miami, Florida 33132

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FOR THE DEFENDANT: FOR THE DEFENDANT: FOR THE DEFENDANT: FOR THE DEFENDANT: 19 BY: BY: BY: BY: ALLENALLENALLENALLEN SSSS. K. K. K. KATZ, ATZ, ATZ, ATZ, PPPP.A.A.A.A. . . .

BY: BY: BY: BY: ALLEN ALLEN ALLEN ALLEN STEWART STEWART STEWART STEWART KATZ, KATZ, KATZ, KATZ, ESQ. ESQ. ESQ. ESQ. 20 777 Brickell Avenue - Suite 1114

Miami, Florida 3313121

22 REPORTED BY: REPORTED BY: REPORTED BY: REPORTED BY: DAWN M. WHITMARSH, RPRDAWN M. WHITMARSH, RPRDAWN M. WHITMARSH, RPRDAWN M. WHITMARSH, RPROfficial Court Reporter Official Court Reporter Official Court Reporter Official Court Reporter

23 400 N. Miami Avenue, 10S03400 N. Miami Avenue, 10S03400 N. Miami Avenue, 10S03400 N. Miami Avenue, 10S03Miami, Florida 33128Miami, Florida 33128Miami, Florida 33128Miami, Florida 33128

24 Telephone: 305-523-5598Telephone: 305-523-5598Telephone: 305-523-5598Telephone: 305-523-5598

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PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHYPROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHYPROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHYPROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHYTRANSCRIPT PRODUCED BY COMPUTERTRANSCRIPT PRODUCED BY COMPUTERTRANSCRIPT PRODUCED BY COMPUTERTRANSCRIPT PRODUCED BY COMPUTER

Case 1:09-cr-20346-JEM Document 37 Entered on FLSD Docket 08/05/2010 of 30

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1 P-R-O-C-E-E-D-I-N-G-S

2 COURTROOM DEPUTY: Case number

3 09-20346-criminal-Martinez, United States of America versus Juan

4 Diaz.

5 Counsel, please state your appearances.

6 MS. FAGAN: Good afternoon, Your Honor. Aurora Fagan

7 for the United States.

8 THE COURT: Good afternoon, Ms. Fagan.

9 MR. KATZ: Good afternoon, Judge. Allen Katz on behalf

10 of the defendant, Juan Diaz.

11 THE COURT: Good afternoon, Mr. Katz.

12 And Mr. Diaz is present and does not require the use of

13 an interpreter; is that correct?

14 MR. KATZ: That is correct, Judge.

15 THE COURT: All right.

16 THE PROBATION OFFICER: Good afternoon, Your Honor.

17 Thomas Felasco on behalf of the US Probation Office.

18 THE COURT: All right. We're here on the sentencing on

19 Mr. Diaz. I've reviewed the factual agreement and written plea

20 agreement, presentence investigation.

21 Note that the defendant will request that he be allowed

22 to serve his term of imprisonment as close to South Florida as

23 possible.

24 Note that there has been an adjustment for acceptance

25 of responsibility and that no objections have been reported by



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1 the government or the defendant.

2 I'm ready to proceed at this time. I'll be happy to

3 hear from the government first.

4 MS. FAGAN: Your Honor, there is actually an objection.

5 If you look at the plea agreement, the parties had agreed to ask

6 this Court to consider recommending Mr. Diaz --

7 THE COURT: I don't think any objections had been

8 filed.

9 MS. FAGAN: They had not been, Your Honor.

10 THE COURT: But you want me to consider an oral

11 objection by whom?

12 MS. FAGAN: By the government, Your Honor.

13 THE COURT: Okay. Tell me about it.

14 MR. KATZ: We would be asking as well, Your Honor.

15 MS. FAGAN: Your Honor, under the plea agreement, we

16 had agreed with Mr. Diaz that we would ask the Court to consider

17 sentencing him to a total offence level of 28 instead of the 29

18 that was calculated by the -- actually instead of the 32 that

19 was calculated by the office of probation.

20 The reason how we came to this level 28, Your Honor, is

21 that we were using the base offense level of the Foreign Corrupt

22 Practices Act, which we believe is really the gist of this

23 crime. As you know, Mr. Diaz had pled guilty to a multi-level

24 371 conspiracy. One of the objects was the FCPA violation.

25 However, the other object was the 1956 money laundering, and we



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1 just did not take into account the 1956 which is the offense

2 that the Department of Probation had used to calculate it.

3 They're not wrong, Your Honor, we had just felt that

4 the real gist of the crime was the FCPA. And in calculating an

5 FCPA violation under the 371 conspiracy, there is a base offense

6 level of ten. When you take into account that over a million

7 dollars was involved --

8 THE COURT: Why don't you set down. You're going to

9 hurt your back bending over like that.

10 MS. FAGAN: Thank you, sir. Taking into account that

11 over a million dollars was involved, you add 16. And taking

12 into account that more than one bribe was involved in the

13 offense, you also add two, which comes up to a total offense

14 level of 28.

15 When you subtract the three for acceptance of

16 responsibility, you come up with a final offense level of 25,

17 which would put Mr. Diaz in the sentencing range of 57 to 71

18 months.

19 As Your Honor is aware, with the 371 conspiracy, the

20 sentence is capped by statute at 60 months. So we're basically

21 at a three months difference here between the recommendation by

22 the Department of Probation and the recommendation of the

23 parties.

24 THE COURT: Okay. But here's the problem with that.

25 The problem with that is that that I'm supposed to go by what it



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1 is, not what you said it was. And I tell -- everybody gets told

2 that this is nice, but it's just a recommendation and I'm the

3 one that finally decides it.

4 I have to go along with the probation officer, because

5 I'm looking at it and I'm seeing that the underlying offense

6 under the sentencing guideline manual that was in effect at the

7 time of the offense makes this sufficient that it goes to the

8 60. Now, I don't have a problem with him getting less time than

9 that, I know that he has already cooperated, at least I believe

10 that. Is that true?

11 MS. FAGAN: Yes, sir.

12 THE COURT: And I expect that he will be cooperating

13 further in the future.

14 MS. FAGAN: Yes, sir.

15 THE COURT: So I would expect that at some point, you

16 will be filing a motion to reduce the sentence. So I don't have

17 a problem, but I'd like to call a spade a spade and say that in

18 fact the guideline range is 60 months because of the statutory

19 maximum, and if you want it to be less than that, I'll listen to

20 you and I will probably agree with you. But I think that -- you

21 know, I don't want to be the person that is going on record as

22 saying, well, we're going to call a rutabaga a watermelon

23 because we decided that it was a watermelon and it really isn't.

24 You know, we got to call it what it is. And what it is is I

25 think Mr. Felasco has accurately figured it out, but I don't



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1 know that -- I mean, 60 months has no magic to me. And from

2 reading the file, I believe that it is probable that -- I mean,

3 I would look favorably on any -- you know, if you want me to go,

4 I guess is it a variance? I get mixed up on the terms. Is it a

5 variance.

6 THE PROBATION OFFICER: It would be a variance since

7 it's based on the guidelines.

8 THE COURT: If you want me to do a downward variance, I

9 would be happy to do it because I think it's appropriate. But I

10 don't want it to look like I'm just pulling levels out of my --

11 out of the air and using them when they don't apply. You

12 understand my point on it? I don't want to look like a dummy.

13 I do that often enough without trying.

14 MS. FAGAN: Yes, sir. I understand. I think that the

15 problem here is that we did not -- we simply were not taking

16 into account the 1956. And as Your Honor knows, typically my

17 office does not ask for variances.

18 THE COURT: I know you don't.

19 MS. FAGAN: And so that's why I'm finding myself in a

20 little bit of a predicament, because we did agree in the plea

21 agreement that we would ask Your Honor to sentence him at a

22 total offense level of 28 which would put him at the 57 to 71.

23 THE COURT: But apparently you haven't been listening.

24 Each time I ask on a plea, I tell them, you understand whatever

25 they ask for is that just, and I don't have to do it and I don't



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1 want to do it if it's not the right thing.

2 In other words, if you were to say in your agreement

3 that you believe that the maximum sentence was 48 months, but in

4 looking at the statute we see that it's 60, I can't be bound by

5 that. You understand what I'm saying? I don't think I can be

6 bound by you having said that the appropriate base offense level

7 was X when in fact the people that get paid to do that say it's

8 Y and I look at it and I agree with them that it was Y. I think

9 it is 60 months. In truth, it's probably 100 and whatever.

10 Where is that? In what paragraph is that in?

11 THE PROBATION OFFICER: Your Honor, it is in paragraph

12 --

13 THE COURT: 80 something?

14 THE PROBATION OFFICER: 87 to 108 months, Your Honor,

15 that's correct. It's in Paragraph 84.

16 THE COURT: 87 to 108 was the guideline sentence which,

17 of course, is capped by the statutory maximum of 60 which makes

18 it -- makes that the guideline sentence.

19 I don't have a problem sentencing him to less than

20 that, if want me to. Because it does appear that he has already

21 done some cooperation and will do more in the future. But I

22 don't want to get into a position where I'm saying, oh, you know

23 what, probation was wrong, it really should have been 25. You

24 see where I'm coming from?

25 MS. FAGAN: Absolutely, Your Honor. And I don't have



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1 authority to ask for the 5K motion simply because I didn't

2 anticipate actually asking for the variance.

3 But Your Honor is right and Department of Probation is

4 correct. However, you know, Mr. Katz was, and Mr. Diaz, you

5 know, were told through the plea agreement that we would ask

6 Your Honor to sentence him to 28, and we stand by that plea

7 agreement.

8 THE COURT: Do you want me to set aside the plea and

9 let him go to trial? I don't think that will help much.

10 MS. FAGAN: And I don't think that's what the parties

11 want.

12 But I guess the bottom line is what I'm saying is since

13 we agreed in the plea agreement to ask for 57, I believe the

14 government should stand by that and ask for 57.

15 THE COURT: So you're asking me to sentence him to 57

16 months.

17 THE COURT: Yes, sir.

18 MS. FAGAN: Okay. All right.

19 Let me hear from the defense.

20 MR. KATZ: Thank you, Judge. We are in fact asking for

21 a variance as the Court has suggested to comply --

22 THE COURT: You're too tall. Sit down. You're not

23 talking into the microphone.

24 MR. KATZ: Thank you, Judge.

25 In addition, Judge, and I'll make this as brief as



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1 possible, the Court will recall sentencing other individuals on

2 this case.

3 THE COURT: And I've put off some of them too. And

4 I've put off surrendering. Unless the government wants me to

5 put him in jail, I will permit him to surrender after the trial

6 but -- if he wants me to. However, I think it's a mistake. But

7 that's his call.

8 MR. KATZ: I believe we've agreed that is appropriate.

9 But the reason I bring it up, Judge, is one of the

10 individuals was a Jean Fourcand who got a very limited amount of

11 time. The other one was Robert Antoine who, replete throughout

12 Mr. Diaz's PSI, it makes clear that Mr. Antoine essentially is

13 the one who brought Mr. Diaz in, is the one who made the

14 majority of the monetary gain, and this Court sentenced him to

15 48 months.

16 Now, for an issue, or as it relates to relative

17 culpability, and in light of the circumstances giving light to

18 the crime charged, which are two things that can be considered

19 under both section 3B1.2B, as well as the De Varon case, which I

20 would cite to 175, F3d, 930, that's an Eleventh Circuit case in

21 1999, the Court can consider the circumstances giving light to

22 the crime charged in determining whether his role was minor,

23 intermediate or minimal.

24 We are asking the Court -- we agree with the government

25 that it should be -- he should certainly get the 25 after you



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1 reduce for acceptance of responsibility from the 28, but we are

2 further asking the Court to reduce it to a 23 based on a minor

3 role, which is the highest of those three factors which would

4 allow the Court --

5 THE COURT: Yeah, I don't think he's a minor

6 participant. I think he may be a minor participant in a huge,

7 larger thing. But I think what he was charged with and what he

8 pled to under the conspiracy, I don't think he was a minor

9 actor. He did, in fact, form some of these -- at least one of

10 these shell corporations, didn't he?

11 MR. KATZ: He's charged with one.

12 THE COURT: Yeah, and I think that was something that

13 was integral to the entire scheme in obfuscating the flow of

14 funds. So I don't think he's a minor participant.

15 Again, I don't want to engage in disingenuous, you

16 know, presentation. I just -- I'm not going to say he's a minor

17 participant, because in the limited capacity in which he was

18 prosecuted, I think he was just there. I don't know. I don't

19 think he was -- we didn't enhance, did we?

20 THE PROBATION OFFICER: No, Your Honor.

21 THE COURT: He wasn't enhanced for being a leader or

22 anything, and I don't think he is.

23 MR. KATZ: I would point out, and I certainly respect

24 the Court's finding, I would point out Mr. Antoine wasn't

25 enhanced, and he was clearly almost a director.



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1 THE COURT: Maybe I should have on him, but I didn't.

2 MR. KATZ: As far as my client goes, and I'd also point

3 out, Judge, that the factors leading to the participation of the

4 various defendants, as the PSI relates, my client had just lost

5 his wife and was paying off medical bills. He, in fact,

6 received the smallest gain, which I'm not making light of, but

7 his $73,000 gain, when compared to Mr. Antoine, who it was just

8 greed, quite frankly, of over a million dollars. I think when

9 you consider the circumstances giving rise to the offense and

10 the relative culpability --

11 THE COURT: Let me ask Ms. Fagan, relative to

12 Mr. Antoine, what is this gentleman's culpability relative to

13 Mr. Antoine?

14 MS. FAGAN: I believe it's less, Your Honor. If we had

15 to group all of the participants in this conspiracy, I would

16 probably group Joel Esquenazi, Robert Antoine, Carlos Rodriguez

17 and John Rene Duperval at the top.

18 And then the second tier level I would say would be

19 Mr. Diaz, Mr. Fourcand, Marguerite Grandison, and then probably

20 at the lower end would be Antonio Perez who is also scheduled to

21 be sentenced I think in the next few weeks.

22 So if I had to put, you know, things in hierarchy,

23 that's probably how I would put them.

24 THE COURT: And do you have off the top of your head

25 what the sentences were for the ones that have already been



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1 sentenced?

2 MS. FAGAN: Yes, sir. Mr. Fourcand was sentenced to

3 six months. He was convicted of the 1957, I believe, money

4 laundering.

5 Mr. Antoine was sentenced to 48 months.

6 THE COURT: Why was he so light? I don't remember

7 right now.

8 MS. FAGAN: He was actually convicted of the money

9 laundering conspiracy with the wire fraud objective. Part of

10 the problem is that under statute, we can't charge foreign

11 officials with FCPA violations. So...

12 THE COURT: I gotcha. All right.

13 Well then, do you agree that this gentleman's sentence

14 should be less than Mr. Antoine's?

15 MS. FAGAN: Well, I do believe in level of culpability,

16 that he does fall below Mr. Antoine. I just think though that

17 Mr. Antoine really is sort of at the higher realm. It's just

18 because of the way of the statutes are and, you know, what we

19 can -- what we are legally allowed to charge.

20 THE COURT: So you think that Antoine's was

21 artificially kept low by the fact that he is a foreigner and was

22 not able to be charged under the Foreign Corrupt Trade and

23 Practices or whatever that is.

24 MS. FAGAN: I do believe that is a factor, Your Honor.

25 THE COURT: All right. I think it's a factor too.



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1 All right. Go ahead. I'm sorry to have interrupted

2 you, Mr. Katz.

3 MR. KATZ: That's quite all right, Judge. I'm almost

4 done.

5 And quite frankly, it would only bring -- a level 23

6 would only bring Mr. -- the bottom of Mr. Diaz's guidelines two

7 months below Mr. Antoine. And unfortunately, unless the Court

8 wants to make a determination that it's either intermediate or

9 minimal, which based on what the Court has already said --

10 THE COURT: I'm not going to do that. That will be

11 denied.

12 But go ahead with the rest of it.

13 MR. KATZ: I believe, again, you know, one of the

14 considerations should be relative culpability as well as the

15 light of the circumstances giving rise to the crime.

16 THE COURT: But, you see, relative culpability would

17 result in my giving a variance for that reason. But I don't

18 think it results in changing the guidelines. See, that's my

19 problem is I don't see that that is -- I mean, I think you're

20 talking about two different things. Apples and oranges.

21 I do not think that it's prudent for me to start

22 changing guidelines based on relative culpability or anything

23 like that unless I deem that it's appropriate to reduce it

24 because of, you know, minor role or something like that which I

25 do not think is so in this case.



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1 MR. KATZ: The only thing I can say, Judge, is that the

2 case law and again, the De Varon case, talks about that being

3 one amongst the factors that the Court can consider in assessing

4 the client's role, because the role is assessed relative --

5 THE COURT: I agree. I don't have a problem with that.

6 I agree with that concept. But I think that his role is

7 properly assessed in what he is charged with. So I will deny

8 that motion also.

9 Now, let's argue to me what you think the sentence

10 should be and why I should make a -- why I should grant a

11 variance and have a lower sentence than the 60 months which is

12 with the guideline sentence.

13 MR. KATZ: Well --

14 THE COURT: I think you've said most of it, but give me

15 your best shot.

16 MR. KATZ: Judge, I'm assuming the government is not

17 going to object that I'm arguing outside of the plea agreement

18 by offering an answer to Your Honor's question.

19 THE COURT: Well, if I ask you a question, I expect you

20 to answer it.

21 MR. KATZ: I certainly shall, Judge.

22 Again, based on the relative culpability, my client is

23 an unsophisticated person who is in a unique situation in his

24 lifetime. He had lost his wife --

25 THE COURT: Lift the microphone head up, because you're



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1 tall and then you're standing up, and I know that some lawyers

2 can't talk when they're sitting down, but go ahead.

3 MR. KATZ: At this point, Judge, I think the Court

4 deserves the respect of me standing up and so does my client.

5 THE COURT: That's all right. Don't worry about it.

6 MR. KATZ: Given Mr. Diaz's circumstances in both

7 personally and professionally, the impetus for him getting

8 engaged in this conduct, the uniqueness of his engagement in

9 criminal conduct, the fact that he, again, is the sole caregiver

10 to his 12-year-old son, he has explained to his son exactly what

11 has occurred, and if Your Honor will hear from him, you'll hear

12 that his son does understand, he's certainly remorseful. He's

13 exhibited that in the past.

14 And essentially, Judge, he's -- in addition to being

15 guilty of a crime which we pled guilty to, he was also a victim

16 of some sophisticated individuals, some of whom run foreign

17 governments and telecommunications companies. He's clearly the

18 least sophisticated out of the group of individuals that have

19 been before Your Honor with the exception of possibly

20 Mr. Fourcand.

21 And in light of the fact that other defendants are

22 getting the benefit of foreign status and other status, I think

23 that for parity in sentencing purposes, I would ask the Court to

24 grant the variance and allow him to appear in the hierarchy

25 where he deserves, as the government as acknowledged he



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1 deserves.

2 THE COURT: All right. Ms. Fagan?

3 MS. FAGAN: Yes, sir. We do -- we will ask the Court

4 to impose a sentence of the 57 months. We do believe that the

5 guidelines had taken into account his criminal liability.

6 I can say that I have personally sat in on information

7 sessions with Mr. Diaz. He has been consistently forthright,

8 very respectful of the parties involved. And he has been, we

9 believe, willing to answer all of our questions as Your Honor

10 knows.

11 I always get asked by defense counsel when defendants

12 are cooperating to sort of, as part of the cooperation or sort

13 of the plea deal, to give minor role. I just don't think it's

14 warranted in this sense. I look at cooperation in one category.

15 THE COURT: It has nothing to do with role.

16 MS. FAGAN: Right. I look at role assessment in

17 another. And so I do believe that the appropriate mechanism for

18 taking into account his cooperative posture would be the Rule 35

19 which, if things still go -- you know, he's still being

20 forthright, we do anticipate filing, as Your Honor is aware.

21 But for purposes of the sentence today, we would ask

22 the Court to impose 57 months.

23 MR. KATZ: May I just add one more thing, Judge?

24 THE COURT: Sure.

25 MR. KATZ: I apologize.



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1 The other defendants, I would also point out, in their

2 seeking monetary gain, they were directly affecting either

3 Haitian Teleco or ultimately the Haitian citizens who were

4 buying these programs. If you look at who my client victimized,

5 quote, unquote, essentially he was taking money in a small

6 amount, relatively speaking, from the other gentlemen who were

7 defrauding that money. He wasn't directly defrauding.

8 And again, I understand the conduct we've pled guilty

9 to, but if you look at, again, his motivation, which I've

10 already expressed, and who his conduct affected, his conduct

11 only affected the other defendants, other than to the extent he

12 enabled this situation to go on. But there were clearly other

13 people who were doing that as well.

14 But essentially he took 7.5 percent, on average, of the

15 money from Antoine and the other people accepting bribes.

16 THE COURT: I understand your point. I'm not sure how

17 significant it is, but I understand the point. He did, however,

18 facilitate the bigger scheme, which was to cheat the people of

19 Haiti who get cheated by everybody under the sun.

20 MR. KATZ: I don't disagree with that, Judge.

21 But as compared to, for instance, Mr. Esquenazi, who is

22 the director of a large corporation, you know --

23 THE COURT: Yeah, but he's like the get-away driver. I

24 mean, he's still participates. He was helping them get away

25 with the money.



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1 MR. KATZ: Well, it's funny you said that, Judge,

2 because when it talks about role adjustments, those are some of

3 the examples they give for people who may have a minor role.

4 THE COURT: Yeah, I understand. But the get-away

5 driver, if he's only charged with driving the car, is not a

6 minor role participant this that.

7 This gentleman was charged with what he did and

8 therefore, in that capacity, he's not a minor player.

9 MR. KATZ: Well again, whether it's a variance or a

10 minor role, Judge, obviously our biggest concern is where we end

11 up in the guidelines. And I would ask --

12 THE COURT: Yeah, but I don't think that's going to be

13 answered today. I think what's going to be answered today is

14 where do you start.

15 MR. KATZ: Correct. That's when I meant, Judge.

16 THE COURT: So, you know, I wouldn't get all excited

17 about what happens today, but I think that I am still not

18 convinced that I should go under the guideline range, although I

19 am not unconvinced that 57 months is an appropriate sentence at

20 this time, so I'm prepared to go forward at this time.

21 Anything further from you and/or the defendant?

22 MS. FAGAN: Your Honor, there's just the issue of the

23 forfeiture. The defendant did agree to forfeit the sum of

24 $1,028,951.95, and I do have a preliminary order of forfeiture

25 for Your Honor.



19

1 The defendant was also supposed to pay $73,824.20 in a

2 money judgment. From what I understand, he doesn't have that

3 money today.

4 Your Honor could also order restitution. So the

5 options that Your Honor has is to issue the order of forfeiture

6 for the million twenty-eight thousand and, you know, extra. And

7 then Your Honor could order the restitution of the 73,000,

8 etcetera, as that is the money that the defendant had received.

9 THE COURT: You need to give me that number because I

10 don't have it.

11 MS. FAGAN: Yes, Your Honor. The forfeiture would be

12 $1,028,851.95.

13 And Then the amount of money that he was supposed to

14 pay is $73,824.20.

15 May I approach, Your Honor?

16 THE COURT: Yes, of course. Give it to Wanda.

17 Is there any objection to the preliminary order of

18 forfeiture?

19 MR. KATZ: No, Judge. We've read it, I've reviewed it

20 with my client, and I would also point out I have discussed the

21 forfeiture of the $73,000. Obviously my client is not willfully

22 violating the plea agreement, he doesn't have that money, so we

23 wouldn't object if the Court were to enter that as part of the

24 judgment.

25 THE COURT: All right.



20

1 MR. KATZ: Judge, the only other thing we're asking, I

2 don't recall, probation has asked for a drug treatment program,

3 which obviously we are seconding the recommendation, and I

4 believe the Court mentioned if he could be in South Florida as

5 he does have a minor son, if the Court could at least recommend

6 to the Bureau of Prisons, we would appreciate such a

7 recommendation from the Court.

8 THE COURT: All right. I can do that.

9 Tom, I need the restitution language.

10 THE PROBATION OFFICER: Your Honor, if you can give me

11 one moment, I didn't anticipate restitution being imposed today

12 because of the way they structured it in paragraph seven of the

13 presentence report, the money judgment. They had asked in the

14 form of a money judgment, we weren't sure that restitution even

15 applied. I do have some of the --

16 THE COURT: All right. I can do it. Don't worry about

17 it.

18 THE PROBATION OFFICER: I have the 10 percent.

19 THE COURT: Yeah, I got that here. I can deal with

20 that.

21 MR. KATZ: Judge, is the Court --

22 THE COURT: Anything further?

23 MR. KATZ: Is the Court also considering restitution as

24 well, Judge?

25 THE COURT: Yeah.



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1 MR. KATZ: As far as restitution goes, Judge --

2 THE COURT: It's $73,824.20.

3 MR. KATZ: Okay. Well, that he has already agreed to

4 as a forfeiture item in his --

5 THE COURT: Well, I'm doing the forfeiture for -- I

6 didn't read it, but I thought it was $1,028,851.95.

7 MS. FAGAN: Yes. Well, no. No.

8 What it is is all of the defendants are liable under

9 joint and several liability for the entire million dollar

10 forfeiture amount. And so he was supposed to be paying the

11 73,000 towards that forfeiture. But Your Honor could also do --

12 just do the restitution. It's --

13 THE COURT: You don't want me to do both.

14 MS. FAGAN: Technically, and it sounds strange when

15 asset forfeiture told this to me, but technically Your Honor can

16 do both restitution and forfeiture for the million twenty-eight,

17 which would almost be a financial sentence of two million, you

18 know, 56,000, which just seems a little strange. Which is why

19 we were saying that the other option you had --

20 THE COURT: You mean 1,256,000.

21 MR. KATZ: Two million, Judge. You do it twice.

22 MS. FAGAN: Yeah, because the million twenty-eight

23 would be a forfeiture judgment. And then in addition, it's

24 actual restitution for the same amount because it's two

25 different things. One is restitution to the victim.



22

1 THE COURT: Yeah, but you can't collect it twice.

2 MS. FAGAN: Right. So -- no, actually you can collect

3 it twice, because it's two different mechanisms so to speak.

4 One is restitution to the victim, which in this case would be to

5 the government of Haiti. And the other one is forfeiture just

6 for the criminal proceeds.

7 THE COURT: Yeah, but it seems silly that if a person

8 steals $100 that you can say okay, we're going to take that $100

9 and you still owe them $100.

10 MS. FAGAN: That's what seemed very strange to me, but

11 apparently that's how it could work.

12 THE COURT: Not in here. I don't think so.

13 MS. FAGAN: So that's why I was thinking --

14 THE COURT: I don't think we're going to do both.

15 So you wanted me to do the preliminary order of

16 forfeiture, so I did.

17 Now, I do forfeitures and restitution all the time.

18 But I do the restitution in the amount that you want to collect.

19 And what you want to collect is $73,000, isn't it?

20 MS. FAGAN: Well, if you look at what he gained out of

21 the criminal enterprise, that would be the 73,000.

22 THE COURT: Yeah. So that's the restitution that I'll

23 order, okay?

24 Anybody have a problem with that?

25 MR. KATZ: No, Judge. That was not what I was going to



23

1 argue against. So no, that's not a problem.

2 THE COURT: Okay. The Court has considered the

3 statements of all the parties, the presentence report which

4 contains the advisory guidelines and the statutory factors.

5 It is the finding of the Court the defendant is not

6 able to pay a fine as well as make restitution.

7 It is the judgment of the Court that the defendant,

8 Juan Diaz, is committed to the Bureau of Prisons to be

9 imprisoned for 57 months.

10 It is further ordered that the defendant shall be pay

11 joint and several restitution -- I guess that's not so.

12 MS. FAGAN: It shall be joint and several forfeiture.

13 THE COURT: Shall pay restitution, not joint and

14 several, but shall pay restitution in the amount of $73,824.20.

15 During the period of incarceration, payment shall be

16 made as follows: If the defendant earns wages in a Federal

17 Prison Industries UNICOR job, then the defendant must pay 50

18 percent of wages earned toward the financial obligations imposed

19 by this judgment in a criminal case.

20 If the defendant does not work in a UNICOR job, then

21 the defendant must pay $25 per quarter toward the financial

22 obligations imposed in this order.

23 Upon release from incarceration, the defendant shall

24 pay restitution at the rate of 10 percent of monthly gross

25 earnings until such time as the Court may alter that payment



24

1 schedule in the interests of justice.

2 US Bureau of Prisons, US Probation Office and the US

3 Attorney's Office shall monitor the payment of restitution and

4 report to the Court any material change in the defendant's

5 ability to pay.

6 These payments do not preclude the government from

7 using any other anticipated or unexpected financial gains,

8 assets or income of the defendant to satisfy the restitution

9 obligations.

10 Restitution shall be made payable to Clerk, United

11 States Courts, and forwarded to US Clerk's Office, Attention

12 Financial Section, 400 North Miami Avenue, Miami, Florida,

13 33128.

14 Restitution will be forwarded by the clerk of the court

15 to the victims on the attached list.

16 Upon release from imprisonment, the defendant shall be

17 placed on supervised release for a term of three years. Within

18 72 hours of release, he shall report in person to the probation

19 office in the district where released. While on supervised

20 release, he shall not commit any crimes, shall be prohibited

21 from possessing a firearm or other dangerous device, shall not

22 possess a controlled substance, shall cooperate in the

23 collection of DNA, and shall comply with the standard conditions

24 of supervised release including the following special

25 conditions:



25

1 Substance abuse treatment, financial disclosure

2 requirement, and no new debt restriction as noted in part G of

3 the presentence report.

4 The defendant shall immediately pay to the United

5 States a special assessment of $100. Is that correct? 100.

6 THE PROBATION OFFICER: Yes, Your Honor.

7 THE COURT: All right. Hold on a second.

8 MR. KATZ: Judge, we can provide that now.

9 THE COURT: Okay. I don't collect.

10 The Court recommends that the defendant be screened for

11 substance abuse problems and be referred to participate in an

12 appropriate drug and alcohol education and treatment program as

13 deemed appropriate by the Bureau of Prisons. This may include

14 placement in the residential drug abuse treatment program, that

15 is the 500 hour drug treatment program, at a designated Bureau

16 of Prisons facility.

17 Total sentence: 57 months imprisonment, three years

18 supervised release, $100 special assessment.

19 Forfeiture of the defendant's right, title and interest

20 in certain property is hereby ordered consistent with the plea

21 agreement. A preliminary order of forfeiture has been signed

22 and is incorporated herein by this.

23 Now that sentence has been imposed, does the defendant

24 or his counsel object to the Court's finding of fact or to the

25 manner in which sentence was pronounced?



26

1 MR. KATZ: Judge, the only objection we have is the

2 preliminary order of forfeiture covered the entire amount, which

3 I believe included the 73,000.

4 THE COURT: Yeah but, they can go out and seize that,

5 but they don't -- there's nothing to seize, from what I

6 understand.

7 Forfeiture means we'll go get it and we'll take it.

8 Like if it's a boat, it's one thing. But if you're talking

9 about money --

10 MR. KATZ: Right, but then he still owes the 73,000

11 restitution.

12 THE COURT: That's correct. Well, like she said, I

13 could do it both for the full amount, but I chose not to. I

14 don't do that, so I'm ordering forfeiture of the million

15 dollars. If they find that he has the million dollars

16 somewhere, they'll take it from him. If they don't, then

17 they'll wait to get paid at 10 percent of minimum wage.

18 I suspect that by the time he gets to be as old as

19 Methuselah, he will have been able to pay down a small

20 percentage.

21 MR. KATZ: Understood, Judge.

22 THE COURT: Are there additional counts to be

23 dismissed, Ms. Fagan?

24 MS. FAGAN: No.

25 THE COURT: Okay. You have the right to appeal the



27

1 sentence imposed. Any notice of appeal must be filed within 14

2 days after the entry of the judgment. If you're unable to pay

3 the cost of an appeal, you may apply for leave to appeal in

4 forma pauperis.

5 I will put in my formal order of incarceration that the

6 defendant shall be placed in a facility as close to South

7 Florida as is possible, commensurate with his background and the

8 offence of which he stands convicted, and the residential drug

9 abuse treatment program, which would benefit the defendant as

10 far as I think you get time off if you successfully complete it.

11 Is there anything else at this time, Ms. Fagan?

12 MS. FAGAN: We would ask that a surrender date be

13 ordered for mid-January.

14 THE COURT: I will make a surrender date for January 4,

15 2011, same as I've done for the others.

16 MR. KATZ: Thank you, Your Honor. What time would that

17 be, Judge? 8:00 in the Marshal's Office.

18 THE COURT: Before 1:30 in the afternoon at the

19 Marshal's Office across the street, or to the place where he has

20 been designated.

21 MR. KATZ: Okay.

22 THE COURT: He will have been designated by then. He

23 can go there. And he gets points if he surrenders himself

24 there. I don't know how that works, but I understand it's to

25 his advantage.



28

1 Is there anything else?

2 MS. FAGAN: No, sir.

3 THE COURT: Okay. Thank you. Good luck to you, sir.

4 Oh, wait. I do want to make one thing very clear.

5 Mr. Diaz, I want to make absolutely clear that you

6 understand, all of the terms upon which you have been released

7 up to now remain in full force and effect. If you're going to

8 change your phone number or address or anything, you make

9 absolutely sure that your lawyer and the government know exactly

10 where you are. Make absolutely sure that probation, pretrial

11 services knows exactly where you are.

12 If we reach out for you and can't find you, you're the

13 one that's in trouble, it's your fault. If we can't find you to

14 tell you to come to a hearing, it's your fault. You're the one

15 that's in trouble.

16 As I said, all of the conditions remain in full force

17 and effect. Violation of those conditions can be very, very

18 troublesome and can cause you serious risk of incarceration and

19 additional punishment.

20 Do you understand?

21 THE DEFENDANT: Yes, Your Honor.

22 THE COURT: Okay. Anything else?

23 MR. KATZ: Judge, may my client make a very brief

24 statement to Your Honor?

25 THE COURT: Of course he can.



29

1 MR. KATZ: Judge, I would ask if you allow him to do

2 that.

3 THE COURT: Usually that's done before. What do you

4 want me to do now about it?

5 MR. KATZ: Nothing, Judge. You'll see from the --

6 THE COURT: Have a seat. Tell me while you're seated.

7 THE DEFENDANT: First I want to apologize to you and

8 the Court and the US Government for making them go through all

9 this.

10 THE COURT: You don't have to do that. If it weren't

11 for things like that, I wouldn't have a job. So it's my job.

12 THE DEFENDANT: There's plenty other people that would

13 keep you employed.

14 THE COURT: Well, that's true. Especially in South

15 Florida.

16 THE DEFENDANT: Okay.

17 As my lawyer stated, I take care of my son, okay. And

18 my son, I spoke to him about this, okay. And he really, you

19 know, can't stand that he's going to be losing me because he's

20 going to have to go live with my sister. He's lost his mother,

21 he lost his grandmother recently in the last four, five months.

22 I found a wish list that he had and, you know, on his

23 wish list, number one was that his mom was still here, his

24 grandma was still alive and number three was that his father had

25 never done money laundering.



30

1 When I saw it, he asked me "are you mad that I wrote

2 that" and I says "no, son, you know, I wish that I hadn't done

3 it. And I want you to know that there's no easy money, that

4 that's not the path to take, that you need to take, you know,

5 the right path."

6 You know, really, just feel remorseful for having done

7 this and the embarrassment my family has gone through and, you

8 know, I was glad that the government let me wait until my mom

9 passed away to save her the embarrassment of having to go

10 through this.

11 THE COURT: I appreciate your comments, sir. Thank you

12 very much.

13 THE DEFENDANT: Thank you.

14 THE COURT: All right. Have a good day.

15 MR. KATZ: Thank you, Judge.

16 THE COURT: Yes, sir.

17 Thank you, Ms. Fagan. Thank you, Tom.

18 THE PROBATION OFFICER: Thank you, Your Honor.

19 (PROCEEDINGS CONCLUDED)* * * * *

20

C E R T I F I C A T EC E R T I F I C A T EC E R T I F I C A T EC E R T I F I C A T E21 I certify that the foregoing is a correct transcript from the

record of proceedings in the above-entitled matter. 22

/s/ Dawn M. Whitmarsh 23 Date DAWN M. WHITMARSH, RPR

24

25



UNITED STATES DISTRICT COURT CASE NO. CASE …...1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT...

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