Steve Mandell Sentencing Memo

8/10/2019 Steve Mandell Sentencing Memo

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First, at page 20, paragraph 89, Other Criminal Conduct, the PSR states that the

government intercepted mail written by the defendant that included threats to physically harm

George Michael[.] The paragraph further states that the defendant allegedly tried to solicit help

from a gang member in his plan to murder Michael. The government chose not to provide further

information about these allegations. (PSR at 20, par. 89).

Paragraph 89 should be stricken from the PSR entirely. First, the contents of the mail the

government intercepted which are not provided and are not otherwise identified in any manner

cannot reasonably be interpreted to include threats to physically harm Michael. Second, the alleged

solicitation of a gang member to murder Michael is unsubstantiated. Third, the fact that the

government is unwilling to provide further information about these allegations is telling, and the

government cannot be permitted to rely on unfounded allegations in support of the purported Other

Criminal Conduct.

It must be noted that the defense requested from the government the underlying materials

including discovery relating to any purported threats and solicitations the government submitted

to its Attorney General in support of its request for implementation of the Special Administrative

Measures (SAMs). The government flatly refused to provided any such information and

documentation. Consequently, Mandell is unable to effectively challenge the governments

allegations given the governments creation of a straw man and its subsequent refusal to tender any

discovery in support. These governmental actions operate to violate Mandells due process rights

under the fifth amendment as well as his notice, confrontation and effective assistance of counsel

rights under the sixth amendment. U.S. Const. amend. V, amend. VI.

Case: 1:12-cr-00842 Document #: 267 Filed: 11/13/14 Page 2 of 25 PageID #:1767


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Further, while the Court may consider any information in the sentencing context, the

information must have a sufficient indicia of reliability to support its probable accuracy. USSG

6A1.3(a); United States v. Watts, 519 U.S. 148, 157 (1997); United States v. Taylor, 72 F.3d 533,

543 (7 Cir. 1995). Sentencing determinations must be based on accurate, reliable, and trustworthyth

information. United States v. Henderson, 58 F.3d 1145, 1152 (7 Cir. 1995). The insistence onth

reliability is based, in part, on the due process concern that a defendant be sentenced on the basis of

accurate information. United States v. Campbell, 985 F.2d 341, 348 (7 Cir. 1993). Corroborationth

is a step toward establishing reliability. United States v. Linnear, 40 F.3d 215, 219 (7 Cir. 1994).th

The applicable legal principles do not support the false and unsupported accusations charged in the

PSR.

Second, at pages 24-25, paragraph 95, the PSR provides a lengthy recitation of alleged

offense conduct . . . gleaned from the Official Statement of Facts prepared by Assistant States

Attorney, Patrick J. Quinn, and various court filings in relation to the case styled,People v. Steven

Manning, No. 92 CR 480601. All of the information contained in paragraph 95 should be stricken

from the PSR entirely.

In 1998, after ASA Quinns submission of the Official Statement of Facts, the Illinois

Supreme Court vacated Mandells conviction in case number 92 CR 480601, and remanded the case

to the trial court for a new trial. People v. Manning, 182 Ill.2d 193, 695 N.E.2d 423 (1998). The

reasons for the Supreme Courts decision laid the groundwork ultimately leading to judicial findings

of prosecutorial misconduct. When the case was remanded to the trial court for a new trial, the

States Attorneys Office decided to not retry Mandell, but rather decided to dismiss all charges

against him. The vacation of the conviction and the dismissal of the indictment caused by the



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misconduct of the prosecution team together demonstrate that there is no valid reason why

prosecutor Quinns Official Statement of Facts and various [unidentified] court filings should

be in this PSR. Consequently, the final three full paragraphs on page 24 of the PSR as well as the

top three paragraphs (including the block quote attributed to Quinn) on page 25 of the PSR should

be stricken.

Further, the cited paragraphs are replete with unsubstantiated and inflammatory allegations

by Quinn and his fellow prosecutors that Mandell murdered five identified individuals. Of course,

Mandell has never been charged with, let alone convicted of murdering four of the identified

individuals; and, following the decision of the Illinois Supreme Court, Quinn and his colleagues

dismissed the murder charge they earlier brought against Mandell of the fifth individual. The truth

of the matter is Mandell has not been constitutionally convicted of murdering anybody, and that fact

must be respected.

Although there never was any physical evidence to tie Mandell to that murder, there was

plenty of prosecutorial misconduct to go around. It started with the false claims of a notorious

jailhouse informant which were further tuned up by the misconduct of certain FBI agents. The

prosecutors took it to another level.

A story in the Chicago Tribune, dated January 24, 2000, sheds light on prosecutor Quinns

propensity to engage in unprofessional conduct as well as to make unsubstantiated claims:

On January 18, Steve Manning became the latest Death Row inmate to have

charges against him dropped.

In 1993, Manning stood trial in Cook County for the murder of a suburban

trucking firm owner. Assistant States Attorneys Patrick J. Quinn and William

Gamboney secured a conviction with the testimony of Tommy Dye, a jailhouse

informant with a history of spinning lies. Dye claimed Manning confessed to him



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while they shared a jail cell, but secret tape recordings of their conversations revealed

no such admission.

Mannings appellate attorney, Raymond J. Smith, alleged in court papers that

the prosecutors committed misconduct by allowing Dye to provide testimony they

knew, or should have known, was false. The states attorneys office dropped thecharges against Manning on the day that a hearing on those allegations was

scheduled.

[A spokesman for the states attorneys office] said the states attorneys

office has concluded prosecutors did nothing improper and plans no further review

of their conduct.

In a different case tried one year after Mannings, Quinn was found by the

Illinois Appellate Court to have committed the same kind of misconduct alleged in

Mannings case, according to court records. Quinn helped prosecute and win a

conviction against Umberto Perkins, a former Cook County Jail guard accused ofofficial misconduct for helping an inmate escape.

In 1997, the Illinois Appellate Court reversed Perkins convictions, saying

two prosecution witnesses, both inmates when the escape occurred, did not tell the

truth when they denied receiving any benefits for testifying. By not correcting

testimony that was either substantially misleading or outright false, the court wrote,

Quinn and his trial partner knowingly used perjured testimony to secure Perkins

convictions.

The appellate court has also reversed the convictions of at least two other

defendants because Quinn employed improper trial tactics, court records show. Inone case Quinn unfairly presented evidence suggesting the defendant committed

other crimes, and in the other Quinn engaged in improper cross-examination and

final argument, according to court records.

Quinn, who did not return calls seeking comment, is now a judge on the

Illinois Appellate Court, the same court that issued the rebukes in cases he

prosecuted.

Ken Armstrong and Steve Mills,Flawed Murder Cases Prompt Calls For Probe, Chicago Tribune,

January 24, 2000.

Clearly, the source of the allegations contained in paragraph 95 of the PSR is suspect. Given

Mandells history and these real concerns about the source, it is clear that the information provided



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If the victim was kidnapped, abducted, or unlawfully restrained during the commission of, or in

connection with, another offense or escape therefrom; or if another offense was committed during

the kidnapping, abduction, or unlawful restraint, increase to [the corresponding level]. USSG

2A4.1(b)(7).

In this instance these guidelines establish that reference to 2A1.1 (First Degree Murder) is

misguided. Consider the language of the subject guidelines. Application Note 4 specifically identifies

the sole purpose of the kidnapping as one accomplished for the purpose of murder. Further,

subsection (b)(7) assumes application only where the victim actually was kidnapped, abducted or

unlawfully restrained, or where another offense was committed during that kidnapping, abduction

or unlawful restraint. The evidence in this case does not fall within the language of those provisions

because there was no such actual offense conduct taken on the alleged victim.

Consider too the specific charging language in count one of the superseding indictment. The

substantive charging language in the count tracked the statutory language: Mandell did conspire

with Gary Engel to knowingly and unlawfully seize, confine, kidnap, abduct, carry away and hold

for ransom and reward and otherwise another person, namely victim 1[.] (R. 38 at 1). Mandells

purpose in purportedly attempting to kidnap the victim was not for the purpose of murder, as the

governments charging language reveals. None of the purposes or objects of the charged conspiracy

in that allegation reflects that it was to be done for murder. While there are references to murder in

subsequent allegations made as further part of the conspiracy, neither the grand jury nor the trial

jury charged or found murder as the purpose of the conspiracy. Consequently, there should be no

reference to the first degree murder guideline.



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Moreover, Mandell disagrees with the probation offices conclusion to not decrease the

offense level by 3, under 2X1.1(b)(2), because the co-conspirators did not complete all of the acts

they believed were necessary on their part to successfully complete the substantive offense. (PSR

at 12, par. 39). Even accepting the jurys verdict (as we are compelled to do for sentencing purposes),

the governments evidence at trial fell short of establishing that Mandell and co-defendant Gary

Engel completed all the acts they believed necessary on their part for the successful completion

of the substantive offense[.] USSG 2X1.1(b)(2). Further, the circumstances did not demonstrate

that they were about to complete all such acts but for apprehension or interruption by some similar

event beyond their control.Id. Consequently, the base offense level of 32 should be reduced 3 levels

to level 29.

Next, the government seeks, and the probation office agrees that a 2 level upward adjustment

is required because of Mandells use of a purported special skill in facilitating the crime. (PSR at

13, par. 41). Mandell objects to this adjustment.

Under 3B1.3 of the guidelines, an upward adjustment of 2 levels is mandated where a

defendant used a special skill in a manner that significantly facilitated the commission or

concealment of the offense. USSG 3B1.3. Special skill refers to a skill not possessed by

members of the general public and usually requiring substantial education, training or licensing.

Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts.

USSG 3B1.3, comment. (n. 4). While the list is not exhaustive, conspicuously absent is any

reference to police officers, particularly those 30-plus years removed from that job.

Mandell was employed as an officer of the Chicago Police Department from 1973 to 1983.

(PSR at 31, par. 130). Mandells employment as a police officer some 30-40 years ago hardly



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qualifies as a special skill. The length of time between the job and the offense is reason enough

to deny the government the enhancement. Additionally, the police-related props, conduct and jargon

can easily be obtained and learned from any of the dozens of police-related television shows or

research on the internet about police tactics.

Recently, Robert Panozzo and others were arrested and charged in the Circuit Court of Cook

County with racketeering conspiracy, among other offenses.People v. Panozzo, No. 14 CR 14577.

The indictment alleges that Panozzo and his co-defendants used police-related props and were set

up to pose as police officers while committing various crimes. Panozzo and his co-defendants do not

have backgrounds in law enforcement, but it was quite simple for them to obtain police-type props

and pose as law enforcement because, in our daily lives, we are often exposed to how police officers

tackle their jobs. These facts compel a conclusion that Mandells employment as a police officer 30-

40 years ago hardly qualifies as a special skill in this instance.

Additionally, the guideline provision expressly conditions the adjustment on a finding that

the special skill significantly facilitated the commission of the offense. USSG 3B1.3. The

government has presented no evidence demonstrating how Mandells employment decades ago

signficantly facilitated this offense. Rather, what is evident here is the government piling on the

already lengthy advisory sentence with an inapplicable add-on enhancement.

The government merely has argued that Mandells law enforcement training facilitated the

commission of the offense. (Gov. Vers. at 9). However, the government has not provided any

information or evidence as to the law enforcement training Mandell actually received. Nor has the

government described how any actual training translated into a significant facilitation of the offense.



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Finally, the government has cited three cases in its Version of the Offense to purportedly

support application of the adjustment. (Gov. Vers. at 9). None of the cases are controlling and they

are easily distinguishable as set forth below.

In United States v. Turner, the defendants were actively employed as Detroit police officers

when they committed the charged crimes. 272 F.3d 380, 382-83, 390 (6 Cir. 2001). Three officersth

planned the robbery of man who ran an illegal lottery business and had a large amount of cash

stashed at his home. Important to the Sixth Circuit in Turnerwas the sentencing courts specific

finding that the police officers intended to use their status and training and education as police

officers to effect the robbery. Id. at 390. A significant point missed by probation and the

government in the appellate courts analysis was the active component of the police officers status,

namely, their employment with the Detroit Police Department. Not only was Mandell not employed

as a police officer at the time of the charged offenses, he had not been one for over 30 years.

United States v. Youngis a summary order without a published opinion. 213 F.3d 627, 2000

U.S. App. Lexis 11916 (2d Cir. 2000) (rules of the Second Circuit may limit citation to it). Young,

a retired police officer, ordered retail items by telephone from Hall and advanced the $2,100 in costs

for shipping. 2000 U.S. App. Lexis 11916 *3. Hall failed to deliver the merchandise. Young was

angry and wanted to locate Hall to get his money back. Young used his contacts at law enforcement

agencies to learn that Hall had a criminal record through which he found Hall in Florida.Id.

But first Young located and befriended Halls girlfriend Jarnagin, who informed Young

sometime later that she and Hall would be visiting New York. Young and Jarnagin discussed a plan

to arrest Hall at the hotel when they arrived. Jarnagin forwarded pictures of herself and Hall to

Young so that he could make the identification when they entered the hotel.Id.



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a special skill in the commission of a drug offense where he had substantial training in how to

conduct Terry stops, including procedures designed to promote officer safety[.]Id. at 179-80.

Here, again, unlike Slaughter, who was a police officer at the time of the charged offenses,

Mandell had been removed from any official involvement with law enforcement for over three

decades. Moreover, unlike Slaughter, there has been no proof of any training Mandell received from

the Chicago Police Department at all. The attenuation ultimately is fatal to the governments

argument, and it is respectfully requested that the Court decline to extend the reach of 3B1.3.

Next, the government sought, and the probation office applied a 2 level increase, under

3C1.1, based on the governments contention that Mandell obstructed justice when he testified under

oath in his own defense. (PSR at 11, par. 31-32; PSR at 13, par. 42). The probation office based the

adjustment on claims made by the defendant in his court filings and those that were specifically

communicated by the government and/or Special Agent Tipton to the probation office. (PSR at 11,

par. 31-32). The probation office does not then cite to any claims made by the defendant in his court

filings for application of this adjustment, but rather relies on the proffered statements of government

personnel. (Id.).

As far as the statements proffered by the prosecutor and the case agent, Mandell maintains

his position that he is actually innocent and that his testimony at trial was true and accurate. Further,

3C1.1 is inapplicable because Mandell did not willfullyobstruct[] or impede[], or attempt[] to

obstruct or impede the administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction[.] USSG 3C1.1 (emphasis added). This guideline

cautions: In applying this provision in respect to alleged false testimony or statements by the

defendant, the court should be cognizant that inaccurate testimony or statements sometimes may



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the defendant intended to occur. Said Cross Reference provides that in such a case 2A1.1 is to be

applied, which has a base offense level of 43 and no specific offense characteristics. (Id.).

The plain language of the cross reference establishes the inapplicability of 2A1.1. The cross

reference states: If a victim waskilledunder circumstances that would constitute murder under 18

U.S.C. 1111 had such killing taken place within the territorial or maritime jurisdiction of the

United States, apply 2A1.1 (First Degree Murder). USSG 2B3.2(c)(1) (emphasis added). In this

case it is very clear that nobody was physically harmed, let alone killed. Thus, the cross reference

is inapplicable and the guideline to be consulted is 2B3.2. The base offense level is 18. USSG

2B3.2.

Mandell further objects to the probation offices failure to reduce the offense level by 3 under

2X1.1(b)(2). (PSR at 14, par. 45). Mandell has stated his position on this matter in his objection

to the guideline calculations for count one, and incorporates the argument here. Consequently, with

an appropriate decrease of 3 levels, the total offense level on count two is 15.

Mandell also objects to the probation offices upward adjustment by 2 levels for obstruction

of justice, under 3C1.1, on the basis that he committed perjury while testifying at trial. (PSR at 14,

par. 48). Mandell has argued why this adjustment is inapplicable in his objections to the guideline

calculations on count one, and incorporates the argument here as his objection to the same

application on count two. Thus, the adjusted offense level on count two is 15.

With respect to the guideline calculations on count three, Mandell acknowledges that the

guidelines operate, under 2X1.1(a), to apply 2B3.2. (PSR at 14, par. 50). However, Mandell

again objects to the probation offices determination that the cross reference at 2B3.2(c)(1) is

applicable because the murder of Mr. Campbell was within the scope of the conspiratorial



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agreement and conduct that defendant intended to occur. (Id.). For the same reasons stated in the

guideline objections to count two, 2A1.1 (First Degree Murder) is inapplicable. The plain language

of the cross reference requires a victim to be killed prior to application of the provision. Of course,

that did not occur in this case as nobody died and nobody was even physically harmed.

Similar to count two, Mandell submits that the base offense level on count three is 18.

2B3.2. Moreover, for the reasons previously stated, Mandell objects to the probation offices

conclusion to not decrease the offense level by 3, under 2X1.1(b)(1). Such a decrease should be

made because the defendant did not complete all of the acts he believed were necessary for

successful completion of the substantive extortion offense. The circumstances further demonstrate

that the defendant was not about to complete all such acts but for apprehension or interruption by

some similar event beyond the defendants control. USSG 2X1.1(b)(1). Consequently, a reduction

of 3 levels is appropriate.

Like the prior calculations, Mandell again must object to the probation offices determination

to apply a 2 level increase based on his purported false testimony at trial. (PSR at 15, par. 54).

Mandell incorporates his arguments from the prior calculation of counts in urging the Court to not

apply the enhancement. Consequently, the adjusted offense level on count three is 15.

With respect to the guideline calculations on count five, Mandell concurs that the guidelines

operate, under 2K2.1 and 2K2.1(c)(1)(A), to refer to the provisions of 2X1.1. (PSR at 15, par.

56). This operation of the guidelines is based on the jurys verdict that Mandell constructively

possessed the Ruger. Mandell is bound to accept this application of the guidelines based on the

verdict, but does not retreat from his claim that any purported possession of the firearm was innocent

as stated at trial.



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In any event, Mandell objects to the conclusion that the base offense level is 43 based on

2X1.1(a). (Id.). The probation office does not clearly state what underlying offense is to be

considered in calculating the offense conduct in count five, but it appears that the office is relying

on and connecting the firearm to count one. This is in error. Count one relates to a purported

conspiracy to kidnap Steven Campbell. As the proofs at trial established, neither Mandell nor Engel

possessed the firearm at the time of their arrests. Importantly, the governments theory was that the

men were arrested just prior to the point of kidnapping Campbell. The undisputed fact that neither

Mandell nor Engel actually possessed the Ruger at that particular time is telling, and refutes the

connection between count one and count five.

If the gun must be connected to an offense, it makes more sense to consider it in connection

with the conspiracy to commit extortion (count two) or the attempt to commit extortion (count three).

As the base offense level for those counts are 18, the proper starting point is level 18. Again,

Mandell objects to the probation offices determination to not decrease the offense level by 3 under

2X1.1(b)(1), (PSR at 14, par. 51), and he incorporates his previous arguments herein. With an

appropriate adjustment of 3 levels, the adjusted offense level on count five is 15. Again, no

adjustment under 3C1.1 should be applied for the reasons already stated.

With respect to the guideline calculations for count six, Mandell is in agreement with the

operation of the guidelines under 2X1.1, 2J1.2, 2J1.2(c)(1), and 2X3.1. (PSR at 16, par. 61).

However, because of the erroneous application of the guidelines in the calculation of count one,

Mandell objects to the probation offices conclusion that the base offense level is 30. Under 2X3.1,

the base offense level should be 6 levels lower than the offense level for the underlying offense.

USSG 2X3.1(a)(1). Based on Mandells calculations on count one, 6 levels below level 29 is 23.



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Again, the probation office applied a 2 level upward adjustment based on Mandells purported false

testimony at trial, (PSR at 16, par. 66), to which Mandell again objects. Mandell incorporates herein

his prior arguments on this across-the-board adjustment. Therefore, the adjusted offense level on

count six is 23.

Following the grouping rules on multiple counts, the combined total offense level is 29,

contrary to the probation offices conclusion that it is 43. (PSR at 17, par. 72). A total offense level

of 29 considered with a criminal history category of I results in an advisory sentencing range of 87

to 108 months imprisonment.

III. A Sentence Below The Advisory Range Produces A Reasonable Sentence

It is respectfully submitted that the Court should impose a term of incarceration below the

advisory guidelines range. Mandell will be 64 years old at the time of the sentencing hearing. A

sentence within the advisory range plus five consecutive years on count four effectively may result

in a life sentence. The government and the probation office concluded that the applicable range is

life plus five years. However the court comes out on the disputed guideline calculations, we hope

the Court will consider imposition of a sentence that gives Mandell a glimmer of hope that he will

be free one day at an old age.

Since the Supreme Court deemed the Federal Sentencing Guidelines advisory in United

States v. Booker, 543 U.S. 220 (2005), the Court has repeatedly described the enormous discretion

sentencing courts possess in determining an appropriate sentence.Pepper v. United States, 131 S.Ct.

1229, 1249 (2011). Additionally, after calculating a defendantss applicable guideline range, the

district court must consider the factors set forth in 18 U.S.C. 3553(a) to arrive at a sentence that

is reasonable under those factors. Gall v. United States, 552 U.S. 38, 50 (2007).



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A sentence of imprisonment below the advisory range, based on the factors promulgated in

3553(a), is appropriate because any sentence close to that range given all the circumstances of this

case would be unreasonable and greater than necessary. SeeKimbrough v. United States, 552 U.S.

85 (2007) (district courts judgment that a particular sentence is sufficient, but not greater than

necessary is entitled to great deference). As is now well-established, the Court simply must

consider the guidelines and make sure that the sentence [she] gives is within the statutory range and

consistent with the sentencing factors listed in 18 U.S.C. 3553(a). United States v. Demaree, 459

F.3d 791, 795 (7 Cir. 2006). [Her] choice of sentence, whether inside or outside the guidelineth

range, is discretionary and subject therefore to only light appellate review. Id. The applicable

guideline nudges [her] toward the sentencing range, but [her] freedom to impose a reasonable

sentence outside the range is unfettered.Id. Pursuant to the factors stated in 3553(a), a below

guideline sentence would appropriately recognize the facts of the offense, the characteristics of the

offender, and the need to impose a sentence sufficient, but not greater than necessary, to

accomplish the sentencing and societal goals of punishment, deterrence and rehabilitation. 18 U.S.C.

3553(a).

Section 3553(a) recognizes that among the most important factors to be considered in

fashioning an appropriate sentence include the history and characteristics of the individual

defendant. 18 U.S.C. 3553(a)(1). Mandell cannot be defined simply by reference to his criminal

conduct. Rather, he must be sentenced with the benefit of considering the full measure of the man,

including his positive contributions to society and his difficult life story.

The analysis must begin with 3553(a)(1)s mandate that the Court consider Mandells

historical background. We ask the Court to kindly consider the fact that Mandell served in the United



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States Army from 1969 to 1971. (PSR at 31, par. 126). Mandell was stationed in Germany. His

discharge was honorable. It is respectfully submitted that Mandell has earned some credit for his

service to the United States.

Additionally, the Court is asked to consider the fact that from July 26, 1990 to February 26,

2004, Mandell was confined in either Illinois or Missouri jails and prisons based on convictions that

were obtained as a consequence of prosecutorial misconduct. (PSR at 28, par. 107; PSR at 33-34,

par. 140). On January 24, 2005, a federal jury specifically found that certain FBI agents fabricated

or caused to be fabricated certain material evidence, and then concealed that and other material

matters. (PSR at 33, par. 140). In further litigation on the lawsuit, Judge Matthew F. Kennelly wrote

in an order that he agrees with the jurys findings on some of the issues regarding the fabrication

and concealment of evidence and disagress with the jury in other respects. (Id.). Judge Kennelly

found the FBI agents actions in investigating Mandell to be improper, ruling that Mandells rights

to due process and a fair trial were likely violated. (Id.). While finding that probable cause still

existed, thus vacating the jurys $6.5 million monetary award, Judge Kennelly still characterized the

FBI agents actions with jailhouse informant Tommy Dye in investigating Mandell to be

deplorable. (Id.).

In 2000, former Governor George H. Ryan declared a moratorium on executions in Illinois,

and appointed a blue-ribbon commission to determine what reforms would ensure that Illinois

capital punishment system is fair, just and accurate. On April 15, 2002, the commission released its

Report of the Governors Commission on Capital Punishment. The report addressed the State of

Illinois prosecution of Mandell, who was one of thirteen released death row inmates. The

commission wrote: The murder conviction of former death row inmate Steven Manning was based



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almost completely upon uncorroborated testimony of an in-custody informer. No physical evidence

linked Manning to the murder he was said to have committed, nor was there any solid corroboration

of the alleged statements he made admitting to the murder. Report of the Governors Commission

on Capital Punishment, Ch. 1, pp. 7-8, April 15, 2002.

Over time, the corrupt practices of the FBI agents and the state prosecutors finally were

uncovered. Yet, Mandell was subject to incarceration for nearly 14 years as a consequence of their

intentional actions in violating Mandells constitutional rights. As Mandells personal history can

be considered by the Court, we urge the Court to consider that Mandell was confined for a

substantial part of his life for crimes he did not commit. It is respectfully submitted that the Court

should consider the fact that Mandells constitutional protections were violated, and he should be

credited for the 14 years he spent in prison because of the FBIs and state prosecutors prosecutorial

misconduct.

It also is proper for the Court to consider Mandells medical condition and present state of

health. Before imposing a sentence the Court must consider providing him with needed medical

care, or other correctional treatment in the most effective manner[.] 18 U.S.C. 3553(a)(2)(D).

Mandell suffers from Type II diabetes, high blood pressure, and high cholesterol. Records from the

MCC confirm that Mandell is prescribed insulin, Metformin, glyburide, simvastatin and lisinopril

to treat the chronic condictions. (PSR at 29, par. 114). Mandell respectfully asks the Court to include

language in the final judgment order that the Bureau of Prisons provide Mandell with the medical

care he needs.

Moreover, the Court is required to consider the nature and circumstances of the offense.

18 U.S.C. 3553(a)(1). It is expected the government will cover this factor in some detail. Mandell



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rests on his trial testimony and his position of actual innocence in this case. Mandell also asks the

Court to consider the unusual circumstances surrounding the FBIs and the informants failure to

record dozens upon dozens of meetings and telephone calls between the informant and Mandell.

Of course, at sentencing the Court also is required to avoid unwarranted sentencing

disparities among defendants with similar records who have been found guilty of similar conduct.

18 U.S.C. 3553(a)(6). In that light, we suggest that it is appropriate to compare Mandells conduct

to that of similarly situated defendants who have been convicted and sentenced. Some of these cases

are close on certain facts, some of them are not so close on the facts. However, these cases constitute

a fair array of cases for purposes of establishing a reasonable sentence.

For example, we ask the Court to consider the case the government cited and we discussed

infrain some detail, United States v. Young, 213 F.3d 627, 2000 U.S.App. Lexis 11916 (2d Cir.

2000). There, the 31-year retired veteran of the police force (1) used his law enforcement contacts

to track down the victim, (2) befriended the victims girlfriend, (3) planned the abduction of the

victim with the girlfriend, (4) recruited another individual to assist him, (5) arrested and

handcuffed the victim, (6) brought him to a warehouse, (7) wrapped him in duct tape from head to

toe, (8) tied him to a forklift, and (9) left the victim there to suffer.Id. at 3. The defendant entered

a not guilty plea and proceeded to trial. He was found guilty of kidnapping. The federal district court

sentencing him to a term of incarceration of 120 months.Id. at 1, 5. Mandells sentence should be

more in line with the sentence imposed in Young, rather than the life sentence sought by the

government.

We ask the Court to consider also the sentences imposed against the conspirators that plotted

a terrorist attack on the then-Sears Tower and FBI offices. The ringleader was sentenced to 162



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months of imprisonment. Four other men involved in the conspiracy were sentenced to between 72

and 120 months in custody. See United States v. Batiste, et al., No. 06-20373-CR (S.D. Fla.). In our

district, the government prosecuted a man who pled guilty to using an instrument of interstate and

foreign commerce to communicate threats concerning the use of explosives, in violation of 18 U.S.C.

844. This defendant placed approximately 64 telephone calls to a local police department that were

extremely threatening in nature. In one call he told a dispatcher that he placed a pipe bomb under a

police vehicle that was about to explode. He also threatened to kill a specific police officers

daughter and, in other calls, several other people. He was sentenced to a term of imprisonment of

36 months. See United States v. Abney, No. 08 CR 85 (N.D. Ill.).

Additionally, the Seventh Circuit Court of Appeals upheld a 40 month sentence for a man

who threatened to kill a federal judge. That defendant also used an instrument of interstate commerce

to threaten to destroy a federal courthouse, all in violation of 18 U.S.C. 115(a)(1)(B) and 844(e).

See United States v. Miller, 2009 WL 2336216 (7 Cir. 2009). Prior to the so-called Familyth

Secrets prosecution, Jimmy Marcello and Anthony Zizzo of the Chicago Outfit were convicted

of RICO violations which included the extortion of a movie theater owner and the attempted

bombing of his building. Gasoline, grenades and a Molotov cocktail were used in an attempt to

destroy the building. Marcello was sentenced to 144 months and Zizzo was sentenced to 120 months

for their roles in that and other criminal activities. See United States v. Zizzo, 120 F.3d 1338, 1345,

1361 (7 Cir. 1997).th

There are several other representative cases over the years like United States v. Parr, 545

F.3d 491 (7 Cir. 2008) (120 month sentence for threatening to use a weapon of mass destructionth

against a federal building in Milwaukee); United States v. Austad, 519 F.3d 431 (8 Cir. 2008) (84th



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month sentence found reasonable for mailing threatening communications to assassinate and

dismember a federal judge); United States v. Gibney, 519 F.3d 301 (6 Cir. 2008) (84 monthth

sentence for a series of arsons, one of which caused injury to a firefighter, as well as threatening to

kill a government witness); and United States v. Hull, 456 F.3d 133 (3d Cir. 2006) (144 month

sentence for white supremacist who possessed a variety of weapons and instructed others on how

to make pipe bombs).

And, there are still more, such as United States v. Farris, 448 F.3d 965 (7 Cir. 2006) (120th

month sentence for a convicted sex offender who mailed threatening letters to principals of five

schools, promising to kill students and a teacher); United States v. Walker, 428 F.3d 1165 (8 Cir.th

2005) (120 month sentence for threatening communications and attempting to burn down home with

people inside using Molotov cocktails); United States v. De La Fuente, 353 F.3d 766 (9 Cir. 2003)th

(37 month sentence for mailing threatening communications containing white powder thought to be

Anthrax); United States v. Barber, 272 F.3d 1067 (8 Cir. 2001) (96 month sentence vacated asth

excessive under guideline grouping rules where defendant manufactured and possessed five pipe

bombs).

There are many additional cases involving threats of bodily injury as well as attempted or

actual use of physical violence in which the sentences were at, higher or lower than what might be

contemplated in this sentencing hearing. However, as stated above, we believe the above summary

is a fair array of cases to conduct a level review of disparity. Clearly, Mandell potentially is being

subjected to an excessive term of imprisonment, especially when his conduct is considered against

the acts of similarly situated defendants like Young and the others.



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CERTIFICATE OF SERVICE

I, Francis C. Lipuma, an attorney, do hereby certify that I caused a copy of Defendant Steven

Mandells Sentencing Memorandum to be served upon:

U.S. Attorneys Office U.S. Probation Office

219 South Dearborn Street 55 East Monroe Street

Chicago, IL 60604 Chicago, IL 60603

pursuant to Fed.R.Crim.P. 49, L.R. 5.5, and the General Order on Electronic Case Filing of the

United States District Court for the Northern District of Illinois, Eastern Division.

s/ Francis C. Lipuma

Francis C. Lipuma

300 South Wacker DriveSuite 1700

Chicago, IL 60606

(312) 675-0089


Steve Mandell Sentencing Memo

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Transcript of Steve Mandell Sentencing Memo