Date: 10-15-2016

Case Style:

Case Number: 13cr3781

Judge: Janis L. Sammartino

Court: United States District Court for the Southern District of California (San Diego County)

Plaintiff's Attorney: Brian R. Young, Catherine Votaw, Mark W. Pletcher, Robert S. Huie and Patrick Hovakimian

Defendant's Attorney:

Jessica Nicole Carmichael

Jason T. Conforti

Phoenix Ayotte Harris

Description: San Diego, CA - Former NCIS Supervisory Special Agent Sentenced to 12 Years in Prison for Taking Bribes from Foreign Defense Contractor in Massive Fraud and Corruption Scandal

Former Naval Criminal Investigative Service supervisory special agent John Beliveau II was sentenced to 12 years in prison for disclosing sensitive law enforcement reports to a foreign defense contractor who was the target of a criminal fraud investigation in exchange for cash, luxury travel and the services of prostitutes.

Beliveau, 47, of York, Pennsylvania, was sentenced by U.S. District Judge Janis L. Sammartino, who also ordered Beliveau to pay $20 million in restitution to the Navy. Beliveau pleaded guilty on December 17, of 2013 to conspiracy to commit bribery and bribery. Beliveau was immediately taken into custody at his own request.

According to admissions made in his plea agreement, Beliveau helped former Glenn Defense Marine Asia (GDMA) CEO Leonard Glenn Francis perpetrate a massive fraud scheme on the U.S. Navy by providing information that allowed Francis to evade and thwart criminal investigations into misconduct by GDMA.

During the sentencing hearing, Judge Sammartino said Beliveau’s position of trust as a law enforcement agent, plus the immeasurable impact of his betrayal on NCIS and the Navy, warranted a strong sentence. “A great deal of harm occurred as a result of your conduct,” she told the defendant.

“John Beliveau’s reprehensible decision to provide sensitive information to the targets of ongoing fraud investigations in exchange for bribes tragically tarnished his badge and the reputation of NCIS,” said Andrew Traver, director of the Naval Criminal Investigative Service (NCIS). “It is impossible to quantify the extent or duration of the harm done by Beliveau, but holding him accountable will further signal that NCIS is committed to rebuilding the trust he damaged.”

“John Beliveau’s deceit was a devastating blow to the U.S. Navy and ultimately the nation that he was sworn to protect,” said U.S. Attorney Laura Duffy. “While this disgraced agent serves what may be the longest prison sentence ever handed down to a federal agent in a corruption case, his colleagues are left to rebuild the trust and credibility that he singlehandedly destroyed.”

“Beliveau tarnished his NCIS badge and sold sensitive law enforcement information for envelopes of cash, luxury travel and tawdry entertainment,” said Assistant Attorney General Leslie R. Caldwell of the Justice Department’s Criminal Division. “His actions risked an important criminal investigation and the safety of witnesses who agreed to cooperate with law enforcement under the belief that their identities would be protected. Today’s sentence reflects the gravity of those crimes [if multiple counts] and makes clear that we will not tolerate law enforcement corruption.”

“Today’s sentencing sends a resounding message that justice will be served regardless of rank or position." Said Dermot O’Reilly, director of the Department of Defense’s Defense Criminal Investigative Service. “The conduct of former NCIS Supervisory Special Agent Beliveau is reprehensible. The foundation of our criminal justice system relies on the public's trust in the law enforcement community. Whenever a law enforcement member breaches that trust, it leaves an indelible stain on those who serve to enforce our nation’s laws. The Defense Criminal Investigative Service and its law enforcement partners will relentlessly pursue any individual who places at risk the safety and security of our armed forces personnel.”

“We are proud to be part of the team that has been investigating the criminal allegations in the Glenn Defense Marine Asia case. It is especially troubling that someone in his role is on the wrong side of the investigation,” said Anita Bales, Director, Defense Contract Audit Agency.

According to his plea agreement, Beliveau acknowledged that he regularly searched confidential NCIS databases for reports of investigations related to Francis and GDMA. Over the course of years, he helped Francis avoid multiple criminal investigations by providing copies of these reports. These reports not only tipped off Francis that he was the target of a criminal investigation, but provided sensitive law enforcement information about the ongoing investigation, including the identities of the subjects of the investigations; information about witnesses, including identifying information about cooperating witnesses and their testimony; the particular aspects of GDMA’s billings that were of concern to the investigations; the fact that the investigations had obtained numerous email accounts and the identities of those accounts; the reports to prosecutors and their interactions with the investigations; and planned future investigative activities.

Beliveau regularly demanded money and prostitutes from Francis. “I will always be your friend, but you will get nothing else…until I get what you promise,” he said in an email to Francis in April 2012. “You give whores more money than you give me…I can be your best friend or your worst enemy. I am not an amateur.”

Beliveau admitted that he attempted to cover up his involvement by asking Francis to delete incriminating emails and deactivate an email account, and warned Francis about indictments and a warrant on his email account.

Beliveau also admitted that he counseled Francis on how to perpetuate his fraud scheme and evade detection. In July 2011, Beliveau advised Francis to respond to the pending NCIS investigation into GDMA’s submission of a fraudulent claim to the U.S. Navy for dockage and wharfage fees for certain U.S. Navy ship visits to Thailand.

In return for providing him with information, Francis provided Beliveau with envelopes containing cash, luxury travel from Virginia to Singapore, the Philippines and Thailand. On many occasions, beginning in 2008 and continuing through 2012, while Beliveau was posted in Singapore, Francis provided him with prostitutes, lavish dinners, entertainment and alcohol at high-end nightclubs. The tab for each of these outings routinely ran into the thousands of dollars.

So far, a total of 16 individuals have been charged in connection with the GDMA corruption and fraud investigation. Including Beliveau, 11 of those are current or former U.S. Navy officials, including Admiral Robert Gilbeau, Captain (ret.) Michael Brooks, Lt. Commander Gentry Debord, Commander Bobby Pitts, Captain Daniel Dusek, Commander Michael Misiewicz, Lt. Commander Todd Malaki, Commander Jose Luis Sanchez, Petty Officer First Class Daniel Layug, Naval Criminal Investigative Service Supervisory Special Agent John Beliveau and Paul Simpkins, a former DoD civilian employee who oversaw contracting in Singapore.

Gilbeau, Debord, Dusek, Misiewicz, Malaki, Beliveau, Sanchez, Layug and Simpkins have pleaded guilty. On Jan. 21, 2016, Layug was sentenced to 27 months in prison and a $15,000 fine; on Jan. 29, 2016, Malaki was sentenced to 40 months in prison and to pay $15,000 in restitution to the Navy and a $15,000 fine; on March 25, 2016, Dusek was sentenced to 46 months in prison and to pay $30,000 in restitution to the Navy and a $70,000 fine; and on April 29, 2016, Misiewicz was sentenced to 78 months in prison and to pay a fine of $100,000 and to pay $95,000 in restitution to the Navy. Gilbeau, Sanchez and Simpkins also await sentencing. Brooks and Pitts were charged in May 2016 and their cases are pending.

Also charged are five GDMA executives: Francis, Alex Wisidagama, Ed Aruffo, Neil Peterson and Linda Raja. Wisidagama has pleaded guilty and was sentenced on March 18, 2016, to 63 months in prison and $34.8 million in restitution to the Navy. Francis and Aruffo have pleaded guilty and await sentencing; Peterson’s and Raja’s cases are pending.

DCIS, NCIS and the Defense Contract Audit Agency are investigating. Assistant Chief Brian R. Young of the Criminal Division’s Fraud Section and Assistant U.S. Attorneys Mark W. Pletcher and Patrick Hovakimian of the Southern District of California are prosecuting the case.

Anyone with information relating to fraud or corruption should contact the NCIS anonymous tip line at www.ncis.navy.mil or the DOD hotline at www.dodig.mil/hotline, or call (800) 424-9098.

DEFENDANT

Case Number: 13cr3781

John Bertrand Beliveau II 44 Woodbridge, Virginia

SUMMARY OF CHARGES

Conspiracy to Commit Bribery in violation of 18 U.S.C. § 371

Maximum of 5 years in prison; a maximum $250,000 fine, or twice the gross gain or loss from the offense, whichever is greater

Bribery in violation of 18 U.S.C. § 201

Maximum of 15 years in prison; a maximum fine of $250,000, twice the gross gain or loss from the offense, or three times the monetary equivalent of the thing of value, whichever is greater.

INVESTIGATING AGENCIES

Defense Criminal Investigative Service

Naval Criminal Investigative Service

Homeland Security Investigations

Defense Contract Audit Agency

Defendant's Position On Sentencing

Pursuant to Rule 32 of the Federal Rules of Criminal Procedure, and Section
6A1.3 of the advisory United States Sentencing Guidelines, the Defendant, JOHN
BERTRAND BELIVEAU, Jr. (“Mr. Beliveau”), by counsel, states that he has
received and reviewed the Presentence Investigation Report (“PSR”). Mr. Beliveau
has no objection to the PSR’s calculation of the advisory Guidelines range.
Mr. Beliveau submits that a sentence no greater than twelve months home
confinement, and the maximum period of supervised release is warranted in this case.
Such a sentence is sufficient, but not greater than necessary, to comply with the
purposes enunciated by Congress in 18 U.S.C. § 3553(a)(2). This is based on Mr. Beliveau’s background and character, his acceptance of responsibility, need to avoid
unwarranted sentencing disparities, the flaws in the United States Sentencing
Guidelines, Mr. Beliveau’s severe medical conditions, the unique adversities he would
face in the prison system, and the collateral consequences he faces in perpetuity as a
result of his offense.
To be frank, given the advisory Guidelines in this case, the defense would
ordinarily request a short prison sentence. However, Mr. Beliveau’s situation is far
from ordinary, and contemplating a request for any incarceration was agonizing. Mr.
Beliveau is extremely ill. He suffers from multiple debilitating medical and mental
health conditions that impacted his decision-making ability at the time of the offense,
and makes prison all but an impossibility. Mr. Beliveau would not be just another
white-collar inmate sent to a BOP camp. Mr. Beliveau would be a sick man sent to
live in his worst nightmare.
BACKGROUND
Mr. Beliveau is a hard-working, thoughtful individual, who has dedicated his
life to serving his country. He persevered in this service through family tragedy,
severe physical and mental suffering, and violent, war-torn environments. This
offense was an aberration from who he truly is, and from his otherwise honorable life
of service.Mr. Beliveau and his two sisters were raised by their single mother in York,
Pennsylvania. Their parents divorced when Mr. Beliveau was ten years old, and the
family moved from their home in New England to Pennsylvania. The divorce caused
his mother to become deeply depressed to the point she required hospitalization. The
fragility of his mother and volatilely in their home placed a heavy burden on the
young Mr. Beliveau who suddenly found himself the only male in the house. He
craved a father figure and shouldered the weight of his family’s struggles. See Def.’s
Ex. 2 at 2, Report from Dr. Ronald Boggio [hereinafter “Dr. Boggio Report”]. Mr.
Beliveau also began to experience the first symptoms of his Obsessive Compulsive
Disorder (“OCD”). See id. at 5. It was at this young age, that Mr. Beliveau began his
life-long struggle with masking internal suffering.
Mr. Beliveau experienced his first obsessive-compulsive symptoms around age
six. He remembers he could not wear the same clothes twice and sniffed them for
detergent. See id. He obsessed over his studying habits, taking meticulous notes in
different colors and then reading them repeatedly. In the fifth or sixth grade, Mr.
Beliveau exhibited symptoms of trichotillomania, in which he obsessively pulled out
his hair. See id. These obessional symptoms extended to his religious practice as
well. In his discussions with Dr. Boggio, Mr. Beliveau recalled that he "prayed every
night for good grades, and to do well," adding, "I thought if I didn't pray hard enough Iwouldn't get a good grade." For example, he said, "If I only got an 85, I knew I didn't
pray hard enough." See id.
Outwardly, Mr. Beliveau never failed to shine. He excelled in school and in his
community. He received academic honors and played soccer and golf. During high
school Mr. Beliveau was involved in National Honor Society (serving as president
during his senior year), the Student Council, the French Club and the Pep Club. He
served as editor of his high school’s newspaper during his senior year and as a lector
at his church.
In addition to his strong desire to achieve academically, Mr. Beliveau possessed
an innate desire to serve his country. As he matured and contemplated career options,
that determination formed into more concrete goals. Mr. Beliveau set his heart on
becoming a Naval Officer. He entered his first year of college at Villanova as part of
the Navy Reserve Officer’s Training Corps (“ROTC”) program, and served as the
Battalion Commander. Mr. Beliveau made the Dean’s list his entire college career,
and was a Resident Assistant on campus his junior and senior years. He ultimately
graduated cum laude from Villanova and received the Secretary of the Navy Award
for Excellence as a result of his outstanding ROTC accomplishments. He was finally
on his way to serving his country.
While he excelled academically in college, his mental health concerns
continued to surface with increased intensity and frequency. His mother often received phone calls at all hours of the day and night in which Mr. Beliveau expressed
repetitive thoughts and anxieties. See Def.’s Ex. 4, Letter from Mary Beliveau. For
example, Mr. Beliveau obsessively brushed and flossed his teeth. He knew his
behavior was abnormal and prayed with his mother over the phone to have God help
him exterminate these thoughts. His prayers, however, went unanswered. He
continued to obsessively clean his teeth to the point his gums bled. He then felt
guilty, believing he had just ruined his teeth. See Dr. Boggio Report at 5. Around the
same time Mr. Beliveau also began to worry about wrinkles appearing on his
forehead. He spent time trying to “forc[e] the muscles back.” Id.
As toxic as these obsessions were, this attention to detail produced favorable
results at the beginning of his military career. For example, Mr. Beliveau’s uniform
was always spotless as he attended to “every piece of lint.” See id. Nevertheless, he
suffered. He couldn’t sleep, and called his mother incessantly for reassurance. He
began fearing “contamination” from chemicals – particularly detergent and bleach.
He refused to use powder detergents because he believed the residue would lead to
contamination. He avoided doing laundry so he would not come into contact with
cleaning agents. This led to a ritual in which Mr. Beliveau purchased cleaning
products and carefully examined the packaging to ensure there were no leaks. Then
after he brought the product home, if he believed the packaging was imperfect, he
returned to the store to buy a new package. For example, on one occasion, Mr. Beliveau purchased twelve bottles of Tide and spent nearly all day shopping to ensure
the bottle was in perfect condition. Mr. Beliveau engaged in this behavior with
increased frequency and with varying items such as toiletries and clothes. He
continued to return Tide bottles, or hoard them, to avoid the embarrassment of
returning to the store for another exchange. His trichotillomania grew more severe,
and Mr. Beliveau feared he was becoming bald. This led him to constantly measure
his hairline. See id.
Mr. Beliveau knew that he had serious mental problems, but refused to see a
mental health professional for fear of jeopardizing his military career. He felt
depressed, guilty, and helpless. He was exhausted trying to continually combat these
intrusive thoughts. Eventually, the stress caused Mr. Beliveau to fail a critical ROTC
test. He could have retaken the test, however, he felt he just “couldn’t take it
anymore.” See id. This triggered thoughts of failure and suicide, at which point Mr.
Beliveau finally sought treatment with a former Navy psychologist. Mr. Beliveau was
diagnosed with Obsessive Compulsive Disorder. He was humiliated, knowing that he
would need to leave the Navy and focus on treatment. Mr. Beliveau was ultimately
discharged as “unfit for duty.” This devastated Mr. Beliveau, a chronic over-achiever,
who felt he had been defeated by his own mind, and now faced the possibility he
would never have the opportunity to serve his country.
Mr. Beliveau remained in San Diego until 1992 and was primarily supported by
his mother and his aunt. His OCD symptoms persisted, and he focused on defects in
his clothing. He often returned clothes after he suspected a defect. He couldn’t eat
particular foods because he feared they would stain his teeth. His psychiatrist
prescribed two medications, but they were not effective. At the end of 1992, Mr.
Beliveau swallowed many of the pills in a suicide attempt, and then immediately
called his psychiatrist. He was hospitalized and upon discharge he returned to
Pennsylvania to live with his mother.
The once proud Mr. Beliveau returned to Pennsylvania embarrassed and
ashamed. He secured a position as the district sales manager for the York newspaper
company while he continued to search for a career in government service. Finally, in
1994 the office of the Pennsylvania Attorney General hired Mr. Beliveau as an agent
for the Pennsylvania Bureau of Consumer Protection. He worked there for three years
conducting investigations involving allegations of fraud, deceptive sales practices and
misrepresentation of sales and services. Though it was not the Navy life he desired,
Mr. Beliveau was thrilled to return to work in which he felt he contributed to his
community. In 1997 he transferred to the Environmental Crimes Section of the
Bureau of Criminal Investigations and worked there until 2002 investigating
allegations of crimes against the state’s environmental statutes.
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Fortunately, in Pennsylvania, Mr. Beliveau also found some relief in treatment
with a new psychiatrist, Dr. Richard Fonte. Dr. Fonte treated Mr. Beliveau beginning
in 1994. He provided behavior treatment in addition to medication and the
combination ameliorated many of Mr. Beliveau’s OCD symptoms. With this marked
improvement and Dr. Fonte’s knowledge, in 1995, Mr. Beliveau discontinued his
medication. Dr. Fonte continued to observe him for an additional year to assess
possible relapse. During his final visit in December 1996, Dr. Fonte noted that his
prognosis was favorable. See Def.’s Ex. 3, Letter from Dr. Fonte.
Mr. Beliveau’s work at the Attorney General’s office provided a focus and
helped reduce the extraneous thoughts. At the same time, however, he felt
overwhelmingly depressed. Mr. Beliveau was devastated that his military career was
over and also obsessed over his inability to develop a satisfying romantic relationship.
He began to self-medicate using alcohol.
Mr. Beliveau began to slip back into these destructive habits, and his mental
health concerns were only compounded when, in 2001, he was diagnosed with
chondrosarcoma, a cancerous bone tumor in his thigh. He underwent surgery,
however, the cancer returned twice and required two additional surgeries to entirely
remove his right public bone. Doctors inserted mesh gauze near his bone which led
to a chronic staph infection. He was required (and still is) to take penicillin regularly.
These surgeries resulted in significant physicals complications. See PSR ¶ 72.
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Though his cancer has not returned, Mr. Beliveau copes with serious physical
limitations (described more fully in the PSR), and the persistent fear of another,
possibly fatal, reoccurrence of cancer.
Following his cancer treatment, in 2002, a colleague suggested that he might
explore NCIS as an alternative to the now unattainable Navy career. This possibility
thrilled Mr. Beliveau, and he immediately researched his options. Shortly thereafter,
NCIS accepted Mr. Beliveau and he began his career as a special agent. He was proud
of his new position and finally believed he was once again on the path to achieving his
dreams. From 2002 to 2005, Mr. Beliveau served as a special agent with the NCIS in
San Diego, CA. He worked for the counterterrorism squad as the NCIS Special Agent
in Charge’s primary liaison to the commander of Naval Station San Diego. From
2005 to 2008, Mr. Beliveau was special agent for the Far East Field office in
Yokosuka, Japan. In that position, he was assigned as the full-time personal security
advisor to the commander of the US Seventh Fleet. There Mr. Beliveau received
NCIS’s Meritorious Unit Award.
As Mr. Beliveau excelled in NCIS, his positions became increasingly
dangerous. From 2008 to 2012, Mr. Beliveau served as a member of the combating
terrorism squad in the Southeast Asia field office located in Singapore. He was
primarily assigned as the country referent/liaison to Timor Leste and was responsible
for providing force protection, security, counterterrorism and countering transnational
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crime. As part of this position, Mr. Beliveau attended meetings with locals prior to
visits by US ships and subsequent shore leave for US Naval personnel. These
meetings often included both local officials and gang members.
In 2009, Mr. Beliveau called a meeting of five locals. There, he witnessed the
beheading of one gang member by a member of the rival gang. “John watched a gang
member with a machete behead a fellow gang member at such close range that the
man’s blood splattered on John’s hand.” Letter from Dr. Fonte (October 1, 2016). He
recalled feeling “shocked, numb and scared out of [his] f*king mind.” See Dr. Boggio
Report at 4.
“At that moment, [John] became a witness to trauma that was unspeakably
horrifying and one that changed how his brain functioned, how he functioned in the
world, and how he viewed himself. At that point, John was no longer the same person
who had spent his whole life wanting nothing more than to serve and protect his
country. He was now a person who developed PTSD whose brain, perceptions and
mind no longer functioned in the same way. He was now focused on survival.”
Letter from Dr. Fonte.
Mr. Beliveau never reported this trauma to his superiors, in part because he
didn't want to discuss it. However, the images of the incident continued to haunt the
shadows of his already distressed mind. His use of alcohol increased, and Mr.
Beliveau began another life-long struggle with violent flashbacks and hypervigilance.
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See Dr. Boggio Report at 4. “His attempts at survival caused him to dissociate at
times, experience extreme anxiety and hyperarousal …. in an attempt to keep the
flashbacks and intrusive memories in check.” Letter from Dr. Fonte. (October 1,
2016). Also while in East Timor, Mr. Beliveau contracted Dengue Fever and sepsis.
He became delusional and almost nonresponsive. With the assistance of a neighbor,
Mr. Beliveau was transported him to a hospital in Singapore where he was able to
recover.
Outwardly, and through sheer grit, Mr. Beliveau maintained his ability to be a
model Agent. He earned several prestigious awards, and he was regarded as an
exceptional agent. While stationed in Singapore in 2010, Mr. Beliveau was named
Special Agent of the Year for the Combating Terrorism Discipline, and in 2012 he
was awarded the Timor Lest Solidarity Medal.
Inwardly, however, Mr. Beliveau suffered. He was sick, weak, and lonely. He
re-experienced trauma and with it “guilt and responsibility… a feeling that exists into
the present day because, as John states, ‘I called the meeting.’” Id. Or as Mr.
Beliveau’s doctor describes it, John felt “intense periods of anxiety and panic attacks
along with episodes of dissociation and avoidance.” Mr. Beliveau wanted to feel safe.
He needed to numb the overwhelming feelings of anxiety to prevent the memory of
the trauma from coming into full consciousness. Id. Thus, he drank excessively and
used sex as a means to cope with his troubled existence.
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Mr. Beliveau became involved with a number of prostitutes. Sex was a
momentary escape from the flashbacks, fears, and compulsions. Having never
experienced a romantic relationship, Mr. Beliveau also developed feelings for some of
these prostitutes. He sought the escape of his sexual activity, and craved the closeness
of a normal romance. He obsessed about his relationship with the prostitutes, even
though from their perspectives, they never had a relationship with Mr. Beliveau. Mr.
Beliveau suffered deeply, and alone, in his depression, his flashbacks, and chaos of his
mind. Clinically, he suffered from untreated depression and severe mental health
issues. It was in this state that Mr. Beliveau committed the instant offense.
ARGUMENT
I. Legal Standard
In Kimbrough v. United States, 128 S. Ct. 558 (2007), and Gall v. United States,
128 S. Ct. 586 (2007), the Supreme Court held that the Sentencing Guidelines are
simply an advisory tool to be considered alongside other statutory considerations set
forth in 18 U.S.C. § 3553(a). In two summary reversals, moreover, the Court stated
unequivocally that the Guidelines cannot be used as a substitute for a sentencing
court’s independent determination of a just sentence based upon consideration of the
statutory sentencing factors. Nelson v. United States, 129 S. Ct. 890 (2009); Spears v.
United States, 129 S. Ct. 840 (2009). “Our cases do not allow a sentencing court to
presume that a sentence within the applicable Guidelines range is reasonable,” the
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Court held in Nelson. 129 S. Ct. at 892. “The Guidelines are not only not mandatory
on sentencing courts; they are also not to be presumed reasonable.” Id. at *2
(emphasis in original). In other words, sentencing courts commit legal error by using
a Sentencing Guidelines range as a default to be imposed.
Congress has required federal courts to impose the least amount of
imprisonment necessary to accomplish the purposes of sentencing as set forth in §
3553(a) of Title 18, United States Code. Those factors include (a) the nature and
circumstances of the offense and the history and characteristics of the defendant; (b)
the kinds of sentences available; (c) the advisory guideline range; (d) the need to avoid
unwarranted sentencing disparities; (e) the need for restitution; and (f) the need for the
sentence to reflect the following: the seriousness of the offense, promotion of respect
for the law and just punishment for the offense, provision of adequate deterrence,
protection of the public from future crimes and providing the defendant with needed
educational or vocational training, medical care, or other correctional treatment. See
18 U.S.C. § 3553(a).
II. A sentence of twelve months home confinement and the maximum term of
supervised release is sufficient, but not greater than necessary, to
accomplish the goals of sentencing under § 3553(a).
i. Nature and Role in the Offense
This incident began when Mr. Beliveau was stationed in Singapore. Mr.
Beliveau was first introduced to Leonard Glenn Francis (“Francis”) by a colleague.
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He found Francis to be a wealthy, smooth-talking, popular man. It seemed almost all
of the Pacific Fleet knew him, and attended his lavish parties. Francis was infamous
for treating Navy personnel to extravagant meals, and hosting expensive parties when
ships pulled into port. Only later, was it discovered that underlying these gestures was
an elaborate and extensive bribery scheme.
Francis was the President of Glenn Defense Marine Asia (“GDMA”), a
company who offered husbanding services to the United States Navy when the ships
docked at port. These husbanding services included refueling, waste management,
food supplies, and other necessary amenities required by the ship prior to continuing
the deployment. As the head of the company, Francis devised a scheme to overbill the
Navy for incidentals by tens of millions of dollars. Employees of GDMA were
instructed to create false bids for incidental items; Navy personnel leaked classified
information regarding ship movement and possible port visits to Francis; and still
others aided in directing the ships to GDMA ports. He employed a range of
techniques and manipulated individuals in a variety positions, both within the Navy as
well as in his own company, to join his operation. “[Francis] tempted his targets with
the high life: whiskey, cigars, prostitutes and cash.” Whitlock, Craig, The Man Who
Seduced The Seventh Fleet, Washington Post (May 27, 2016).
The scheme was as extensive as it was complex. It involved many individuals,
including approximately 30 Navy Admirals, each having a varied role in perpetuating
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Francis’ fraud. See id. (“Adm. John Richardson, the chief of naval operations,
summoned about 200 admirals to a special gathering in Washington. Without naming
names, he revealed that about 30 of them were under criminal investigation by the
Justice Department or ethical scrutiny by the Navy for their connections to Francis.”).
Francis excelled at exploiting the vulnerabilities of these individuals,
particularly if they were married and had engaged in acts to jeopardize their
relationship, or if they struggled with substance abuse. Francis unearthed these
weaknesses. He wined, dined, and cultivated relationships with his guests that he
would later exploit. “He was choosy about his prostitutes…..He kept meticulous
notes about the physical desires of Navy Officials, such as who liked Thai girls, or
group sex.” Whitlock, Craig, The Man Who Seduced The Seventh Fleet, Washington
Post (May 27, 2016) “The Soviets couldn’t have penetrated [the Navy] better than
Leonard Francis… He’s got people skills that are off the scale. He can hook you so
fast that you don’t see it coming. . . . At one time he had infiltrated the entire
leadership line. The KGB could not have done what he did.” Id. (quoting a retired
Navy officer who worked closely with Francis and spoke on the condition of
anonymity).
Mr. Beliveau was weak. He was weak from embarrassment of his failed Navy
career, weak from PTSD flashbacks, weak from fear of cancer reoccurrence, weak
from dengue fever and sepsis, and weak from coping with obsessive compulsive
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thoughts and anxiety. In essence, Mr. Beliveau was a prime target for Francis. He
was exhausted and lonely. In fact, in one of Francis’ emails to another individual, he
refers to Mr. Beliveau as “lonely with no friends,” and noted that John’s “split
personality” irritates him. Francis exploited these vulnerabilities by providing Mr.
Beliveau alcohol, prostitutes, and a perceived friendship. Mr. Beliveau didn’t have
friends, and considered Francis one of his only companions. Indeed, it is telling that
all the other Navy servicemen offered letters of support from colleagues with whom
they served. Mr. Beliveau has no such letters.
At that point, Mr. Beliveau was struggling with such severe mental turmoil that
he was virtually unable to form personal relationships. Still to this day, at age 47, Mr.
Beliveau has never been part of a real romantic relationship. Perhaps the most
profound aspect of Mr. Beliveau’s sentencing position is what is absent from it. Mr.
Beliveau, after 47 years, has many relatives who love him, and supporters who praise
him, but Mr. Beliveau does not have a single letter from a person who calls him a
friend. Unfortunately, Mr. Beliveau thought he had finally found a friend in Francis.
Francis’ extravagant parties provided a break from Mr. Beliveau’s hellish
reality. He found an escape from his depression during the lavish dinners and
evenings with prostitutes. Mr. Beliveau became clinically obsessed with Francis and
dependent on the momentary relief he could provide. See Dr. Boggio Report at 9.
“[John] became attached to Mr. Francis, a man who was powerful and had the
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resources to keep him safe and provide him with the numbing agents that John used as
his primary coping mechanism.” Letter from Dr. Fonte (Oct. 1, 2016).
Fostering this false friendship and exploiting Beliveau’s insecurities, Francis
groomed Mr. Beliveau to become part of his fraudulent scheme. Francis began asking
Mr. Beliveau for favors. First, Francis invited Mr. Beliveau to dinner where he
showed Mr. Beliveau an NCIS report that he had obtained from inside the command.
Mr. Beliveau was surprised Francis had this internal document. Francis asked Mr.
Beliveau to review the report, which involved Francis’ scheme to overcharge the
Navy, and to tell him his thoughts. “When asked why he did not immediately report
the fact that Mr. Francis had shown him this communication, Mr. Beliveau said, ‘I felt
attached to him. I told him to clean up his act and that this would minimize this
risk.’” Id. Mr. Beliveau went on to say, “I should've gone right to my boss but was
afraid that the drinks and the prostitution would come out. Mainly, I just thought it
would all go away, and I believed him when he said that he hadn't done anything.” Id.
As their relationship progressed, Francis requested that Mr. Beliveau provide
him with internal NICS reports detailing the investigation of GDMA. In exchange for
his help, Francis gave Mr. Beliveau cash, trips, and other items of value. As the
months went by, Mr. Beliveau fell deeper into Francis’ scheme to a point in which
they communicated almost daily. He was symptomatically obsessed with Francis, and
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overwhelmingly attached to the relief Francis could provide through the parties and
prostitutes.
Dr. Boggio assessed the following, “[I]t is clear that [Mr. Beliveau’s] decisionmaking
was compromised quite specifically as it relates to activities surrounding the
instant offenses.” Id. at 12. He went on to explain, “Mr. Beliveau's compromised
thinking was most evident in his belief that failure to cooperate with Mr. Leonard
would lead to Mr. Leonard cutting off the flow of alcohol and prostitutes, which had
provided Mr. Beliveau with some dysfunctional attempts to modify his depression and
anxiety, and his obsessional and misplaced attachment to Mr. Leonard's friendship as
a result of his own loneliness.” Id; see also Letter from Dr. Fonte (Oct. 1, 2016)
(“John’s decision-making became markedly impaired.”).
By the time Mr. Beliveau was stationed back in United States at Quantico, he
was uncontrollably symptomatic. He bought new furniture he could not use for fear
of breaking it. He repeatedly returned and purchased new furniture after finding a
scratch on it. He continued to drink heavily and felt his life had spun completely out
of control. In his weakened state, and with his judgment clouded, ultimately, Mr.
Beliveau provided Francis with 225 documents and received items of value totaling
approximately $30,000.
In September 2013, a series of bribery charges were filed against two senior
Naval Officers, Francis, the Vice President of GDMA, and Mr. Beliveau. On
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December 17, 2013, less than three months after his arrest, Mr. Beliveau pled guilty to
conspiracy to commit bribery and bribery in violation of United States Code Section
371 and 201(b)(2)(A) and (C). Mr. Beliveau was the first person to plead guilty and
accept responsibility in this case, providing a major step forward in the Government’s
case.
Mr. Beliveau’s role in this offense was limited to being a cog in Francis’
extensive conspiracy. He certainly did not devise this fraud scheme, and never would
have thought to create something like it. Mr. Beliveau was never seeking a way to get
rich. Unlike most defendants in bribery and fraud cases, Mr. Beliveau was not
motivated by greed. He was weak and vulnerable, and in his compromised state, he
exercised terrible judgment.
ii. Sentencing Disparities Within the Conspiracy
The Government charged and attributed Guidelines to Mr. Beliveau more
harshly than any other defendant in this case (except Francis himself). Without
explaining the flaws in the fraud guidelines themselves, which are discussed in detail
below, this charging decision was completely arbitrary and misplaced. This case is
not, and never should be, about the Guidelines. The Government arbitrarily applied
the Guidelines differently across all defendants through the use of varying
enhancements and a fluid (and sometimes entirely omitted) loss amount, resulting in
ranges that are virtually meaningless in this case.
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The “loss to the government” amount in each of the plea agreements ranges
from $95,000 (Misiewicz) to $1,000,000+ (Aruffo) to $7,000,00+ (Beliveau) to
$20,000,000+ (Wisidagama) to over $20,000,000 (Francis). Instead of a loss amount,
some received an enhancement based only on the amount they gained (Sanchez,
Simpkins, Layug, Dusek, and Malaki). To the extent the government argues that this
fluid loss amount is based on each defendant’s foreseeability, this assertion is
misplaced. Certainly, GDMA employees, Aruffo, Wisidagama, Peterson, and Raja
would have foreseen the staggering loss amount. Yet, the government, chose to
charge Aruffo, Wisidagama, Peterson, and Raja differently (with the fraud instead of
the bribery) such than their base offense level is significantly less, and therefore the
Guidelines did not result in recommending decades in prison like Mr. Beliveau’s.
To be clear, the record is replete with examples of Aruffo engaging in fraud and
bribing public officials.1 This is the same for Peterson as to one defendant and
perhaps Wisidigama as well. See United States v. Layug, 3:14CR1354, Plea
Agreement, Dkt. No. 31 at 2, 5-7 (affirming that Layug,… co-conspirator “NP,” Vice
President of GDMA, and others knowingly and unlawfully conspired to commit
1 See United States v. Misiewicz, 3:15CR33, United States Sentencing Memorandum,
Dkt. No. 64 at 6, 7-24; United States v. Dusek, 3:15CR33, Plea Agreement, Dkt. No. 6
at 2, 5-8; United States v. Dusek, 3:15CR33, United States Sentencing Memorandum,
Dkt. No. 26 at 5-13; United States v. Malaki, 3:15CR967, Plea Agreement, Dkt. No.
10 at 5, 10; United States v. Aruffo, 3:14CR1924, Plea Agreement, Dkt No. 8 at 6
(alluding to the bribery).
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bribery); United States v. Malaki, 3:15CR967, Plea Agreement, Dkt. No. 10 at 5, 7, 9
(noting that Malaki requested hotel accommodations from “AW.”).2 Yet, these
defendants were only charged with the fraud and not the bribery. Additionally, many
of those who were engaged in the bribery, but not the fraudulent billing practices also
would have foreseen the “loss to the government” (this is also described in more detail
below). Therefore, the Court should not look to these arbitrary and misplaced
Guidelines as a reference point in this case. Instead, the Court should compare the
following:3
Person Conduct Consequence Notes
Rear Adm. Bruce F.
Loveless
Under investigation for his ties
to LGF
Security clearance
suspended
Vice Admiral Ted "Twig"
Branch
Unclear Security clearance was
suspended in
November 2013
Captain David Haas Involved with LGF, extent
unclear
Employment
suspended
Vice Adm. Michael H.
Miller
Accepted lavish gifts from LGF Censured. Allowed to
retire as a three-star
Admiral with full
military benefits.
An admiral’s retirement (which
the admiral was allowed to
retain) is a several thousand
dollars per month over the
course of a lifetime.
Rear Adm. Terry B. Kraft Accepted lavish gifts from LGF Censured. Allowed to
retire as a two-star
Admiral with full
military benefits.
(see above)
Rear Adm. David R. Accepted lavish gifts from LGF Censured. Allowed to A Captain’s retirement (which
2 Wisidigama himself vehemently denies knowing of the bribery.
3 This chart was populated with information derived from Whitlock, Craig,
Prostitutes, vacations and cash: The Navy officials ‘Fat Leonard’ took down,
Washington Post (June 9, 2016); Whitlock, Craig, The Man Who Seduced The Seventh
Fleet, Washington Post (May 27, 2016); Moran, Greg, Commander gets six years in
'Fat Leonard' case, San Diego Tribune (April 29, 2016); Larter, David, Navy Rebues
Three Admirals for Accepting Dinners, Gifts, (July 18, 2015); and each defendant’s
plea and sentencing documents (if applicable).
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Pimpo retire as a Captain with
full military benefits.
the he was allowed to retain) is a
several thousand dollars per
month over the course of a
lifetime.
Rear Adm. Robert Gilbeau Received gifts from LGF and
then lied about it to law
enforcement. Deleted
computer files and destroyed
documents upon discovering
LGF was arrested.
Awaiting sentencing Charge carries a 5-year statutory
maximum
Capt. Michael George
Brooks
Allegedly secured diplomatic
clearance for Glenn Defense so
the firm could dodge taxes and
customs fees.
Case pending Charge carries a 5-year statutory
maximum
Cmdr. Bobby R. Pitts Allegedly provided Francis
with leaked NCIS investigative
files and internal FISC
communication regarding
investigation against Glenn
Defense prior to Beliveau’s
involvement.
Case Pending Not charged with bribery
conspiracy, even though the
indictment states GDMA
provided Pitts with meals,
entertainment, and a prostitute
on at least one occasion.
Lt. Cmdr. Gentry Debord Allegedly provided Francis
with inside information about
investigations into Glenn
Defense.
Case Pending Not charged with the bribery
conspiracy.
Petty Officer 1st Class
Daniel Layug
Received $10,000 cash, travel
and a "bucket list" of gadgets to
provide classified information
and competitor invoicing
information over the course of
three years.
27 months
incarceration
Not charged with fraud loss
amount even though he helped
LGF engage in the fraudulent
billing by providing invoicing
information.
Lt. Cmdr. Todd Malaki Received cash, prostitutes and
travel in exchange for classified
information (including
submarine schedules) and
competitor information from
over a seven-year period.
Advised LGF on recruiting at
least one other officer.
40 months
incarceration
Not charged with the fraud loss
amount even though he helped
LGF engage in the fraudulent
billing (by providing competitor
information) over the course of
seven years.
Captain Daniel Dusek Received prostitutes, alcohol
and luxury travel in exchange
for classified information and
for steering aircraft carrier to
GDMA Ports
46 months
incarceration
Dusek was one of LGF’s most
important individuals. LGF
described him as his “golden
asset,” and the Government said
no one was more important
during this time.
Upon learning of the first three
arrests (including Beliveau’s)
Dusek deleted the contents of
his email accounts to avoid
detection by law enforcement.
Contract Supervisor, Paul
Simpkins
Received over $300,000 to rig
Navy contracts for LGF from
2006-2012. Provided LGF
Pled Guilty The fraud loss amount was not
attributed to Simpkins even
though he provided GF with
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with advice on how to handle
investigations.
advice on how to handle fraud
investigations.
Alex Wisidigama, Global
manager for government
contracts, Glenn Defense
Prepared and submitted
fraudulent invoices to the Navy
for fuel, port tariffs and other
services in the $34 million
overbilling scheme.
63 months
incarceration
Not charged with bribery even
though at least one defendant’s
plea agreement alludes
requesting hotel
accommodations from “AW.”
Neil Peterson, chief deputy
for LGF
Alleged to have submitted
fraudulent claims of more than
$5 million to the Navy, then
covered up the fraud by
misrepresenting the cost of
services.
Provided bribes to Layug.
Case pending
Linda Raja, chief deputy
for LGF
Alleged to have submitted
fraudulent claims of more than
$5 million to the Navy, then
covered up the fraud by
misrepresenting the cost of
services
Case pending
Commander Jose Luis
Sanchez
Leaked classified ship and
submarine schedules on at
least seven occasions. Alerted
Francis to internal Navy
investigations into Glenn
Defense’s billing practices.
Awaiting sentencing
Edmond Aruffo, Manager
for GDMA and retired
Navy Officer
Recruited active-duty Navy
officers to work as moles for
GDMA. Devised kickback
scheme with contractors to
defraud the Navy of more than
$1 million. Used the kickback
proceeds to pay for items that
Glenn Defense did not want to
record on its books, such as
meals, drinks and gifts it gave
to Navy officers.
Pending sentencing Plea agreement has lower baselevel
offense, lower loss
amount, and a five-year
statutory maximum
Cmdr. Michael Misiewicz
Leaked classified ship
schedules on eight occasions.
Leaked classified material
(precise details) about Navy
ballistic missile defense
operations. Pushed to re-route
aircraft carriers to ports
controlled by Francis.
Recruited another member of
the conspiracy.
78 months
incarceration
The Government wrote in
sentencing memo, “In this
wide-ranging conspiracy,
everyone played their role, but
overall, in its final iteration,
from January 2011 to
September 2013, no one was
more important to Francis than
Misiewicz.” Yet the
Government only ascribed a
$95,000 loss amount to
Misiewicz.
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The Government argues that Mr. Beliveau is more culpable because he knew
the “full scope” of the conspiracy while providing NCIS reports. To that, Mr.
Beliveau responds with several points.
First, the very premise, that Mr. Beliveau would have been one of the only
individuals to know the full scope of the conspiracy is questionable at best. Mr.
Beliveau knew that Francis was being investigated, but Francis repeatedly denied any
wrongdoing. Mr. Beliveau chose to believe him, perhaps in an act of willful
blindness. Aruffo, on the other hand, who was a Naval Officer for twenty years, and
then worked directly for Francis, helped devise the scheme, create false bids, and
recruit others, including Misiewicz into the scheme. Wisidigama, who also worked
directly for Francis at the core management team of GDMA, devised and
implemented the various fraud schemes to overbill the Navy in connection with
GDMA contracts including submitting fraudulent quotes for incidentals and creating
fraudulent port authorities and port tariff items.
Sanchez’s plea agreement shows that he likewise knew of GDMA’s widespread
fraud. He held several positions within the Navy’s Asia logistics commands and was
Deputy Director of the Fleet Logistics Center – responsible for overseeing these types
of billing issues. Sanchez’s plea agreement states, “Sanchez emailed Francis
regarding the U.S. Navy’s efforts to verify the accuracy of certain GDMA invoices.
Sanchez reported that the director of the FLC Yokosuka intended to refer the matter to
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the Naval Criminal Investigative Service (“NCIS”) if she could not verify the
invoices. In the email, Sanchez wrote, ‘Just wanted to give you a heads up on another
potential investigation.’” 3:13CR4287, Plea Agreement, Dkt. No. 91 at 8. On another
occasion, Sanchez sent an email to Francis concerning an NCIS agent in Japan who
had provided an update to a US Navy Commander that the agent was making progress
on an investigation of GDMA in Japan. Id. at 8-9. Sanchez also sent Francis internal
Navy emails that discussed allegations of fraud by GDMA and their referral to NCIS
for investigation. Id. Nevertheless, Sanchez’s plea agreement contains zero loss
amount and instead uses the amount he received in bribes. Id. at 15.
Others who were bribed in the Fleet Logistics centers would have known, or at
the very least foreseen GDMA’s fraud. Layug and Malaki influenced the bidding
process and provided information to Francis on competitor’s bids. In fact, Malaki, a
supply officer, routinely (from 2006 to 2013) provided Francis with competitor
husbanding invoices and information about fuel purchases. Layug accessed and
brought a file containing competitor invoices to GDMA offices where the Vice
President of Global Operations (Peterson) could review and take notes on the
competitor’s pricing. Yet, none of these individuals have plea agreements that include
a “loss to the government.”
Simpkin’s plea agreement reveals that he, not only suspended husbanding
contracts that competed with GDMA, but in 2006 he also prevented a Fleet and
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Industrial Supply Center (“FISC”) official from reviewing requested invoices which
may have revealed over-billing and fraud by GDMA. 3:15CR530, Plea Agreement,
Dkt. No. 76 at 7. He also ordered FISC to discontinue using meters that monitored the
volume of liquid waste removed from ships. These monitors would have ensured
proper accounting, and without them, GDMA was able to over-bill the Navy for the
service. Id. at 9. Yet again, his plea agreement contains zero loss amount and instead
attributes to him only the amount he received.
Commander Bobby Pitts, was the Officer in Charge of FISC in Singapore. In
that role, Pitts was responsible for overseeing the negotiation and execution of the
husbanding contracts supporting the U. S. Navy's Seventh Fleet. He is alleged to have
provided NCIS Reports to Francis and GDMA. Specifically, the indictment states that
Pitts impeded and obstructed FISC's oversight of the U.S. Navy's contracts with
GDMA by providing GDMA and Francis with internal and confidential U. S. Navy
information, including correspondence in which FISC employees discussed
investigative measures aimed at determining whether GDMA was defrauding the U.S.
Navy by over-charging on husbanding contracts. In exchange, GDMA provided Pitts
with meals, entertainment, and the services of at least one prostitute. See
3:16CR1207, Indictment, Dkt. No. 1. Yet, Pitts is not charged with the bribery
conspiracy.
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Almost surely Misiewicz knew of the fraud allegations when he received an
email from Francis stating that the “investigations were closed.” In fact, the
Government itself indicated that both Dusek and Misiewicz would have suspected
Francis’ fraud, writing, “As Deputy N3, both Dusek and Misiewicz had opportunity to
learn of pending investigations into fraudulent activity by GDMW and Francis. In
deed, in July 2013, Francis informed Misiewicz that the ‘investigations are closing,’
thus suggesting that they had previously discussed such pending investigations.”4
Thus, to premise Mr. Beliveau’s uniquely unfavorable plea agreement on the idea
that he was one of the only individuals to know the full scope of Francis’ conduct is a
misapplication of the facts.
Second, even if Mr. Beliveau was in this unique position, knowing about a
scheme is not tantamount to the objective severity of the conduct. To be clear, Mr.
Beliveau’s conduct was abhorrent. He abused his position of trust and in so doing, he
helped a wealthy fraudster scam the Navy out of millions of dollars. The Navy
servicemen engaged in the same abhorrent abuse of trust. However, the servicemen’s
conduct, instead of helping a contractor obtain illegal funds, directly compromised the
national security of the United States and the welfare of the individuals aboard their
ships. Leaking ships schedules, and in some cases luring them into specific ports,
4 Memorandum of the United States in Support of Sentencing, 3:15CR33, Dkt No. 64
at 26.
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directly contravenes national security procedures, for the obvious reason that military
assets and United States sailors are targets for hijackers and terrorists. Surely our
national security is worth more than monetary losses.
Leaking classified information is inherently worse than leaking investigative
reports. The prosecutors in this case may treat it equally, but the United States
Government as a whole does not treat classified information and investigative reports
in the same manner. According to the classification level, “Secret” information is that
“which reasonably could be expected to cause serious damage to the national
security.” 18 CFR §3a.11(a)(2). There is no such designation for this internal NCIS
material.
Sanchez, Malaki, Misiewicz, and Dusek leaked submarine schedules to Francis,
and Misiewicz leaked precise information regarding a ballistics operation. The
Government wrote in Misiewicz’s sentencing memorandum that “illegally
transmitting classified submarine schedules substantially aggravated this criminal
conduct. Submarines remain one of the most formidable forces in the U.S. Navy’s
arsenal because of their ability to operate undetected. They patrol the front lines of
our defenses, carrying nuclear weapons and protecting our shores and aircraft carriers
in secret.” 3:15CR33, Dkt No. 64 at 26.
Almost every other person involved in the bribery leaked classified information
and thus placed the national security of the United States in jeopardy. This is
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inherently worse than leaking sensitive material. Thus, the objective severity of Mr.
Beliveau’s conduct falls between the admirals’ and the navy officials. It is more
severe than accepting gifts, but less severe than providing classified information
which jeopardizes national security (and is all together a separate offense). See 18
U.D.C. §§793(d), 798.5 Mr. Beliveau’s sentence should reflect this placement. The
admirals were allowed to retire as a Captain or Admiral and keep full benefits. The
Navy officers received prison sentences. An appropriate sentence in the middle of
those punishments is a felony conviction with home confinement and supervised
release.
During sentencing for other defendants in this case, the Government argued that
the fraud action fueled the national security breaches by providing GMDA with the
funds to bribe the officers. This may be true, but the one action did not have to lead to
the other, and the national security breach is still inherently worse conduct. In other
words, simply because GDMA possessed these fraudulently obtained funds and could
shower Navy servicemen with gifts certainly doesn’t mean that the officers had to
accept the gifts and leak classified information. Yes, this became the cycle, but it was
not a forced cause and effect.
5 It is worth mentioning that these charges would have had a Base Offense Level 24 or
29 depending on the classification of the information.
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Furthermore, the individual actions within the cycle still differ in objective
severity. Indeed, courts routinely adjudicate each defendant’s individual actions
within multi-defendant conspiracies (such as drug or gang conspiracies) despite the
conspiracy’s overall cyclical nature. So to, should the Court in this case. It is simply
not enough to say that this was a cycle and that one action fueled the other. The Court
must look at the individual conduct within that cycle.
Third, the Government already admitted that at least two individuals were more
culpable than Mr. Beliveau. The Government’s sentencing memorandum for
Misiewicz states, “In this wide-ranging conspiracy, everyone played their role, but
overall, in its final iteration, from January 2011 to September 2013, no one was more
important to Francis than Misiewicz.” 3:15CR33, Dkt. No. 64 at 26. Additionally,
the Government noted that Francis, referred to Dusek as his “Golden Asset,” and
stated, “In this wide-ranging conspiracy, everyone played their role, but over this
period of time, no one was more important to Francis and GDMA than the coveted
golden goose, defendant DUSEK.” 3:15CR131, Memorandum of the United States in
Support of Sentencing, Dkt. No. 26 at 13. Thus, Mr. Beliveau’s sentence certainly
should not be higher than, or even equal to, Misiewicz and Dusek, who the
government already identified as more important than Mr. Beliveau.
Fourth, even if the government didn’t admit directly that other individuals’
conduct was worse, it was. The Government repeatedly noted that Malaki’s conduct
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spanned the course of seven years and that he sought to find a replacement once he
left. The Government called Malaki a “jack-of-all trades:” a thief; a private
investigator; an operative; a henchman; and a recruiter. The Government also noted
the extreme danger in releasing classified submarine information.
Certainly, the individuals within Glenn Defense Marine, including Aruffo,
Peterson, and Wisidagama, who actually devised and implemented the scheme, and
sometimes recruited others to join were more culpable than Mr. Beliveau. These
Navy servicemen became involved in the bribery only because the bribery scheme
existed. Public officials would not engage in the scheme if there was no scheme.
Planning and executing a fraud scheme is again inherently worse than Mr. Beliveau’s
conduct, who remained a cog in the wheel. Yet, the Government inappropriately
decided to charge Mr. Beliveau in a way that results in higher Guidelines than any of
these other individuals.
In this regard, it is worth discussing, defendant, Aruffo’s conduct in greater
detail. Previously, the Government argued that Aruffo, a civilian who pled guilty to
defrauding the United States in the performance of husbanding contracts in Japan
pursuant to an extremely favorable plea agreement, was not engaged in a public
corruption offense that warranted punishment similar to the other defendants. See
Misiewicz, Memorandum of the United States in Support of Sentencing, 3:15CR33,
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Dkt No. 64 at 29, n.4. However, that assertion is misplaced.6 Aruffo, a twenty-year
veteran of the Navy, used his experience and contacts to help devise and implement
the fraud scheme. This included designing the kick-back scheme and recruiting public
officials to join. It was Aruffo’s mission to ensnare official after official into
GDMA’s “business plan.”
Although Aruffo’s plea agreement does not mention the extensive bribery of
public officials in which he engaged, the other defendants’ plea agreements are
fraught with examples of bribes he dispensed to them. See United States v. Misiewicz,
3:15CR33, United States Sentencing Memorandum, Dkt. No. 64 at 6, 7-23 (“Francis
and EA identified MISIEWICZ as someone who might be susceptible to providing
favor to GDMA in return for things of value.”); id at 24 (“EA wrote to FRANCIS:
‘We got him!!:)’ FRANCIS ' s replied to EA: ‘You bet the Godfather.’ EA replied:
‘All hail! !!.’”) (emphasis in original); United States v. Dusek, 3:15CR33, Plea
Agreement, Dkt. No. 6 at 2, 5-8 (specifically referring to “EA” in the conspiracy to
commit bribery count and noting that Dusek provided Francis and “EA” with
classified information in exchange for Francis and “EA” providing lavish things of
value throughout Asia); United States v. Dusek, 3:15CR33, United States Sentencing
6 Certainly the Government could have charged Aruffo, a civilian, with bribery of a
public official and conspiracy to commit bribery just as the Government charged
Francis. Being a civilian defrauding the United States in the performance of
husbanding contracts does not immunize one from bribery charges when in fact one is
engaged in the bribery of numerous public officials.
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Memorandum, Dkt. No. 26 at 5-6, 7, 8-13 (mentioning Aruffo by name and noting
that “EA” took Dusek out to dinner, and “EA” provided him eight nights at a lavish
hotel). United States v. Malaki, 3:15CR967, Plea Agreement, Dkt. No. 10 at 5, 10;
United States v. Aruffo, 3:14CR1924, Plea Agreement, Dkt No. 8 at 6 (alluding to the
bribery).
Aruffo betrayed his country even more than the others because the entire fraud
scheme (and consequently the bribery) would not have existed but for those, like
Aruffo, who created and executed the plan. Aruffo was largely at the helm of this
operation, and he received an aggravating role adjustment acknowledging that.
Historically, and pursuant to the Guidelines, leaders of a conspiracy are to receive
harsher punishment. Aruffo’s plea agreement should have resembled Francis’. Yet,
Aruffo (a “full-scope conspirator” by Government standards) was provided a lower
loss amount, lower base level offense, and a five-year statutory maximum in his plea
agreement.
Additionally, to the extent that the Government argues Mr. Beliveau was more
culpable than the Navy servicemen because of his position as an NCIS Agent, this
contention lacks merit. There is no more trust placed in Mr. Beliveau as an agent of
NCIS than the others as officers of the Navy. As much as it was Mr. Beliveau’s job to
investigate and prevent this type of crime, it was equally the officers’ very job to
protect America and keep its citizens safe. See e.g. 3:15CR131, Memorandum of the
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United States in Support of Sentencing, Dkt. No. 26 at 16 (“[Dusek] controlled the
lives of the men and women who served under him … Dusek failed by any measure to
safeguard the great power given to him.”).7 Thus, Mr. Beliveau’s position as an NCIS
Agent is not an “aggravating” factor of the crime, (as the Government alleges in the
PSR) it simply is the crime.
Fifth, despite the Government’s comments in the PSR, to think that Mr.
Beliveau’s conduct actually resulted in a long-term perpetuation of Francis’ fraud is
naïve. Francis received NCIS reports from other individuals well before Beliveau
ever became involved. Pitts and Debord are alleged to have provided Francis with
investigative reports sometimes years prior to Mr. Beliveau’s involvement. Sanchez
alerted Francis to internal investigations and aided Francis over a period of 35 months,
and Simpkins pled guilty to providing Francis with advice on handling investigations
as far back as 2006. Malaki accepted bribes and provided information to Francis over
the course of seven years beginning in 2006. Perhaps most significantly, Francis was
discovered and arrested during the twenty-one months that Mr. Beliveau was
7 It is also worth noting that Malaki, an officer who received a 40-month sentence, was
a career Supply Officer, whose very position is a gatekeeper for these types of
husbanding services aboard the USS Blue Ridge and others. Additionally, Pitts is
alleged to have engaged in the very same conduct in which Beliveau engaged, prior to
Beliveau’s involvement, and Pitts would have had similar responsibilities in
preventing husbanding agents from fraud and overbilling. Yet, Pitts is not charged
with the bribery conspiracy.
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providing him reports. Thus, those reports did not “thwart” the investigation to the
magnitude the Government attempts to suggest.
Sixth, in the PSR the Government asserts that Mr. Beliveau’s “knowledge”
enhances his culpability. It would be unjust, however, to focus only on Mr.
Beliveau’s knowledge, and not account for his significant mental health problems that
led to his compromised judgment. Such a request would essentially ask the Court to
consider one side of Mr. Beliveau’s brain, but not the other. Mr. Beliveau’s brain was
afflicted with both knowledge and severe mental health issues. Thus, whatever
knowledge may have enhanced Mr. Beliveau’s culpability, his mental health problems
would equally mitigate it.
Finally, Mr. Beliveau was completely honest and forthcoming about this
conduct. Mr. Beliveau was the first person who stood up in front of the watchful eyes
of an entire nation and took responsibility. This is in stark contrast to Admiral Gibeau
who lied to law enforcement about this involvement and destroyed documents upon
discovering that Francis was arrested. Yet the Admiral’s charge carries a five-year
statutory maximum and he will have Guidelines of approximately 12-18 months.
Similarly, Dusek deleted the contents of his email accounts upon learning of the first
three arrests in this case. Additionally, Misiewicz, who was arrested at the same time
as Mr. Beliveau didn’t plead guilty and accept responsibility until January 2016, over
two years after Mr. Beliveau.
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While Mr. Beliveau was out volunteering hundreds of hours to a local recovery
organization and his church, Misiewicz was contesting his CJA indigency status.
While Mr. Beliveau was engaged in multiple treatment programs, Francis was
appealing his bond. All of the individuals in this case participated in acts of
dishonesty, but Mr. Beliveau took immediate responsibility for his – he did not lie, he
did not destroy documents. Mr. Beliveau swiftly and without incident, appeared in
Court to admit his wrongdoing. Defendants who promptly accept responsibility,
saving the Government resources, and begin a domino of guilty pleas, should be
treated more favorably than those who follow, not less favorably. Instead, Mr.
Beliveau’s plea agreement treats him less favorably than all of those who follow
except for Francis himself.
In sum, the “aggravated,” “full-scope” culpability the government uses to
justify a uniquely unfavorable Guidelines recommendation, is based on a faulty
factual premise, misplaces Mr. Beliveau’s conduct within the spectrum of the others
involved in the scheme even by the government’s own admissions, and ignores the
substantial mitigating concerns of Mr. Beliveau’s mental health as well as his swift
acceptance of responsibility and transparency regarding his conduct.
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iii. Table 2B1.1 is severely flawed and offers no useful guidance on
sentencing.
Not only are the Guidelines not instructive in this particular case, they are
fundamentally flawed as a matter of principle. Mr. Beliveau’s advisory guideline
range is driven in large part by a single enhancement for the value amount under
USSG § 2B1.1. This fraud loss guideline contains severe flaws. The guideline range
offers no useful advice because it (1) is not based on empirical evidence or national
experience; (2) uses the highly imperfect measure of “loss,” to determine the
seriousness of the offense; (3) has been widely discredited, (4) and prescribes
punishment that is grossly disproportional to the offense and far greater than necessary
to promote the goals of sentencing in this case. Together these flaws produce a
guideline that is manifestly unjust.
A. §2B1.1 is not rooted in empirical evidence
When Congress enacted the Sentencing Reform Act of 1984, it ordered the
Commission to establish guidelines that “assure the meeting of the purposes of
sentencing,” 28 U.S.C. §991(b)(1)(A), and to use average sentences and incarceration
time actually served in the pre-guidelines period as a “starting point.” 28 U.S.C. §
994(m). The Commission was then directed to continually review and revise the
guidelines in light of sentencing data, criminological research, and consultation with
frontline actors in the criminal justice system. See 28 U.S.C. § 991(b)(1)(C), §
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991(b)(2), § 994(o), § 995(13), (15), (16). The original Commissioners abandoned the
effort to craft the guidelines based on the purposes of sentencing because they could
not agree on which purposes should dominate, and instead ostensibly grounded the
guidelines on an empirical study of time served for assorted offenses before the
guidelines. See USSG, Ch. 1 Pt. A(3).
In Rita v. United States, 551 U.S. 338, 350 (2007), the Supreme Court discussed
two reasons that it may be “fair to assume” that the guidelines “reflect a rough
approximation of sentences that might achieve § 3553(a)’s objectives.” First, the
original Commission used an “empirical approach” which began “with an empirical
examination of 10,000 presentence reports setting forth what judges had done in the
past.” Second, the Commission is able review and revise the guidelines based on
judicial response through sentencing judgments, and consultation with other interest
groups and experts. Id. at 348-50.
However, the Court recognized that not all of the guidelines were created in this
manner. See Gall, 552 U.S. at 46, n.2; Kimbrough, 552 U.S. at 96. When a guideline
“do[es] not exemplify the Commission’s exercise of its characteristic institutional
role,” because the Commission “did not take account of ‘empirical data and national
experience,’” the sentencing court is free to conclude that the guideline “yields a
sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run
case.” Kimbrough, 552 U.S. at 109-10.
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The fraud guideline is not based on empirical data of the past or on experience
since then. The Commission failed to rely on empirical data or national experience in
establishing or revising § 2B1.1. Thus, it failed to fulfill its prescribed institutional
role, and this Court is free to disagree, on reasoned policy grounds, with its
recommendation. See Spears, 129 S. Ct. at 843; Kimbrough, 552 U.S. at 101-02, 109-
10; Rita, 551 U.S. at 351, 357.
Prior to the Guidelines, first offenders convicted at trial of bribery involving the
highest loss amounts (over $2 million) were sentenced to prison and served, on
average, 18-24 months, and 4% were sentenced to probation. See U.S. Sent’g
Comm’n, Supplementary Report on the Initial Sentencing Guidelines and Policy
Statements 31 (1987) [hereinafter “Supplementary Report”].8 At a range of 210-262
months, Mr. Beliveau’s Guidelines range is approximately eleven times that average
which was based on the initial, empirical data.
When the Commission established the guidelines in 1987, it “decided to
abandon the touchstone of prior past practice” with respect to white collar offenses.
Justice Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises
8 Available at http://www.fd.org/docs/select-topics---sentencing/Supplementary-
Report.pdf, last visited on October 1, 2016.
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Upon Which They Rest, 17 Hofstra L. Rev. 1, 23 (1988).9 The Commission prescribed
at least a form of confinement for all but the least serious cases, and established a
fraud guideline that required no less than 0-6 months and no more than 30-37 months
for defendants in Criminal History Category I. See USSG § 2F1.1 (1987). The
Commission explained that “the definite prospect of prison, though the term is short,
will act as a significant deterrent to many of these crimes, particularly when compared
with the status quo where probation, not prison, is the norm.” USSG, ch. 1, intro., pt.
4(d) (1987).
This deterrence-based rationale was not supported by empirical evidence.
Research on white-collar defendants shows no difference between the deterrent effect
of probation and that of imprisonment. See David Weisburd et al., Specific
Deterrence in a Sample of Offenders Convicted of White Collar Crimes, National
Institute of Justice Report at 21-25 (1994) (“It has often been assumed by scholars and
policy makers that white collar criminals will be particularly affected by
imprisonment. Our findings provide evidence that this assumption is wrong, at least as
regards reoffending among those convicted of white collar crimes in the federal
9 Available at
http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1630&context=
hlr, last visited on October 1, 2016.
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courts.”) [hereinafter Specific Deterrence].10 Furthermore, “[T]here is no decisive
evidence to support the conclusion that harsh sentences actually have a general and
specific deterrent effect on potential white-collar offenders. In fact, when criminal
sanctioning was found to have such an effect, it was accompanied by informal
sanctions (such as social censure, shame, and loss of respect) which were equally
important in producing the deterrent outcome.” Zvi D. Gabbay, Exploring the Limits
of the Restorative Justice Paradigm: Restorative Justice and White Collar Crime, 8
Cardozo J. Conflict Resol. 421, 448-49 (2007)(emphasis added) [hereinafter
Restorative Justice].
Exacerbating this injustice, prison sentences continued to increase for fraud
offenses without any empirical support. In 1989, just two years after the Guidelines
were enacted, three levels were added for a loss amount over $5 million. See USSG,
App. C, Amend. 154 (Nov. 1, 1989). The official reason for the amendment was that
the Commission sought to “increase the offense levels for offenses with larger losses
to provide additional deterrence and better reflect the seriousness of the conduct.” Id.
In 2001, offense levels were again increased for higher loss amounts pursuant to
the Commission’s Economic Crimes Package. See USSG, App. C, Amend. 617 (Nov.
1, 2001). The Commission explained that it was responding to “comments received
10 Full report available at
https://www.ncjrs.gov/pdffiles1/Digitization/151296NCJRS.pdf, last visited on
October 1, 2016.
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from the Department of Justice, the Criminal Law Committee of the Judicial
Conference, and others, that [the fraud guideline] under-punish[es] individuals
involved in moderate and high loss amounts, relative to penalty levels for offenses of
similar seriousness sentenced under other guidelines.” Id. The Commission did not
identify the “other guidelines” to which it referred, but it is obvious from the
proceedings which discussed the amendment, that it referred to the drug guidelines.
U.S. Sent’g Comm’n, Symposium on Federal Sentencing Policy for Economic Crimes
and New Technology Offenses at 54-55 (2000).11
This alone establishes that the increase was flawed, for the drug guidelines were
not based on empirical data or national experience. See Gall, 552 U.S. at 46, n.2;
Kimbrough, 552 U.S. at 96. Rather, they were intended to be commensurate with
mandatory minimums. It is well known that the drug guidelines lack an empirical
basis, and drastically increased sentences “far above what had been typical in past
practice, and in many cases above the level required by the literal terms of the
mandatory minimum statutes.” U.S. Sent’g Comm’n, Fifteen Years of Guidelines
Sentencing: An Assessment of How Well the Federal Criminal Justice System is
Achieving the Goals of Sentencing Reform 49 (2004) [hereinafter Fifteen Year
11 Available at http://www.ussc.gov/sites/default/files/pdf/research-andpublications/
research-projects-and-surveys/economic-crimes/20001012-
symposium/ePlenaryIII.pdf, last visited on October 2, 2016.
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Report].12 Indeed, today the drug Guidelines continue to be widely criticized, and
most recently the Commission approved a 2-level reduction in the drug quantity table.
See USSG, App. C, Amend. 782 (Nov. 1, 2014); United States v. Diaz, 2013 WL
322243, *21 (E.D.N.Y., Gleeson, J., Jan. 28, 2013) (“The drug trafficking offense
guideline was born broken.”) (emphasis in original).
The justifications the Commission offered for the increases in white-collar
cases are thus flawed and inaccurate. The Commission amended the guideline, not in
the employment of its institutional role as an independent expert body, but instead
based on unsupported signs. The Commission disregarded the overwhelming
empirical research that increases in sentence severity, as opposed to certainty, have no
deterrent effect. As a result of these significant and unfounded increases, Mr.
Beliveau’s advisory guideline range of 210-262 months is drastically higher than the
1987 empirical data that showed average prison sentences of 18-24 months for first
offenders convicted at trial of bribery involving the highest loss amounts.
B. “Loss” is a highly imperfect measure of the seriousness of the
offense and overlaps with other enhancements
The amount of “loss” primarily determines the offense level for fraud offenders.
However, loss is an extremely imperfect gauge as to the seriousness of the offense.
12 Available at http://www.ussc.gov/sites/default/files/pdf/research-andpublications/
research-projects-and-surveys/miscellaneous/15-yearstudy/
15_year_study_full.pdf, last visited on October 2, 2016.
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See United States v. Gupta, 904 F.Supp.2d 349 (S.D.N.Y. Oct. 24, 2012) (“By making
a Guidelines sentence turn, for all practical purposes, on this single factor, the
Sentencing Commission effectively ignored the statutory requirement that federal
sentencing take many factors into account, see 18 U.S.C. § 3553(a), and, by contrast,
effectively guaranteed that many such sentences would be irrational on their face.”);
United States v. Adelson, 441 F. Supp. 2d 506, 509 (criticizing “the inordinate
emphasis that the Sentencing Guidelines place in fraud on the amount of actual or
intended financial loss” without any explanation of “why it is appropriate to accord
such huge weight to [this] factor[ ]”). The amount of loss is “a relatively weak
indicator of [ ] moral seriousness . . . or the need for deterrence.” See United States v.
Emmenegger, 329 F. Supp. 2d 416, 427-28 (S.D.N.Y. 2004).
“An amount of loss… does not tell us anything about why the defendant
committed the offense or how much he personally benefited. These motive-based
facts are important for issues of retribution, deterrence, and the need for
incapacitation.” David Debold & Matthew Benjamin, ‘‘Losing Ground’’—In Search
of a Remedy for the Overemphasis on Loss and Other Culpability Factors in the
Sentencing Guidelines for Fraud and Theft, 160 U. Pa.L.Rev. PENNumbra 141, 152
(2011) [hereinafter “Losing Ground”]. A former staff attorney at the U.S. Sentencing
Commission recently wrote, “[D]ecreasing the now-central role loss has in sentencing
economic crimes is imperative…. Until then, courts and practitioners are well advised
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to look critically, and indeed skeptically, on the sentencing advice given by the
Guidelines that are influenced by loss.” Mark H. Allenbaugh, “Drawn from
Nowhere”: A Review of the U.S. Sentencing Commission’s White-Collar Sentencing
Guidelines and Loss Data, Federal Sentencing Reporter 26 (2013).
In this case, using the loss amount is an even more absurd measure of the
seriousness of the offense. The amount -- $7,000,000+ -- represents an amount that
Leonard Francis received in this scheme. USSG §2B1.1 originally identified “loss”
as a rough proxy for culpability because it reflected both “harm to the victim” and
“gain to the defendant.” Losing Ground at 150-51. In conspiracy cases, or in a bribery
case, where the measure is based on loss to the government, this logic does not hold.
See Adelson, 441 F. Supp. 2d at 510 (noting that the irrationality of the Guidelines in
fraud cases are exacerbated for someone like the defendant, “who had no role in
originating the conspiracy but only joined it in its latter stages… but will still be
legally responsible under the guidelines for the full loss amount he could reasonably
foresee.”)(citing United States v. Studley, 47 F.3d 569, 574 (2d Cir. 1995).
Holding Mr. Beliveau accountable for the entire loss amount in this complex
fraud scheme neither represents the harm the individual defendant caused to the victim
nor does it represent the gain to the defendant. Mr. Beliveau’s culpability is not
altered by the amount of money Leonard Francis is able to swindle from his scheme.
The amount Mr. Beliveau received (approximately $30,000) remains constant whether
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Francis conned the government out of $7,000,000 or $700,000,000. Thus, evaluating
Mr. Beliveau’s culpability on the amount Francis was able to swindle defies logic and
does not conform to the original principals upon which USSG §2B1.1 was founded.
If the Guidelines range in this case were to be recalculated using the amount
Mr. Beliveau actually received, his Offense level would be as follows:
Guidelines Calculation for $30,000 (Amount Received)
Base Offense Level §2C1.1(a)(1) 14
Bribe Received over $10,000 §2C1.1(b)(1), §2B1.1 +4
More Than One Bribe §2C1.1(b)(3) +2
Sensitive Position §2C1.1(b)(2) +4
Obstruction of Justice §3C1.1 +2
Acceptance of Responsibility §3E1.1 -3
Total 23
Offense Level 23, Criminal History Category I 46-57 months
That is still not to say that this range is reasonable. Most of these enhancements
are cumulative. Eight of the levels used to calculate Mr. Beliveau’s guideline range --
totaling an additional 154 months -- are cumulative offense characteristics (2 levels
for more than one bribe, 4 levels for sensitive position), and a 2-level adjustment from
Chapter Three (obstruction of justice). These factors are “closely correlated” with
each other and with loss. See Frank O. Bowman III, Sentencing High-Loss Corporate
Insider Frauds After Booker, 20 Fed. Sent. R. 167, 170, (2008).
These enhancements act like mirrors reflecting mirrors, creating an illusion of
greater culpability, when, in fact, each enhancement is largely an alternative measure
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of the same conduct. See id. “In effect, what the Guidelines have done over time is to
tease out many of the factors for which loss served as a rough proxy and to give them
independent weight in the offense-level calculus.” Id. “The result is that many factors
for which loss was already a proxy not only have been given independent weight but
also impose disproportionate increases in prison time because they add offense levels
on top of those already imposed for loss itself and do so at the top of the sentencing
table where sentencing ranges are wide. . . . . Id. See also Samuel W. Buell,
Overlapping Jurisdictions, Overlapping Crimes: Reforming Punishment of Financial
Reporting Fraud, 28 Cardozo L. Rev. 1611, 1648-49 (2007); Alan Ellis, John R.
Steer, Mark Allenbaugh, At a “Loss” for Justice: Federal Sentencing for Economic
Offenses, 25 Crim. Just. 34, 37 (2011) (“[m]ultiple, overlapping enhancements also
have the effect of ‘double counting’ in some cases,” while “the guidelines fail to take
into account important mitigating offense and offender characteristics.”).
The Commission itself has acknowledged this problem of “factor creep,” as
“more and more adjustments are added to the sentencing rules, it is increasingly
difficult to ensure that the interactions among them, and their cumulative effect,
properly track offense seriousness.” Fifteen Year Report at 137. However, because
the Commission has not yet corrected the issue of multiple overlapping enhancements,
many courts have found that a departure or variance is necessary to avoid it. See, e.g.,
United States v. Lauersen, 362 F.3d 160, 164 (2d Cir. 2004) (subsequently vacated in
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light of Booker) (upholding departure to mitigate effect of “substantially overlapping
enhancements” at the high end of the fraud sentencing table); United States v. Parris,
573 F. Supp. 2d 744, 745 (E.D.N.Y. 2008) (guidelines in security fraud cases “are
patently absurd on their face” due to the “piling on of points” under § 2B1.1) (citing
Adelson, 441 F. Supp. at 515).
C. The fraud guidelines have been widely discredited.
Judges across the country have noted the severe flaws in the fraud Guidelines.
These Guidelines are not “heartlands” contemplated by Rita, 551 U.S. at 351. In
fiscal year 2014, sentences within the guideline range were imposed in only 43.3% of
all fraud cases; and in bribery cases, the rate was even lower – only 32.4% received
within Guidelines sentences. See U.S. Sent’g Comm’n, 2014 Sourcebook of Federal
Sentencing Statistics, tbl.27. “[I]t is difficult for a sentencing judge to place much
stock in a guidelines range that does not provide realistic guidance.” Parris, 573 F.
Supp. at 751; (see also United States v. Watt, 707 F. Supp. 2d 149 (D. Mass. 2010)
(noting that the “Guidelines were of no help.”). Judge Frederick Block notably
derided the severity of loss-driven sentences as “a black stain on common sense.”
Parris, 573 F. Supp. 2d at 751. Other judges have recognized this as well. See United
States v. Corsey, 723 F.3d 366, 377-78 (2d Cir. 2013) (the loss table is “fundamentally
flawed” and “valueless.”); United States v. Faulkenberry, 759 F. Supp. 2d 915, 928
(S.D. Ohio 2010), aff’d, 461 Fed. App’x 496 (6th Cir. 2012) (“As has become
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common among district courts sentencing white-collar offenders in financial fraud
cases, the Court finds that the loss calculation substantially overstates the gravity of
the offense here and declines to impose a within-Guidelines sentence.”); Gupta, 904
F. Supp. 2d at 351 (Guidelines “reflect an ever more draconian approach to white
collar crime, unsupported by empirical data.”).
D. The Guidelines prescribe punishment that is grossly
disproportional to the offense and far greater than necessary to
promote the goals of sentencing in this case.
The increases in the fraud guideline have led to the absurd result that first-time,
nonviolent fraud offenders are subject to ranges higher than those applicable to the
most violent offenders. Judge Frederick Block stated, “[t]he staggering increases in
sentence ranges driven by the amount of loss combined with largely duplicative
sentencing enhancements have escalated advisory guidelines sentences for high-loss
frauds beyond those once reserved for violent criminals.” Parris, 573 F. Supp. 2d at
751.
Compare Mr. Beliveau’s Offense Level 37 with USSG § 2A2.1 (2015) (Offense
Level 27 for assault with intent to commit first degree murder); USSG §2K1.4 (2015)
(Offense Level 24 for arson creating substantial risk of death or serious bodily injury);
USSG §2H4.1 (2015) (offense level 26 for slave trade and child soldiers in which
victim sustained permanent or life-threatening bodily injury). Most notably, USSG §
2A1.3 prescribes Offense Level 29 for voluntary manslaughter. Thus, a first-time
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offender who committed voluntary manslaughter would have a Guidelines range of
87-108. Mr. Beliveau’s range at 210-262 months prescribes a sentence almost ten
years more than a person convicted of voluntary manslaughter. The fact that Mr.
Beliveau’s Guidelines range significantly exceeds these types of offenses shows how
grossly disproportional it is to the offense and how far greater than necessary it is to
promote the goals of sentencing.
E. A Guidelines sentence would create a severe unwarranted
disparities among other fraud cases.
The Court should avoid unwarranted disparities among defendants other fraud
cases. The chart below includes examples of fraud cases from courts across the
country, some of which involved losses greater than in this case. Yet those defendants
received sentences significantly below their guideline ranges, and significantly below
the guideline range applicable here. These include many defendants who were far
more culpable than Mr. Beliveau.
Case Conduct/
Conviction
Amount D
Received
Loss Guidelines Range Sentence
Darleen Druyun
Principal
Deputy
Assistant
Secretary of the
Air Force
for Acquisition
and
Management
(E.D. Va. 2004)
Pled guilty to
accepting a bribe in
exchange for helping
Boeing obtain a $20
billion-dollar
Pentagon contract
Salary of
$250,000 per year
plus $50,000
signing bonus.
Position at Boeing
for Druyun’s
daughter
Inflated prices on
Boeing contracts to
curry favor with
her prospective
employer. Tens of
millions of dollars
of estimated loss,
exact amount
unknown. June
2006, Boeing
entered into a
global settlement
with the U.S.
Department of
10-16 months
(note: Druyun
initially had a plea
agreement for 0-6
months Guidelines,
but repeatedly lied
to the Government
when providing
information
following her plea.
Thus, the
Government
withdrew from plea
agreement, but did
9 months
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Justice for $615
million to resolve
this and other
pending
investigations. 13
not bring additional
charges).14
Michael Sears
Chief Financial
Officer of
Boeing.
(E.D. Va. 2004)
Pled guilt to aiding
and abetting Darleen
Druyun.
Amount received
by defendant
unknown.
However, Boeing
received billions
of dollars in
contracts
(see above) 15 0-6 months 4 months
Mark D.
Zachares
(D.D.C., 2010)
House of
Representative staff
who was bribed by
Jack Abramoff to
influence
Congressional action.
Leaked information
about pending
Congressional action,
reports not available
to the public.
Secured official
action on maritime
issue that would
benefit Abramoff’s
firm. Pled guilty to
conspiracy to deprive
the public of honest
services
$10,000 in cash,
$30,000 in tickets,
and participation
in a $160,000 golf
trip to Scotland,
promised a
lucrative lobbying
position
Among other
things, defendant
coordinated with
Abramoff and
others to advance
passage of a multimillion
dollar
highway
development
project benefitting
a businessman. 16
Exact of loss
amount unknown.
Unknown 12
weekends
Bilah Abdullah,
United States
soldier
(W.D.K.Y.
2014)
Created fraudulent
documents to steal
and transfer fuel to
Afghan nationals in
exchange for cash
bribes. Pled guilty to
Conspiracy to
Defraud the Unite
States and Aiding and
Abetting Bribery of
Public Officials and
$50,000 $466,250 in
restitution.
70-87 Months 12 months
plus one
day17
13 See Leslie Wayne, Air Force at Unease in the Capital, N.Y. Times, Dec. 16, 2004, available at
http://www.nytimes.com/2004/12/16/business/16tanker.html?_r=0; Jerry Markon and Renae Merle, Ex-Boeing CFO
Pleads Guilty in Druyun Case, Wash. Post, Nov.16, 2004 at E01, available at http://www.washingtonpost.com/wpdyn/
articles/A51778-2004Nov15.html
14 United States v. Sears, Criminal No. 04-310-A, ECF No. 13, Sentencing Memorandum (E.D. Va., Feb. 15, 2005).
15 United States v. Sears, Criminal No. 04-310-A, ECF No. 5, Statement of Facts (E.D. Va., Nov. 15, 2014).
16 See Statement of Facts, http://www.justice.gov/criminal/pr/2007/04/2007_5129_4_04-24-07mdzachares-statefacts.pdf
17 Federal Bureau of Investigation, Army Soldier Sentenced in Kentucky on Bribery Charges for Facilitating Thefts of
Fuel in Afghanistan (March 13, 2014), http://www.fbi.gov/louisville/press-releases/2014/army-soldier-sentenced-inkentucky-
on-bribery-charges-for-facilitating-thefts-of-fuel-in-afghanistan; United States v. Abdullah, 5:13-cr-00037,
ECF No. 20, Motion for Downward Departure (Feb. 5, 2014).
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Witnesses
Carole Argo
CFO, SafeNet,
Inc.
(S.D.N.Y.
2008)
Pled guilty to
securities fraud.
$1 - 2.5 million
(stipulated loss
amount)
97 - 121 months 6 months18
Richard
Adelson,
CEO &
President,
Impath
(S.D.N.Y.
2006)
Convicted at trial of
conspiracy,
securities fraud, and
filing false
reports with SEC.
$50 - $100
million
(Court ordered
restitution of $50
million)
Life
Imprisonment
42
months19
John Whittier,
Manager, Wood
River
Partners
(S.D.N.Y.
2007)
Pled guilty to
securities fraud,
failure to disclose
ownership in
excess of 5% of
publicly traded
security, and failure
to disclose
ownership in excess
of 10% of
publicly traded
security.
$5.5 million in
forfeiture
$88 million in
investor losses.
188-235 months 36
months20
Congressman,
Richard Renzi
(D. Ariz. 2008)
Convicted at trial on
17 of 32 counts
including
racketeering, wire
fraud, extortion,
conspiracy to commit
money laundering,
making false
statements to
insurance regulators,
and transactions
involving criminally
derived funds.
Was paid
$733,000 by codefendant
Sandlin
for aiding in sale
of Sandlin’s land
97-121 months 36
months21
Felipe Sixto,
White House
Aide to G.W.
Bush
Pled guilty to theft. Stole
approximately
$579,000 from a
nonprofit
Approx. $579,000 30
months22
18 United States v. Argo, Case No. 1:07-cr-00683, Docket Entry 14 (S.D.N.Y. Jan. 23, 2008) (Government’s Sentencing
Memorandum); see also United States v. Argo, Case No. 1:07-cr-00683, Docket Entry 16 (S.D.N.Y. Jan. 29, 2008)
(Judgment).
19 See United States v. Adelson, 1:05-cr-325, Sent. Mem., ECF No. 94 (S.D.N.Y. July 20, 2006).
20 Paritosh Bansal, Hedge Fund Manager Gets 3 Years in Fraud Case, Reuters (Oct. 15, 2007)
http://www.reuters.com/article/2007/10/15/us-woodriver-whittier-sentence-idUSN1537122720071015.
21 Dennis Wagner, Arizona's ex-Rep. Rick Renzi gets 3-year prison term, USA Today (Oct. 28, 2013)
http://www.usatoday.com/story/news/politics/2013/10/28/rick-renzi-arizona-prison-sentence/3288937/.
22 Del Quentin Wilber, Former Bush Aide Sentenced to 30 Months in Prison, Washington Post (March 18, 2009)
http://www.washingtonpost.com/wp-dyn/content/article/2009/03/18/AR2009031800661.html.
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(D.D.C. 2009) organization
promoting
democracy in
Cuba.
Keith and
Angela
Johnson,
U.S. Military
Contractor
(E.D.Va. 2014)
Conspiracy to
commit wire fraud in
a scheme to steer
more than $10
million in military
subcontracts
through kickbacks
and the use of
assumed names.
Steered military
supply contracts
and rigged bids
to a company
owned and
operated by his
wife and another
relative.
Defendants
required to pay
over $2 million in
forfeiture costs
30 months
(Mr.
Johnson)
6 months
(Mrs.
Johnson)23
Sergeant Albert
Kelly III,
United States
Soldier
(W.D. Ky.
2014)
Pled guilty to theft of
government property/
aiding and abetting in
theft of fuel at FOB
Salerno
Received approx.
$57,000 in bribery
from an Afghan
trucking company
Aprox. $100,000
loss to the US
government
($100,000.00
ordered in
restitution).
18
months24
Kenneth
Brophy,
State
Department
Contractor
(D. Del. 2014)
Indicted on
conspiracy, receipt of
an illegal gratuity by
a public official, and
willful receipt by an
executive-branch
employee of an
illegal payment. Pled
to illegal gratuity.
Received a
$30,000 bribe to
lobby in support
of Afghan
company’s
contract
Unknown 12-18 months 12 months
unsupervis
ed
probation25
John Albaugh,
Aide to former
congressman
(D.D.C. 2006)
Pled guilty to
conspiracy to deprive
the public of honest
services fraud in the
Abramoff scandal.
Unknown Unknown 27-33 months 6 months
probation,
4 months in
a halfway
house26
Bayani Yabut
Abueg, Jr.,
Military
Contractor
(S.D. Cal 2014)
Pled guilty to
conspiracy to
commit bribery of
public official.
Instigated a bribery
scheme to bribe the
“Godfather” of
Camp Pendleton in
exchange for
millions of dollars in
Accepted over
$539,000 in
kickbacks
Unknown Unknown 6 months27
23 See United States v. Johnson et. al., Case No. 1:13-cr-00305-LMB, Judgment, ECF Nos. 69, 72 (E.D. Va. Feb. 18,
2014).
24 United States Department of Justice, Army Soldier Sentenced for Facilitating Thefts of Fuel in Afghanistan, (May 22,
2014) http://www.justice.gov/opa/pr/army-soldier-sentenced-facilitating-thefts-fuel-afghanistan-0
25 See United States v. Brophy, Case No. 1:13-cr-00035-LPS, ECF Nos. 92, 99 (D.Del. Jan. 17, 2014).
26 See United States v. Albaugh, Case 1:08-cr-00157, ECF Nos. 31, 38 (D.D.C. April 15, 2011).
27 See Federal Bureau of Investigation, Prison Sentences and More Than $500,000 in Fines for Contractors Who Bribed
the ‘Godfather’ of Camp Pendleton, (June 27, 2014) http://www.fbi.gov/sandiego/press-releases/2014/prison-sentencesand-
more-than-500-000-in-fines-for-contractors-who-bribed-the-godfather-of-camp-pendleton
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construction and
service contracts.
Filed a false income
tax report.
Eric Minor,
High-level GSA
Employee
(D.D.C. 2011)
Pled guilty to bribery.
Solicited and
received bribe
payments from at
least four different
government
contractors over a 3
year period.
Approximately
$118,000
Facilitated the
award of hundreds
of thousands of
dollars of contract
work, some of
which was for
“fake” where little
or no work was
performed.
37-46 months 30
months28
James Fisher,
planner and
estimator at
White House
Property
Management
Center
(D.D.C. 2008)
Pled guilty to bribery
for the same GSA
scheme
$40,000 ordered
in restitution
(see above) 18
months29
William
Dodson,
building
manager at
Potomac Annex
(D.D.C. 2009)
Pled guilty to bribery
for the same GSA
scheme
$26,200 ordered
in restitution
(see above) 15
months30
Fred Timbol,
facilities
services officer
at the U.S. Tax
Court
(D.D.C. 2009)
Pled guilty to one
count of conspiracy
to defraud the
government for the
same GSA scheme
$24,143 ordered
in restitution
(see above) 18
months31
Raj Singla,
mechanical
engineer for
Wilbur J.
Cohen Building
(D.D.C. 2010)
Pled guilty to bribery
for the same GSA
scheme
$75,000 fine and
$74,000 in
restitution
(see above) 5 years
probation,
6 months
home
confinemen
t32
Suresh
Malhotra,
general
engineer and
Pled guilty to bribery
for the same GSA
scheme
$60,000 fine and
$57,060
restitution
(see above) 5 years
probation,
9 months
home
28 See United States v. Minor, Case No. 1:11-cr-00131-RWR, ECF Nos. 32, 38 (D.D.C. Nov. 3, 2011).
29 See Sarah Chacko, Seventh GSA employee sentenced in bribery and kickback scheme, Federal Times (Oct. 25, 2011)
http://www.federaltimes.com/article/20111025/ACQUISITION01/110250304/Seventh-GSA-employee-sentencedbribery-
kickback-scheme
30 See id.
31 See id.
32 See id.
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project manager
for GSA
(D.D.C. 2010)
confinemen
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Gary
Thompson,
building
manager at
Metropolitan
Service Center
(D.D.C. 2010)
Pled guilty to bribery
for the same GSA
scheme
$55,000 ordered
in forfeiture
(see above) 9 months34
A lengthy term of incarceration is entirely disproportionate to the sentences
received by other, more culpable, defendants in similar cases. Keeping in line with
these cases, a sentence of twelve months home confinement plus the maximum term
of probation is appropriate in this case.
iv. Mr. Beliveau was not motivated by greed, did not devise this scheme,
and did not gain the staggering amount of money for which the
guidelines hold him accountable.
USSG §2B1.1 fails to take any account of Mr. Beliveau’s actual motive and
culpability. “The problem is that loss has taken on a role in the sentence calculation
that dwarfs most of the other important factors.” Losing Ground at 151. Specifically,
“[a]n amount of loss… does not tell us anything about why the defendant committed
the offense or how much he personally benefited. These motive-based facts are
important for issues of retribution, deterrence, and the need for incapacitation.” Id;
see also United States v. Mahan, 232 Fed. Appx. 796 (10th Cir. 2007) (sentence was
procedurally unreasonable where district court refused to consider defendant’s stated
33 See id.
34 See id.
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motive for possessing unloaded shotgun, i.e., that he had been violently beaten by
three men and sought to defend his wife); United States v. Milne, 384 F. Supp. 2d
1309, 1310-11 (E.D. Wis. 2005) (granting variance where “defendant did not take the
bank’s money out of greed or a desire to live a lavish lifestyle, [but in effort] to keep a
sinking business afloat”); United States v. Ranum, 353 F. Supp. 2d 984, 990 (E.D.
Wis. 2005) (defendant did “not act for personal gain or for improper personal gain of
another”).
In the instant offense, severe mental illness and compromised judgment, rather
than greed, motivated Mr. Beliveau. Francis approached Mr. Beliveau at a time when
he was sick, depressed, lonely, and suffering from severe mental illness. See Dr.
Boggio Report at 10. “[Mr. Beliveau] became attached to Mr. Francis, a man who
was powerful and had the resources to keep him safe and provide him with the
numbing agents that John used as his primary coping mechanism.” See Letter from
Dr. Fonte (October 1, 2016). Once involved in Francis’ scheme, Mr. Beliveau found
it difficult to leave. Mr. Beliveau assisted Francis over the course of twenty-one
months, even appearing irrationally jealous at times. “His attempts at survival caused
him to dissociate at times, experience extreme anxiety and hyperarousal, and which
eventually lead him to make poor choices in an attempt to keep the flashbacks and
intrusive memories in check. Id. Many of the emails published in the press, Mr.
Beliveau doesn’t even recall sending, though he acknowledges that they did come
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from him. These emails show the co-dependency and toxic nature of Mr. Beliveau’s
relationship with Francis. As his treating psychiatrist wrote, “[Mr. Beliveau’s] illegal
actions were not a result of greed but a form of survival.” Id.
This is in stark contrast to others in this case who did not suffer from mental
illness, and instead acted purely on greed. For example, Simpkins received
approximately $300,000.00 for his part in the fraud, and Francis of course, made
millions. Mr. Beliveau, who received approximately $30,000.00 of value, wanted
companionship.
In short, this case is distinguishable from a case in which a defendant accepts
bribes to support a lavish lifestyle. Certainly, Mr. Beliveau exercised poor judgment
in coping with his insecurities, OCD, and PTSD. However, the Guidelines do not
adequately distinguish someone like Mr. Beliveau from someone acting purely upon
greed, and the Court should account for this in its sentence.
v. A harsher sentence has little, if any, deterrent effect, and Mr.
Beliveau’s risk of re-offending is extraordinarily low.
Research has consistently shown that while the certainty of being caught and
punished has a deterrent effect, “increases in severity of punishments do not yield
significant (if any) marginal deterrent effects.”35 Three National Academy of Science
35 Michael Tonry, Purposes and Functions of Sentencing, 34 Crime & Just. 1, 28
(2006).
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panels reached that conclusion, “as has every major survey of the evidence.”36
Research regarding white-collar offenders in particular found no difference in the
deterrent effect of probation and that of imprisonment. See Specific Deterrence at 587
(1995); see also Restorative Justice at 448-49 (“[T]here is no decisive evidence to
support the conclusion that harsh sentences actually have a general and specific
deterrent effect on potential white-collar offenders.”).
Mr. Beliveau’s risk of re-offending is extraordinarily low. Mr. Beliveau is 47
years old, a first offender, a college graduate, was employed throughout his adult life,
and has no history of illicit drug use. According to the U.S. Sentencing
Commission’s most recent research, for all male offenders in Criminal History
Category I, the recidivism rate is 15.2%. See U.S. Sent’g Comm’n, Measuring
Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines,
Ex. 9, at 28 (May 2004). For those over age 50 at the time of sentencing, (Mr.
Beliveau is close) however, the rate in Category I is only 6.2%. Id. For those like Mr.
Beliveau who are educated, have been employed, and are drug free, the recidivism
rate is certainly much lower. For example, offenders like Mr. Beliveau, with zero
criminal history points have a rate of recidivism half that of offenders with one
36 Id. (internal citations omitted); see also Restorative Justice at 447-48 (2007)
(“[C]ertainty of punishment is empirically known to be a far better deterrent than its
severity.”) (citation omitted); Prisons Do Not Reduce Recidivism: The High Cost of
Ignoring Science, 91 Prison J. 48S, 50S-51S (2011).
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criminal history point. See Sent’g Comm’n, Recidivism and the “First Offender,” at
13-14 (May 2004).
In imposing the least sentence sufficient to account for the need to protect the
public, this Court should consider Mr. Beliveau’s statistically low risk of recidivism.
See, e.g., United States v. Darway, 255 Fed. Appx. 68, 73 (6th Cir. 2007) (upholding
downward variance on basis of defendant’s first-offender status); United States v.
Hamilton, 323 Fed. Appx. 27, 31 (2d Cir. 2009) (“the district court abused its
discretion in not taking into account policy considerations with regard to age
recidivism not included in the Guidelines”); United States v. Urbina, slip op., 2009
WL 565485, *3 (E.D.Wis. Mar. 5, 2009) (considering low risk of recidivism indicated
by defendant’s lack of criminal record, positive work history, and strong family ties);
United States v. Cabrera, 567 F. Supp. 2d 271, 279 (D. Mass. 2008) (granting
variance because defendants “with zero criminal history points are less likely to
recidivate than all other offenders”); Simon v. United States, 361 F. Supp. 2d 35, 48
(E.D.N.Y. 2005) (basing variance in part on defendant’s age of 50 upon release
because recidivism drops substantially with age); United States v. Ward, 814 F. Supp.
23, 24 (E.D. Va. 1993) (granting departure based on defendant’s age as first-time
offender since guidelines do not “account for the length of time a particular defendant
refrains from criminal conduct” before committing his first offense).
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Not only is Mr. Beliveau statistically unlikely to reoffend, he has also
personally shown that he appreciates the gravity of this situation and is extraordinarily
unlikely to ever abuse trust again. He wrote to the Court, “After I received return of
documents from the government, I retrieved the oaths I took. Oaths that I had not read
since they were sworn to and verbally taken…. I carry copies of them with me now,
albeit too late, to remind me of what I betrayed, and a remembrance so as not to repeat
acts in the future which caused my own failure.” Letter from Mr. Beliveau. To the
extent the Court is concerned about Mr. Beliveau’s continued mental health treatment,
Mr. Beliveau is engaged in an intense treatment regime that includes medication and
therapy. He now knows of the risks and signs of possible relapse, and unlikely to ever
cease treatment in the future. Additionally, the Court can fashion conditions of
supervision to include adherence to treatment with Dr. Fonte.
vi. Mr. Beliveau faces significant collateral consequences and unique
adversities in prison.
Mr. Beliveau lost his profession and reputation. He was humiliated as his
offense was reported widely over national media. He is also a former law
enforcement officer and the Washington Post reported he cooperated. Finally, Mr.
Beliveau has serious medical conditions for which he will not receive appropriate
attention in prison.
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A. Mr. Beliveau’s loss of profession and reputation.
This Court should consider Mr. Beliveau’s loss of profession and reputation
concerning the national media coverage of his offense. See, e.g., United States v.
Gaind, 829 F. Supp. 669, 671 (S.D.N.Y. 1993) (granting downward departure where
defendant was punished by the loss of his business); United States v.Vigil, 476 F.
Supp. 2d 1231, 1235 (D.N.M. 2007) (finding variance appropriate where defendant
was collaterally punished by loss of his position and reputation, widespread media
coverage, and emotional toll of two lengthy public trials); United States v. Samaras,
390 F. Supp. 2d 805, 809 (E.D. Wis. 2005) (granting variance in part because
defendant lost a good public sector job as a result of his conviction).
Following his arrest, Mr. Beliveau’s name and face were smeared over national
media. He was publicly shamed and humiliated. Reporters parked outside his house
in York, Pennsylvania where he lived with his mother. For someone who led an
honorable life of government service, this public plunge from grace is a severe
penalty. Overnight, Mr. Beliveau went from distinguished NCIS Agent leading a
team of people to a convicted felon struggling to find work. He currently works
almost exclusively as a volunteer while also trying to develop his business in graphic
design. This is particularly significant given Mr. Beliveau’s costly medical concerns,
as well as his life-long desire to achieve.
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B. Mr. Beliveau faces unique adversities in prison
Mr. Beliveau is former law-enforcement and was publically reported as a
cooperator in the Washington Post. See Whitlock, Craig, NCIS agent implicated in
Navy’s ‘Fat Leonard’ scandal to plead guilty, Wash. Post, December 12, 2013 (“Two
people involved in the case, speaking on the condition of anonymity because details
have not been presented in court, said Beliveau had agreed to share information with
federal prosecutors about his extensive relationship with Leonard Glenn Francis,
president of Glenn Defense Marine and a co-defendant in the case, as well as others
involved in the investigation.”). Mr. Beliveau offered to cooperate with the
Government under conditions of confidentiality. His suspension letter from NCIS,
however, included direct language about his cooperation and was sent to multiple
divisions within the agency. This means potentially several hundred individuals were
informed of Mr. Beliveau’s conduct and cooperation, and two of them then gave
interviews to the Washington Post. Both of these actions (by Government actors)
grossly and carelessly violated the proffer terms, and now expose Mr. Beliveau to
potential hardship in prison. The Court should take this into account when
contemplating a term of incarceration.
Additionally, the sentence imposed must ensure that “needed . . . medical care”
is provided “in the most effective manner.” 18 U.S.C. § 3553(a)(2)(D). The
Commission now recognizes that “[p]hysical condition . . . may be relevant in
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determining whether a departure is warranted,” and has always recognized that “in the
case of a seriously infirm defendant, home detention may be as efficient as, and less
costly than, imprisonment.” USSG § 5H1.4, p.s. (2010). See also United States v.
Martin, 363 F.3d 25, 49-50 (1st Cir. 2004) (upholding departure when BOP had
policy of not administering the only medication successful in treating defendant’s
Crohn’s disease); United States v. Gee, 226 F.3d 885, 902 (7th Cir. 2000) (finding no
abuse of discretion where district court concluded BOP’s letter stating its ability to
handle medical conditions of all kinds was merely a form letter and that imprisonment
posed a substantial risk to the defendant’s life).
Mr. Beliveau requires, not only continued medication, but also continued
therapy. As Dr. Boggio stated in his report, “Mr. Beliveau will need ongoing mental
health treatment, and possibly substance abuse treatment, to fully recover, and it is
clear from his history that treatment with Dr. Fonte in the past significantly reduced
his symptoms. “This is not surprising as scientific research has long found that a
combination of medication and behavior therapy are the best approach for treating the
serious symptoms of anxiety and depression with which he presents.” Def.’s Ex. 2,
Report from Dr. Boggio, at 12; see also Letter from Dr. Fonte (noting that Mr.
Beliveau’s complex psychiatric problems are slowly beginning to improve after more
than two years of intensive treatment involving medication and outpatient therapy).
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Mr. Beliveau is not likely to receive effective medical care in a Bureau of
Prisons facility. A recent audit by the Office of the Inspector General found systemic
deficiencies in the Bureau of Prisons’ delivery of health services. It found that at a
number of institutions, the Bureau of Prisons “did not provide required medical
services to inmates,” including inadequate treatment for chronic conditions, failure to
properly monitor side effects of medication, allowing unqualified providers to render
medical services, and failure to meet performance target levels on treatment of serious
conditions, including diabetes. See U.S. Dep’t of Justice, Office of the Inspector
General Audit Division, The Federal Bureau of Prison’s Efforts to Manage Inmate
Health Care ii-xix, 32-34 (2008).37
Mr. Beliveau’s treating psychiatrist is also “concerned that the Bureau of
Prisons lacks the capability to adequately treat him.” Letter from Dr. Fonte. Dr.
Fonte reviewed the BOP formulary specifically with respect to Mr. Beliveau’s needs.
He noted that the prison physician would likely discontinue several of the medications
that he is currently using because they fail to meet the guidelines for their use. Id. In
addition, he stated, “I am also concerned that the Bureau of Prisons does not have the
resources needed to provide the intensive individual and/or group therapy necessary to
treat his PTSD.” Id. Given Mr. Beliveau’s intense mental suffering, Dr. Fonte notes
37 available at www.justice.gov/oig/reports/BOP/a0808/final.pdf, last visited October
1, 2016.
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that “failure to adequately treat his job-related PTSD would be an unjust punishment.”
Id.
Finally, Mr. Beliveau’s sepsis is no routine matter, either. According to the
Centers for Disease Control and Prevention, between 1 and 3 million people in the
United States are diagnosed with sepsis each year, and between 15 and 30 percent of
those patients die. See Ashley Welch, Sepsis: Deadly infection is a “race against
time,” CBS News (Aug. 23, 2016). The CDC specifically emphasized that sepsis is
“a medical emergency,” and it often begins with a skin infection. See id. In Mr.
Beliveau’s case, his sepsis likely results from chronic Staphylococcus infections in the
internal mesh that was inserted into Mr. Beliveau’s groin area during cancer treatment.
If BOP fails to provide him with his penicillin for any substantial period of time, the
result could easily be fatal. See PSR ¶ 72 (“[BELIVEAU] must continue to take this
medication indefinitely, otherwise he is at risk for a recurrence which can lead to
sepsis and death.”) (citing letter from Mr. Beliveau’s internist, Dr. Heui Yoon, M.D.).
Indeed, Mr. Beliveau was told multiple times that he was lucky to be alive
when he was hospitalized in Singapore with septic shock. Because of Mr. Beliveau’s
complex medical problems, however, it is not simply a matter of providing penicillin.
If Mr. Beliveau does not receive the necessary mental health treatment, in addition to
the penicillin, his anxiety and OCD symptoms begin to manifest with physical effects.
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For example, in the past, Mr. Beliveau’s untreated mental health conditions caused
him to pick at his surgical scar to the point it oozed infection.
Mr. Beliveau’s severe health concerns necessitate not just adequate
treatment, but “the most effective” treatment. See 18 U.S.C. § 3553(a)(2)(D).
Mr. Beliveau needs both medication and therapy to treat his physical and
mental health conditions. In light of the Inspector General’s audit, and Dr.
Fonte’s review of BOP’s formulary, there is no reason to believe that the
Bureau of Prisons will provide “the most effective” treatment. Additionally,
imprisonment without “the most effective” treatment is likely to further damage
Mr. Beliveau’s health and shorten his life. It would be unjust and dangerous to
subject Mr. Beliveau to lengthy imprisonment in view of the likelihood that he
cannot receive effective treatment from the Bureau of Prisons. The Court
should take this into account when sentencing Mr. Beliveau.
vii. Mr. Beliveau’s character
Mr. Beliveau’s involvement in this scheme is truly an aberration from who he
truly is – an honorable, thoughtful man dedicated to a life of service. See Def.’s Ex. 4,
Letters in Support of Mr. Beliveau. Each member of his family wrote to the Court
detailing Mr. Beliveau’s commitment to his country and his dedication to his family.
See id. Mr. Beliveau’s sister wrote, “He has always had a heart for those in need.
Even in this difficult time in his life, he is thinking of others and how he could
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volunteer his time.” Id. She described Mr. Beliveau’s help to a local church
establishing a website, as well as his active involvement with his nieces and nephews.
See id. Mr. Beliveau’s aunt explained how he took care of his family when they
visited San Diego, and Mr. Beliveau’s twelve-year-old niece even wrote her own letter
on her uncle’s behalf. See id. Describing Mr. Beliveau’s compassion and dedication,
Mr. Beliveau’s brother-in-law wrote, “I’ve struggled to reconcile the John I know
personally with the one that recently pleaded guilty to these very serious charges.”
See id. His father, a state court judge, wrote, “As his father, it is most difficult to
write and plead his cause because it is so personal and emotional…. [A]lthough I love
[my son], I do not condone what he has done. Despite his recent actions, however,
John is a good man.” See id.
Mr. Beliveau made a terrible decision to engage in this conduct, however, since
that time, he has done everything he can to return to his life of honor. He accepted
responsibility for his conduct almost immediately. He was the first person to plead
guilty in this case. He did not engage in long, drawn-out exchanges with the
government, but instead came forward openly and honestly about his offense in the
presence of national media. This was challenging for Mr. Beliveau, who still becomes
physically sick when he thinks about his conduct. See Dr. Boggio Report at 10. He
wrote in his letter to the Court, “I have betrayed the badge I wore, the oath I took, my
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comrades, and the Department and service where I once served.” Letter from Mr.
Beliveau.
Mr. Beliveau is deeply remorseful and disappointed in himself. In an effort to
convey just a glimpse of his thoughts, Mr. Beliveau wrote to the Court, “I cannot
imagine the number of times defendants have stood before you and said, ‘I’m sorry’
and how you must discern the sincerity of those words.” Id. He explained, “I believe
today these words have become hollow and lack sincerity. It has lost its true meaning.
In many cultures, I have learned that these words and actions combined have deep
meaning. In Japan, there are almost eleven different ways to say I am sorry.” Id. He
wrote, “In this light, I ask for your forgiveness, forgiveness from my family, NCIS,
Department of the Navy, and the comrades I have let down and disappointed due to
my conduct.” Id.
Mr. Beliveau will continue to persevere in an effort to live honorably
once again. He repaid the entire $30,000.00 forfeiture – the amount he received
in this bribery scheme – even though it was a huge deduction from his
retirement savings. He agreed to be jointly and severally responsible for $20
million in restitution. He is actively engaged in community service and
volunteer work, and has started his own business in website and graphic design.
See Def.’s Ex. 4, Letter from Pastor Donald R. Belch, D.D.
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In the three years since his arrest Mr. Beliveau has worked tirelessly to
positively impact the lives of those around him, even while these charges loom
overhead. The letter from Mr. Beliveau’s sponsor exemplifies this. While
engaged in the recovery program, Mr. Beliveau’s sponsor introduced him to an
organization called “Just for Today” which focuses on helping veterans who are
recovering addicts and alcoholics. After the introduction, his sponsor wrote,
“John went to work essentially for free. Within months he became a key man
in helping the center’s founder stay focused and to establish a credible
operation.” See Def.’s Ex. 4, Letter from Stephen Rexford. Mr. Beliveau’s
sponsor noted that this achievement and his recovery were particularly
remarkable, stating “It is worthy to note that John has accomplished this
progress with his sentencing process looming in the near future. Given what I
know of his addictions and complex mental health issues it is remarkable that
he has stayed sober and become useful to his fellow man.” Id.
The executive director of the JTF Recovery and Veteran Support
Services explained this himself in a letter to probation. He wrote, “John has
been a tremendous asset and trusted advisor to this organization who has
completed hundreds of volunteer hours since our opening in November 2015.”
Def.’s Ex. 4, Letter from Steve Bamdt.
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In addition to the recovery organizations, Mr. Beliveau became involved
with his church following his arrest. The Pastor there wrote that he and Mr.
Beliveau meet regularly and throughout these past two years he has noticed a
significant improvement in his mental health with the help of counseling and
medication. He wrote, “Our Church Family has become very fond of John. He
has done much volunteer work for us including creating our first website, doing
some photograph, creating business forms, and business cards without monetary
compensation.”
Mr. Beliveau is diligent in treating his mental and physical health
problems through medication and therapy. He knows that addressing his health
concerns is critical to preventing any future lapses in judgment. Mr. Beliveau
lives each day as a new opportunity to repay his country for his wrongdoing.
In sum, Mr. Beliveau lived an honorable, law-abiding life of government
service until the instant offense in his late 40s. “This elementary principle of
weighing the good with the bad, which is basic to all the great religions, moral
philosophies, and systems of justice, was plainly part of what Congress had in mind
when it directed courts to consider, as a necessary sentencing factor, ‘the history and
characteristics of the defendant.’” Adelson, 441 F. Supp. 2d at 511; see also, United
States v. Howe, 543 F.3d 128 (3rd Cir. 2008) (variance based on “isolated mistake” in
otherwise long and entirely upstanding life); United States v. Hadash, 408 F.3d 1080,
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1084 (8th Cir. 2005) (defendant was a “law abiding citizen, who [did] an incredibly
dumb thing”); United States v. Davis, 2008 WL 2329290 (S.D.N.Y. June 5, 2008)
(defendant was a first offender who had worked throughout his 15-year marriage to
educate his six children and whose offense was prompted by economic pressures).
Mr. Beliveau’s offense is completely uncharacteristic when viewed in the
context of his entire life of service to his county. Further, once this case developed,
Mr. Beliveau didn’t sit idle and focus on himself and his desperate situation. Instead,
he immediately began his recovery process and service to his community. The lives
he has touched just in this short amount of time, and while struggling with this case
and his own health concerns, shows his true character. This Court should grant a
variance based on the aberrant nature of his conduct. As the court in Adelson, so
poignantly stated, “But, surely, if ever a man is to receive credit for the good he has
done, and his immediate misconduct assessed in the context of his overall life hitherto,
it should be at the moment of his sentencing, when his very future hangs in the
balance.” 441 F. Supp.2d at 511.
CONCLUSION
A sentence no greater than twelve months home confinement, and the
maximum term of supervised release is warranted in this case. Such a sentence is
sufficient, but not greater than necessary, to comply with the purposes enunciated by
Congress in 18 U.S.C. § 3553(a)(2, based on Mr. Beliveau’s background, his
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acceptance of responsibility, the flaws in the United States Sentencing Guidelines, the
need to avoid unwarranted sentencing disparities, Mr. Beliveau’s medical conditions,
the unique adversities he will face in the prison system, and the nonjudicial
consequences he will already face in perpetuity as a result of his offense.
Respectfully submitted,
JOHN BERTRAND BELIVEAU, Jr.
By Counsel
HARRIS & CARMICHAEL, PLLC
_/s/ Jessica N. Carmichael_____
Jessica N. Carmichael, Esq.
Virginia Bar No. 78339
Counsel for Defendant
1800 Diagonal Road, Suite 600
Alexandria, Virginia 22314
(703) 684-7908
jcarmichael@harriscarmichael.com
Case 3:13-cr-03781-JLS Document 178 Filed 10/05/16 Page 72 of 72

Outcome: Defendant was sentenced to 12 years in prison and ordered to pay $20 million in restitution.

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