Scinto government sentencing memo

8/7/2019 Scinto government sentencing memo

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UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA :::

v. : Case No.: 3:10cr207(CSH):::

ROBERT SCINTO : April 1, 2011

GOVERNMENTS SENTENCING MEMORANDUM

The United States submits this memorandum in connection with the sentencing of defendant

Robert Scinto scheduled for April 6, 2011 at 10:30 a.m. and in response to the sentencing

memorandum of Robert Scinto dated March 28, 2011 (hereafter Scinto Mem.). As set forth in this

memorandum, the United States requests that the Court reject defendant Scintos transparent attempt

to escape any meaningful punishment for his criminal conduct. Rather, the Government respectfully

requests that Scinto be sentenced to a term of imprisonment. A prison sentence is warranted under

either a Guidelines analysis or a non-Guidelines analysis. Such a sentence is also warranted under

the sentencing factors that the Court is required to consider pursuant to 18, United States Code,

Section 3553(a).

Sentencing Mr. Scinto to term of imprisonment is a fair and just sentence given his: (a) nine

year conduct in providing concealed benefits to Shelton public officials; and (b) deliberate effort to

knowingly lie and conceal his corrupt conduct when questioned by law enforcement during a public

corruption investigation. Therefore, the Government requests that the Court deny defendant Scintos

request for a non-custodial sentence. The imposition of a sentence that does not include a term of

imprisonment for this defendant would only serve to send the wrong message to the community -

-that a developer can pay off local government officials, then deliberately lie to federal agents about

these payments, and then offer to use his vast resources to buy his way out of a prison sentence.

Case 3:10-cr-00207-CSH Document 29 Filed 04/01/11 Page 1 of 27


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Preliminary Statement

As the Court is well aware from having reviewed the investigative report of the Probation

Office in this matter and having presided over the other public corruption matters involving

defendants from the City of Shelton, Connecticut, Robert Scinto was considered a hugely successful

Shelton real estate developer. Hidden beneath the surface, however, was a lengthy and corrupt

effort by Mr. Scinto to pay off Shelton public officials to ensure that Scintos development success

continued without local government objection or administrative interference. From 1999 through

2008, Scinto consistently provided items of value to an elected public official (identified as Public

Official # 1"), a Shelton building official (identified as Building Official # 1") and other City of

Shelton employees. These payments and benefits were provided for one reason - - as Scinto himself

candidly explained in a conversation that he did not know was being recorded, Scinto provided

these items of value so he could own the public officials. In the Governments view, such an

arrogant intent to corrupt the public processes of the town of Shelton is surely worthy of a prison

sentence. Any sentence short of a prison sentence sends the absolute wrong message - - that such

corrupt conduct will be condoned even where the defendant deliberately lies to law enforcement in

an effort to mislead the investigators.

A. Scintos Conduct was Long Standing and Consistently Corrupt.

Mr. Scintos conduct should be taken into account in fashioning an appropriate sentence. As

the Court is well aware, Scinto developed commercial and residential real estate projects in Shelton.

Like all developers in Shelton, Scinto was required to seek, and did routinely seek, approval from

public commissions and building officials in Shelton. From at least as early as in or about 1999

through in or about 2008,defendant Scintoprovided monetary benefits and items of value to Public

Official # 1, Building Official # 1 and other City of Shelton employees who worked in Shelton CityHall. These items included, but were not limited to, use of a vacation home for Public Official # 1,

providing home repairs to Public Official # 1 without charge, paying for a commercial service for

Public Official #1 (paving a commercial parking area owned by the public official), providing

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building materials to Building Official #1 and providing cash payments to Building Official #1 and

other City of Shelton employees.

During 2003, Mr. Scinto permitted Public Official #1 to take a weeks vacation at Scintos

multi-million dollar Aspen, Colorado home, free of charge. In the Governments view, Scinto

provided the vacation home in an attempt to curry favor with Public Official #1, to influence Public

Official #1to assist Scintos development projects and to discourage this elected official from

seeking to interfere with Scintos planned development projects in the future. At the time Public

Official # 1 used the vacation home, this Official did not pay Scinto anything for the use of the home.

Approximately six months later (December 2003), articles appeared in the press indicating that then

Connecticut Governor John Rowland had accepted benefits from contractors doing business with

the State of Connecticut. See Hartford Courant article dated December 13, 2003. One week later,

Public Official #1 met with Scinto and provided Scinto with a $500 cover your ass (cya) check1

dated December 20, 2003. The check indicated on the memo line Rental/Aspen. When Public

Official #1 gave Scinto the cya check, this Official asked Scinto to give him the $500 back in cash.

Rather than just simply ripping up the check or refusing to take the check, Scinto accepted the check

while giving Public Official #1 the $500 back in cash. All of this was done in the post-Rowland era

to conceal and disguise the fact that Scinto, a person doing extensive business in the City of Shelton,

had provided an elected official in that city with a significant benefit in the form of free use of an

Aspen vacation home.

By taking a cya check from Public Official #1 and then causing this check to be deposited

at the same time that Scinto was returning the funds to Public Official #1, Scinto was actively

working to conceal the truth - - that Scinto had provided a significant benefit to a Shelton elected

official. In an effort to create a false and misleading paper trail for anyone who would find this

The Court will no doubt recall testimony during the second James Botti trial about a cya check1

being used by a Shelton public official in or about December 2003 to create the false impression thatthe public official had paid for services rendered by developer James Botti to the public official.

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check (e.g. federal investigators), Scinto deposited the check to create the false impression that

Public Official #1 had in fact paid for the use of Scintos home and had not received a benefit from

a developer doing business in the City of Shelton. When Scinto deposited the check with the words

Rental/Aspen on the face of the check, Scinto corruptly participated in an effort to deceive

investigators. Not surprisingly, this check was later found by federal investigators during the course

of a federal corruption probe - - a probe that was seeking to determine whether developers like

Scinto had provided benefits to Shelton public officials.

When Scinto was interviewed in June 2008 by two FBI agents, Scinto continued in the effort

to conceal the truth. In fact, during the interview Scinto told the agents that Public Official #1 had2

provided a check to Scinto for the use of the Aspen home. Significantly, Scinto deliberately omitted

to tell the FBI agents that he (Scinto) had returned all $500 in cash to Public Official #1. Scintos

efforts to create a false impression with the FBI agents - - that Public Official #1 had in fact paid

something for the use of Scintos vacation home - - was part of a continuous effort by Scinto to

mislead the investigators during their public corruption investigation. Moreover, this effort by

Scinto was yet another indication that Scinto knew his conduct in providing benefits to Public

Official #1 was corrupt behavior.

In a tape recorded conversation made in July 2006, Scinto spoke of benefits provided by

himself and others to Public Official #1. To quote Scinto, who was referring to developer James

Botti, let's say he [Botti] does something for [Public Official #1], which f****** half the world

does for f******, you know, just to keep [Public Official #1] at bay for be it for no other reason.

How does that affect, you know, you know the other, quid quo pro, you know what that means? It's

As part of its joint investigation with the IRS, FBI agents were seeking to determine whether2

developers like Scinto were bribing and/or providing benefits to public officials in Shelton inexchange for the public officials assistance to the developers. The investigators suspected thatScinto was one of the developers who was providing benefits to Public Official #1 and other Cityofficials. The Government contends that Scinto made a number of false statements during the courseof his June 2008 interview. Some of the false statements, and why they were false, are detailed atlength in the PSR at 9-11.

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Latin, this for that. See Tape Recording July 21, 2006. The Government contends that Scintos

statement in this recorded conversation demonstrates that Scintos intent in providing benefits to

Public Official #1 was in part to keep [Public Official #1] at bay (e.g. prevent Public Official #1

from using the power of the Officials elected position to interfere with Scinto or his development

projects). When a developer like Scinto pays an elected official with the intent to cause the official

not to use the power of his office to the detriment of the developer, the developer is engaged in

corrupt behavior. Thus, this Court should not take seriously the current suggestion that [o]ne of

Mr. Scintos defining characteristics . . . is a strong desire to enhance the life of his community.

Scinto Mem. at 20. Quite simply, paying public officials in any community not to do their jobs or

providing these officials with benefits in an effort to own these officials is not likely to enhance

the life of any community. To the contrary, such conduct only serves to enhance the life (and bottom

line) of the developer.

Furthermore, during its investigation, the FBI and IRS determined that each year from 1999

to 2007, Scinto went to Shelton City Hall to hand out envelopes containing $100 bills to each

Shelton City Hall employee Scinto could locate. During his interview with the FBI, Scintodenied

that he ever provided anything beyond Christmas presents to Shelton City Officials and he repeatedly

denied that he had provided cash in envelopes to Shelton officials. Specifically, Scinto indicated that

he has "never" provided envelopes with cash to any City Official or staff employee at City Hall.

Scinto was asked again by the interviewing agents if he ever provided cash to any City employee and

Scinto said "no cash and no envelopes" to City employees. The truth of the matter is that Scinto did

provide:

(a) $500 in cash to Public Official #1 as described above;

(b) $100 in envelopes at Christmas time to Shelton City employees;(c) $2,500 in cash to Building Official #1 at the time the Building Official was inspecting a

Scinto project in May 2008 (one month before the FBI interview);

(d) two doors for the Building Official when that Building Official asked for two doors

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similar to the ones the Official was inspecting at a Scinto development site; and

(e) $100 to Building Official #1 and that officials predecessor each time the Building

Official or the predecessor would issue a certificate of occupancy for a Scinto development project.

Given that the FBI has determined that Building Official #1 had provided 49 certificates of

occupancies for a Scinto project from 2004 to June 18, 2008, Scintos statement that he never

provided anything beyond Christmas presents was clearly false.3

Furthermore, in 2004, Scinto obtained approval to build a 17 story tower in Shelton known

as Renaissance Towers. The approval was obtained from the Planning & Zoning Commission.

When Scinto learned that Public Official #1 was considering taking an appeal from the Planning and

Zoning Commissions approval in an effort to reduce the number of floors in the building, Scinto

became enraged. In the Governments view, Scintos anger was a function of the fact that prior to

2004, Scinto had provided Public Official #1 with the aforementioned items of value, and as a result,

Scinto had an expectation that Public Official #1 would never try to interfere with his development

projects. When he learned that Public Official #1 was trying to interfere - - an act Scinto believed

was a violation of the implicit agreement he had with Public Official #1 - - Scinto declared all out

f****** war. See Tape Recording July 26, 2004. Scinto was well aware that Public Official #14

had engaged in corrupt acts as Scinto was recorded saying about Public Official #1 I know more

things on this little f****** prick than you can shake a stick at . . . hes such a f****** prick; hes

probably one of the worst people Ive ever dealt with my whole life; I gotta get rid of [Public

Thus, even assuming that Scinto would have received a certificate of occupancy without his3

having conferred a $100 reward upon the Building Official, such an argument does not makeScintos conduct acceptable. See United States v. Alfisi, 308 F.3d 144, 150-51 (2d Cir.2002)(rejecting argument that paying money to an inspector to ensure that inspector inspected andreported accurately as per his legal duty was not bribery); United States v. Manton, 107 F.3d 834,845-46 (2d Cir. 1939)(The conspiracy here contemplated the payment of money to induce the judgeto exercise his judicial power in favor of the bribe-givers, without regard to the merits. If thedecisions finally rendered in pursuance of the conspiracy be legally sound the fact is immaterial).

Should the Court wish to listen to the tape recordings referenced in this memorandum, the4

Probation Office has been provided a copy.

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Official #1] in the worst f****** way;[Public Official #1]s gotta go; Ill make a f****** deal

with the next guy running that f****** write out any checks to his camp, I want this guy out of it.

See Tape Recording July 26, 2004. Scinto even threatened to send a letter to a local newspaper

detailing corrupt acts taken by Public Official #1. Subsequent to this recorded outburst, no appeal

was filed from the Planning & Zoning Commissions approval. Incredibly, years later during his FBI

interview, Scinto suggested to the FBI agents that he (Scinto) would be heartbroken if Public Official

#1 had done anything wrong. In short, this false statement about Scintos feelings about Public

Official #1 was yet another attempt by Scinto to shift the FBIs focus away from Scinto and his

relationship with Public Official #1.

Nor can there be any doubt of Scintos intent to provide benefits to public officials and City

of Shelton employees. While Scinto now professes the reason he knowingly lied to the FBI in 2008

was the truth would look bad, both for him and the officials (Scinto Mem. at 28), the truth of the

matter was that Scinto only cared about himself when he lied in an effort to conceal his own corrupt

behavior. Long before Scinto lied to the FBI in June 2008, Scinto made it very clear what he thought

about Shelton officials who came to Scinto with open palms. In 2004, when Scinto did not realize

he was being recorded, Scinto was recorded in a telephone conversation speaking with his

landscaper. After the landscaper told Scinto that a Shelton City official who was in the process of

inspecting a Scinto development wanted free shrubs from Scinto, Scinto was eager to please the

official who had yet to take official action on the inspection. When the landscaper told Scinto that

he (the landscaper) would have to bill Scinto for the shrubs to be taken to the Shelton official, Scinto

agreed to pay the landscaper for the benefit to be bestowed on the public official. As Scinto

explained, I love it when a f****** guy asks for something like that, then you own the f******

asshole. See Tape Recording dated October 22, 2004. Thus, Scintos current suggestion that heprovided items of value to public officials without wanting or expecting anything in return (Scinto

Mem. at 29) is no more credible than the statements he made to the FBI in June 2008. In short,

Scinto was willing to pay whatever it cost to own Shelton officials or to replace Shelton officials

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who dared to oppose Scintos interests.

Years before the FBI interviewed Scinto in June 2008, Scinto was aware of the FBIs public

corruption investigation. Scinto even reached out to Public Official #1 to alert the Official when

Scinto learned there was a federal investigation. See Call June 30, 2005. In a recorded conversation

in July 2005, Scinto explained that the key to dealing with any investigation is the absolute truth;

the only time you can get in any trouble is if you lie; A win is a win, if they [referring to the FBI]

nab you for lying or nab you getting $1 million, dont give them any wins, thats the secret here.

See Call July 1, 2005. In a show of false bravado, Scinto even predicted that if any federal

investigator asked him what he did for Public Official #1, Scinto suggested that he would say he did

things for the Official because he felt sorry for the guy. See Call July 1, 2005.

Despite his prediction that he would disclose all that he did for Public Official #1 if asked,

Scinto chose to provide false information to the FBI agents when finally questioned. Scinto was very

much aware that a public corruption investigation would not be a positive development for Scinto.

In a recorded conversation in June 2005 (shortly after Bridgeport Mayor Ganim was convicted of

federal corruption charges), Scinto explained that this f****** ball game here is so big [referring

to the development in Shelton] and everyone could do so well here, you know, its not like

Bridgeport where the pie is nothing there to f****** eat; They [referring to persons in Bridgeport]

are killing each other over crumbs. We got a f****** pie the size of a wedding cake, all right. And

we can all have a little piece and nobody is going to get hurt. See Call June 29, 2005. Mr. Scinto

lied because he wanted his self-described wedding cake without anyone namely Mr. Scinto -

getting hurt by a corruption investigation.

Indeed, Mr. Scinto decided to lie to the FBI in June 2008 to keep the true nature of his

ownership relationship with public officials from becoming known by the authorities and to preserve

his wedding cake. To borrow a phrase, ownership has its privileges. Shortly after Scinto was

interviewed by the FBI in June 2008, he was recorded speaking with a Planning & Zoning

commissioner in Shelton. The commissioner had earlier recused himself from voting on a Scinto

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maximum prison sentence of five years. The Probation Office has conducted a thorough

presentence investigation and compiled a detailed Presentence Report (PSR). The PSR concludes

that Mr. Scinto faces an advisory Guidelines sentencing range of 21 to 27 months and a criminal fine

range of $5,000 to $50,000. See PSR 70, 76.

Although the Sentencing Guidelines are no longer mandatory, the Guidelines must be

considered by the Court along with the other factors listed in 18 U.S.C. 3553(a). United States v.

Booker, 543 U.S. 220, 260-61 (2005); United States v. Crosby, 397 F.3d 103, 110 (2d Cir. 2005);

Gall v. United States, 552 U.S. 38, 50 n.6 (2007) (district courts must begin their analysis with the

Guidelines and remain cognizant of them throughout the sentencing process); see also id. at 46

(though the Guidelines are advisory rather than mandatory, they are, as we pointed out in Rita, the

product of careful study based on extensive empirical evidence derived from the review of thousands

of individual sentencing decisions) (footnote omitted);.see 18 U.S.C. 3553(a)(4) (Court shall

consider the sentence applicable under the Guidelines).

Mr. Scinto has disputed the calculation of the Guidelines in this matter. See Scinto Mem.

at2-11. In an effort to overcome the PSR Guidelines calculation, Scinto claims that the applicable

Guidelines range should be 0 to 6 months. In essence, Scinto contends that he should be eligible

under the Guidelines for a non-custodial sentence by suggesting that all he did was to make a single

false statement on a single occasion to federal agents and that there is no other criminal conduct

involved. Scinto suggests that the Information in this case does not establish that he engaged in any

other offense or criminal conduct. Thus, Scinto hopes to convince this Court that the Guidelines

analysis should not include, and the Court should not consider, the multiple items of value that

Scinto provided public officials over a nine year period, and the fact that he sought to hide such

conduct through acts of deception. In short, Scintos Guidelines analysis seeks to gloss over hismulti-year effort to pay off, and to buy the influence of, Shelton public officials.

As part of the sentencing process in this matter, the Court will need to resolve Scintos

objection to the PSR calculation of the Guidelines. The Government agrees with the Probation

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Officers decision to utilize the gratuity Guideline under U.S.S.G. 2C1.2 to calculate Scintos

advisory Guidelines range. See PSR 20-25. U.S.S.G. 2C1.2 is entitled Offering, Giving,

Soliciting, or Receiving a Gratuity. The Background to the section states: This section applies to

the offering, giving, soliciting, or receiving of a gratuity to a public official in respect to an official

act. A gratuity may consist merely of a reward for some future act that the public official will

take (and may already have determined to take), or for a past act that he has already taken. United

States v. Sun-Diamond Growers of CA., 526 U.S. 398, 405 (1999). Such acts can include any

decision or action on any question . . . which may by law be brought before any public official, in

such officials official capacity. Id. at 407.5

Here, the Information alleges that Mr. Scinto provided Building Official #1 cash when the

building official was issuing certificates of occupancy on Mr. Scintos development projects. There

is no doubt that the issuance of certificates of occupancy by a building official as an official act. Nor

is it problematic to construe a cash payment given by a developer to a building official at the time

the building official issues a certificate of occupancy for the developer is a reward. Mr.

Scintos lies to FBI agents were specifically intended to cover up the rewards, and his punishment

should so reflect. That the rewards to public officials should be construed as gratuities is based on

the facts that: (1) Scinto was a developer in Shelton who was providing payments to Shelton public

officials who had authority or influence to affect the success of Scintos projects; (2) Scinto made

an effort to hide these payments by using cash (e.g. providing a $500 reimbursement in cash to

Public Official #1 to pay the Official back after the Official wrote a cya check in the post-Rowland

environment; e.g. Scinto gave Building Official #1 the $2,500 loan in cash without any

Subcommittee No. 5 of the House Judiciary Committee explained, the purpose underlying the5

gratuity statute is to rectify the fact that the bribery statute does not criminalize gifts provided topublic officials for official acts that would have been performed in any event. Charles B. Klein,What exactly is an unlawful gratuity after United States v. Sun-Diamond Growers? 68 Geo. Wash.L. Rev. 116, 127 (1999). This means that payment or receipt of anything of value in appreciationof, or as a reward for an official act would be outlawed irrespective of any intent to influence orinduce, or to be influenced thereby. Id. at 126.

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documentation, repayment schedule or interest terms; (3) Scinto made an effort to hide the fact of

his payments to public officials by lying to the FBI about the payments and affirmatively misleading

the agents about the nature of these payments; and (4) Scinto admitted on tape that he makes

payments to, and provides benefits for, public officials because then you own the f******

asshole.

Equally certain is that Public Official #1 and Building Official #1 fit within the gratuity

guidelines gambit. U.S.S.G 2C1.2 Application Note 1 defines the term public official as being

construed broadly and including:

(A) Public Official as defined in 18 U.S.C. 201(a)(1).(B) A member of a state or local legislature(C) An officer or employee or person acting for or on behalf of a state or

local government, or any department, agency, or branch of government thereof,in any official function, under or by authority of such department, agency, orbranch of government or a juror. . . .(E) An individual who, although not otherwise covered by subdivisions (A)through (D): (I) is in a position of public trust with official responsibility for carryingout a government program or policy; (ii) acts under color of law or official right . .

The Information describes Building Official #1 as a City of Shelton official who has the authority

to issu[e] certificates of occupancy, certificates that are valuable. Certainly, Building Official #1,

as charged in the Information to which Mr. Scinto pleaded guilty, fits within the definitions of

public official associated with U.S.S.G. 2C1.2.

While the Government believes that the Probation Officers decision to use U.S.S.G 2C1.2

is correct, the Government requests that the Court impose the same custodial sentence upon Mr.

Scinto no matter how the Court resolves the PSR objection raised by the defense. Hence, whether

the cross-reference provision of U.S.S.G. 2B1.1(c)(3) is technically applicable or not, the Court

may, and should, use the wisdom of the gratuity Guideline established in U.S.S.G. 2C1.2 to

calculate an appropriate and just sentence for Mr. Scinto. Hence, should the Court disagree with theposition advocated by the Probation Office, and joined by the Government, that the cross-reference

provision of U.S.S.G. 2B1.1(c)(3) does apply, the Government seeks to rely upon U.S.S.G.

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2B1.1 Application Note 19 to support an upward departure from the Guidelines of Mr. Scintos6

sentence. Even assuming arguendo, that Mr. Scinto does not technically fit within the gratuity

Guidelines because the Information in this case did not allege the multiple $100 payments to a

building official to which Mr. Scinto has admitted he gave over a nine year period (See United States

v. Genao, 347 F.3d 578, 583-84 (2d Cir. 2003)(cross-reference in U.S.S.G. 2B1.1(c)(3) is

applicable only if the elements of another offense are established by conduct set forth in the count

of conviction (and proven by at least a preponderance of evidence))(see also 18 U.S.C.

666(a)(1)(B)(2)(requiring $5,000 threshold for corrupt payments to a state official), the gratuities

Guidelines serve as a good starting point for a sentencing analysis under 18 U.S.C. 3553(a). See

Gall, 552 U.S. at 50 n.6 (district courts must begin their analysis with the Guidelines and remain

cognizant of them throughout the sentencing process). Our Circuits decision in United States v.

Genao, 343 F.3d 578, 586-87 (2d Cir. 2003), allows the Court to use Mr. Scintos repeated conduct

in providing benefits to Shelton public officials which was the basis and reason for his false

statement, rather than just the language of the charging document alone, to arrive at a fair and just

sentence. Therefore, the Government intends to request the same prison sentence be imposed upon

Mr. Scinto no matter how the Court resolves the PSR objection because it is Mr. Scintos conduct

that should control his ultimate sentence.

Significantly, while Scintos Guideline analysis at page 2 of his sentencing submission

suggests that the loss amount under U.S.S.G. 2B1.1 would be only $10,000 to $30,000 (the

amount of the benefits provided), the concept of loss is not limited to the amount of funds

involved. See, e.g., United States v. Lopreato, 83 F.3d 571, 576 (2d Cir. 1996)(the Guidelines

plainly and specifically assign punishment at a level higher than that which correlates to the amount

of the bribe received, if the benefit to the bribe payer is greater than the bribe). For example, an

Application Note 19 provides that [t]here may be cases in which the offense level determined6

under this guideline substantially understates the seriousness of the offense. In such cases, anupward departure may be warranted.

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alternative form of loss is the gain to a defendant. If Scinto willingly paid up to $30,000 in

benefits to public officials, surely it was worth more than that to Scinto and his business. Moreover,

the damage caused to the integrity of the public process when a developer pays off public officials

is incalculable. The flaw in using U.S.S.G. 2B1.1 alone without the cross-reference to calculate

the Guidelines is that nothing in U.S.S.G. 2B1.1 accounts for the greater damage caused by

multiple payments to public officials (2C1.2(b)(1) provides for a 2 level enhancement for multiple

payments) or the fact that one of the officials who received items of value from Scinto was an elected

official (2C1.2(b)(3)) provides for a 4 level enhancement when an elected official is involved). If

these two enhancements were used to depart upward from Scintos own Guideline assessment, an

additional 6 levels would be added. Hence, rather than being a level 10, Scintos offense level should

be upwardly departed to a level 16. After adjustment for acceptance of responsibility, Scintos total

offense level would be level 13 providing for a Guidelines sentencing range of 12 to 18 months, not

the 0 to 6 months that Scinto has suggested.

C. The Section 3553 Factors Should Guide the Courts Sentencing Decision toImpose A Prison Sentence in this Case.

Title 18, United States Code, Section 3553(a) provides, in pertinent part, that:

(a) Factors to be considered in imposing a sentence.--The court shall impose a

sentence sufficient, but not greater than necessary, to comply with the purposes setforth in paragraph (2) of this subsection. The court, in determining the particularsentence to be imposed, shall consider--(1) the nature and circumstances of the offense and the history andcharacteristics of the defendant;(2) the need for the sentence imposed

(A) to reflect the seriousness of the offense, to promote respect for thelaw, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;(C) to protect the public from further crimes of the defendant; and(D) to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the mosteffective manner;

***(4) the kind of sentence and sentencing range established for (A) the applicablecategory of offense committed by the applicable category of defendant as set forth inthe guidelines

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***(6) the need to avoid unwarranted sentence disparities among defendantswith similar records who have been found guilty of similar conduct.

1. The Nature and Circumstances of the Offense.

Mr. Scintos conduct in lying to federal agents about his own corrupt behavior and the

conduct of Shelton public officials is a serious offense. Indeed, the defendants false statements to

the FBI agents were merely the culmination of a string of deceptive and corrupt acts taken by

defendant Scinto over the course of many years to conceal corrupt conduct from the FBI agents who

were trying to ferret out corruption in Shelton. There is something truly ironic about Scinto

proclaiming a love of community when there can be no doubt that he sought to deliberately interfere

with federal investigators efforts to expose corruption in the Shelton community. As this Court has

recognized in early sentencing proceedings, public corruption is a form of cancer that can seriously

damage a community by undermining public confidence in the workings of government. Sadly,

Scinto sought to prevent federal investigators from discovering and seeking to cure the corruption

taking place in Shelton.

Additionally, whether Scintos development projects were worthy of passing inspection

without his decision to grease the wheels by paying off building inspectors and local officials,

Scintos conduct in making these payments, and then concealing the truth from investigators, is

troubling. Cf. United States v. Ganim, 2006 U.S. Dist. LEXIS 26569, at *15-16 (D. Ct. May 5,

2006)(Government corruption breeds cynicism and mistrust of public officials). Even if there is

foundation for the belief that no corners were cut in the issuance of certificates of occupancy in spite

of the monies and supplies doled out by defendant Scinto, citizens of Shelton and elsewhere need

to believe that their local developers and local governments are not in bed together in a cesspool of

corruption, see United States v. Friedman, 854 F.2d 535, 541 (2d Cir. 1988), where only the bribe

payers succeed and the honest businessmen who refuse to pay to play are precluded from achieving

any financial success.

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2. History and Characteristics of Scinto.

What is perhaps most troubling about Mr. Scintos lies to the FBI is that they were plainly

a calculated effort on his part. After all, the taperecorded conversations reveal that before the FBI

questioned him, Mr. Scinto: (1) believed that opportunities to develop property in Shelton were the

size of a wedding cake; (2) believed he owned the public officials to whom he provided

benefits; (3) understood the meaning of quid pro quo; (4) knew that there was an FBI investigation

of corruption related to developers and public officials in Shelton; and (5) understood that he had

an obligation to tell the FBI the truth if questioned. Nonetheless he chose to lie to the FBI, a clear

indication that he knew that his conduct was illegal. See, e.g., United States v. Blackley, 167 F.3d

543, 548 (D.C. Cir. 1999) ([C]oncealment of such receipts . . . tend not only to prevent discovery

of underlying crimes such as receipts of bribes or gratuities, but also to reflect the perpetrators

consciousness of guilt in those receipts). Indeed, even Mr. Scinto admits that he made a calculated

and knowing decision to lie to the FBI to steer them away from investigating his conduct. See

Defendants Sentencing Memorandum at 28 (Mr. Scinto knew . . . it was wrong to lie to the agents.

He feared correctly that it would look bad both for him and the officials, if it came out that he

had provided those gifts). It is precisely this cold cost-benefit analysis that needs to be turned on

its head. Persons in Mr. Scintos position of wealth and power have to realize that lying to the FBI,

or any government agency, is very costly. See United States v. Stein, 2010 WL 678122, at *3

(E.D.N.Y., Feb. 25, 2010), (Persons who commit white-collar crimes like defendant's are capable

of calculating the costs and benefits of their illegal activities relative to the severity of the

punishments that may be imposed. A serious sentence is required to discourage such crimes);

United States v. Livesay, 587 F.3d 1274, 1279 (11th Cir. 2009) (financial crimes are prime

candidate[s] for general deterrence) (quotation omitted).Mr. Scinto also points to his considerable charitable giving as reason to excuse his conduct

or to depart downward or for a non-Guidelines sentence. Sadly, Mr. Scinto misses the point. As

Judge Marrero recently observed:

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[W]hite collar offenders, because of their greater wealth and leadership in thecommunity, enjoy much greater opportunities to participate and rise to prominencein charitable activities, and also possess the means to contribute resources with largergenerosity to community service organizations. These social and economicadvantages could enable them to gain a substantial edge over blue collar offenderswho cannot make claim to comparable means and opportunities with which to

mitigate the full impact of a heavy sentence.

United States v. Fishman, 631 F. Supp.2d 399, 403 (S.D.N.Y. 2009). To be sure, Mr. Scinto

eloquently outlines his Contribution to Community Life (Scinto Mem. at 20-23) , his Support for7

the Disabled (Scinto Mem. at 23-24), his Faith and Support Of The Church (Scinto Mem. at 24-

25), and his Loyalty (Scinto Mem. at 25-26) to cast himself as an upright citizen who once went

astray. See Fishman, 631 F. Supp.2d at 402. But, as Judge Marrero recognized when a wealthy

lawyer sought to portray himself as a paragon of virtue, [i]t is precisely the defendants mantle of

integrity and benevolence that serves as cover for an invidious end, enabling him to move about his

game undetected . . . . it is the widespread recognition in the community that the defendant enjoys

for strong character, integrity, sound values and good public deeds that facilitates his hidden life of

crime. Id.

3. The Sentence Must Promote Respect for the Law.

The sentence in this case must reflect the seriousness of the offense and the conduct

committed by Mr. Scinto, and provide a message of deterrence to all citizens that making false

statements to federal investigators will not to be tolerated. A sentence that does not include a term

of imprisonment for Mr. Scintos conduct will not promote respect for the law. On the contrary,

developers such as Mr. Scinto will continue to weigh their cost-benefit analysis in favor of lying over

honesty. Those shut out from the system because they refuse to pay-to-play will lose and those

willing either to appease or to feed the cancer of corruption will win out. Simply put, a non-custodial

In his Contribution to Community Life section, Mr. Scinto is lavished with praise for his work7

with the Bridgeport Downtown Cabaret Theatre (Scinto Mem. at 20-22). Curiously, the section failsto advise the Court how, on at least one occasion, Mr. Scinto provided tickets gratis to the CabaretTheatre to Shelton and other local-area town officials. That Mr. Scinto used his communitycontribution as yet another way to funnel benefits not available to the general public to Shelton cityofficials calls into question Mr. Scintos purpose in funding such community endeavors.

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sentence will undermine respect for the law by suggesting that affluent white collar criminals can

get away with their criminal conduct.

4. The Court Should Consider General Deterrence.

One of the factors the Court must consider in imposing sentence is the need for the sentence

to afford adequate deterrence to criminal conduct. 18 U.S.C. 3553(a)(2)(B). The Government

requests that the sentence imposed on defendant Scinto satisfy the goal of general deterrence in this

case. The message must be sent to all developers and other businessmen doing business with local

government officials, that it is not appropriate to pay off local officials in an effort to own them; it

is not appropriate to lie to FBI agents about such payments. A prison sentence in this case will send

an appropriate and understandable message.

Mr. Scinto suggests that rather than give him a prison sentence, this Court should permit him

to avoid prison so that he (Scinto) can be free to deliver the message to others through his suggested

community service project. Scinto Mem. at 33-35. Using his vast resources, Scinto suggests that he

is in the best position to spread the word about the evils of paying off local government officials.

While the United States certainly agrees with Mr. Scinto that a message must be sent, the

Government respectfully requests that the Court, rather than Mr. Scinto, be the one to deliver that

message. The Government requests that the Court send the message of general deterrence in the

manner that can be best understood by the public. By sending Mr. Scinto to jail for his corrupt

conduct and his efforts to conceal this conduct by lying to federal agents, the public will understand

the message - - that Mr. Scintos conduct is not acceptable and will not be excused merely because

he has resources. If Mr. Scinto is not sentenced to a period of incarceration for his conduct, the only

message that the public will hear and understand is that a developer canavoid prison despite the fact

that he spent nine years paying off local officials and then lied about the conduct to federal agentsso long as the developer uses his vast resources to fund a community service project. Quite simply,

that is not the message of general deterrence that Congress had in mind in drafting Title 18, United

States Code, Section 3553(a).

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Finally, in the Governments view, Mr. Scinto should not be the one chosen by this Court to

ever speak about the ethics of local government officials. Significantly, even after Scinto lied to the

federal agents in June 2008, he showed his complete disdain for open and transparent government

by instructing a member of the Planning & Zoning Commission who was working for Scinto to not

recuse himself from voting on Scinto projects because Scinto needed his vote. Scinto explained to

this public official that the officials decision to recuse himself due to ethical concerns (voting on

a developers project when looking for future work from the developer) makes everyone else look

bad. If that was Scintos thinking a couple of months after learning of the FBIs efforts to stem

corruption in Shelton, and a couple of months after lying to these agents to hide his own corrupt

conduct, Scinto simply does not have the necessary ethical or moral fiber to speak to others about

the subject of ethics. Hence, the Government strongly urges the Court not to grant Scinto a sentence

that includes a community service speaking tour on the subject of ethics.

5. The Court Should Consider the Sentences Imposed on Others.

Like many defendants facing a potential prison sentence, Scinto demands that the Court

consider his unique circumstances to give him a non-custodial sentence. At the same time, however,

Scinto seeks to rely on meaningless statistical charts of sentences imposed in other cases where no

explanation of those other cases is provided. Scinto Mem. at 35-37, Appendix A. Moreover, while

Scinto asks the Court to avoid the imposition of a disparate sentence, he conveniently makes no

mention of the sentences this Court has imposed on defendants Elliot Wilson and James Botti.

While the Government certainly believes James Botti deserved a longer prison sentence than

defendant Scinto, the same is not true as it pertains to defendant Wilson. Having already determined

that the conduct of Mr. Wilson in accepting payments from developers in Shelton and then lying

about such conduct was worthy of a prison sentence, this Court should impose a jail sentence for Mr.

Scinto that is at least as long as the jail sentence imposed on Mr. Wilson. Such a comparable

sentence will promote one of the objectives of section 3553(a) by avoiding a sentencing disparity

between Wilson and Scinto.

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D. No Downward Departure is Warranted for Charitable Works.

Scinto spends far more of his sentencing submission discussing his so called good deeds than

explaining why he lied to federal investigators or why he repeatedly gave public officials concealed

benefits. Scinto. Mem. at 15-28. Nothing he offers, however, as a good deed or as a charitable

contribution comes even remotely close to being considered extraordinary. Moreover, because

such a departure must be considered in the context of the criminal behavior committed by the

defendant, Scinto is not entitled to such a departure. See, e.g., United States v. Thurston, 358 F.3d

51, 79 (1st Cir. 2004) (Court should consider nature of the offense when evaluating whether a good

deeds departure is appropriate) .

Scinto cites acts of kindness to family, friends, tenants, the disabled and church attendees as

well as joining professional boards in support of his request for extreme leniency. All of these acts,

while perhaps admirable, are not extraordinary. Indeed, showing kindness to families and friends

is to be expected. Furthermore, many businessmen in the real estate business engage in the same

type of activities cited by Scinto. Quite simply, there is nothing even remotely exceptional about

Scintos civic contributions. Nor is there anything exceptional about his contributions to charities.

The PSR indicates that Scinto has an extraordinary large net worth. PSR 64. Nowhere in his

sentencing submission does Scinto indicate what percentage of his net worth or his multi-million

dollar income was contributed to charities. Nor does his submission indicate whether he, or the

company R.D. Scinto, made the contributions, or whether the expenses were done for promotional

or tax purposes. In the absence of such information, it is not possible to conclude that Scintos

contributions to charity, even assuming they were his own (and not corporate contributions), are

extraordinary. Cf. United States v. Thurston, 358 F.3d at 79 (reversing the district courts decision

to depart downward; the defendants tithing of 10% of his income to his church, devoting hours eachweek to his church, and opening his home to the parents of a woman undergoing medical attention

were not sufficiently extraordinary).

The Guidelines state that civic, charitable, or public service; employment-related

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contributions; and similar prior good works are not ordinarily relevant in determining whether a

departure is warranted. U.S.S.G. 5H1.11; see United States v. Rioux, 97 F.3d 648, 663 (2d Cir.

1996). Scintos civic, charitable, and employment-related good works are therefore, a discouraged

basis for downward departure. Where the ground for a requested departure is discouraged, the

Supreme Court has directed that the court should depart only if the factor is present to an

exceptional degree or in some other way makes the case different from the ordinary case where the

factor is present. Koon v. United States, 518 U.S. 81, 96 (1996). Scinto has not demonstrated, and

cannot demonstrate, that any of the factors upon which he relies is present in an unusual or

exceptional way.

Departures based on good deeds require very unusual circumstances. Although the Second

Circuit has upheld a downward departure involving charitable efforts, it has never upheld a

departure on that basis alone. See United States v. Rioux, 97 F.3d at 663 (affirming a departure based

on a combination of the defendants medical condition and good works); but see United States v.

Acevedo, 229 F.3d 350, 356 (2d Cir. 2000) (declining to review the denial of a downward departure

request to a defendant who prevented the suicide of another inmate; the district court found that the

defendants action was a good work falling within U.S.S.G. 5H1.11, and as such was not

relevant to determining whether a departure was warranted, and even assuming it was relevant, his

act was not so exceptional as to warrant a departure from the heartland situations covered by the

Guidelines).

The Courts of Appeals have reversed as an abuse of discretion departures predicated on

service to the public that was more compelling than what Scinto has offered here. See United States

v. Winters, 105 F.3d 200, 209 (5th Cir. 1997) (reversing a downward departure based on the

defendants distinguished military service, during which he was twice wounded in combat andawarded two Purple Heart medals); United States v. Rybicki, 96 F.3d 754, 758-59 (4th Cir. 1996)

(reversing a departure based on the national service of a highly decorated Vietnam War veteran

who had saved a civilians life during the My Lai incident and had an unblemished record of 20 years

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of service to his country, both in the military and in the Secret Service).

In general, white-collar criminals enjoy sufficient income and community status so that they

have the opportunities to engage in charitable and benevolent activities. United States v. Haversat,

22 F.3d 790, 796 (8th Cir. 1994). [W]e expect the district courts to view such evidence with the

skepticism of experience in sentencing executives who commit white-collar offenses. Id. There

is nothing truly exceptional in contemporary American society for the well-to-do to donate money

or time to charitable causes. As one court has explained:

On the subject of Morkens service to his community, the letters [received by thedistrict court at sentencing] document a commendable record. In addition to beingan accommodating neighbor and a good friend, Morken advised local businessowners, hired young people, served on his church council, and raised money forcharity . . . . Although laudable, Morkens record of good works is neither

exceptional nor out of the ordinary for someone of his income and preeminence ina small Minnesota town with a population barely over a thousand.

United States v. Morken, 133 F.3d 628, 630 (8th Cir. 1998); see also United States v. Millar, 79 F.3d

338, 345 (2d Cir. 1996) (refusing to review the district courts decision not to depart based upon the

defendant priests charitable works and public service, where the district court recognized its

authority to depart; the defendant had benefits that few defendants have, including education,

respect in his work, skills of advocacy, intelligence, and the calling to serve as a priest); Haversat,

22 F.3d at 796 (We conclude that Haversats charitable and volunteer activities, while considerable,

do not make him an atypical defendant in antitrust price-fixing cases); United States v. Jordan, 130

F.Supp.2d 665, 672-73 (E.D. Pa. 2001) (denying a departure for a defendant convicted of money

laundering, despite numerous letters detailing substantial charitable contributions, generosity to

community members in need of food, and service as mentor for neighborhood youths; these acts,

while commendable, are not so exceptional or extraordinary for a person like the defendant who

owned a small business); United States v. Scheiner, 873 F.Supp. 927, 933-35 (E.D. Pa. 1995)

(departure was not warranted for a doctor convicted of conspiring to defraud an insurance company,

despite his contributions to the young and poor minorities, including financial sponsorship of several

basketball teams, serving on several community boards, working in a podiatry clinic where free

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services were provided to the poor, and generally [having] served as a source of support and

inspiration to many; defendants charitable activities, while considerable and commendable,

were not extraordinary in the context of (a) defendants background, (b) the effect a departure would

have on others in his professional community, (c) the absence of mitigating financial circumstances,

(d) the four-year duration of defendants crimes, and (e) the fact that defendants criminal conduct

continued until detection became inevitable); see generally United States v. DeMasi, 40 F.3d 1306,

1324 (1st Cir. 1994) (the sentencing court should compare the defendant to other defendants with

community service backgrounds, not just to other bank robbers, to determine if defendants record

of civic involvement stands out from the crowd).

These decisions are grounded in the recognition that individuals with sufficient stature,

ability and opportunity to earn huge incomes such as defendant Scinto are commonly involved in

community service and charitable endeavors, and such activities do not remove the defendant from

the contemplated heartland of defendants charged with white-collar offenses. Indeed, it is widely

recognized that the [Sentencing] Commission intended its guidelines and policy statements to

equalize punishments for white collar and blue collar crime, and courts have endeavored to

implement that intention in sentencing. United States v. Thurston, 358 F.3d at 80 (reversing the

district courts downward departure where the white-collar defendants good works, although

admirable, were insufficient to qualify as exceptional in light of, among other things, his status as

a prominent corporate executive with the means to make financial contributions and engage in civic

and charitable activities), vacated on other grounds, 125 S. Ct. 984 (2005); see also United States

v. Wright, 363 F.3d 237, 248-49 (3d Cir. 2004) (upholding the district courts denial of a downward

departure where the defendant ministers good works, although profound, substantial, and

sustained, were not so extraordinary as to justify a downward departure).

However much Scinto has used his position to help his tenants, family and friends, it falls

far short of being so extraordinary as to justify a downward departure - - given that he also spent nine

years providing benefits to public officials and then deliberately lied to federal agents who were

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trying to ferret out corruption in Shelton. Based on the record to date, Scintos overall history does

not demonstrate that he has provided truly exceptional service to the community or has made any

exceptionally difficult personal sacrifices by comparison to those made daily by other persons far

less fortunate than Scinto. It is not possible to judge whether Mr. Scintos motivation for being

charitable were based on his religious beliefs, part of a tax or business strategy, or whether his

reasons were cynically based as part of a cost-benefit analysis to have a get out of jail free card

should his corrupt activities ever be uncovered. No matter what his motivation, Mr. Scintos8

charitable contributions in no way mitigate his multi-year conduct in seeking to own public

officials in Shelton and covering it up with lies to federal agents.

That many of Scintos family, friends and clients (and others he gave money to) think highly

of him as a person and as a developer does not distinguish him from most other white-collar

criminals. See United States v. McClatchey, 316 F.3d 1122, 1135 (10th Cir. 2003) (excellent

character references are not out of the ordinary for an executive who commits white-collar crime;

one would be surprised to see a person rise to an elevated position in business if people did not think

highly of him or her). The case law is rife with convicted felons who, other than their criminal

conduct, appear to be compassionate and praiseworthy people. The Sentencing Guidelines do not,

however, authorize a downward departure merely because a defendant has shown kindness, even

considerable kindness, to others or because he has had an otherwise successful career as a developer.

As to Scintos implicit suggestion that other than his nine year effort to own public officials and his

2008 lies to FBI agents, he has lived an exemplary life, the Guidelines already take this fact into

account by according him a Criminal History Category of I.

Therefore, any suggestion that Scintos life of good deeds or charitable contributions merits

[C]ases arise in which a defendant commits serious crimes and then begs for leniency under8

circumstances such as those presented here, and thus uses his good name and good works againat least to some degree as both sword and shield, the mask of piety he wears is but the face thatpreviously disarmed his victims, and his front of charity merely the human shield he raises to seekimmunity or dramatic mitigation of punishment when he is caught. Fishman, 631 F. Supp.2d at402.

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a departure should be rejected. In short, no defendant, least of all Scinto, should be permitted to

claim to have provided exceptional and extraordinary service to his community when engaging in

the type of corrupt conduct that involves giving benefits to public officials and then lying to agents

seeking to ferret out that very same corruption.

E. No Downward Departure is Appropriate Due to the Impact on Scintos Business.

Scinto also seeks to place the Court in an untenable position by suggesting that if Scinto goes

to jail, his innocent employees and a host of subcontractors and vendors will lose their jobs (Scinto

Mem. at 38-39). This type of argument should be rejected as a basis for Mr. Scinto to avoid a just

sentence. Even assuming arguendo that Scinto could point to specific innocent employees,

subcontractors, or vendors in his business who would be harmed by his absence, [t]he mere fact a

business faces likely failure and innocent others will ... be disadvantaged when its key person goes

to jail is not by itself unusual enough to warrant a departure. United States v. Morken, 133 F.3d 628,

630 (8th Cir. 1998) (quoting United States v. Olbres, 99 F.3d 28, 36 (1st Cir.1996)); see also United

States v. Sharapan, 13 F.3d 781, 784-85 (3d Cir.1994); United States v. Rutana, 932 F.2d 1155,

1158 (6th Cir.1991); cf. United States v. Milikowsky, 65 F.3d 4, 9 (2d Cir. 1995) (business

ownership alone, or even ownership of a vulnerable small business, does not make downward

departure appropriate but Court affirmed downward departure because of the almost guaranteed

loss of employment for more than 150 to 200 employees).

Moreover, given the facts of this case, such a departure would be inappropriate. During the

course of its investigation, the federal investigators learned that one of Scintos most senior

employees repeatedly advised Scinto not to make payments to Shelton officials. The senior

executive understandably was concerned that such payments could affect the business where both

the executive and Scinto worked. Mr. Scinto rejected that sage advice. Given that Scinto was

repeatedly warned not to provide these payments, it is rather disingenuous for Scinto to now

complain that his business will be affected if he is sent to prison. In short, Scinto should have

thought about this problem during the nine years he was paying off Shelton officials against the

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advice of his own executive. Cf. United States v. Shoher, 1984 U.S. Dist. LEXIS 2432 at *3

(S.D.N.Y. 1984)([e]very individual who deliberately [commits] criminal acts for personal gain must

be taken to understand that, by so acting, he places his familys future happiness at risk; and if he

is caught, their future will be forfeit) (Haight, J.).

CONCLUSION

For the foregoing reasons, the Government submits that the Court should sentence defendant

Robert Scinto to a term of imprisonment.

Respectfully submitted,

MICHAEL GUSTAFSON

ACTING UNITED STATES ATTORNEY/s/

RICHARD J. SCHECHTERSENIOR LITIGATION COUNSELUnited States Attorneys Office1000 Lafayette BoulevardBridgeport, Connecticut 06604(203)696-3000Federal Bar No. CT24238/s/

RAHUL KALE

ASSISTANT U.S. ATTORNEYUnited States Attorneys Office1000 Lafayette BoulevardBridgeport, Connecticut 06604(203)696-3000Federal Bar No. phv0256

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CERTIFICATION OF SERVICE

I hereby certify that on April 1, 2011, a copy of the foregoing was filed electronically, byfacsimile and served by mail on anyone unable to accept electronic filing. Notice of this filing willbe sent by e-mail to all parties by operation of the Courts electronic filing system or by mail toanyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may

access this filing through the Courts CM/ECF System.

____/s/_______________________________Rahul Kale

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Scinto government sentencing memo

Documents

Transcript of Scinto government sentencing memo