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Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 1 of 175 PageID 447

IN THE UNITED STATES DISTRICT COURT


FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

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Case no.:

6:10-cr-281-ORl-31KRS

UNITED STATES OF AMERICA,

Plaintiff,

v.

EFRAIM DIVEROLI,

Defendant.

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Orlando, Florida
August 23, 2011
9:30 a.m.

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Transcript of the sentencing (day one)

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before the Honorable Gregory A. Presnell

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United States District Judge

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Appearances:
Counsel for Plaintiff:

J. Bishop Ravenel

Counsel for Defendant:

Cynthia Hawkins

Court Reporter:

Diane C. Peede, RMR, CRR


United States Courthouse
401 West Central Blvd., #4600
Orlando, Florida 32801
(407) 615-0305

Proceedings recorded by mechanical stenography, transcript


produced by computer.

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Index of Transcript

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Page
Direct by Mr. Ravenel
Cross by Ms. Hawkins

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6
7
8
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15
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Direct by Mr. Ravenel


Cross by Ms. Hawkins

Aaron Monahan

Dejan Djuric

Daniel O'Kelly
Direct by Mr. Ravenel
Cross by Ms. Hawkins
Redirect by Mr. Ravenel
Recross by Ms. Hawkins
Further redirect by Mr. Ravenel

Direct by Mr. Ravenel


Cross by Ms. Hawkins
Redirect by Mr. Ravenel

Jacob Shprecher

Andrian Leonard Jones


Direct by Mr. Ravenel

Direct by Mr. Ravenel


Cross by Ms. Hawkins
Redirect by Mr. Ravenel
Government's
Government's
Government's
Government's
Government's
Government's

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5
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8 & 9
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1

Kevin McCann

EXHIBITS IN EVIDENCE

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43
63
64
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68
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79
94
109
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78
89
90

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P R O C E E D I N G S

THE COURT:

Lisa, call the case, please.

THE COURTROOM DEPUTY:

This is in the matter of

United States of America versus Efraim Diveroli, case number

6:10-criminal-281-Orlando-31KRS.

THE COURT:

MR. RAVENEL:

Okay.

Appearing for the government?

Good morning, Your Honor.

Ravenel for the United States.

the A.T.F.

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THE COURT:

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MS. HAWKINS:

Bishop

With me is Kevin McCann with

And for the defendant?


Good morning, Your Honor.

Cynthia

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Hawkins on behalf of Mr. Efraim Diveroli, who's to my right.

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Also assisting me is Elena Cesario Pollock, who is a retired

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A.T.F. agent, and she's going to be handling the I.T. matters

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for the defense today.

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Also present is counsel from the Southern District

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of Florida, who may be assisting us during the course of the

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proceedings.

Your Honor, may I introduce Richard Dansoh.

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THE COURT:

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MR. DANSOH:

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THE COURT:

Good morning.

Welcome.

Thank you, Judge.


All right.

We're here today for the

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sentencing in this matter.

Mr. Diveroli entered a guilty

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plea to Count One of the Information in this case, charging

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him with possession of firearms and ammunition by a

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prohibited person, to wit, a convicted felon, in violation of

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18, United States Code, Section 922(g)(1) and 924(a)(2).

In connection with the sentencing, Probation has

prepared a Presentence Report dated May 5, 2011, which I have

reviewed.

number 45, which was filed by counsel for the government, as

well as a notice of supplemental filing at document number

52.

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9

I also have a sentencing memorandum at document

I also have a sentencing memorandum prepared by


defense counsel, appearing at document number 55 in the file.

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I also have a folder containing numerous letters

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from family and friends of the defendant, and a notebook

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containing various documents in reference to or in support of

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the government's memorandum.

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So that's what I've reviewed as of this morning.

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In terms of scheduling, I can go until about three

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o'clock today, if necessary.

I just -- I can't go beyond

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that.

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to keep.

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week, because I'm going on a brief vacation tomorrow.

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Anyway, we'll do the best we can.

I've got a doctor's appointment and something I have

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If we don't finish by three, I have to do it next

In looking this over, I don't know why we can't

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finish this today; but if we can't, we can't.

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it until such time as we can conclude it.

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All right.
proceed?

We'll continue

Mr. Ravenel, are you prepared to

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MR. RAVENEL:

I am, Your Honor.

witnesses we'd like to present.

Mr. Diveroli's character.

defense objections.

We have several

It will affect your view of

We also have to address several

So we can do that whenever you're ready.

THE COURT:

All right.

These witnesses will --

their testimony will have some bearing on the defendant's

objections, scoring objections or factual objections?

MR. RAVENEL:

THE COURT:

I believe they do.


All right.

Ms. Hawkins, is it okay if

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just go ahead and take the testimony and then sort things out

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after that?

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MS. HAWKINS:

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THE COURT:

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MS. HAWKINS:

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THE COURT:

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That's fine with me, Judge.


Okay.
Yes, sir.
All right.

Let's go ahead with the

government's witnesses then.

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MR. RAVENEL:

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THE COURTROOM DEPUTY:

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Our witness stand is over here.

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down and I'll swear you in.

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I call Aaron Monahan.


Please come forward, sir.
Please pause before sitting

Please raise your right hand.

AARON MONAHAN,

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having been first duly sworn, was examined and testified as

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follows:

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THE COURTROOM DEPUTY:


seated.

Thank you.

You may be

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MR. RAVENEL:

THE COURT:

May I approach the stand?


You may.

DIRECT EXAMINATION

BY MR. RAVENEL:

Q.

name.

A.

Aaron Monahan, A-a-r-o-n M-o-n-a-h-a-n.

Q.

What do you do for a living?

A.

I'm a realtor.

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Q.

In what part of the state?

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A.

South Miami.

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Q.

Do you know Efraim Diveroli?

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A.

Yes.

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Q.

Do you see him in court today?

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A.

Yes.

16

Q.

Please describe what he's wearing.

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A.

Red jumpsuit.

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19
20

Please state your name and spell your first and last

MR. RAVENEL:

Your Honor, the record should reflect

the witness identified the defendant.


THE COURT:

Okay.

Pull that mic over a little bit

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closer so we can hear you better.

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THE WITNESS:

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THE COURT:

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Yes, so noted.

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BY MR. RAVENEL:

Is that better?
Yes.

Thanks.

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Q.

When did you meet Mr. Diveroli?

A.

Around the summer of last year.

Q.

How did you meet him?

A.

Answered an employment ad in Craigslist.

Q.

What was the advertisement for?

A.

A sporting goods company.

Q.

Did you ultimately contact Mr. Diveroli as a result of

that posting?

A.

Yes.

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Q.

Describe the initial conversation you had with Mr.

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Diveroli.

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A.

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sporting goods, stuff like that.

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Q.

Did you ultimately come to work for Mr. Diveroli?

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A.

Yes.

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Q.

What was your role with his organization?

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A.

Computer sales, outside sales, phone sales, for the most

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part.

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Q.

Of what?

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A.

Ammunition.

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Q.

What was the company name?

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A.

A.M.D., Advanced Munitions Distribution.

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Q.

And who was actually in charge of that company?

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A.

From the top, it would be Efraim; and then my direct

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manager would be Dejan Djuric.

Very casual at the residence, describing ammunition,

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Q.

Why do you say that Efraim Diveroli was in charge of

that company?

A.

Everything was -- he was in charge of everything.

Q.

Before you started working for him selling ammunition,

what type of jobs had you held?

A.

retail sales.

Q.

based on your background?

Just sales, outdoor sales -- I'm sorry -- outside sales,

Is there a reason why selling ammunition interested you,

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A.

Yeah.

I was former military.

I thought it would be

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something different, something new.

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Q.

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month did you purchase an AR-15-style rifle?

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A.

Yes.

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Q.

Why did you purchase that rifle?

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A.

To test the new magazines.

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Q.

Did you purchase it with your own money or somebody

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else's?

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A.

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in my possession as my firearm.

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Q.

How did you come up with the idea to purchase the gun?

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A.

It wasn't my idea.

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going to test the magazines and that was the first one we

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purchased.

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Q.

I want to talk to you about August of 2010.

No.

During that

Efraim gave me the money and said I could keep it

We have a list of weapons we were

Who came up with that list of weapons?

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A.

Efraim.

Q.

Who directed you to purchase the firearm?

A.

The same.

Q.

Did Efraim mention any other firearms that he wanted

purchased in August of 2010?

A.

caliber that fit that magazine.

Q.

that date did you go to the Markham Shooting Range?

I believe a Mini-14 and a couple other of the same

I want to talk to you next about August 11, 2010.

On

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A.

Yes.

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Q.

Whose idea was it to go to the shooting range?

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A.

Efraim's.

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Q.

Who went?

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A.

Dejan, Jake, myself and Efraim.

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Q.

What happened when you got to the range?

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A.

Jake and I drove together.

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the targets.

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we'd start shooting, testing the magazines.

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Q.

Did Efraim shoot a firearm that day?

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A.

Yes.

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Q.

Where is the Markham Shooting Range?

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A.

North.

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Fort Lauderdale, approximately.

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Q.

Did anybody force Efraim to go the shooting range?

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A.

No.

Where he got there.

We got

We were there before Dejan and Efraim; and then

I'm not real familiar with the area.

West of

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Q.

Whose idea was it?

A.

Efraim's ultimately.

Q.

What firearms did you see him shoot?

A.

The one that we had in our possession.

or six stalls to the right of us, I think another gentleman

had the same caliber weapon.

was.

THE COURT:

THE WITNESS:

Then about five

I'm not sure what design it

Are you talking about an AR-15?

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THE COURT:

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THE WITNESS:

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THE COURT:

Excuse me?
An AR-15?
Yes, sir.
Okay.

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BY MR. RAVENEL:

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Q.

Was he using any sort of magazine to shoot the AR-15?

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A.

In addition to ours, I'm not sure what the gentleman

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had.

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Q.

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AR-15?

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A.

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round magazine.

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Q.

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Efraim or anybody else to go shoot those firearms at the

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Markham Shooting Range?

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A.

No.

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Q.

Were there any federal agents there, to your knowledge,

I think it was, like, a 30-round, a typical.


What was your magazine that you were shooting with the

It was a clone of a company, Beta Mag.

It's a 100-

On August 11th did any federal agents encourage you or

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with you?

A.

No, sir.

Q.

I want to show you it's been marked with a tag in the

top left as Exhibit 2, Government's Exhibit 2.

recognize that?

A.

Yes.

Q.

What is that?

A.

That's the firearm I had in my possession.

purchased with Efraim's money.

Do you

That was

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Q.

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11th at the Markham Shooting Range?

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A.

One of them, yes, sir.

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Q.

Does that photograph fairly and accurately depict the

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AR-15 rifle?

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A.

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Is that the firearm that Mr. Diveroli shot on August

Yes.
MR. RAVENEL:

Your Honor, I'd offer that photograph

into evidence and ask for permission to publish it.

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MS. HAWKINS:

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THE COURT:

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MR. RAVENEL:

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BY MR. RAVENEL:

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Q.

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25

No objection.
All right.

Government's 2 is admitted.

That's Bates number 1394.

Next, I want to show you -THE COURT:

Does that have the magazine in it that

you were trying to sell?


THE WITNESS:

No, Your Honor.

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BY MR. RAVENEL:

Q.

show?

A.

Myself.

Q.

There are several --

A.

I'm sorry.

photo is Jake sitting down.

Q.

firearms at the Markham Shooting Range?

I want to show you next Exhibit 3.

What is Exhibit 3

The standing photo is myself.

The second

Were those photographs taken of you two shooting

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A.

Yes.

11

Q.

Do those photographs fairly and accurately depict you

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two shooting at the Markham Shooting Range?

13

A.

Yes.

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MR. RAVENEL:

I'd move for the admission of that

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Exhibit, Exhibit 3, Your Honor, and ask for permission to

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publish it.

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MS. HAWKINS:

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THE COURT:

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MR. RAVENEL:

No objection.
3 is admitted.
If we can publish 1405.

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BY MR. RAVENEL:

21

Q.

Who is that photograph of?

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A.

That's myself.

23

Q.

Is that the AR-15?

24

A.

Yes.

25

Q.

And is the 100-round magazine drum attached to it?

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A.

Yes.

Q.

Did Efraim actually fire the gun as it was in that state

right there with the magazine drum?

A.

Yes.

MR. RAVENEL:

If we can, show the next photograph.

BY MR. RAVENEL:

Q.

What does this photograph show?

A.

That's Jake shooting the same weapon.

MR. RAVENEL:

We can take that down.

10

BY MR. RAVENEL:

11

Q.

Next I want to show you Exhibit 5.

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A.

That's the 100-round magazine that goes to the AR-15.

13

Q.

Does that fairly and accurately depict the magazine drum

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as it was in August of 2010?

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A.

Yes.

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17

What is that?

MR. RAVENEL:

I'd move for the admission of that

document and ask for permission to publish it.

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MS. HAWKINS:

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THE COURT:

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MR. RAVENEL:

No objection.
5 is admitted.
If we can publish that.

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BY MR. RAVENEL:

22

Q.

23

Markham Shooting Range?

24

A.

Yes.

25

Q.

The purpose of buying these different weapons was to be

That's the same type of drum that was taken to the

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able to test fire that magazine drum?

A.

Correct.

Q.

Next I want to talk to you about August 20 of 2010.

you come to Titusville on that date?

A.

Yes.

Q.

Who were you with?

A.

Jake.

Q.

At some point during that day did you go to Wal-Mart?

A.

Yes.

10

Q.

What was the purpose of going to Wal-Mart?

11

A.

Buy ammunition to shoot the weapon.

12

Q.

Whose idea was it to go to Wal-Mart?

13

A.

Efraim's.

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Q.

Who paid it paid for the ammunition?

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A.

I was handed money to purchase that at the register by

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Efraim.

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Q.

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purchased?

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A.

Hundreds of rounds.

20

Q.

Was there anything left -- how much compared to the

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stock of ammunition that Wal-Mart had?

22

A.

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cart to use it.

24

Q.

25

selected?

Did

Who were you driving with?

Do you remember approximately how much ammunition you

Cleaned out a couple of shelves.

We had to get a push

Who selected the types of caliber ammunition that was

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A.

Efraim did.

THE COURT:

This is 223?

THE WITNESS:

Yes, sir.

BY MR. RAVENEL:

Q.

true that Mr. Diveroli was arrested?

A.

Yes, sir.

Q.

Describe for the Court what sort of negative

consequences you've had as a result of your involvement with

10

After that, after you came back from Wal-Mart, is it

Mr. Diveroli?

11

MS. HAWKINS:

Objection; relevancy.

12

MR. RAVENEL:

It goes to his character.

13

THE COURT:

Overruled.

I'll weigh it as

14

appropriate.

15

BY MR. RAVENEL:

16

Q.

You can answer the question.

17

A.

Well, my name has come up on the Internet.

18

for future employment, that could be a negative for me, the

19

embarrassment.

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arrested, my character questioned as well.

21

Q.

22

You know,

You know, being shoved on the ground,

Answer any questions the defense attorney has for you.


THE COURT:

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Ms. Hawkins.
CROSS-EXAMINATION

24

BY MS. HAWKINS:

25

Q.

Good morning.

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A.

Good morning.

Q.

Mr. Monahan?

A.

Yes.

Q.

Have you seen the charges against Mr. Diveroli in this

case here today?

A.

Not exactly.

Q.

Would you like to look at a copy of the charge?

A.

Not especially.

Q.

Okay.

Do you know what time period he was charged with

10

a criminal offense for here in the Middle District of

11

Florida?

12

A.

Last summer.

13

Q.

Pardon?

14

A.

I'm sorry.

15

Q.

I'm asking if you are aware of the time period contained

16

in the charges pending against Mr. Diveroli in the Middle

17

District of Florida?

18

A.

I don't know all the specifics, no.

19

Q.

So you don't know he's just charged with what he did on

20

August 20th?

21

A.

No.

22

Q.

So on August 20th, y'all went and bought ammo at

23

Wal-Mart, correct?

24

A.

Yes, ma'am.

25

Q.

And are you aware that Mr. Diveroli pled guilty to that?

Last summer, are you referring?

You didn't know that?

I do know that.

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A.

Yes, ma'am.

Q.

I'm sorry?

A.

Yes, ma'am.

Q.

Okay.

direct supervisor?

A.

Efraim and Dejan.

Q.

Who's your direct supervisor?

A.

Efraim until -- the company wasn't really put into place

yet even at that time.


Okay.

Now, you said in A.M.D. that -- who was your

It was being in the process.

10

Q.

And then you said your direct supervisor was

11

Dejan?

12

A.

13

into the new building.

14

Q.

Okay.

15

A.

First name is Dejan D-e-j-a-n.

16

D-j-u-r-i-c, I believe.

17

Q.

I'm sorry.

18

A.

D-j-u-r-i-c, I think.

19

Q.

Dejan Djuric?

20

A.

I believe so.

21

Q.

What did he do for A.M.D. when he was your direct

22

supervisor?

23

A.

24

yet.

25

Q.

He was going to be my direct supervisor once we moved

Spell that, please.


Last name is

Can you say that again, the last name.

Well, like I said, we didn't get into the new building


He was going to be my manager.

So. . .

Did you ever see the paperwork where he was the owner of

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A.M.D.?

A.

No.

Q.

And did you ever -- are you privy to the contractual

arrangement between A.M.D. and Ammo Works?

A.

No.

Q.

Now, you've said that on August of 2010 you purchased an

AR-15 to test magazines?

A.

Yes.

Q.

And was that for A.M.D.?

10

A.

It was under Efraim's guidance.

11

Q.

I -- that's not the question I asked you.

12

if that was for A.M.D.?

13

A.

I was given the money to grab the --

14

Q.

Do you know -- do you know whether or not it was --

15

THE COURT:

Do you know

Excuse me, Ms. Hawkins, but don't

16

interrupt him.

He's trying to answer.

If you don't like the

17

answer, at least wait until he finishes it.

18

A.

19

weapon, to buy -- to test fire the magazines.

20

Q.

Do you know whether or not that was on behalf of A.M.D.?

21

A.

It was given to me in cash money from Efraim.

22

assume it's under his guidance.

23

Q.

I didn't ask you if you assume, sir.

24

A.

I don't know specifically if it was under A.M.D., no,

25

ma'am.

I was given the money directly from Efraim to buy the

So I

Do you know?

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19

Q.

Thank you.

Now, I think that you said that you were

told that you could keep that in your possession as your

firearm, correct?

A.

Yes.

Q.

All right.

of Florida, correct?

A.

Yes, ma'am.

Q.

So that's not anything that Mr. Diveroli is charged

with, is it?

Now, this happened in the Southern District

10

A.

I don't know the specifics, ma'am.

11

Q.

Well, again, you don't want to look at the charges so

12

you can see for yourself?

13

A.

Not particularly.

14

Q.

So whether or not it was -- it was not explained to you

15

what the difference between the Middle District of Florida

16

and the Southern District of Florida is?

17

A.

No, ma'am.

18

Q.

Now, you said also that on August 11th you went to

19

Markham Shooting Range.

20

of Florida; do you know that?

21

A.

22

geography.

23

Q.

Is it near Fort Lauderdale?

24

A.

Yes, I believe so.

25

Q.

Now, were you aware of Mr. Diveroli working on a deal to

That's also in the Southern District

Ma'am, I'm not sure about all the maps and all the
I just went there to shoot.

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brand the magazines?

A.

Yes.

Q.

And that was a deal to take the magazines with no

ammunition in them and put a manufacturer over a dealer's

brand on the magazine itself?

A.

Yes.

Q.

And that was so it could be sold?

A.

Yes, ma'am.

Q.

Okay.

And are you aware of whether or not magazines are

10

covered under federal firearms?

11

A.

No, ma'am.

12

Q.

Do you know one way or the other?

13

A.

No.

14

Q.

Now, you were shown a picture of Government's Exhibit, I

15

think it was, 4.

16

If you will, look at that picture.

THE COURT:

17

BY MS. HAWKINS:

18

Q.

Okay.

19

5.

I don't think we looked at 4.

I'm sorry.

THE COURT:

Can you put it up on the screen.

20

BY MS. HAWKINS:

21

Q.

Do you have that, sir?

22

A.

Yes.

23

Q.

Okay.

24

sell?

25

A.

5, that's the drum that y'all were trying to

Yes, ma'am.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 21 of 175 PageID 467


21

Q.

And that's the one that y'all were trying to have

branded with a logo so it could be sold?

A.

Yes.

Q.

And you were aware that's what Mr. Diveroli was trying

to do in coming to Titusville?

A.

Yes.

Q.

Did you know who Mr. Diveroli was going to meet with on

August 20th in Brevard County?

A.

Knights Armament.

10

Q.

Knights Armament?

11

A.

Yes.

12

Q.

Do you know whether or not that's an actual, real,

13

legitimate company?

14

A.

Yes, ma'am.

15

Q.

You do know that, don't you?

16

A.

Yes, ma'am.

17

Q.

Okay.

18

Diveroli was trying to put together was to have Knights

19

Armament put their brand or their brand name or their logo on

20

the drum that's shown in Government's Exhibit 5?

21

A.

That was the intent.

22

Q.

Okay.

23

paperwork prepared for that transaction?

24

A.

25

done by Efraim, but I don't remember seeing the final, no,

And did you understand that the deal that Mr.

That was -- did you ever see the contract or any

I remember the verbal and the rough drafts were being

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 22 of 175 PageID 468


22

ma'am.

Q.

purporting to be Mr. Knight or the owner's son?

A.

No.

Q.

Okay.

A.

I believe I heard a couple calls being made to set it

up, yes.

Q.

undercover officer, but another person who was posing as the

Did you yourself ever take a call from a gentleman

I believe that was handled by Efraim.

Okay.

Do you know whether or not a call was made?

So not just with the -- who turned out to be an

10

owner or the boss of Knight?

11

A.

12

a couple phone calls as well.

13

Q.

14

test out the magazines that you were going to sell?

15

A.

Yes.

16

Q.

Who else worked for A.M.D. during this time period?

17

A.

Myself, Jake Shprecher.

18

Q.

And how long -- what was Jake's job?

19

A.

The same as mine:

20

Q.

Sales?

21

A.

Yes, ma'am.

22

Q.

Now, on the money given to you for the AR-15, do you

23

recall whether or not you got a company check for that?

24

A.

It was cash.

25

Q.

But we can pull the company records if we want to verify

I believe we received an e-mail and I thought there was

So the purpose for going to the shooting range was to

Phone sales.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 23 of 175 PageID 469


23

whether or not cash was withdrawn from the company or a check

was cut?

A.

Of the cash, no.

Q.

Of depositing it or a receipt from the transaction,

anything like that?

A.

(No verbal response.)

Q.

No?

A.

(Witness shakes head negatively.)

Q.

I have no further questions.

Do you have any records, I guess, is my question?

10

THE COURT:

11

MR. RAVENEL:

12

THE COURT:

13

MR. RAVENEL:

Thank you, sir.

Redirect?
No, sir.
All right.

Thank you, sir.

14

Call Dejan Djuric.


DEJAN DJURIC,

15

having been first duly sworn, was examined and testified as

16

follows:

17
18

THE COURTROOM DEPUTY:

Thank you.

You may be

seated.

19

THE COURT:

20

THE WITNESS:

21

Okay.
Yes.

DIRECT EXAMINATION

22

BY MR. RAVENEL:

23

Q.

24

name.

25

A.

Please state your name and spell your first and last

My name is Dejan Djuric, D-e-j-a-n, last name

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 24 of 175 PageID 470


24

D-j-u-r-i-c.

Q.

What do you do for a living?

A.

I'm working as a dispatcher right now.

Q.

Where do you live?

A.

Miami Beach.

Q.

You're from another country originally?

A.

Yes, from Yugoslavia.

Q.

Do you know Efraim Diveroli?

A.

Yes.

10

Q.

Do you see him in court today?

11

A.

Yes.

12

Q.

Please point him out and describe what he's wearing.

13

A.

A red -- red and white. . .

14

Q.

Like, a jumpsuit?

15

A.

Yes.

16
17

MR. RAVENEL:

What part of the country?

The record should reflect the witness

identified the defendant.

18

THE COURT:

So noted.

19

BY MR. RAVENEL:

20

Q.

How did you meet Mr. Diveroli?

21

A.

I met him in my building.

22

Q.

Was that in Miami?

23

A.

Yes.

24

Q.

How long ago was that?

25

A.

It was 2007, 2008.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 25 of 175 PageID 471


25

Q.

At some point did you come to work for Mr. Diveroli?

A.

Yes.

Q.

In what capacity?

A.

I work for his company called A.U.I., was, like, doing

researching and stuff on the computers.

Q.

What sort of research were you doing?

A.

Like, freight and different -- I was contacting actually

eastern Europe because that's my language.

speak, Slavic.

That's what I

10

Q.

Did you also work for other companies that Mr. Diveroli

11

controlled?

12

A.

Ammo Works and Pinnacle Minerals.

13

Q.

Were you on the paperwork for those companies?

14

listed as an officer for those companies?

15

A.

I was president of the Pinnacle Minerals.

16

Q.

Did you make the decisions about those companies by

17

yourself or did you consult with Mr. Diveroli in making those

18

decisions?

19

A.

For the Pinnacle Minerals?

20

Q.

Yes, sir.

21

A.

Efraim put me as president of the Pinnacle Minerals

22

because I was in California working.

23

mine in California.

24

Q.

Did you also work for Ammo Works as well?

25

A.

Yes, sir.

Were you

I was working on gold

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 26 of 175 PageID 472


26

Q.

Were you also listed as a corporate officer on Ammo

Works?

A.

No.

Q.

Were you listed as a corporate officer on

Advanced Munitions?

A.

Yes.

Q.

Do you know why you were listed as a corporate officer?

A.

The company was open to -- Efraim told me that I'm going

to be one of the company.


Did you have control?

Marco actually opened the company.

10

Q.

Could you make all the decisions

11

for the company or who made those decisions?

12

A.

Efraim.

13

Q.

Did you have any prior experience before you met Efraim

14

in arms dealing or anything like that?

15

A.

No, sir.

16

Q.

What sort of jobs had you held before that?

17

A.

I do moving company.

18

hospitality business, working as a server.

19

Q.

20

Range?

21

A.

Yes, sir.

22

Q.

What was the purpose of going?

23

A.

Efraim's.

24

Q.

Why did you go to the range?

25

A.

They was testing magazines, hundred-round magazines for

I was in restaurant business, in

During August of 2010 did you go to the Markham Shooting

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 27 of 175 PageID 473


27

the M-16, I believe, the gun, rifle gun.

Q.

Did -- whose idea was it to go to the range?

A.

Efraim's.

Q.

Whose idea was to it to purchase the firearm that was

used at the range?

A.

Efraim gave Aaron money to purchase the firearms.

Q.

Did Efraim know, according to what you heard in Efraim's

presence, whether or not he can have a firearm during that

time period?

10

A.

I'm sorry.

I don't understand.

11

Q.

Do you know whether Efraim was allowed to have a gun

12

during that time period?

13

A.

Yeah, I know.

14

Q.

Was he allowed to?

15

A.

No.

16

Q.

Did anybody tell him in your presence that he couldn't

17

have a firearm?

18

A.

Everybody.

19

Q.

What did you see Efraim do at the shooting range on

20

August 11, 2010?

21

A.

22

shooting range.

23

Q.

24

firearms?

25

A.

Actually, Efraim and myself, we went together to the


Jake and Aaron was in separate car.

Once you got there, did you see Efraim shoot any of the

Yes.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 28 of 175 PageID 474


28

Q.

How many did you see him shoot?

A.

I don't remember how many, but was shooting on the

shooting range with a rifle, M-16 what is it called.

Q.

already in evidence.

A.

Okay.

Q.

Is that the firearm that was taken to the range and shot

by Mr. Diveroli?

A.

Yes, sir.

10

Q.

Did Mr. Diveroli shoot any other firearms that day at

11

the range?

12

A.

13

one.

14

that moment.

I want to show you a photograph, Exhibit 2, that's


It'll come up on your TV screen.

I believe so was a round, but I don't remember which


He was trying with some other people that was there at

15

MR. RAVENEL:

We can take that photograph down.

16

BY MR. RAVENEL:

17

Q.

18

you've had personally as a result of being involved with Mr.

19

Diveroli?

20

A.

21

are calling me every day, all day.

22

a lot of stuff.

23

something.

24

know, all around the news and Google.

25

account at the bank.

Would you describe for the Court what consequences

Many things.

My bank account was cancelled.

Reporters

My name is all around and

I was trying to apply for a loan to do

I didn't get any loan because my name is, you


And so they closed my

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 29 of 175 PageID 475


29

MR. RAVENEL:

THE COURT:

Thank you, Your Honor.


What country in the former Yugoslavia

are you from?

THE JUROR:

I was born in Croatia.

THE COURT:

Croatia.

Ms. Hawkins.

CROSS-EXAMINATION

BY MS. HAWKINS:

Q.

Good morning.

10

A.

Good morning.

11

Q.

Isn't it true that you continued to work for Mr.

12

Diveroli long after the negative publicity?

13

A.

I don't understand your question.

14

Q.

Well, you said there was negative publicity or you

15

suffered some negative consequences because you worked for

16

Mr. Diveroli.

17

him after the negative publicity, right into 2008?

18

A.

I start working for Efraim Diveroli in 2008.

19

Q.

And how long did you work for him?

20

A.

Until 2010.

21

Q.

Until 2010, right?

22

A.

Yes.

23

Q.

You continued to work for him?

24

A.

No.

25

Q.

Now, how much was he paying you a week?

After. . .

Isn't it true that you continued to work for

And that's after he was arrested?

I got fired after he got arrested.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 30 of 175 PageID 476


30

A.

Four seventy-five a week.

Q.

Wasn't he paying you a thousand dollars a week even when

there was no work for you?

A.

dollars a week.

Q.

Did he pay over $10,000 for a family funeral in Bosnia?

A.

Yes, ma'am.

Q.

And helped to support your family over there for years?

A.

Yes.

10

Q.

And supported your family because your father was in

11

prison?

12

A.

Yes.

13

Q.

I'm sorry.

14

You answered my question.

15

A.

Okay.

16

Q.

When you were the president of Pinnacle, you said that

17

you were doing work for Pinnacle, correct?

18

A.

Yes, ma'am.

19

Q.

And that was a minerals company?

20

A.

Yes.

21

Q.

And that was a real company, wasn't it?

22

A.

Yes.

23

Q.

Isn't it true that you married a woman in order to give

24

her papers to stay in the United States?

25

A.

That was last month he start paying me, like, a thousand

No.

It's not all that.

He actually never paid me.

I haven't actually asked you a question.


Thank you.

Sorry.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 31 of 175 PageID 477


31

Q.

In order for you to have papers to stay in the United

States?

A.

No.

Q.

Didn't you talk -- didn't the agents ask you about that

when you were interviewed by the A.T.F. agents?

A.

Yes.

Q.

How much older was she than you?

A.

No matter.

Q.

How much older was she than you?

10

A.

Fifteen years.

11

Q.

And didn't you divorce shortly thereafter?

12

A.

I divorce her, like, six year after, five year after.

13

Q.

And you deny that that was a marriage that was just for

14

the sake of getting your papers?

15

A.

This is not true.

16

Q.

Didn't you tell people that that's why you were married

17

to her, just so you could get papers?

18

A.

Never.

19

MS. HAWKINS:

No further questions.

20

THE COURT:

21

MR. RAVENEL:

22

Thank you very much.

23

THE COURT:

24

MR. RAVENEL:

25

He's a special agent with A.T.F.

Redirect?
I have nothing further.

All right.

You can come down.


Thank you, sir.

The next witness is Daniel O'Kelly.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 32 of 175 PageID 478


32

DANIEL O'KELLY,

having been first duly sworn, was examined and testified as

follows:

4
5

THE COURTROOM DEPUTY:

You may be

seated.

MR. RAVENEL:

THE COURT:

8
9

Thank you.

May I approach, Your Honor?


You may.

DIRECT EXAMINATION
BY MR. RAVENEL:

10

Q.

Please state your name.

11

A.

Daniel O'Kelly.

12

Q.

Is that the common spelling for your first and last

13

name?

14

A.

Yes.

15

Q.

What do you do for a living?

16

A.

I'm an A.T.F. agent.

17

Q.

You might need to speak up a little bit into the

18

microphone.

19

How long have you been an A.T.F. agent?

20

A.

Twenty-three years.

21

Q.

Did you have any prior law enforcement experience before

22

that?

23

A.

I was a police officer for ten years prior.

24

Q.

What state was that in?

25

A.

The state of Indiana.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 33 of 175 PageID 479


33

Q.

Would you describe your career with A.T.F., what sort of

cases you've worked and what your specialty is.

A.

experience doing undercover work.

Q.

firearms specialist?

A.

I've been everything from -- prior to law enforcement, I was

a gun store clerk to being a firearm instructor with the

I'm a firearms specialist and I have quite a bit of

Can you describe your experience with firearms as a

I am a lifelong student of firearm history and design.

10

police department to having taught firearm technology

11

internationally in the academies in Africa and Europe.

12

I have taught at the A.T.F. academy for years.

13

I was on staff at the A.T.F. academy for five years, teaching

14

firearm technology; and I teach interstate nexus to A.T.F.

15

agents nationwide.

16

for police officers across the state of Florida regularly.

17

Q.

18

person by the name of Efraim Diveroli?

19

A.

Yes.

20

Q.

Do you see him in court today?

21

A.

Yes, I do.

22

Q.

Please point him out.

23

A.

He's at the defense table in the red jumpsuit.

24
25

I put on seminars on firearm technology

During the course of your duties did you come to know a

MR. RAVENEL:

The record should reflect the witness

identified the defendant.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 34 of 175 PageID 480


34

THE COURT:

So noted.

BY MR. RAVENEL:

Q.

Diveroli in the Middle District of Florida?

A.

Yes.

Q.

What was your role?

A.

I played an undercover role as a firearm dealer.

Q.

When did your investigation or your role in the

investigation begin?

Were you involved in the investigation of Efraim

10

A.

July of 2010.

11

Q.

During the course of your investigation, did you have

12

recorded conversations with Mr. Diveroli?

13

A.

Yes, I did.

14

Q.

Was there a mention of shooting firearms during this

15

conversation?

16

A.

Yes, there was.

17

Q.

Who initially brought up the idea of shooting firearms?

18

A.

Efraim Diveroli did.

19

Q.

Would you describe that to the Court.

20

A.

It was the second, maybe third time we spoke by phone,

21

discussing these ammunition magazines and the sale of

22

ammunition to me by him.

23

coming weekend.

24

rental property and that I was planning to attend the gun

25

show in Stark, Florida, and asked him why he had asked.

He asked what I was doing this

I responded that I had tenant issues with my

He

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 35 of 175 PageID 481


35

said, well, he'd like to know if "you'd come down and shoot

with us.

Q.

Did you go down and shoot with them?

A.

No, I did not.

Q.

Did he also describe shooting firearms in other

conversations you had with him?

A.

Yes, he did.

Q.

Would you describe that for the Court.

A.

He told me at one point by phone that they -- "they,"

Bring some of your guns and we'll go shooting."

10

referring to he and his co-workers -- had gone to the

11

Everglades and had been shooting at deer, hogs, alligators,

12

just shooting in general, and that they had been to some

13

other range.

14

Q.

15

2010?

16

A.

Yes.

17

Q.

Where did that operation take place with regards to this

18

case?

19

A.

20

the arrest, I believe?

21

Q.

Yes, sir.

22

A.

That took place in the parking lot of a Target store,

23

which is also the parking lot of a Quiznos sandwich shop in,

24

I believe it's Titusville.

25

Q.

Were you involved in the operation on August 20th of

I'm trying to refresh my memory.

That was the date of

Why was that location selected for the operation,

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 36 of 175 PageID 482


36

Titusville?

A.

were supposed to meet with that day, at least I led him to

believe that we were supposed to meet with this cooperating

source at the business.

to make an arrest.

Q.

Miami?

A.

Yes, at one point.

10

Q.

What was your response to that and why did you respond

11

how you did?

12

A.

13

cooperating source would travel to Miami for him to present

14

his product to the source for the purpose of the source

15

deciding to endorse it and sell it nationally or

16

internationally.

It was near the business of a cooperating source that we

The real purpose of the meeting was

Was there a discussion about having the meeting in

Well, Diveroli wanted to know if myself and the

17

And I said, you know, "This guy is a multi-

18

millionaire.

He owns a huge corporation."

I said, "He

19

doesn't know you."

20

well.

21

yeah, it works fine; but," I said, "you're going to need to

22

travel up here to him.

23

on some unsure possible wild goose chase.

24

to come to where he is.

25

Q.

I said, "I don't really know you that

You know, we've seen one sample of your product and,

He's not going to travel down to you


You know, you need

You want his business."

What was the tactical reason behind doing that, behind

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 37 of 175 PageID 483


37

responding that way?

A.

that sounded realistic and we were doing the investigation in

the Middle District of Florida.

Q.

multi-millionaire owner of a company to travel to a person,

an unknown person essentially, to engage in a business --

A.

No, not at all.

Q.

Before August 20th, did you have discussions with Mr.

Well, for starters, it was the common-sense approach

Did you believe it would have been realistic for a

10

Diveroli about shooting firearms on the 20th?

11

A.

Yes.

12

Q.

On the 20th of August, did you bring firearms to the

13

meeting with Mr. Diveroli in Titusville?

14

A.

Yes, I did.

15

Q.

What firearms did you bring?

16

A.

I brought three.

17

rifle called a model FSL.

18

terms, it's a variant of an FAL-type rifle.

19

caliber, 20-shot assault rifle, a very high-powered weapon.

20

I also brought a Steyr model USR or also known

The first is an FMAP manufactured


It's -- in normal recognizable
It's a .30

21

as an AUG.

It's the Austrian military rifle to date.

22

.223 caliber, 30-shot, semi-automatic assault weapon.

23

And I brought a Glock pistol, which is a

It's a

24

nine-millimeter, 17-shot firearm, semi-automatic pistol.

25

Q.

Why did you bring those three firearms?

Why did you

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 38 of 175 PageID 484


38

select those type of firearms?

A.

the calibers that he had indicated he had ammunition

available for, that he had magazines that would fit that type

of gun.

guns that were ever discussed were semi-automatic assault

weapon-type firearms such as AR-15s, AK47s, that kind of

firearm.

available as props, I did not want to manufacture, you know,

Because they were the type of firearms that he -- and

During this whole investigation, the only kind of

And I did not want to bring -- of the things I had

10

a higher situation by bringing machine guns or anything.

11

I brought semi automatics.

12

So

I could have brought -- I had full automatic

13

AK47s.

I had full auto M-16s and other things I could have

14

brought; but rather than try to extenuate the circumstance, I

15

brought these as being reasonable.

16

THE COURT:

17

THE WITNESS:

18
19

Why did you bring the Glock?


The Glock is also a semi-automatic

firearm.
THE COURT:

But it's not an assault weapon.

It's a

20

normal -- I mean, it's something used by law enforcement.

21

It's not an assault rifle.

22

THE WITNESS:

Yes, sir.

I brought the Glock

23

because it's something I have seen these snail drum magazines

24

made for on the Internet and because it's a common pistol.

25

THE COURT:

Okay.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 39 of 175 PageID 485


39

BY MR. RAVENEL:

Q.

firearm under federal law?

A.

Yes, sir.

Q.

Did you also bring magazines as well?

A.

Yes, I did.

Q.

What size were the magazines for the weapons?

A.

The magazine for the FMAP is a 20-round, 20-shot

magazine.

Were -- each of these firearms, did they qualify as a

The magazine for the Steyr is a 30-shot, and the

10

Glock magazine is a 17-shot.

11

Q.

12

pulled up in a truck; is that correct?

13

A.

14

behind the two front seats, it has the small fold-down seats

15

for children or whatever.

16

And it has the false rear doors.

17

the driver's door and that exposes a hidden lever.

18

that lever and a half-door then opens in the opposite

19

direction, like a suicide-type door, so you can see the area

20

behind the driver's seat.

21

lying on the floor behind the driver's seat along with the

22

magazines.

23

Q.

24

firearms?

25

A.

Where were the magazines located in your truck?

You

A pickup truck, yes, with the extended cab, meaning that

It's not a complete back seat.


In other words, you open
You pop

And these three firearms were

What's the proximity between the magazines and the

They were touching.

They were just lying in a pile.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 40 of 175 PageID 486


40

They were not in cases.

Q.

firearms?

A.

them; and without magazines, they would be one-shot firearms.

You can't fire them more than one shot at a time without

physically reloading the chamber each time, if you don't have

a magazine.

Q.

Why did you decide to bring the magazines as well as the

Because the idea for bringing the firearms was to shoot

Its just part and parcel of a firearm.

Did you bring those magazines for the purpose of

10

enhancing Mr. Diveroli's sentencing guidelines or anything

11

like that?

12

A.

13

magazines that go with those three firearms.

14

Q.

15

conversation about shooting firearms?

16

A.

Yes.

17

Q.

Where were you located when you had that conversation?

18

A.

Prior to arriving at this parking lot or on that day?

19

Q.

On that day.

20

A.

We were standing on the sidewalk outside the Quiznos

21

sandwich shop and -- that's where we were.

22

know the essence of the conversation or just where we were?

23

Q.

How far away from the truck were you?

24

A.

Twenty-five yards.

25

Q.

Did you mention to Mr. Diveroli that you had firearms in

No.

They're the size -- they're the standard size

At some point did you and Mr. Diveroli have a

Do you want to

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 41 of 175 PageID 487


41

the truck?

A.

bring firearms, I said, "Yes."

Q.

At some point did you go over to the truck?

A.

After he asked and I said, "Yes, I brought them," he

said, "Let me see them," and we walked over to the truck.

opened the doors and pointed, standing outside the swing

radius of the doors, just pointed to them and at that point

he reached in and picked up the Glock and started

When he asked.

After -- in response to him asking did I

10

manipulating the slide, working the slide back and forth,

11

examining the firearm.

12

Q.

At some point did you leave the truck after that?

13

A.

Yes.

14

I shut the doors, locked the truck and we walked back over to

15

Quiznos where the other gentlemen were.

16

Q.

What happened next?

17

A.

The other gentlemen came out of the Quiznos and engaged

18

us in just chitchat.

19

Within two minutes of conversation about the guns,

And after a minute or so, Efraim again said,

20

"Hey, you guys want to look at this.

Look at what he

21

brought," and walked us back over to the truck, at which

22

point I swung the doors open and pointed, just like the first

23

time, and at this point Efraim reached in and picked up the

24

FMAP rifle and started working the action on it and

25

demonstrating it for everyone.

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42

Q.

I want to show you Exhibit 4.

you began testifying.

A.

Yes.

Q.

Do you recognize that?

A.

Yes.

took with me that day.

Q.

exhibit?

A.

I handed it to you before

This is a photograph of the actual FMAP that I

Are there several photographs actually as part of that

The next photograph is the Glock and the third one is

10

the Steyr AUG that I took with me that day and the magazines

11

that go with them.

12

Q.

13

the firearms appeared on August 20th of 2010?

14

A.

Do those photographs fairly and accurately depict how

Yes, they're exactly the same.

15

MR. RAVENEL:

Move to admit Exhibit 4.

16

MS. HAWKINS:

No objection.

17

MR. RAVENEL:

And publish that.

18

THE COURT:

19

MR. RAVENEL:

All right.

4 is admitted.

Publish the first photograph.

20

BY MR. RAVENEL:

21

Q.

22

1392.

23

A.

That's the FMAP rifle.

24

Q.

The next photograph is 1393, is the number Bates number

25

on the bottom right.

What does this photograph show?

This is Bates number

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 43 of 175 PageID 489


43

A.

That's the Glock Model 17 that I took with me that day.

Q.

And the next photograph is 1397.

A.

And that's the Steyr that I took that day.

Q.

The magazines, are those the same magazines that are

depicted in those photographs that you took that day?

A.

Yes, sir.

Q.

I want to show you next Exhibit 5.

admitted.

that photograph of?

That's already been

If we can show you that on the TV screen.

What is

10

A.

11

drum magazine, the -- one of the ones that were provided by

12

Efraim during the investigation.

13

Q.

14

is that?

15

A.

16

That's similar to the same model that the U.S. military uses

17

and which A.T.F. is issued for enforcement operations.

18

Q.

19

capable of accepting?

20

A.

21

100-round magazine.

22

Q.

23

That is a KCI-manufactured 100-round .223-caliber snail

Next I want to show you Exhibit 2.

That's one of the variants of the AR-15-style rifle.

Are you aware of what size magazine that firearm is

It will accept anything from a 20-round magazine to a

I have no further questions.


THE COURT:

24
25

What type of firearm

All right.

Thank you.
Ms. Hawkins.

CROSS-EXAMINATION
BY MS. HAWKINS:

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44

Q.

Good morning.

A.

Good morning.

Q.

How many times did Efraim Diveroli tell you that he did

not want to come to the Middle District of Florida?

A.

At least once.

Q.

You don't recall three times?

A.

It could have been three times.

Q.

It could have been at least three times, couldn't it?

A.

I said yes.

10

Q.

And he told you that he had -- he could only come as far

11

north as Jupiter; do you recall that?

12

A.

13

Miami area.

14

Q.

15

go as far north as Jupiter on any of the recordings?

16

A.

17

jurisdictional city, a line of some kind, and it may have

18

been Jupiter, yes.

19

Q.

20

longer had a license, a federal firearms license, right?

21

A.

He told me that.

22

Q.

And you knew that he was out on bond on that case,

23

didn't you?

24

A.

Yes, I did.

25

Q.

And you knew that if you got him to come north of

I don't recall a number.

At one point he said he could not come outside of the

Did you remember him saying specifically he could only

There was one conversation where he named a

And he told you that he had been prosecuted, that he no

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45

Jupiter into Brevard County, that he would be violating that

bond, correct?

A.

I knew that.

Q.

And yet you still told him at least three times when he

said no, that you wanted him to come to the Middle District

of Florida, didn't you?

A.

wanted to meet the connection I had in the gun industry who

may be interested in doing what he wanted done, that he

Actually, no.

More specifically, I told him if he

10

needed to come to see that man, because that man was much too

11

high in the industry to come to him.

12

Q.

That was Mr. Knight?

13

A.

Yes.

14

Q.

Knights Armament is a real company, correct?

15

A.

Yes, it is.

16

Q.

It's a legitimate, well-known company, correct?

17

A.

Yes.

18

Q.

And isn't it true that Mr. Diveroli was well known in

19

the armament community?

20

A.

21

community.

22

Q.

23

Works or A.E.Y. or Mr. Diveroli?

24

A.

25

heard of him.

I couldn't tell you how well know he was in the armament


I'd never heard of him until this case started.

Did you ask Mr. Knight whether or not he knew of Ammo

The name was brought up and, as I recall, he had never

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 46 of 175 PageID 492


46

Q.

Did you try to set up a meeting in Jupiter?

A.

No.

Q.

Isn't it correct that if you did not get Mr. Diveroli to

travel to Brevard County, you would not have venue to bring a

federal case against him?

6
7

MR. RAVENEL:
conclusion.

8
9

Objection; calls for a legal

THE COURT:
A.

Well, overruled.

What he was doing was illegal across the United States.

10

It doesn't matter where he was doing it.

11

Q.

12

Florida?

13

A.

Yes.

14

Q.

And isn't it true that in order for the Middle District

15

of Florida to prosecute him, you had to get him to come into

16

the Middle District of Florida?

17

A.

I didn't care where he got prosecuted.

18

Q.

At that time did you know where venue was for the Middle

19

District of Florida?

20

A.

Yes.

21

Q.

And you knew that Brevard County was in the Middle

22

District?

23

A.

24

office covers.

25

that it is.

Was the case being run out of the Middle District of

Yes, I believe it is.

It's not part of the area that my

So I can't swear that it is, but I believe

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 47 of 175 PageID 493


47

Q.

What were you going to arrest him for on the 20th?

A.

I wasn't going to arrest him.

Q.

Was A.T.F. going to arrest him?

A.

Yes.

Q.

And what was he to be arrested for?

A.

Being a felon in possession of firearms and ammunition.

Q.

And at that time, had he been in possession of a firearm

in the Middle District of Florida before that meeting?

A.

He said he was.

10

Q.

Was that sufficient to prosecute him in the Middle

11

District of Florida?

12

A.

No.

13

Q.

He never said he was in possession -- a felon in

14

possession of a firearm in the Middle District of Florida

15

prior to that day, did he?

16

A.

17

ammunition in the Southern District.

18

Q.

Right.

19

A.

He didn't admit that he had done that in the Middle

20

District, no.

21

Q.

22

on August 20th was to arrest him, you didn't have anything to

23

arrest him for in the Middle District of Florida, did you?

24

A.

25

charge him with international traffic and regulation under

He said he was a felon in possession of firearms and

Right.

But not in the Middle District, right?

So when you said that the purpose of the meeting

We had, as the case agent had informed me, plans to also

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48

the ITAR Act.

Q.

was a sustainable charge?

A.

to be the undercover gun guy.

Q.

that?

A.

I don't believe he was.

Q.

And do you know whether or not the U.S. Attorney's

And had you made an examination of whether or not that

I wasn't the case agent.

That wasn't my -- my role was

And do you know whether or not he was ever charged with

10

Office had given approval to arrest Mr. Diveroli prior to the

11

August 20 transaction?

12

A.

13

wasn't the one serving it.

14

Q.

15

went to meet with Mr. Diveroli?

16

A.

17

were going to arrest him on probable cause.

18

Q.

19

meeting on August 20, did you?

20

A.

No.

21

Q.

There wasn't probable cause until August 20th to arrest

22

him for anything in the Middle District, to your knowledge,

23

was there?

24

A.

There was, according to the case agent.

25

Q.

And you don't know whether the case agent had actually

I wasn't aware of what was in the arrest warrant.

Was there an arrest warrant on August 20th before you


There wasn't, was there?

I can't swear that they were using a warrant or if they

Well, you never saw an arrest warrant before that

I didn't need to.

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49

already spoken with the U.S. Attorney's Office for a probable

cause arrest; that's what you're saying?

A.

investigation.

Q.

the purpose of the meeting was to arrest him, and that's why

I don't understand that you don't know the answer to this

question of whether or not an arrest had been approved for

federal prosecution before the meeting.

That was outside the scope of my part of the

Well, I was just very interested, because you said that

10

A.

Well, I would never expect that the case agent led me to

11

believe we're going to arrest him without legal ability to do

12

so.

13

Q.

14

actually arrested him for was for picking up the two guns

15

that you brought to the meeting, correct?

16

A.

17

because that was being directed by the U.S. Attorney's Office

18

in correspondence with the case agent.

19

information from this man by talking to him about what he was

20

doing, what he was willing to do, what he had done.

21

nothing to do with the arrest.

22

Q.

23

Criminal Complaint against him for what happened that day?

24

A.

25

being run out of office, a completely different supervisor, a

And what you actually arrested him for, what A.T.F.

I couldn't tell you what he was arrested for that day

My job was to glean

I had

So I take it you're saying that you never reviewed the

I don't believe I did.

I work in Tampa.

The case was

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 50 of 175 PageID 496


50

completely different office, an hour an some minutes away

from where I work.

Q.

Well, I understand that.

A.

If I did read it, I do not have independent recall of

having read it at this point, because it really was not part

of what I was doing on the case.

If I read it, it would have

been just for personal interest.

I don't believe I did.

Q.

isn't it?

Did you see the Complaint?

Well, Tampa is in the Middle District of Florida, too,

10

A.

Yes.

11

Q.

So you do know what the Middle District of Florida

12

encompasses, don't you?

13

A.

14

the whole Middle District.

15

down to Collier County and east to include Polk County.

16

Outside of that, the rest of the Middle District is covered

17

by at least two other offices that I know of.

18

Q.

19

getting Mr. Diveroli to come up to the Middle District, to

20

Brevard County?

21

A.

Yes.

22

Q.

And that was so that you could have venue in the Middle

23

District of Florida, wasn't it?

24

A.

25

undercover role.

The entire boundaries of it, no, because I don't cover


My office covers Citrus County

Did you have discussions with the case agent about

No.

Did he say that?

It was to maintain realism in the investigation, my

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 51 of 175 PageID 497


51

Q.

It had nothing to do with venue?

was not discussed?

A.

The issue of venue was brought up that --

Q.

Right, because you couldn't have arrested him for what

he did in the Southern District, right, or Agent McCann

couldn't have?

A.

That's, again, a legal question.

Q.

Well, come on.

they're authorized or not.

You make arrests.

Are you saying that

I don't know.
You know whether

10

A.

You can arrest people for violating the law across the

11

United States.

12

Q.

I'm sorry.

13

A.

Well, you didn't let me finish my answer, either, from

14

the prior question.

I'm not done with my question.

15

THE COURT:

16

MS. HAWKINS:

17

That's correct, Ms. Hawkins.


I'm sorry.

I thought he was

finished.

18

THE COURT:

If you're going to interrupt him, he's

19

going to interrupt you; and I won't hear a thing either one

20

of you say.

21

MS. HAWKINS:

Well, I'm sorry, Your Honor.

22

thought he was finished.

23

BY MS. HAWKINS:

24

Q.

25

Go ahead.
THE COURT:

Well, I didn't think he was finished,

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 52 of 175 PageID 498


52

and he obviously wasn't finished.

So let's try to at least

wait for his answer.

A.

anyplace in the United States or its territories.

Q.

So you are aware of what it takes to make an arrest?

A.

Certainly.

Q.

And you are aware that in order to make an arrest in the

Middle District of Florida and to bring a case for

prosecution in the Middle District of Florida, you would have

10

to get authorization by the Assistant U.S. Attorney in charge

11

of that investigation, correct?

I can arrest somebody for violating any federal law

12

MR. RAVENEL:

13

THE COURT:

Objection.
Sustained.

14

BY MS. HAWKINS:

15

Q.

16

arrest?

17

A.

Unless you have a warrant, yes.

18

Q.

And then you have to bring that case before the court in

19

that district, in that federal district?

20

A.

Yes.

21

Q.

So when you talked about venue with Agent McCann, the

22

case agent, you were aware of this situation that Mr.

23

Diveroli, in order to be prosecuted in the Middle District,

24

would need to be arrested in the Middle District, correct?

25

A.

You know that you have to have probable cause for an

Was I aware that that was -- I'm not sure I'm clear on

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 53 of 175 PageID 499


53

your question.

Q.

McCann, didn't you all discuss the fact that he had -- Mr.

Diveroli would have to be arrested in the Middle District of

Florida in order for him to be prosecuted in the Middle

District of Florida?

THE COURT:

I'm asking you, in terms of your discussions with Agent

Well, I don't think that's a correct

statement of the law.

prosecute someone in the Middle District, you have to arrest

10

him here?

11

You're telling me that in order to

I see a lot of people that aren't arrested here.


MS. HAWKINS:

I'll rephrase that.

12

BY MS. HAWKINS:

13

Q.

14

District of Florida, did you discuss with Agent McCann that

15

he would like the arrest to happen in Brevard County?

16

A.

17

He -- I don't think he had a concern with where it had to

18

happen.

19

Q.

And did --

20

A.

You're asking --

21

Q.

-- you discuss with him that Mr. Diveroli would need to

22

commit some kind of crime in the Middle District of Florida

23

in order for it to be prosecuted under his case?

24

A.

25

where you're going with this.

Based on authorization to prosecute in the Middle

We discussed where the arrest was going to happen.

In an investigation, you -- I mean, I'm not clear on


I'm trying to answer your

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 54 of 175 PageID 500


54

question.

When you're doing an investigation in an

undercover capacity, with or without yourself also being the

case agent, you provide opportunity for a defendant to commit

a violation; and if they commit that violation, you document

it.

much further you want to allow the guy to go before you make

an arrest.

You continue to correspond with the prosecutor as to how

At the time you're going to make an arrest, you

10

take leadership from the U.S. Attorney on whether you're

11

going to do it on complaint, probable cause, warrant, what

12

have you.

13

Q.

14

agent about Mr. Diveroli committing a criminal act in the

15

Middle District and having him being arrested in the Middle

16

District so that Agent McCann could handle the case in the

17

Middle District?

And that's the process we followed.

I'm asking you if you had a discussion with the case

18

MR. RAVENEL:

19

THE COURT:

Asked and answered.


Well, let's try to answer it and move

20

on.

21

A.

22

Diveroli was doing.

23

that confirmed the fact that if an arrest was made, it would

24

be prosecuted in the Middle District, because that's where he

25

and I work.

I did have discussions with Agent McCann about what


I did have discussions with Agent McCann

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 55 of 175 PageID 501


55

Q.

Now, you told Mr. Diveroli that you were a licensed

firearms dealer?

A.

Yes.

Q.

And at one point when he was talking to you about

ammunition, did he not explain to you that he no longer was

in that business and did not want to be in that business

anymore?

A.

within the same sentence so many times that he came off

Mr. Diveroli made a practice of contradicting himself

10

like -- I don't want to use a cliche about salesmen, but he

11

would tell you in one breath that, as is recorded on our

12

phone calls, which I have reviewed many times and it's very

13

fresh in my mind, he said in one phone call that he does

14

this, in other words, this representing companies in the sale

15

of firearm-related products and ammunition, for, quote,

16

"three or four different companies," and within the same

17

breath said that "I do this just for my company."

18

Q.

Do you want to hear my question again?

19

A.

Sure.

20

Q.

Yeah.

21

longer selling ammunition directly?

22

A.

23

contradicted it within minutes.

24

Q.

And did he tell you that he was acting as a consultant?

25

A.

He made that statement.

Did he tell you on the recordings that he was no

Well, he made that statement at one point and then

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 56 of 175 PageID 502


56

Q.

Did he tell you that because of the legal problem he

had, he no longer wanted to be in the weapons, firearms, any

kind of business at all?

A.

He made that statement and then contradicted it.

Q.

And then did he tell you that you should talk with Aaron

on the ammunition, that he's not going to be working on that

anymore?

A.

about ammunition, because Aaron wasn't able to provide the

He made that statement and then continued to talk to me

10

information I needed.

11

Q.

12

tell you that, quote, "I'm not -- I'm not doing that well the

13

last couple of years, and I've been trying to get out of that

14

business, the ammunition business, and into other ventures"?

15

Do you recall him telling you that?

16

A.

17

said, "Once a gun runner, always a gun runner."

18

Q.

And then he laughed, right, and said, "Just kidding"?

19

A.

I think he laughed and -- I don't recall if he said,

20

"Just kidding."

21

Q.

22

he?

23

A.

He wasn't selling me any firearms.

24

Q.

Actually, what he was trying to do was set up a deal to

25

have these magazines branded by Knights Armament, correct?

I'm sorry.

Yes.

He continued --

I haven't asked you a question yet.

Did he

That was about the same conversation where he

Because he wasn't running guns in the deal with you, was

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 57 of 175 PageID 503


57

A.

Correct.

Q.

And that's what he told you several times during your

conversations with him, that he didn't care about this other

stuff, any ammunition, that that was the deal that he was

interested in?

A.

even paying for it.

Q.

Do you understand my question?

A.

Yes.

He told me he'd give me a pallet of ammunition without

And your question was is he not involved in

10

firearms --

11

Q.

I asked you --

12

A.

-- any more and ammunition.

13

Q.

I asked you, sir, if he told you that he was not

14

interested in those other things, that what he was really

15

interested in doing was getting these drums branded, correct?

16

A.

That answer is no.

17

Q.

Did he not tell you before he traveled up in August to

18

the Middle District that when you were discussing guns, that

19

he said, you know, "I'm not up there to play with toys; I'm

20

up here to make a business deal"?

21

conversation?

22

A.

I do.

23

Q.

Where in your report does it say that you had the

24

magazines with the firearms on August 20th?

25

A.

I don't know if it does.

Do you not recall that

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 58 of 175 PageID 504


58

Q.

It doesn't, does it?

A.

I don't know if it does.

me.

Q.

tapes, yes?

A.

I reviewed a lot of stuff, yes.

Q.

Did you review your reports?

A.

Yes.

Q.

It's not in there that you brought any magazines on the

I'm sorry.

I don't have it in front of

I thought you reviewed -- you reviewed the

10

20th of August, is it?

11

A.

If you say so.

12

Q.

You don't recall?

13

A.

No, I don't.

14

Q.

And it's -- have you looked at the Plea Agreement that

15

Mr. Diveroli signed?

16

A.

I did read it.

17

Q.

You read the factual basis, the stipulated facts portion

18

where it lays out the whole case for, like, 20 pages?

19

A.

I read the whole thing.

20

Q.

It doesn't say anything about you bringing magazines to

21

the Middle District of Florida on August 20th, does it?

22

A.

I didn't write that.

23

Q.

Does it say anything about you bringing magazines to

24

Middle Florida on August 20th?

25

A.

I don't have it memorized.

It may not.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 59 of 175 PageID 505


59

Q.

And maybe that's because you didn't put it in your

report?

A.

not in my report, I took magazines.

Q.

You didn't take any pictures either, did you?

A.

What?

Q.

Pictures in the car that day?

A.

No.

Q.

So there's nothing in your report that you brought

It may be because I didn't put it in my report.

If it's

10

magazines on August 20th, there's nothing in the stipulated

11

facts of the Plea Agreement, there are no photographs of any

12

magazines in the back of your truck that day, basically?

13

A.

There are no photographs of any guns in my car either.

14

Q.

But it's in your report, right?

15

A.

Yes.

16

Q.

Yes.

17

bringing guns that day, did he?

18

A.

Yes, he did.

19

Q.

In the conversations, it's not discussed, is it?

20

A.

Play the tapes.

21

Q.

Did he discuss whether or not he was going to bring

22

guns?

23

A.

24

because after signing the contract, we were going to get a

25

factory tour and shoot on the range.

And, in fact, Mr. Diveroli did not know you were

Yes, it is.

We agreed we were going to, quote, "bring our toys,"

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 60 of 175 PageID 506


60

Q.

And that's where Mr. Diveroli says, "I don't care about

toys.

A.

He made that statement at one point.

Q.

And you said, well, when he got there on the 20th, "Did

you bring guns," but he didn't bring any guns, did he?

A.

No.

Q.

But you said, "Oh, that's okay.

A.

No.

Q.

You said, "I brought guns," didn't you?

10

A.

He asked me.

11

he asked me if I brought any, I said, "Yes."

12

Q.

13

this case?

14

A.

I did read that, I believe, yes.

15

Q.

Oh, you did read the P.S.R.?

16

A.

Well, I'm not sure what you're referring to as the

17

P.S.R.

18

Q.

The Presentence Investigation Report of Efraim Diveroli.

19

A.

No, that, I don't believe I did read.

20

Agreement.

21

Q.

You haven't read the P.S.R.?

22

A.

No.

23

Q.

At paragraph 53, it says this, and then I have a

24

question for you:

25

had brought any firearms or ammunition to the meeting.

I'm coming up there for a business deal," right?

I brought guns," right?

He brought up the topic of guns, and when

Have you said -- have you seen the Presentence Report in

I read the Plea

I thought that's what you were referring to.

"The undercover asked Mr. Diveroli if he

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 61 of 175 PageID 507


61

Diveroli advised the undercover that he did not bring any

firearms or ammunition to the meeting.

undercover responded that he/she had brought firearms."

However, the

Is that incorrect?

A.

Yes.

Q.

Do you know that that was a report prepared for the

Court, reviewed by the prosecution in this case?

A.

outside Quiznos was him -- he may have asked me at one

I don't know who wrote that.

10

point -- I'm sorry.

11

you bring guns?"

12

topic was dropped temporarily.

13
14

The conversation we had

I may have asked him at one point, "Did

And he may have said, "No," and then the

But at another point he said, "Did you bring


guns?"

15

And I said, "Yes."

16

And he said, "Let me see them," and that's when

17

we walked over to the truck and I let him see them.

18

Q.

19

anything illegal anymore?

20

A.

He said that.

21

Q.

Did he tell you -- I'm sorry.

22

A.

-- that he didn't want to be involved in all kind of --

23

Q.

Are you finished?

24

A.

No, I'm not.

25

Q.

Okay.

Did Mr. Diveroli tell you that he doesn't want to do

He kept claiming --

Go ahead.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 62 of 175 PageID 508


62

A.

He kept saying he didn't want to be involved in all

kinds of stuff, and then in the next breath would outline how

involved he was in all this illegal stuff.

Q.

All what illegal stuff?

A.

Possession of ammunition, possession of firearms as a

convicted felon.

Q.

District?

A.

You mean when they went shooting in the Southern

Any time he was in possession of firearms or ammunition,

10

all of the times.

11

Q.

12

testimony that he told you that he had been to a gun range

13

and that was in the Southern District, correct?

14

A.

15

referring to.

16

Q.

Well, are you talking about the Everglades?

17

A.

I'm talking about every time he referred to being in

18

possession of guns or ammunition.

19

Q.

20

range, what did he say?

21

A.

22

worth of ammunition."

23

phone calls where he just went on and on about how much

24

ammunition he owns, has, controls --

25

Q.

Well, I believe that you specified twice in your

As far as going to a gun range, yes.

That's not all I'm

And I'm asking you, other than going to the shooting

At one point he said, "I'm sitting on a million dollars


I mean he made -- there are 60-some

Well, let's look at that specific --

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 63 of 175 PageID 509


63

A.

-- sells.

Q.

Specifically what he said, let's go to that call.

would be call number -- tape number -- recording number 15,

and he says, "Yeah, I'm a convicted felon.

FFL anymore," Federal Firearms License.

ammunition in the house.

don't keep ammunition.

It's the remnants of my business from before I was arrested."

Do you remember him telling you that, explaining

This

I don't have an

"I don't have

I don't keep guns in the house.

And I sold the ammunition to A.M.D.

10

that?

11

A.

Yes.

12

Q.

Now, did -- in the conversations about shooting in the

13

Everglades, did Mr. Diveroli tell you that they were shooting

14

black powder rifles?

15

A.

He mentioned a black powder rifle, yes.

16

Q.

And black powder rifles are not firearms under the

17

definition of firearms, are they?

18

A.

No, they're not.

19

Q.

So he'd be allowed to shoot that?

20

A.

Yes.

21

MS. HAWKINS:

22

THE COURT:

23

I have no other questions.


Redirect?

REDIRECT EXAMINATION

24

BY MR. RAVENEL:

25

Q.

Did Mr. Diveroli invite you to shoot machine guns in

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 64 of 175 PageID 510


64

South Florida with him?

A.

Yes, sir.

MR. RAVENEL:

THE COURT:

I don't have any other questions.


All right.

Thank you, sir.

You can

step down.

Let's take a fifteen-minute break.

(A recess was taken from 10:42 until 10:56 a.m.)

MS. HAWKINS:

Your Honor, I was going to ask

permission to recall for one question the agent.

I didn't

10

perceive -- the redirect was a new area, and I wanted to ask

11

a question about that one question.

12

THE COURT:

13

MS. HAWKINS:

14

THE COURT:

15

Okay.
It's agent O'Kelly.
All right.

Agent, you're still under

oath.

16

THE WITNESS:

Okay.

17

BY MS. HAWKINS:

18

Q.

19

machine guns.

20

on audio file 42.

21

A.

I'm not sure which audio file number you're referring

22

to.

I recall the conversation, it was about the third one we

23

had, where he asked if I could come shooting in Miami, the

24

Everglades area, and he wanted to know if I had a full auto

25

M-16 so he could use it to try out the 100-round drum.

I just had one question about the conversation about


Do you recall that entire conversation?

It's

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 65 of 175 PageID 511


65

said I did.

He asked what else I had.

I told him I had a

Mini-14 full auto, an AK, a Thompson, a BM-59, and maybe I

mentioned a couple of others guns; and he asked if I would

bring them down to go shooting.

Q.

And that didn't take place?

A.

No.

Q.

And do you recall in audio file 42 a conversation where

you say, "And let's meet in the Everglades and all that," and

10

Mr. Diveroli is saying, "I'm not going to shoot.

I'm not

11

going to shoot any gun that's not papered, that I can't see

12

the paperwork for"?

13

A.

That part of it, yes.

14

Q.

And are there -- maybe just for the record, tell the

15

Court the difference between a transferable machine gun and

16

one that's not.

17

A.

18

machine guns.

19

manufactured and registered with the U.S. government prior to

20

May 19th of 1986, and it's referred to as a "transferable

21

machine gun," because it can be bought and sold between any

22

private individual who is not a prohibited person, upon

23

registration with A.T.F.

Do you recall that conversation?

Well, there are two different types legally of legal


A transferable machine gun is one that was

24

The other kind of legal machine gun is called a

25

"dealer sample," and it's a post-'86-manufactured gun, which

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 66 of 175 PageID 512


66

can only be possessed by a licensed machine gun dealer or by

a government agency but not by a private individual.

In that conversation, when he asked me if I

would bring my M-16 down, I told him, "Well, since you're

contemplating going to just shoot out in the woods rather

than a regular range, the police are liable to show up."

I said, "The M-16 that I have is not necessarily legal on

paper.

Q.

10

So I'm a little hesitant to go down there with that."

Thank you.
MS. HAWKINS:

11

That's all I have.

FURTHER REDIRECT EXAMINATION

12

BY MR. RAVENEL:

13

Q.

14

any of those types of machine guns you talked about?

15

A.

16

a gun or even one cartridge of ammunition.

Can a prohibited person legally possess a machine gun,

No, sir.

A prohibited person can't possess any kind of

17

MR. RAVENEL:

18

THE COURT:

I don't have any further questions.


Agent, I've got a question, since

19

you're back on the stand.

20

I take it that they will accept magazines with different

21

capacities.

22

And

THE WITNESS:

The weapons depicted in Exhibit 4,

Yes, sir.

The upper end or the end

23

of the magazine that fits into the firearm has to be

24

engineered specifically for that firearm so that the parts

25

mate up, of course.

But given that, the length of the body

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 67 of 175 PageID 513


67

and then the internal spring corresponding or being, you

know, an equal length, in order to provide pressure, you can

make the length as long -- and they made some -- just to be

able to say they did it, they made some ridiculously long

magazines for some of these firearms, but --

THE COURT:

Well, let me ask you, normally, would

each of these firearms come with a magazine of 15 rounds or

more?

THE WITNESS:

Yes, sir.

The FAL -- this FMAP is a

10

variant or a clone of the FAL, which was -- for instance, it

11

was designed by the company called Fabrique Nationale in

12

Belgium, and it was originally adopted as the Belgium

13

military rifle, as issued to the Belgium military, and then

14

adopted by many other countries in the U.S. -- I'm sorry --

15

many other countries in the world.

16

magazine was as you see it, a 20-round, 20-shot magazine.

17

THE COURT:

18

THE WITNESS:

19

THE COURT:

20

THE WITNESS:

Its standard-issue

And that's .30 caliber?


Yes, sir.
Okay.
The Glock Model 17 was the very first

21

model Glock designed by Gaston Glock in the country of

22

Austria, and it's as standard issue, a 17-shot magazine, and

23

that's what you see here.

24
25

Then the Steyr was designed by the company of Steyr


in the city of Steyr in the country of Austria and was

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 68 of 175 PageID 514


68

adopted by the Austrian military in 1977 and is presently in

use as their military rifle.

and that's what you see in the photograph.

THE COURT:

Okay.

MR. RAVENEL:

Standard magazine is a 30-shot,

All right.

Thank you, sir.

You can step down, unless there are

any questions.

Call Jacob Shprecher.

Step right up there and she'll swear you in.

10
11

THE COURTROOM DEPUTY:


down and I'll swear you in.

12

Please pause before sitting

Please raise your right hand.

JACOB SHPRECHER,

13

having been first duly sworn, was examined and testified as

14

follows:

15
16

THE COURTROOM DEPUTY:

Thank you.

You may be

seated.

17

DIRECT EXAMINATION

18

BY MR. RAVENEL:

19

Q.

Please state your name and spell your last name.

20

A.

Jacob Shprecher.

21

Q.

What do you do for a living?

22

A.

I do real estate.

23

Q.

How long have you been doing real estate?

24

A.

About six years.

25

Q.

Do you know Efraim Diveroli?

Last name is S-h-p-r-e-c-h-e-r.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 69 of 175 PageID 515


69

A.

Uh-huh.

Q.

Do you see him in court today?

A.

Yes.

4
5

THE COURT:

You're going to have to speak up, sir.

You're just leaning back and kind of whispering.

THE WITNESS:

I apologize.

A.

What was the question?

Q.

Do you know Mr. Diveroli?

A.

Yes.

10

Q.

Do you see him in court today?

11

A.

Yes.

12

Q.

You still need to speak up a little bit, if you can.

13

A.

Sorry.

14

Q.

Just try to speak into the microphone.

15

up.

16

A.

Yeah, I do.

17

Q.

What's he wearing today?

18

A.

A red jumpsuit.

19
20

I know him.

MR. RAVENEL:

The record should reflect the witness

identified the defendant.

21

It'll pick it

THE COURT:

So noted.

22

BY MR. RAVENEL:

23

Q.

How did you meet Mr. Diveroli?

24

A.

Through friends.

25

Q.

What time period was that?

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 70 of 175 PageID 516


70

A.

It was about, I'd say, two years ago, approximately.

Q.

That would have been the summer of 2009?

A.

I'd assume so, yeah.

Q.

At some point did you come to work for Mr. Diveroli?

A.

Yes.

Q.

Before you started working for him, what sort of work

experience had you had?

A.

management and leasing, that type of thing.

I was in sales and I was in real estate.

I did

10

Q.

Did you have any experience in the firearms industry at

11

all?

12

A.

No.

13

Q.

What position did you take with Mr. Diveroli?

14

A.

I was to do sales.

15

Q.

Do you remember what the company's name was?

16

A.

Advanced Munitions Distribution.

17

Q.

Who did you work for?

18

A.

Efraim.

19

Q.

Who did you take your orders from?

20

A.

Efraim.

21

Q.

Was anybody above Efraim?

22

to do?

23

A.

He had counsel, advisors and those kind of things.

24

Q.

I want to talk to you about August 11th of 2010.

25

you go to the Markham Shooting Range on that day?

Did anybody direct him what

No.

Did

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 71 of 175 PageID 517


71

A.

Yes.

Q.

What was the purpose of going to the shooting range?

A.

To test the drum that we were going to sell.

Q.

Did you take firearms with you?

A.

Yes.

Q.

Who all went to the shooting range?

A.

It was myself, Efraim, Dejan and Aaron.

Q.

What firearms were taken to the range?

A.

The M-16.

10

Q.

How did you -- the group of you come into possession of

11

that firearm?

12

A.

We purchased it.

13

Q.

Whose decision was it to purchase it?

14

A.

Efraim's.

15

Q.

Did anybody tell Efraim, "Hey, you need to buy this

16

firearm," or anything like that?

17

A.

No.

18

Q.

Did any of you encourage him to buy that firearm?

19

A.

No.

20

Q.

Were any federal agents with you at the shooting range?

21

A.

No.

22

Q.

What did you see Efraim do at the shooting range with

23

the firearm?

24

A.

Fire the gun.

25

Q.

Did he fire any other guns that you saw?

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 72 of 175 PageID 518


72

A.

No, not that I recall.

No.

Q.

You said you're in real estate.

negative consequences as a result of your association with

Mr. Diveroli?

A.

you type my name into Google, you know, the -- the -- I

forgot what it's called -- the ban, the federal ban comes up.

Q.

Are you on the excluded parties' list?

A.

Yes, that's what it's called.

10

Q.

Does that affect your aspirations in real estate?

11

A.

It does and can have consequences of being able to get

12

financing from government parties, like states and

13

municipalities.

14

Q.

You aspire to be a developer; is that true?

15

A.

I do.

16

Q.

How does being on the excluded parties' list affect your

17

aspirations to be a developer?

18

A.

19

do low-income housing, I believe, from what I've found out,

20

you're excluded from that.

21

municipalities or any government agency.

22

Q.

23

Google?

24

A.

25

up, and I don't believe that you can get one of the articles

Have you had any

Just the peripheral, you know, stuff like, you know, if

If you want to apply for a grant from the government to

Okay.

You cannot deal with any

What do you see when you put your name in on

The excluded parties' list is the first thing that comes

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 73 of 175 PageID 519


73

about the incident or whatever; but the excluded parties'

list is really what comes up the first thing that's relevant

to this.

Q.

to purchase a firearm for him from Lou's Police Supply in

Hialeah, Florida?

A.

Uh-huh.

Q.

What sort of firearm did he ask you to purchase?

A.

It was the Mini-14.

10

Q.

Was that for the same purpose of testing the machine gun

11

magazine or -- I'm sorry -- the magazines, the 100-round

12

drums?

During the summer of last year, did Mr. Diveroli ask you

13

MS. HAWKINS:

14

THE COURT:

Objection; it's leading.


All right.

Rephrase your question.

15

BY MR. RAVENEL:

16

Q.

What was the purpose of buying the Mini-14?

17

A.

To test the -- the drum.

18

MR. RAVENEL:

19

THE COURT:

20

MS. HAWKINS:

21

No further questions.
Cross?
Thank you, Your Honor.

CROSS-EXAMINATION

22

BY MS. HAWKINS:

23

Q.

Good morning.

24

A.

Good morning.

25

Q.

Didn't Mr. Diveroli ask you to go buy some drums that

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 74 of 175 PageID 520


74

day instead of the Mini-14?

A.

Drums in addition to the Mini-14.

Q.

Didn't he get in an argument with you about buying that

Mini-14 and tell you that you were just supposed to buy the

drums and not the Mini-14?

A.

No.

Q.

You said that you went to shoot at Markham --

A.

Uh-huh.

Q.

-- at the range?

10

A.

Yes.

11

Q.

And you were with Aaron and Dejan also?

12

A.

Yes.

13

Q.

And who is Dejan to you?

14

A.

Now, I consider him a friend; but at the time, he was

15

somebody that worked with me.

16

Q.

Okay.

17

A.

No, he was not.

18

Q.

Did you -- you've said that Mr. Diveroli had counsel and

19

advisers?

20

A.

Yes.

21

Q.

And he had counsel to tell him how he could act in

22

relation to A.M.D., didn't he?

23

A.

Yes.

24

Q.

And that was whether or not it would be okay for him to

25

be a consultant?

You have to say yes or no.

Was he your direct supervisor?

Did you say that?

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 75 of 175 PageID 521


75

A.

Uh-huh.

Q.

You have to say yes or no.

A.

Yes.

Q.

And so you're aware that he spoke with his lawyers about

what he could and couldn't do as a consultant for A.M.D.?

A.

Yes.

Q.

Thank you.

MS. HAWKINS:

I have nothing further.

REDIRECT EXAMINATION

10

BY MR. RAVENEL:

11

Q.

12

could and couldn't do with firearms?

13

A.

Yes.

14

Q.

What was spoken?

15

A.

About not being able to shoot firearms.

16

Q.

Okay.

Did anybody ever tell Efraim in your presence what he

I mean, it was -- it was spoken, yes.

I don't have any further questions.

17

THE COURT:

18

MR. RAVENEL:

19

Thank you, sir.

Can I release the witnesses, Your

Honor, that have already testified?

20

THE COURT:

21

MS. HAWKINS:

22

You can step down.

Ms. Hawkins?
I have no problem with that, Your

Honor.

23

THE COURT:

All right.

24

You can step down, sir.

25

MR. RAVENEL:

You may.

My next witness is Andy Jones.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 76 of 175 PageID 522


76

1
2

THE COURTROOM DEPUTY:

Please go up to the witness

stand and pause before sitting down, and I'll swear you in.

Please raise your right hand.

ANDRIAN LEONARD JONES,

having been first duly sworn, was examined and testified as

follows:

7
8

THE COURTROOM DEPUTY:

Thank you.

You may be

seated.

MR. RAVENEL:

10

THE COURT:

11

May I approach?
You may.

DIRECT EXAMINATION

12

BY MR. RAVENEL:

13

Q.

Please state your name.

14

A.

Andrian Leonard Jones.

15

Q.

What do you do for a living?

16

A.

I am the custodian of inmate phone records at the Orange

17

County, Florida, jail.

18

Q.

What are your duties?

19

A.

We work with the inmate phone system at the jail, down

20

to the repairing of the phones, the maintenance of the

21

computers that house the data, the call record information as

22

well, upon request, we will provide copies of CDs or other

23

records from the inmate phone system.

24

Q.

25

County Jail recorded?

Are telephone calls made by inmates from the Orange

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 77 of 175 PageID 523


77

A.

Yes, they are.

Q.

What's the purpose of recording the phone calls?

A.

There's a number of reasons for the purposes of the

jail.

an individual, what have you, and there's later something

brought against the county or staff members or what have you.

For risk management purposes is the main reason, at least,

that the jail uses them.

Q.

Risk management purposes, in case something happens to

Are they also kept and provided to law enforcement for

10

investigative purposes as well?

11

A.

Yes, they are.

12

Q.

Could you describe how the inmate telephone system works

13

at the Orange County Jail?

14

A.

15

the person would pick up the phone.

16

to enter their PIN number, enter whatever number that they

17

were trying to call.

18

there's a message that informs the parties that the calls are

19

subject to monitoring and recording; and as long as there's

20

an account set up properly, the call can go forward.

21

Q.

22

uses to access the phone system?

23

A.

24

eight-digit booking number and their four-digit book time in

25

military time.

As far as from the standpoint of a person using them,


They would be instructed

After doing so, when the call connects,

Does each inmate have a unique identifier that he or she

Yes.

There's a twelve-digit PIN number made up of their

Those combine and make up a twelve-digit PIN

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 78 of 175 PageID 524


78

number.

Q.

see all the calls made under a certain inmate PIN?

A.

information as well, location of a person, where a phone

happens to be, what have you.

Q.

the Orange County Jail?

A.

Yes.

10

Q.

And did you locate a phone call that was made by his

11

inmate PIN on February 6, 2011?

12

A.

Can you search the telephone records, the recordings, to

Yes, we were able to search by PIN number, by other

Did you research the jail calls of Efraim Diveroli at

I did.

13

MS. HAWKINS:

I will stipulate to the admissibility

14

and the identification of the speakers, if that will speed

15

things up.

16

MR. RAVENEL:

17

THE COURT:

18

MR. RAVENEL:

That's fine.
Okay.
We'd offer Exhibits 8 and 9, Your

19

Honor.

That's a jail telephone call made by Efraim Diveroli

20

on February 6, 2011, from the Orange County Jail.

21

is the audio recording and Exhibit 9 is a transcript.

22
23
24
25

THE COURT:

All right.

Exhibit 8

They're admitted without

objection.
MR. RAVENEL:
for the witness.

I don't have any further questions

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79

THE COURT:

MS. HAWKINS:

THE COURT:

All right.

MR. RAVENEL:

Thank you, sir.

Appreciate

Your Honor, my next witness is

Special Agent Kevin McCann.

7
8

No, Your Honor.

your coming.

5
6

Any cross?

THE COURTROOM DEPUTY:

Please raise your right

hand.

KEVIN McCANN,

10

having been first duly sworn, was examined and testified as

11

follows:

12
13

THE COURTROOM DEPUTY:

Thank you.

You may be

seated.

14

MR. RAVENEL:

15

THE COURT:

16

May I approach, Your Honor?


Yes.

DIRECT EXAMINATION

17

BY MR. RAVENEL:

18

Q.

Please state your name.

19

A.

Kevin McCann.

20

Q.

How do you spell your last name?

21

A.

M-c-C-a-n-n.

22

Q.

What do you do for a living?

23

A.

I'm a special agent with the Bureau of Alcohol, Tobacco,

24

Firearms and Explosives.

25

Q.

What type of investigations do you work on?

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80

A.

Armed drug dealing, firearms trafficking and other

assorted violent crime investigations.

Q.

Can you describe your experience for the Court.

A.

I've been an A.T.F. special agent for 19 years.

worked in Baltimore.

supervisor of the intelligence unit and of the firearms

trafficking unit, and have now been in the Orlando field

office for four years.

Q.

I've

I've worked in Chicago as a group

Were you involved as an agent in the Orlando field

10

office in the investigation of Efraim Diveroli?

11

A.

Yes, sir.

12

Q.

How did that -- how did Mr. Diveroli initially come to

13

your attention as a special agent?

14

A.

15

2010 as a result of a suspicious phone call that he received

16

from Efraim Diveroli and wanted to report the suspicious

17

nature of it.

18

Q.

19

person?

A federal firearms licensee contacted A.T.F. in July of

What was suspicious about the call, according to that

20

MS. HAWKINS:

21

THE COURT:

Objection; hearsay.
Overruled.

22

A.

Mr. Diveroli contacted this federal firearms licensee in

23

order to try to establish a business relationship.

24

offered up ammunition for sale.

25

firearms licensee had the ability to manufacture a thousand

He

He requested if the federal

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 81 of 175 PageID 527


81

M-4 rifles a month, and he requested that the licensee create

a business partnership with him for the purchase and sale of

transferrable machine guns.

Q.

violations?

A.

possession of ammunition and the potential violations of the

Arms Export Control Act.

Q.

Are you familiar with the magazine drums in this case?

10

A.

Yes.

11

Q.

Are those drums on the United States' munitions list?

12

A.

Yes.

13

Q.

What is required for somebody to be involved in the

14

transaction importing those drums from outside the country

15

into the United States?

16

A.

17

the U.S. munitions list, they'd have to be registered with

18

the U.S. government to participate in those kind of

19

activities.

Initially, what did your investigation reveal, what

Initially, we were looking at Mr. Diveroli for felon in

For someone to manufacture, export or import items on

20

In addition to that, for individuals who broker

21

such activities, they would also have to be registered to

22

conduct brokering activities.

23

Q.

24

sentencing transcript from the Southern District of Florida?

25

A.

Have you reviewed the Presentence -- I'm sorry -- the

Yes.

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82

Q.

Have you reviewed the defense attorney's comments about

the nature of this case from that sentencing transcript?

A.

Yes.

Q.

Do you believe it's entirely accurate about the facts of

this case?

A.

during that hearing.

Q.

disagreement?

No.

I believe the facts of this case were downplayed

What do you believe -- what are your points of

10

A.

That Mr. Diveroli did, in fact, engage in violations of

11

the Arms Export Control Act, that Mr. Diveroli voluntarily

12

traveled to the Middle District of Florida to engage in such

13

activities, that Mr. Diveroli did offer ammunition for sale,

14

and that Mr. Diveroli voluntarily and -- voluntarily

15

committed alleged federal firearms violations.

16

Q.

17

Act?

18

A.

19

drums without being registered with the U.S. government.

20

Q.

21

information you acquired during your investigation, where

22

were those magazine drums from?

23

A.

South Korea.

24

Q.

That's according to information that he provided?

25

A.

Yes.

Why do you believe he violated the Arms Export Control

Because he brokered transactions involving the magazine

And according to the conversations he had and the

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83

Q.

You've reviewed the recordings in this case.

initially broached the idea of shooting firearms?

A.

Mr. Diveroli.

Q.

Have you also reviewed the Presentence Report or the

sentencing memorandum filed by the defense in this case?

A.

Yes.

Q.

Do you have any points of disagreement with respect to

that in terms of the factual contents of that?

A.

Yes.

Who

I believe there was many incorrect factual

10

statements in that or many incorrect statements.

11

Q.

12

dispute?

13

A.

14

traveling to the Middle District of Florida.

15

reached out to a federal firearms licensee in the Middle

16

District of Florida.

17

federal firearms licensee contacted A.T.F. in the Middle

18

District of Florida.

19

one who chose venue.

20
21

What do you believe the -- what are your chief points of

Well, Mr. Diveroli was the first person to suggest


Mr. Diveroli

Therefore, that Middle District -- that

So, in my opinion, Mr. Diveroli was the

He asked that federal firearms licensee if they


can meet and he suggested either Orlando or Miami.

22

In addition to that, the conduct that he was

23

engaging in regarding those magazines was a violation of the

24

Arms Export Control Act.

25

Q.

What about the statement about his dealings with A.E.Y.?

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84

Do you believe those are accurate in terms of the integrity

of his business?

A.

the business operations of A.E.Y.

of Florida case in which he was convicted of defrauding the

government, I think, was downplayed.

Q.

In what ways?

A.

Well, they said there was no loss to the government;

but, you know, the literature I've read, that the government

10

had paid out $66 million, and Mr. Diveroli defaulted on that

11

contract and Mr. Diveroli defaulted on several other

12

contracts that he had with the government to provide military

13

items, firearms, ammunition, helmets, bulletproof vests to

14

the U.S. military, Iraqi --

Mr. Diveroli was the president of A.E.Y. and controlled

15
16

MS. HAWKINS:
nature.

17

And the Southern District

Your Honor, I object to the hearsay

He has no personal knowledge of this at all.


THE COURT:

Overruled.

18

A.

-- to the U.S. military, the Iraqi allies and the Afghan

19

allies.

20

on contracts and unjustly enriched himself.

21

Q.

22

relationship with the Titusville firearms dealer, was that

23

legal?

24

based on your understanding of the Arms Export Control Act?

25

A.

There were several incidents in which he defaulted

This idea that Mr. Diveroli entering into this

The magazine contract, would that have been legal,

No, he could not broker the manufacture, export or

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85

import of items on the U.S. munitions list, which includes

the firearms magazines, including the 100-round drums that he

wanted to import from South Korea.

Q.

transcript from South Florida in regards to the idea that he

had been rehabilitated as of the sentencing in South Florida?

A.

Yes.

Q.

Do you believe that to be true?

A.

No.

10

Q.

Why not?

11

A.

Based on the review of jail calls and the review of his

12

possessions while incarcerated in the Orange County Jail and

13

information received from a cooperator.

14

Q.

15

jail recording from February 6th of 2011?

16

A.

Yes.

17

Q.

And that was made from the Orange County Jail by Mr.

18

Diveroli to his father?

19

A.

Yes.

20

Q.

Do you recognize both of their voices?

21

A.

I do.

22

Q.

Based on -- okay.

23

accurately sets forth the conversation?

24

A.

25

Okay.

You also -- did you also review the sentencing

I want to talk to you about Exhibits 8 and 9.

Is that a

Do you believe the transcript

Yes.
MR. RAVENEL:

Your Honor, we'd ask to publish

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86

Exhibits 8 and 9.

transcript along with the recording.

3
4

THE COURT:

All right.

Do you want to play the

recording now?

5
6

They'll be published together, the

MR. RAVENEL:
scroll.

Yes, sir, and the transcript will

That's why I said at the same time.

THE COURT:

(Audio recording played in open court.)

All right.

BY MR. RAVENEL:

10

Q.

How is Michael Diveroli related to Efraim Diveroli?

11

A.

He's his father.

12

Q.

Does this conversation raise any questions for you as an

13

investigator as to Mr. Diveroli cooperating with the

14

government?

15

A.

Absolutely.

16

Q.

Why is that?

17

A.

It seems clear to me that he's trying to get his father

18

to do something his father doesn't want to do, and the

19

interpretation is the father believes that this Mr. Harry

20

Chang is a battery salesman.

21

Mr. Diveroli is telling him, "Oh, no, no, no,

22

he's not."

He's telling him, "You need to get your hands

23

dirty and you need to do whatever it takes to get me out of

24

here," and that's not consistent with cooperation.

25

Q.

Who is Harry Chang, just so you can give the Court a

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87

background on him?

A.

manufactures batteries and -- for two-way radios.

Q.

is that true?

A.

Yes.

Q.

How did he relate to that investigation?

A.

I'm not exactly sure exactly how he relates to it, but I

believe he was involved in perhaps negotiating the purchase

Harry Chang owns a business in Miami in which he

His name also came up during the A.U.I. investigation;

10

and transfer of bulletproof vests from China with Mr.

11

Diveroli to be supplied to U.S. narcotics agents in Iraq

12

and -- China is on the proscribed country list.

13

cannot -- the U.S. government or any U.S. personnel cannot

14

engage in any Arms Export Control Act activities with China.

15

Q.

By "proscribed," do you mean prohibited; is that right?

16

A.

Yes.

17

Q.

What do you understand the statement to mean, "If Harry

18

Chang has to go to jail for life so I can get one year off my

19

sentence, that's what's going to happen"?

20

A.

So we

I interpret that --

21

MS. HAWKINS:

22

THE COURT:

Objection as speculation, Your Honor.


Overruled.

23

A.

I interpret that to do anything you have to do; and if

24

that -- if the outcome is Harry Chang going to jail for the

25

rest of his life, then so be it.

As long as I can get a year

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 88 of 175 PageID 534


88

off my sentence, I'll do anything.

Q.

Michael Diveroli would need to make to a Wachovia account.

A.

Yes.

Q.

Do you know what that relates to?

A.

Yes.

Q.

What is that?

A.

Payments of gambling debts.

Q.

This call, was this call made after the Southern

At the beginning, there's mention of a payment that

10

District of Florida sentencing hearing?

11

A.

Yes.

12

Q.

At some point in December -- or November, December of

13

2010 Mr. Diveroli was transferred from the Middle District of

14

Florida at Orange County down to the Miami area; is that

15

true?

16

A.

Yes.

17

Q.

When that was done, did the United States Marshal's

18

Service contact you?

19

A.

Yes.

20

Q.

What was the purpose of that contact?

21

A.

They advised me that the transportation had taken place

22

and that they are in receipt of his jail possessions.

23

Q.

Did you look at those jail possessions?

24

A.

Yes, I did.

25

Q.

I want to show you Exhibit 7.

It's one of the exhibits

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 89 of 175 PageID 535


89

I handed you.

A.

it lists colors and sizes of alleged T-shirts.

relate to drugs and the sizes relate to quantities.

Q.

That was found in Mr. Diveroli's possessions?

A.

Yes.

7
8

Can you describe what that is?

It's a sheet of paper entitled, "T-shirt Company," and

MR. RAVENEL:

The colors

Your Honor, I'd offer that into

evidence, Exhibit 7.

MS. HAWKINS:

10

THE COURT:

11

MR. RAVENEL:

12

THE COURT:

No objection.
7 is admitted.
Can we publish that?
Yes.

13

BY MR. RAVENEL:

14

Q.

Are there any illegal substances listed on that?

15

A.

Yes, numerous.

16

MR. RAVENEL:

We can take that down.

17

BY MR. RAVENEL:

18

Q.

19

the Markham Shooting Range on August 11, 2010?

20

A.

Yes, I did.

21

Q.

I want to show you Exhibit 1 and ask you if you

22

recognize that?

23

A.

Yes, I do.

24

Q.

What is that?

25

A.

It is the release, identity and waiver document, and the

Did you corroborate whether Mr. Diveroli was in fact at

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90

check-in document for the Markham Park Regional tactical --

or Target Range, and a receipt relating to the invoice signed

and -- to Efraim Diveroli.

Q.

Target Range?

A.

Is that document receipt actually from the Markham

Yes.

7
8

MR. RAVENEL:

I'd offer Exhibit 1 into evidence,

Your Honor.

MS. HAWKINS:

10

THE COURT:

11

MR. RAVENEL:

No objection.
1's admitted.
If we can, publish the first page of

12

that exhibit.

13

BY MR. RAVENEL:

14

Q.

That's dated August 11th of 2010?

15

A.

Yes.

16

Q.

Is there also a recording on that same date or nearly or

17

the day after where Mr. Diveroli mentions shooting firearms?

18

A.

19

A.T.F. agent.

20

Q.

21

document I want to show you is Exhibit 6.

22

that?

23

A.

Yes, I do.

24

Q.

Describe for the Court who Stephen Shelton is and his

25

background.

Yes, later that day, a recording to the undercover

The last photograph I want to show you or the last


Do you recognize

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 91 of 175 PageID 537


91

A.

Stephen Shelton is or at least was at the time an inmate

in the Orange County Detention Center who is pending federal

charges for a gun possession violation.

Q.

Do you understand he's been sentenced at this point?

A.

I didn't know that.

Q.

Okay.

A.

Yes.

Q.

Can you describe for the Court Mr. Shelton's criminal

record?

Are you familiar with his criminal record?

10

A.

Mr. Shelton has a prior attempted murder conviction in

11

which he was an accomplice in alleged an attempted murder,

12

and he also has a federal felon-in-possession-of-a-firearm

13

violation and conviction.

14

Q.

15

Florida as well; is that true?

16

A.

Yes.

17

Q.

At some point did you come in contact with Mr. Shelton?

18

A.

Yes.

19

Q.

How did that contact initially take place?

20

reach out to Mr. Shelton or did he reach out to you?

21

A.

22

counsel.

23

Q.

Did you meet with Mr. Shelton at some point?

24

A.

Yes.

25

Q.

What information did Mr. Shelton relate to you?

He also has a charge here in the Middle District of

No.

Did you

He reached out to the government through his

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 92 of 175 PageID 538


92

A.

Mr. Shelton wanted --

MS. HAWKINS:

THE COURT:

Objection; hearsay.
Overruled.

A.

Diveroli attempted to hire him to murder someone, a witness,

on his behalf and he was alarmed by that.

information to the authorities.

Q.

phone call, do you believe Mr. Diveroli actually wanted

10

Mr. Shelton wanted to relay information that Efraim

Based on your investigation, based on this Harry Chang

somebody killed?

11
12

So he brought that

MS. HAWKINS:

Objection, Your Honor; this is

speculation.

13

THE COURT:

Sustained.

14

BY MR. RAVENEL:

15

Q.

Exhibit 6.

16

A.

It's a handwritten note provided by Mr. Shelton from

17

Efraim Diveroli.

18

Q.

That's a note that you received from Stephen Shelton?

19

A.

Yes.

20

Diveroli.

21

Q.

22

about the note?

23

A.

24

his name, his company A.E.Y., Inc., and a former witness

25

against him, Kosta Trebicka, so that Mr. Shelton would know

What is Exhibit 6?

He stated it was provided to him from Efraim

What did Mr. Shelton tell you that Mr. Diveroli said

He said that Mr. Shelton can have someone do research on

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 93 of 175 PageID 539


93

that he has the ability to have someone murdered.

2
3

MR. RAVENEL:

Your Honor, I'd offer Exhibit 6 into

evidence at this point.

MS. HAWKINS:

THE COURT:

MR. RAVENEL:

No objection.
It's admitted.
Can we publish the first page of

that.

BY MR. RAVENEL:

Q.

Tell the Court who Kosta Trebicka is.

10

A.

Kosta Trebicka was an individual that Mr. Diveroli hired

11

during his A.E.Y. days.

12

U.S. government, Mr. Diveroli was to provide ammunition to

13

the Afghan forces, and he purchased and tried to transfer a

14

Chinese-made ammunition, which was illegal, based on the Arms

15

Export Control Act, and he had Kosta Trebicka run an

16

organization to repackage that ammunition and conceal its

17

Chinese origins.

18

Q.

What happened to Mr. Trebicka?

19

A.

Mr. Trebicka --

20

Q.

Did he ultimately cooperate with the government?

21

A.

Yes, he did cooperate with the U.S. government.

22

Q.

Where is he now?

23

A.

He's no longer alive.

24

Q.

Do you understand anything about the circumstances of

25

his death, where he was found?

In one of his contracts with the

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 94 of 175 PageID 540


94

A.

He was found on the side of a road and allegedly it was

a mysterious circumstances, but the ultimate determination

was that it was a vehicle accident.

Q.

Was it a dirt road in Albania he ended up dead on?

A.

Yes, sir.

Q.

Did Mr. Shelton know anything about Kosta Trebicka when

you interviewed him?

A.

No.

Q.

I don't have any further questions.

10

THE COURT:

11

All right.

Cross?

CROSS-EXAMINATION

12

BY MS. HAWKINS:

13

Q.

Good morning.

14

A.

Good morning.

15

Q.

The first person that called you about Mr. Diveroli,

16

there was never any charge made against Mr. Diveroli for any

17

conversation or action he took with that informant, was

18

there?

19

A.

20

with that informant, no.

21

Q.

22

investigated for a felon in possession of ammunition and also

23

you mentioned the Arms Export Control Act.

24

an ITAR violation?

25

A.

He was not charged with any crime regarding interactions

Now, you've said that Mr. Diveroli was being

Yes.

Is that known as

ITAR is the code of federal regulations that

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 95 of 175 PageID 541


95

corresponds with the Arms Export Control Act.

Q.

importer and being a broker under that Act, don't you?

A.

Yes.

Q.

And being an importer is bringing something that's on

the list, a munitions list, into the United States, correct?

A.

Yes.

Q.

And being a broker is taking something from one country

outside the United States into another country outside the

Now, sir, you know there's a difference between being an

10

United States, isn't it?

11

A.

12

Control Act transaction and provides financial support,

13

negotiations, negotiates contracts, represents someone in a

14

consultant situation.

15

Q.

That's not what it says in the Act, is it?

16

A.

It is what it says under "broker," yes.

17

Q.

In fact, you can be -- import -- using a broker, you can

18

import things into the United States, can't you?

19

okay if it's on the list, as long as they have a license,

20

right?

21

A.

22

someone is -- if someone is suspended or debarred by the

23

State Department for engaging in ITAR activities, they cannot

24

even have a broker represent them.

25

Q.

No.

A broker is someone who brokers an Arms Export

And that's

As long as that broker has a license and -- but if

How about if they have a different company?

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 96 of 175 PageID 542


96

A.

If they --

Q.

And they consult for it?

A.

If they start a front company?

Q.

No.

represent as a consultant?

A.

violation of ITAR.

Q.

the company itself?

If there is a legitimate other company and they

They can't engage in brokering activities.

That's not what I asked you actually.

That's a

I mean, how about

If they're not on the debarment list,

10

they can hire a broker, right, as long as the broker has a

11

license?

12

A.

13

case.

14

Q.

15

being a broker or an importer, is there?

16

A.

No, he was not charged with that.

17

Q.

And, in fact, have you interviewed his lawyers about the

18

advice they gave him, if he waived confidentiality about the

19

advice they gave him of what he could do in this regard?

20

A.

No.

21

Q.

Do you know from listening to the recordings that

22

there's a lot of discussion about Mr. Diveroli consulting

23

Washington, D.C., lawyers to make sure that he was acting

24

within the law?

25

A.

It can be done, but that's not how it happened in this

Well, in this case there's no charge of Mr. Diveroli as

I did hear some conversation about that.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 97 of 175 PageID 543


97

Q.

But you didn't look into who those lawyers were or what

they told him?

A.

No.

Q.

Now, you've said that you thought there was a

$66 million loss in the Southern District of Florida.

you seen the defendant's P.S.R. in the Southern District of

Florida?

A.

No, I have not.

Q.

Are you aware that there was no loss to the government?

Have

10

The only loss was to re-solicit the contract?

11

A.

12

calculated under there.

13

was paid on that contract.

14

Q.

Well, who told you that?

15

A.

It was a Congressional report.

16

Q.

Oh, well, we have the Congressional report.

17

look at that.

18

Congressional report, they talk about Mr. Diveroli defaulting

19

in five D.O.D. contracts out of over 150 that he had?

20

that your understanding?

21

A.

Yes.

22

Q.

Five with the D.O.D., correct?

23

A.

Five and then the additional one was the $298 million

24

contract.

25

Q.

I'm not sure of the definition of loss and how it was


I just have learned that $66 million

So we can

But did you -- did you know that on the

Is

He did default on many contracts, yes.

Of those five, are you aware that Mr. Diveroli litigated

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 98 of 175 PageID 544


98

that matter and he was found not to be in default; that those

were changed from termination for default into termination

for the convenience of the government?

A.

No.

Q.

You didn't follow up on what the 2008 report said, did

you?

A.

No.

Q.

So when you said earlier that he defaulted on contracts,

you're aware that there's no penalty for being terminated for

10

the convenience of the government, aren't you?

11

A.

12

for doing that.

13

Q.

14

understand that there's no penalty, there's no negative mark

15

against him when there's a termination for the convenience of

16

the government as opposed to a termination for default; did

17

you know that?

18

A.

I didn't know that.

19

Q.

But in terms of the loss to the government, you didn't

20

see the P.S.R. in the Southern District of Florida that

21

talked about any loss to the government, right?

22

A.

No.

23

Q.

Basically what you know is what's in that report, and we

24

can read that for ourselves, right?

25

A.

He was found guilty in the Southern District of Florida

Sir, I'm asking you, on the five D.O.D. contracts, you

Yes.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 99 of 175 PageID 545


99

Q.

We listened to a conversation between Mr. Diveroli and

his father.

cooperated with agents from the D.C.I.S. in the Southern

District of Florida?

A.

government, and I do believe it was D.C.I.S. and perhaps

I.C.E., Immigration and Customs Enforcement.

Q.

phone calls on behalf of federal agents to investigate

Do you know whether or not Mr. Diveroli

I do know that Mr. Diveroli did cooperate with the

And are you aware that he made hundreds of hours of

10

possible violations of federal criminal law?

11

A.

I don't know the extent of his cooperation.

12

Q.

Did you talk to the agents that he cooperated with?

13

A.

I talked to one of the agents that he cooperated with

14

and --

15

Q.

Who was that?

16

A.

David Dietrich, a special agent with I.C.E.

17

Q.

But you didn't talk with D.C.I.S., the main federal

18

agency handling Mr. Diveroli?

19

A.

20

we did not discuss the extent of his cooperation.

21

Q.

22

hours of conversations that were recorded when Mr. Diveroli

23

was cooperating?

24

A.

No.

25

Q.

Do you know whether or not that one of the people being

I'm sorry.

I talked briefly on one occasion with a Bob Koontz, and

Okay.

So you didn't talk to Agent Koontz about how many

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 100 of 175 PageID 546
100

investigated by federal authorities was Harry Chang?

A.

that they're very interested in.

Q.

investigating Harry Chang?

A.

No.

Q.

Do you know whether or not Mr. Diveroli made any

undercover calls on behalf of the United States of America to

Harry Chang?

According to David Dietrich, Harry Chang is not someone

Do you know whether or not a federal agency was

10

A.

No.

11

Q.

So you don't know whether or not Harry Chang was being

12

investigated for doing something criminal?

13

A.

I don't know that.

14

Q.

And you don't know whether or not there was anything

15

criminal about what Harry Chang was doing with A.E.Y., Mr.

16

Diveroli's former company?

17

A.

I'm sorry.

18

Q.

You don't know whether or not Harry Chang was being

19

investigated for doing something criminal in his involvement

20

in the Southern District of Florida case, the A.E.Y. case?

21

A.

22

with him that Harry Chang is not someone they're interested

23

in.

24

Q.

Well, but he wasn't D.C.I.S., was he?

25

A.

No.

Could you repeat the question.

No, just based on Agent Dietrich's conversation I had

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 101 of 175 PageID 547
101

Q.

So you don't know whether D.C.I.S. was -- I think you've

already said you don't know what they were investigating

using Mr. Diveroli.

A.

I don't know what D.C.I.S. was doing with Mr. Diveroli.

Q.

know if he placed undercover calls, if Mr. Diveroli did, to

Mr. Chang?

A.

No.

10

Q.

Now, in that conversation, Mr. Diveroli says that he

11

doesn't want his dad to do anything -- he only should do

12

things within the law, "You're working with the government,"

13

"You're working with lawyers," correct?

14

A.

15

father, that was insistence that anything he does has to be

16

within the law.

17

Q.

18

Diveroli say, "Yes, anything -- it's got to be within the

19

law.

20

cooperating with the federal government"?

21

Mr. Efraim Diveroli say that?

22

A.

23

interpreted what he was trying to relate to his father.

24

Q.

25

if that's what he said.

I believe I.C.E. and D.C.I.S. were working together, but

Okay.

And, again, I think you already said you don't

I believe that was Mr. Diveroli, Michael Diveroli, the

Well, we just listened to this.

Dad, we're dealing with lawyers.

Didn't you hear Efraim

You're talking about


Didn't you hear

Not in that manner, and that was not the way I

I didn't ask for your interpretation, sir; I asked you

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 102 of 175 PageID 548
102

THE COURT:

I know what he said.

So if you're not

interested in his interpretation, I can read it myself, Ms.

Hawkins.

BY MS. HAWKINS:

Q.

Diveroli was trying to get his dad to do something, I think

you said, that he didn't want to do?

A.

Yes.

Q.

Did you interpret Mr. Efraim Diveroli saying, "This is

In fact, what your -- your interpretation is that Mr.

10

an ugly, dirty game," that he was talking about cooperating

11

with the government?

12

A.

Yes.

13

Q.

No.

14

cooperating with the federal government is a dirty game?

15

A.

16

federal government is a dirty game.

17

Q.

18

cooperate with the government, then one person, chicken, goes

19

in, one gets out?

20

A.

21

trying to get his dad to do something dirty.

22

Q.

I'm asking you something different.

23

A.

Sorry.

24

Q.

Isn't what Mr. Efraim Diveroli said is that you have to

25

cooperate, help put somebody else in jail in order for you to

In a dirty way, yes.


That didn't you understand him to say that

I don't interpret it that way, the cooperating with the

Didn't you understand him to say that you have to

That's how it works, isn't it?

That's what he said.

My interpretation was that he was

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 103 of 175 PageID 549
103

get out?

A.

Yes, he did say that.

Q.

Isn't that how it works, sir?

A.

Not exactly.

Q.

Now, let's talk about Mr. Diveroli's arrest here in this

case.

A.

Yes.

Q.

And did you have -- you and other agents have many

meetings with Mr. Efraim Diveroli?

Did he not agree to cooperate with you?

10

A.

Two.

11

Q.

And did I also pass along information to you on phone

12

calls?

13

A.

Yes.

14

Q.

Did you talk -- that came from Mr. Efraim Diveroli?

15

A.

Yes.

16

Q.

And did you talk to Mr. Richard Dansoh?

17

A.

Yes.

18

Q.

And did he also pass along cooperation information from

19

Efraim Diveroli to you?

20

A.

Yes.

21

Q.

And was one of the people that information was passed

22

along to you as the case agent about a drug defendant named

23

Altrevius Biram?

24

A.

He passed some information on about a Mr. Biram.

25

Q.

And was it drug information?

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 104 of 175 PageID 550
104

A.

Yes.

Q.

That Mr. Biram had drugs in the jail?

A.

That's what he advised.

Q.

And did you understand this list to have been Mr. Efraim

Diveroli writing down -- that's Government's Exhibit 7 --

writing down what Altrevius Biram was telling him the prices

were?

A.

told Mr. Diveroli what he thought Mr. Diveroli wanted to hear

I don't understand that.

According to Mr. Biram, he

10

in order to cooperate against Mr. Diveroli as well.

11

Q.

12

and Mr. Biram is telling you things about Mr. Diveroli?

13

A.

Yes.

14

Q.

And so you decide who to believe?

15

A.

I gave them both an opportunity to cooperate.

16

Q.

And did you catch Mr. Biram doing drugs?

17

A.

No.

18

Q.

Did he get out?

19

A.

Did he get out?

20

Q.

Did he get out of jail?

21

A.

No.

22

Q.

Does Mr. Biram have a history of drug dealing?

23

A.

Yes.

24

Q.

How many convictions does he have?

25

A.

I'm not certain.

So Mr. Diveroli is telling you things about Mr. Biram,

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 105 of 175 PageID 551
105

Q.

Several?

A.

I believe more than one, yes.

Q.

Okay.

that Stephen Shelton was locked up and had been locked up for

gun charges and even attempted murder at one point, correct?

A.

Yes.

Q.

And did not -- didn't you get a call from Mr. Richard

Dansoh, the attorney for Mr. Diveroli, about Stephen Shelton

saying that he killed people for a living?


No.

In Government's Exhibit 6, I think you've said

10

A.

There was a second inmate which was being reported

11

that they kill people for a living.

12

Q.

13

passed on by Attorney Dansoh?

14

A.

15

were two individuals who Mr. Diveroli was reporting who wants

16

to do a murder for hire.

17

Q.

18

information about people in jail saying that they would do a

19

murder for hire, right?

20

A.

Yes.

21

Q.

And he -- he did tell you that there was an inmate in

22

there saying he killed people for a living, right?

23

A.

24

that.

25

Q.

Didn't you get some information about Stephen Shelton

I don't believe it was that -- that individual.

There

Mr. Diveroli did pass along to the federal government

That's what he stated, but that inmate contradicted

Okay.

So, again, you have two inmates, one saying one

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 106 of 175 PageID 552
106

thing, the other saying the complete opposite?

A.

is trying to set him up.

Q.

Diveroli is in the jail and he's cooperating with you and

getting information from Shelton or any of the other guys and

passing it along to you, would you consider that trying to

set him up?

A.

Well, this one is coming in to report that Mr. Diveroli

Mr. Diveroli -- well, let's put it this way.

If Mr.

Yes, he's trying to set him up for a murder for hire-

10

type investigation.

11

Q.

But disclosing it to you as well?

12

A.

Well, he wants me to do the investigation.

13

of course, he's going to disclose it.

14

little scheme to do a murder-for-hire-type cooperation

15

situation, but Mr. Shelton came right in and reported that.

16

Q.

17

cooperative?

18

A.

19

alarmed him from some individual in jail trying to hire him

20

to do a murder for hire.

21

Q.

22

you about the murder-for-hire situation, and then Shelton

23

comes in and tells you about Mr. Diveroli, who's cooperating

24

with you.

25

other, basically; isn't that right?

So,

He wants to set up a

So it looks like again both of them were being

Mr. Shelton was not a cooperator.

You understand what I'm saying?

He reported what

Mr. Diveroli's telling

So, again, you have two inmates telling on each

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 107 of 175 PageID 553
107

A.

No. I have one inmate reporting that another one is

trying to get him to do a murder for hire.

cooperator.

Q.

passing along this information about Stephen Shelton and the

people talking about murders for hire?

A.

inmate who was -- Mr. Diveroli wanted to report in a

murder-for-hire scheme, but there were two inmates and I'm

He was not a

You don't recall either myself or Mr. -- Attorney Dansoh

I remember both of you did pass information on about an

10

not sure if that was the one.

I thought it was the previous

11

one.

12

Q.

Do you have your notes here today?

13

A.

I don't think I have the notes for that.

14

Q.

For the conversations with the lawyers?

15

A.

Right.

16

Q.

So it is possible that he is one of the people --

17

A.

Actually, I do have notes.

18

here.

19

Q.

20

from all the conversations with me and Mr. Dansoh with you?

21

A.

I believe so.

22

Q.

When was this -- when was this that Shelton came

23

forward?

24

A.

25

Southern District of Florida.

I'm sorry.

I guess we can look at those.

I do have notes

But do you have the notes

I believe it was after Mr. Diveroli returned from the

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 108 of 175 PageID 554
108

Q.

So that would have been what month?

A.

Either January or February of 2011.

Q.

And that was during the time that Mr. Dansoh and I were

both calling you about Mr. Efraim Diveroli's cooperation?

A.

Yes.

Q.

And, in fact, did -- was a request made to bring Mr.

Diveroli in and hear it from him directly?

A.

Yes.

Q.

And for operational reasons or whatever, y'all didn't do

10

that, right?

11

A.

No.

12

Q.

I'm correct?

13

A.

We only -- we met with him on two occasions.

14

meet with him on the third occasion.

15

Q.

And that was before he went to Miami?

16

A.

We met with him one time before Miami and one time after

17

Miami.

18

Q.

19

with him again after he got back from Miami another time?

20

A.

21

and reported the scheme.

22

Q.

23

was -- one of the things he was trying to tell you, because

24

you didn't talk to him after that, right?

25

A.

You didn't do that, right?

I'm right?
We didn't

And I guess my question is, did I request that you speak

Yes, but we didn't do that because Mr. Shelton came in

Right.

And you don't know that that's what Mr. Diveroli

According to his lawyers, he had some information to

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 109 of 175 PageID 555
109

pass on.

Q.

Trebicka.

determination?

A.

That was the official determination, yes.

Q.

You have absolutely zero information, objective

information, that my client had anything to do with that?

You don't have any -- you don't know that?

A.

Now, the final point I want to make here is this Kosta


He was killed by a car wreck; that was the

No, I don't even believe he did.

I think he was just

10

telling that to Mr. Shelton for credibility purposes.

11

Q.

12

cooperation?

13

A.

Yes.

14

Q.

That's all I have.

Right.

15

So and that was part of his undercover

THE COURT:

16

Thank you.

Redirect?
REDIRECT EXAMINATION

17

BY MR. RAVENEL:

18

Q.

19

attorney information about two murder-for-hire schemes?

20

A.

Yes.

21

Q.

How many murder-for-hire schemes have you investigated

22

in 19 years as an A.T.F. agent?

23

A.

Zero.

24

Q.

Was it unusual to you that the same cooperator would

25

provide information about two different schemes?

You talked about Mr. Diveroli providing through his

They're rare.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 110 of 175 PageID 556
110

A.

Highly unusual.

Q.

I don't have any further questions.

THE COURT:

We'll be in recess until one o'clock.

(Lunch recess from 12:03 until 1:06 p.m.)

THE COURT:

MR. RAVENEL:

Thank you agent.

You can step down.

Mr. Ravenel.
I don't have any more evidence, Your

Honor.

THE COURT:

10

All right.

MS. HAWKINS:

Ms. Hawkins.

Your Honor, we are going to play 26

11

minutes of excerpts.

Instead of playing a whole bunch of

12

tapes that would take the rest of the day, we've prepared

13

some excerpts.

14

Can I approach and offer one to the Court?

I've given a transcript to the government.

15

THE COURT:

16

MS. HAWKINS:

17

These are excerpts from?

The undercover recordings the

government provided to me.

18
19

Sure.

THE COURT:

Okay.

We'll mark this as Defendant's

Exhibit 1.

20

MS. HAWKINS:

Thank you.

21

MR. RAVENEL:

Your Honor, I would object.

22

understand at sentencing you have a lot of latitude you can

23

consider.

24

the entire case.

25

indicates the facts of the case the defendant admitted to in

Initially, I don't think the excerpts represent


You have a 40-page Plea Agreement that

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 111 of 175 PageID 557
111

open court.

What you have here is you have essentially --

THE COURT:

Diane's sake.

Mr. Ravenel, there you go.

It's for

Thank you.

MR. RAVENEL:

What you have here is essentially

they take every excerpt that benefits them somehow, if it's a

couple of seconds or something like that.

contradicts it later on, as the undercover agent testified

to, you've got that.

Even if he

I would ask you, if you're going to

10

receive this information, to instruct Mr. Diveroli as to

11

acceptance of responsibility.

12

I'm still going to be the one who's going to be in

13

control of his third point.

14

he did at the plea hearing, which was admit to the facts in

15

that Plea Agreement, admit that he was in violation of the

16

law.

17

THE COURT:

18

that.

19

does it?

20

I believe this undermines what

Well, I'll let Ms. Hawkins speak to

But I don't think this relates to the third point,

MS. HAWKINS:

No, Your Honor.

This is during the

21

course of the conversations he had with the undercover agent.

22

These are part of the case itself.

23

THE COURT:

This is kind of the counterpoint of

24

what you've put on through your case.

I recognize these are

25

excerpts and may be out of context, and I don't know how to

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 112 of 175 PageID 558
112

resolve that other than to read it in context or to give you

an opportunity to put it in context.

MR. RAVENEL:

To the extent they contradict the

facts he admitted in the Plea Agreement, then I would

probably -- I'll listen to what she's got.

chance to look at it.

possible that I might not move for his third point for

acceptance, if he's going to contradict what he's already

admitted to in the Plea Agreement.

I received it this morning.

10

THE COURT:

11

MR. RAVENEL:

12

right before the hearing started.

13

I haven't had a
But it's

Well, have you read these excerpts?

THE COURT:

I haven't read through it.

All right.

I got it

Well, you understand what

14

he's saying, Ms. Hawkins?

15

thinks the defendant is now trying to renege on facts that

16

are set forth in the Plea Agreement, he may not move for the

17

third point acceptance of responsibility?

18

MS. HAWKINS:

That by introducing this, if he

I understand that, Your Honor.

19

don't think they do that.

20

little context in to balance out.

21
22
23

THE COURT:
stand then.

I just think that this puts a

All right.

It doesn't contradict.
Well, we all know where we

So I'll listen to it.

(Audio excerpts played in open court.

Defense

24

Exhibit 1 is the transcript corresponding to what was played

25

in open court.)

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 113 of 175 PageID 559
113

MS. HAWKINS:

Your Honor, I didn't know if the

Court wanted to addresses the two objections to the P.S.R.

and then hear mitigation.

THE COURT:

MS. HAWKINS:

Well, are you going to call witnesses?


Just I'm going to have a couple of

brief statements by the defendant's mother and uncle.

nothing substantive about the case.

8
9

THE COURT:

It's

Well, let's go ahead, and if we don't

get finished today, I'd like to at least let them say what

10

they want to say so they don't have to come back, unless they

11

want to.

12

MS. HAWKINS:

13

THE COURT:

Yes, sir.
So let's go ahead and put on whatever

14

evidence with regard to mitigation or anything else you want

15

to put on, and then we'll go back and try to wrap it up.

16

MS. HAWKINS:

Yes, sir.

17

Mrs. Diveroli address the Court.

18

she did it from here, Judge?

I just would like to have


Would it be all right if

19

THE COURT:

20

Just stand up there and Ms. Hawkins will ask you

21

some questions.

22
23

Sure.

If you'll just introduce yourself, please.

MS. DIVEROLI:
Diveroli.

Hi.

Your Honor.

I'm Efraim's mother.

24

MS. HAWKINS:

25

MS. DIVEROLI:

How old is Efraim?


25.

My name is Terry

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 114 of 175 PageID 560
114

1
2

MS. HAWKINS:
live?

MS. DIVEROLI:

MS. HAWKINS:

this case?

today?
MS. DIVEROLI:

MS. HAWKINS:

10
11
12
13
14
15

Miami Beach, Florida.


And you're aware of what happened in

You've been sitting through the proceedings

In what part of the country do you

Yes, I have.
And do you want to tell the Court

something about Mr. Diveroli's, your son's support in the


community?
MS. DIVEROLI:

Yes.

I would like to tell Your

Honor that -- can I tell him a little bit more?


MS. HAWKINS:

You can tell him a little bit about

his background.
MS. DIVEROLI:

Okay.

Your Honor, you know, when --

16

you know, I raised Efraim just like I was raised, you know to

17

be -- to stay close to God, to be honest, to be law-abiding,

18

to be respectful.

19

brother, a good son, a good student.

20

an age of about 16, he was thrown out of private school for

21

using marijuana and I sent him to my brother, because things

22

weren't getting better.

23

didn't approve of, and I sent him to L.A. for my brother,

24

who -- who his business was government contracts, and that's

25

where Efraim learned government contracts.

And -- and he's always been a good


And, unfortunately, at

He had -- he had some friends that I

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 115 of 175 PageID 561
115

And, unfortunately, at a very young age, Efraim

made a lot of money, even before the Indictment, he made with

government contracts and that money just fueled alcohol and

drug addictions and gambling addictions.

And -- and I did -- as a mother, I tried my best to

help him.

paperwork to show you that it wasn't just a one time.

was, like, continuously for a long time.

9
10

I did the Marchman Act, and I have a lot of


It

I -- I even called his parole officer when he was


indicted, when he wasn't following the rules.

11

I -- I went to AA meetings with him.

12

everything I could to help him.

13

drug and alcohol problem, and everybody knew it.

14

government knew it.

15

it.

Efraim had a very serious

The attorneys knew it.

16

MS. HAWKINS:

17

MS. DIVEROLI:

18

MS. HAWKINS:

19

MS. DIVEROLI:

I did

The

Everybody knew

Do you mean in Miami?


In Miami, yes.

Sorry.

The first Indictment?


The first Indictment, yes.

And --

20

and the thing is that Efraim never got the help he needed,

21

and he didn't get the help because, you know, it was like a

22

Band-Aid.

23

from a lot of the so-called people that work for him today

24

who are bad influences on him, he needed to get away from

25

that and he couldn't.

Efraim needed to get away from his environment,

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116

The -- the -- the lawyer at the Marchman Act didn't

want to touch trying to send him away because he was in the

middle of a -- you know, he was meeting with the government.

He was meeting with his attorneys, and he never got the help

he wanted; and there that, he started going to so many

doctors who gave him so many prescription pills that, honest

to goodness, I couldn't even recognize my son sometimes.

was -- his face was blown.

know, to try to -- they gave him a lot of medication to try

10

He

He was slurring his words, you

to help his appetite.

11

THE COURT:

Can you slow down a little bit.

12

MS. DIVEROLI:

Oh, sorry.

I'm sorry.

To try to

13

help him with his drugs cravings and alcohol.

14

you know, when Efraim was arrested in Orlando a year ago,

15

honestly, I was -- I felt like God was on my side, because I

16

know it saved his life.

17

don't know.

18

alcohol and the gambling affected all his ideas, his

19

thoughts.

20

They took over his life completely, and -- and -- and I

21

was -- I was so thankful.

22

listened to me, because my son's life was saved.

23

And -- and,

His life was a roller coaster.

It was roller coaster.

You

All his -- the drug and

He wasn't -- they were in control of his life.

I really felt that God finally

You know, every time I visit Efraim in jail, I say,

24

"Efraim, you know, I feel so lucky that I can visit you here

25

and not in a graveyard," because, honest to goodness, that's

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117

where he was going to end up.

No doubt in my mind.

And I was also glad because I know Efraim has the

ability to be a productive citizen, a good son, a good

brother.

get out of that bad environment he was in.

so much money and he had such bad influences around him and

he couldn't -- he couldn't get out.

was in jail, he was able finally to step out and see what

he's done to his life, you know.

I know he does, but he -- he -- he -- he couldn't


You know, he had

And, finally, when he

10

And like I know the prosecutor said before, listen

11

to the tape of Efraim, you know, I'm not going to stand here

12

and tell you overnight he's a new person.

13

tell you that.

14

learning, okay?

15

I'm not going to

You know, he's learning to live again.

He's

You know -- you know, like, for example, it used to

16

be when he called me up from jail, it would always be about

17

him.

18

okay?

19

he has the ability to change.

20

"Mom, do this."

"Mom, please do this."

It's not overnight, okay?

It changed,

But he's changing because

He was brought up that way.

Now he'll call me up and go, "Mom, how are you?"

21

"How are my siblings?"

22

It's like he's learning to live again.

23

be -- to be part of a community, which he wasn't.

24
25

It's something -- it's a process.


He's learning to

And -- and, you know, and the last thing wanted to


tell you is that also when he calls me up and he goes, "Mom,"

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118

I can't explain to you it's like a "Mom" I haven't heard in

years.

talking to.

feel the affection.

got my son back.

It's like it used to be a different boy that I was


It wasn't my son.

Now, when he says, "Mom," I

I feel like -- I really feel like I've

And -- and I just -- I just -- it's not that I

don't think Efraim should take responsibility for his

actions.

their actions; but, Your Honor, when you sentence Efraim,

I do feel people should take responsibility for

10

please keep in mind that -- that he really had a lot of

11

things that affected his choices, he really did.

12

young boy with such a big addiction having millions of

13

dollars before the age of 20, and these were government

14

contracts before the Indictment.

15

the Indictment.

16

nobody could help him because he had all that money.

17

was -- his money was a curse.

18

that's all.

19

Imagine a

They had nothing to do with

He was -- he was like a reckless train and

His money was a curse.

It
And

I just hope you're as lenient as possible, Your

20

Honor, because I know Efraim really has the ability to be a

21

productive citizen, a good son, a good sibling.

22

Your Honor.

23
24
25

MS. HAWKINS:

And, please,

Do you know whether or not your son

had any mental problems?


MS. DIVEROLI:

Yes.

When I went -- when I did the

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119

Marchman Act with him, first they put him into rehab and then

Carol Ross, who was the attorney at the time, she goes to me,

"Terry, you know what?"

She goes, "How old is your son?"

I was telling her.

And she goes, "You know what, Terry?"

She goes,

"He needs to go into dual, because he has some mental

problems that -- that just -- that just -- that just -- rehab

is not going to help him with."

And he worked with a Dr. Shomasser for quite a few

10

years, and Dr. Shomasser many times emphasized to me, "Terry,

11

your son's thinking process is not normal.

12

thinking, he has some mental illness issues that has to be

13

dealt with."

14

His way of

And personally I think those mental illness issues,

15

which he definitely had, because his way of thinking was way

16

out there, had to do with all his addictions.

17

horrible addictions, terrible addictions.

18

know, even while he was on parole, he was tested positive for

19

cocaine, and they knew.

20

Everyone knew he had addictions.

21

He had

He was even -- you

He went to court for it.

They knew.

And, you know, unfortunately, in this country he

22

had a lot of rights, too, and I did as much as I could to try

23

to help him.

24
25

MS. HAWKINS:

When your son is released from

prison, what kind of -- what can you tell the Judge about the

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120

type of support that you, your family and your community can

provide to him so that he doesn't get back into trouble.

MS. DIVEROLI:

Your Honor, you know, this is my

family behind me; and, thank God, I have five siblings, and

we're all very close to each other.

here today and one wasn't able to come.

There's three of them

I speak to my siblings twice a day.

One lives in

New Jersey.

One lives in L.A., and we're a close-knit family

and we're all very hurt about what happened to Efraim,

10

because this is not who we are.

11

we're ashamed.

12

of his behavior and what he's done with his life, and -- but

13

we're a close-knit family and we're a devoted family, and our

14

goal is always to help Efraim lead a straight life.

15

my -- that has always been my goal.

16

doing things he shouldn't, I went to his parole officer.

17

We're ashamed and he knows

I've told him many times that we're ashamed

That is

That's why when he was

I -- our goal is to always -- to be committed to

18

Efraim, to be committed to helping him.

19

him any other way, and Efraim knows we wouldn't accept him

20

any other way.

21
22
23
24
25

THE COURT:

We wouldn't accept

Do you have any anything else you want

to tell the Court?


MS. DIVEROLI:

No.

I just thank you very much for

listening to me.
THE COURT:

All right.

Well, thank you, ma'am.

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121

appreciate your being here; and, obviously, your support is

very important.

MS. DIVEROLI:

MS. HAWKINS:

At this time we would like to call

the defendant's uncle, Rabbi Shmuley Boteach.

THE COURT:

MS. HAWKINS:

Okay.
State your full name and spell your

name, please.

9
10

Thank you.

RABBI SHMULEY BOTEACH:

S-h-m-u-l-e-y B, as in "boy" o-t-e-a-c-h.

11

MS. HAWKINS:

12

RABBI SHMULEY BOTEACH:

13

MS. HAWKINS:

14

RABBI SHMULEY BOTEACH:

15

MS. HAWKINS:

16

And you're related to the defendant?

when he was a younger person?

18

MS. HAWKINS:

25

And do -- you reside in what part of

RABBI SMULEY BOTEACH:

I live in Englewood, New

Jersey.

22

24

Of course.

the country?

20

23

He is my sister's son.

And have you been acquainted with him

RABBI SHMULEY BOTEACH:

21

I am.

How are you related?

17

19

Rabbi Shmuley Boteach,

MS. HAWKINS:

So what kind of contact have you had

with him?
RABBI SMULEY BOTEACH:

I've been to Florida

multiple times to see him alone under difficult

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122

circumstances -- I have nine children, thank God -- to visit

Efraim during painful experiences, like his first sentencing

in Miami.

Every one of us, Your Honor -- and I'm very

grateful for your time in allowing me to address your

court -- is very devoted to family.

mother of six.

the mother of five.

Barcho, who lives in Los Angeles, is a father of seven.

My sister Terry, who you just heard from, is


My own parents have five.

10

believe in family.

11

and values by which to live.

12

My eldest sister is the

My brother
We

We believe in giving our children morals

I actually hosted a national TV show trying to

13

repair families.

14

from this courthouse here in Orlando I helped a woman, whose

15

husband was killed right near here, overcome the grief of

16

that terrible tragedy.

17

And a few years ago, four or five blocks

I never would believe that I would be sitting

18

before you to discuss my own flesh and blood in these

19

circumstances.

20

and how helping one's own family is the greatest challenge of

21

all.

22

Sometimes one discovers one's own limitations

My sister is a saintly figure.

She has been since

23

she was a little girl.

Altruism is in her D.N.A.

24

embellish nothing in telling you that this is a woman who,

25

although is a successful small-business owner, goes by

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123

herself to take care of an elderly couple who live around the

block from her who cannot dress themselves, feed themselves,

and cleans their house several times a week, completely on

her own.

She is the president of a charity that raises money

for orphans in Israel.

facing with her son, she's been pleading with me to come down

to Miami to speak on behalf of the organization to raise

money for these orphans.

10

And amidst all of the issues she's

That is the greatest anomaly of all, that this

11

should take place in her family, given her -- her

12

incomparable commitment to ethics and values, Judaism and a

13

religious way of life.

14

My sister spent untold numbers -- untold sums

15

ensuring that my nephew had a Jewish education in Jewish day

16

schools when she was the sole breadwinner for the family,

17

when her husband was struggling to hold a job.

18

in Jewish day school to ensure that he had a values-based

19

education.

20

ways.

21

She kept him

She would berate him daily about changing his

And here we are, just a few years later, because

22

Efraim is still so young, and as we Jews prepare for our

23

national Jewish New Year, which is celebrated in some

24

communities with partying and revelry, but in our community,

25

with deep reflection and resolutions for the future, I really

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124

see those two sides of my nephew.

I think no greater truth was spoken in this

courtroom today than by the first A.T.F. agent, who said that

Efraim would on the one hand say, "I really can't do X and

I'm prevented from doing Y," and seemed sincere in saying it,

and a moment later would contradict himself.

been a battle going on inside him, the battle of good and

evil, the battle to do the right thing versus the narcissism

and selfishness that has dictated many of his actions.

10

There's always

In our religion, we believe that there are three

11

things on the Jewish New Year, on this judgment day that has

12

come early for my nephew before you today, Your Honor.

13

believe in the three Rs of recognition, repentance, and

14

rectification.

15

We

Recognition is something that Efraim has struggled

16

with, even as we tried to impart that to him; but he has

17

fallen so low, he has hit such rock bottom, he is sitting in

18

a jumpsuit in the presence of his cousins, some of whom he

19

once employed.

20

He could not fall any lower.

He has experienced national humiliation with

21

stories written about him, some of which are not accurate and

22

misportrayed some of his actions, but that's par for the

23

course.

24

they're going to say the good and the bad, and not all of

25

it's going to be accurate.

When you've got yourself in this kind of trouble,

He's had no opportunity to

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125

respond to it because of his conditions.

He has fallen so low and that has brought a certain

recognition that heretofore was lacking, and I plainly admit

that it was lacking, because I see his failure as my own

failure, as our family's failure.

through to him when so many of us tried?

Why couldn't we get

But, unfortunately, Your Honor, there are two ways

to motivate people in life.

There's the inspirational, where

you focus on the positive; and, unfortunately, there's the

10

condemnational, where only negative impulsion can get people

11

to recognize tragic truths.

12

tragic truth.

13

Efraim has recognized that

I agree with everything my sister said.

He's a

14

different person when you speak to him on the phone.

15

to him on the phone on Friday, when he called me, thanking me

16

for planning to be here today, amidst responsibilities to a

17

large family, I said to him, "You know that the person you've

18

hurt the most is the one who loved you the most:

19

mother."

20

I said

Your

My sister is on the phone with me every single

21

night crying such bitter tears that I -- I can't work

22

afterward.

23

much.

24

acknowledged that he has betrayed everything she believes in

25

and everything that he was raised to believe in as well.

I can't function, hearing my sister suffer so

And he has called her and begged her forgiveness and

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126

The second R, that's repentance, and that's what I

mean, where he goes and repairs the relationships that he's

broken, where he pays his debt to society.

jail, incarcerated here in Orlando for a year.

my kids to visit him before Passover, the Jewish festival.

It was painful seeing three-year-old children, five-year-old

children speaking to a cousin they love through a glass over

telephones and having to explain to my kids why he's there,

these small children who are very innocent.

10
11

He's been in
I brought all

He is trying to

repent of everything that he has done.


Finally, Your Honor, there is rectification.

What

12

I plead before you today as you sit in judgment is to

13

understand that a young life that clearly has talent may

14

never experience that third R of rectification if he's given

15

a sentence that is overly long, where this spark of God, the

16

human countenance, the desire for a person to be a blessing

17

rather than a burden is slowly snuffed out from him, where

18

keeping him in prison just provides diminishing returns.

19
20

Efraim has so much good to do in his life.


a millionaire in his teens.

He was

He had no guidance.

21

What you heard in that terrible phone call that we

22

all listened to, where I tried to keep a poker face, even as

23

my soul was torn asunder by hearing a conversation where you

24

didn't know who the father was and who the son was.

25

giving instructions to who?

Who's

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127

He was never given any kind of moral guidance.

blame no one for that.

financially for so many years.

that security in life is not found in loving relationships;

it's found by having money in the bank.

more and more depressed about his life, because without

purpose, you cannot find happiness, he turned to some of the

things that you've heard about, terrible addictions of drugs,

alcohol in dangerous quantities, gambling, anything to avoid

10
11

This is a family that's struggled


The message that he got is

And as he became

the purposelessness of his life.


He was not given that guidance.

That was a painful

12

phone call, but it gives you a window, Your Honor, into

13

seeing the utter absence of guidance that this young man had.

14

A lot of what he did was done at such a tender age.

15

given government contracts of hundreds of millions of dollars

16

when -- I'm not sure of the exact chronology, please forgive

17

me -- I'm not sure he was allowed to buy a drink, to buy a

18

beer in a bar, and he was supplying whole armies.

19

He was

That does not in any way absolve him for the things

20

that he did for which he must be justly punished.

He has

21

been punished very severely.

22

Miami from a federal judge there.

23

please -- we are a family that loves him, we are a family of

24

deep values -- if you'll give him back to us after having

25

paid his debt to society, we will endeavor our utmost to make

He already has a sentence from


I'm asking Your Honor,

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128

him a blessing rather than a burden, someone who contributes

rather than takes.

My brothers and sisters -- and we are very

close-knit family who endured the very painful breakup of our

parents' marriage when we were all very young -- and,

unfortunately, our family is ravaged by divorce.

are divorced.

ex-brother-in-law.

sit on two different sides of the courtroom, and he was

My two sisters are divorced.

My parents

My brother -- my

You see the divisions even here, how we

10

always pulled between those two places.

11

divorced.

But we all were are closely knit, me and my

12

siblings.

We all care and love each other's children.

13

His parents are

I helped to raise another nephew on a different

14

path in God, who is now very charitable, very religious, and

15

I'd like that opportunity to do so with Efraim, now that he

16

might listen to me, given how far he has fallen.

17

In conclusion, Your Honor, my brothers and sisters

18

who run a jewelry business in Miami, they are well-known in

19

the community, that all of these -- they're call meserlokin

20

(phonetic) -- emissaries who come from Israel to raise money

21

for brides who don't have money to pay for a wedding or buy a

22

dress, desperately poor families in Israel who have no money

23

to buy their children food, they line up outside their

24

jewelry store, and everyone in Miami knows that no person

25

leaves without a check.

They're very good, charitable

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129

people.

I'm the rabbi in the family, but I can tell you --

and I would not lie to you in any way on embellish -- they're

much better people than I am.

most spoiled.

divorce was to give me what I wanted because they felt I

suffered the most, but my siblings are the most incredible

people, and he will have a very loving and very healthy

environment.

10

I was the youngest.

I was the

My parents thought the way to deal with their

Efraim, you've done things for which you have to

11

accept full responsibility.

12

now you're standing before someone who will determine your

13

fate and now you've learned that every action has

14

consequences.

15

You've hurt a lot of people, and

And this is a great nation.

This is the greatest

16

country in the world, and that your sins involve the U.S.

17

military is the most disgraceful thing of all, because the

18

U.S. military is the single greatest force for good in the

19

world today, giving women in Afghanistan dignity and

20

protecting them from being beaten, allowing people in Libia

21

to experience freedom for the first time and not living under

22

a tyrant.

23

Those men and women, who are just two percent of

24

the population, they work for almost no money, but they have

25

the greatest thing of all.

It's called honor, and it's

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130

something that you have to beg to have the freedom to maybe

achieve with your life.

And you have our commitment, Your Honor, that we

will endeavor to do so.

very much for your time.

6
7
8
9

THE COURT:

And God bless you, and thank you

Thank you, Rabbi, for your thoughts.

appreciate it.
MS. HAWKINS:
witnesses to call.

Your Honor, I don't have any other

I provided a copy of some documents to

10

the government earlier and these documents are just a few of

11

the charitable contributions made by the defendant during the

12

time -- over a several-year period during the time that he --

13

before he was doing anything illegal in Miami and continuing

14

thereafter.

If I may approach?

15

THE COURT:

16

MS. HAWKINS:

17

THE COURT:

18

MS. HAWKINS:

Sure.
This would be Defense 2.

Thank you.

Is this a composite exhibit?


Yes, sir.

Your Honor, I believe at

19

this time it might be appropriate to talk about the P.S.R.

20

objections.

21
22

THE COURT:

Okay.

The

first one is the base computation?

23

MS. HAWKINS:

24

THE COURT:

25

Let me switch files here.

Yes, Your Honor.


All right.

to the script here for a minute.

Well, let's kind of go back


What about factual

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131

objections to the P.S.R.?

noted in the addendum are scoring objections primarily.

need to get any factual objections out of the way.

MS. HAWKINS:

THE COURT:

Because I think the objections


So I

No factual objections, Your Honor.


All right.

Then let me review what the

scoring is so we'll know what you're objecting to.

On page

16, Probation has scored it as a base of 20.

understand your position is it should be 14, and that's going

to turn on the issue of the magazine capacity.

And I

10

Then there's a two-level increase for the number of

11

firearms and then a three-level increase under 3(c)1.3; and I

12

also understand there's some dispute about the interpretation

13

of that, including the consecutive nature of any sentence

14

imposed thereunder.

15

responsibility, we end up with a total offense level of 22

16

with a criminal history category II.

17

Then subtracting three for acceptance of

So, with that scoring then, let's go ahead and take

18

up your objection as to the base.

19

MS. HAWKINS:

20

Yes, Your Honor.

Our objection is

set forth on pages nine and ten of our sentencing memorandum.

21

THE COURT:

22

MS. HAWKINS:

I've read them.


I'm sure you did, Judge.

So I won't

23

repeat myself, but to say that application note two of

24

Section 2(k)2.1 defines what a weapon that is a

25

semi-automatic firearm capable of accepting a large-capacity

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132

magazine is; and it's not just the weapon that's capable of

accepting it, but it goes on to say if either a magazine is

attached to it, which is not the case here, or if there's a

magazine in close proximity to the firearm.

Your Honor, it's our position that there was no

magazine in close proximity to this firearm.

certainly never saw that.

the undercover agent's report or in any of the agents'

reports that were there that day saying that there was a

10

The defendant

There were -- there was nothing in

magazine near any of these firearms.

11

Recall that the defendant did not bring any weapons

12

to this meeting.

13

brought by the -- the federal agents.

14

that they brought magazines that were there.

15

Court looks at the stipulated facts of this Plea Agreement,

16

they are inordinately detailed and they have no mention of

17

this.

18

Agreement and the stipulated facts, and yet there's no

19

mention of any magazines being there.

20

He brought none.

These were the weapons


They're saying now
However, if the

Everything else in great detail is in the Plea

At the position-of-the-parties' meeting, it wasn't

21

even clear to me that the prosecutor knew it in our

22

conversation.

23

there were some magazines there, but it was very, very late

24

in the game and there's just no documentation of it, Your

25

Honor.

So I don't know when somebody decided that

And given the facts particularly that the defendant

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133

had nothing to do with bringing these guns or the magazines

that they say are there, it's just not fair for them to bring

guns and then bring magazines, too, to enhance his sentence;

and this is six levels.

I mean, it's very, very important.

I do cite on page ten of my memorandum the

Ciszkowski case, and here's the quote from that case.

an Eleventh Circuit case from 2007.

would fine it troubling if the government provided the

defendant with a firearm with a silencer that he could not

10

It's

The court said, "We

see, solely to inflate his sentence upon a conviction."

11

Now, I don't know what to say about the testimony

12

of the undercover agent except for he doesn't remember or

13

he's just not being straight; but every federal agent of his

14

experience knows that if you've got something important, you

15

put it in a report, and if it's not there, it's highly

16

suspect to the defense.

17

To enhance his sentence on this basis would be to

18

countenance the agent's placing the magazine near the gun

19

under the circumstances where there can be the consequence of

20

holding him accountable for it.

21

and, Your Honor, it's -- it's not fair and it's manipulative,

22

and our position is that the Court should not enhance his

23

sentence under this provision.

24

THE COURT:

25

argument.

Okay.

He's not charged with it

Well, I understand your

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134

I'll certainly let Mr. Ravenel respond, but there's

a difference between a silencer and magazines, in my view, in

terms of the analysis.

First of all, I've got to make a credibility

decision.

magazines were there with the weapons or not.

testified that they were.

want to jeopardize his career by such a falsehood simply to

get me to enhance a sentence.

10

I wasn't there, so I don't know whether the


The agent

I can't imagine the agent would

So it's hard for me to believe that he would make

11

that up and just come into court under oath and lie.

12

from a credibility standpoint, I really don't have a basis

13

not to believe him.

14

So,

The other problem with it is that the notes are

15

simply inconsistent with the guideline itself.

16

said if the weapon involves a semi-automatic firearm, which

17

we have here, that is capable of accepting a large-capacity

18

magazine.

19

The guideline

Now, if you have a firearm that normally has a

20

capacity of ten but could be modified to accept a capacity of

21

20, then maybe the proximity of the magazine would be

22

important and determinative; but here, every one of these

23

weapons normally, in normal use, accepts a magazine that has

24

more than 15 rounds; and to me, that is clearly within the

25

plain language of the guideline.

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135

I recognize what you say about the comment.

comment says, well, it's not just enough to be capable.

has to actually be either in it or in close proximity.

The
It

So to the extent that it has to be in close

proximity -- and for these weapons, I really don't think that

should be the law, if it is the law -- I don't have any basis

to discredit the testimony of the agent in that regard.

8
9

I guess I've already answered Mr. Ravenel's


response.

10

MR. RAVENEL:

11

THE COURT:

12

on the record?

13

my orders.

14

Much better than I could have.


Is there anything else you want to put

Because Ms. Hawkins is very good at appealing

MR. RAVENEL:

No, sir.

I would just say there's no

15

evidence that Dan O'Kelly brought those magazines to enhance

16

his sentence.

17

the fact that he didn't put it in the report, I think,

18

corroborates that to some extent.

19

enhance it, certainly I imagine he would have it in the

20

report.

21

He said that he didn't for that reason.

Also,

If he brought it to

You also know that nine days earlier Mr. Diveroli

22

shot a high-capacity firearm by himself, without the

23

assistance of any government agent.

24

to whether or not he was somehow entrapped from a sentencing

25

perspective.

I think that also speaks

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136

THE COURT:

All right.

Well, Ms. Hawkins, I

understand your argument, and I think I've stated as best I

can my understanding of the guideline and my factual finding.

So your objection with respect to the base guideline

calculation is overruled.

base of 20.

So I'm going to score it with a

That brings us to the issue that is more troubling

to me in terms of a legal issue and that is the 3(c) -- that

is your next argument, right?

10

MS. HAWKINS:

11

THE COURT:

12

MS. HAWKINS:

13

THE COURT:

14

MS. HAWKINS:

Yes, Your Honor.


3(c)1.3?
Yes, Your Honor.

Our -- our. . .

Go ahead.
Our discussion of that begins on the

15

bottom of page ten and goes to page 13 of the sentencing

16

memorandum; that in paragraph 70, there are several reasons

17

why we say that the defendant should not have his guideline

18

adjusted three levels upward, and the first is probably

19

what -- in line with what the Court just said about the plain

20

language of the statute and then the application notes.

21

is -- it's not clear.

22

The example contradicts itself, for that matter.

23

This

They seem to contradict one another.

But our first point is that it's really unfair, in

24

terms of equity for a defendant, to be encouraged.

And I

25

think we heard three times today on those tapes alone where

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137

the undercover agent suggests and says, you know, "This is a

millions-of-dollars deal and you really have to come up

here."

I did note that what he said on the stand was not

really what was on the tapes.

he's too busy to come down there and he's a millionaire guy.

He said, "Well, I just didn't get into that with him."

8
9
10

On the tapes, he didn't say

So, for whatever reason, the defendant resisted


coming up here several times.

He said, "I can only go to

Jupiter."

11

The undercover agent says, "Well, to West Palm."

12

He goes, "Okay.

13

So there's something wrong when the agent knows

I'll come to West Palm."

14

that there -- this would be a violation of the bond, and yet

15

they encourage a person to violate the bond and then want to

16

enhance his sentence for it.

17

government, Your Honor, and that's just not equitable.

18

wouldn't be an equitable result in this case.

19

THE COURT:

20

MS. HAWKINS:

21

THE COURT:

Well, the government's the


It

Well, let's separate these issues.


Yes.
There's the issue of the proper

22

interpretation of 3147 and its application to the guideline

23

score --

24

MS. HAWKINS:

25

THE COURT:

Yes.
-- and then there's the issue of

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138

fairness, which I can take into consideration under my Booker

discretion.

MS. HAWKINS:

THE COURT:

5
6

Yes.
So they're really two separate issues,

it seems to me.
MS. HAWKINS:

Yes.

And, actually, that was all I

was going to say about the fairness Booker issue in terms

of -- and I did note that we would ask the Court, if it

doesn't agree with us on the guidelines interpretation, that

10

it do exactly that, to vary under the Booker analysis in the

11

fashioning of the sentence.

12

But in terms of the actual literal reading of the

13

guideline itself, the -- the adjustment says in application

14

note one of 3(c)1.3, that note indicates that the adjustment

15

applies when a defendant is charged with a violation of

16

Section 3147; and I think I've pointed out this has been a --

17

there's some history behind this section.

18
19
20
21

It makes sense for this to be applied when the


person is charged with Section -THE COURT:

What did you just read from with the as

charged language?

22

MS. HAWKINS:

23

THE COURT:

24

MS. HAWKINS:

25

THE COURT:

I have it on my page eleven.


But where is it in -Application note one.
Where in application note one?

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139

1
2

MS. HAWKINS:
front of me.

I'm sorry.

I apologize.

THE COURT:

MS. HAWKINS:

I don't have that in

All right.
Okay.

Go ahead.

Which makes sense.

guideline for that.

THE COURT:

But the problem is 3147 is not an

offense.

sentencing enhancement.

You don't charge someone with 3147.

MS. HAWKINS:

that; but the defendant was charged with 3147.

11

been done.

12

case that was cited by the probation officer.

13

done, Your Honor.

14

So it has

And that was a Fourth Circuit case, but it's the

THE COURT:

So it has been

Well, the fact that it's been done

doesn't -- a lot of things have been done, but go ahead.

16
17

It's a

Well, I mean, some of the cases say

10

15

There's no

MS. HAWKINS:

I'm just saying that I don't know

that that's --

18

THE COURT:

I read it clearly as a sentencing

19

enhancement provision of the United States Code, not an

20

offense against the United States.

21

worded.

22

while you are on probation, the court can increase the

23

sentence as a result of that up to ten years if it's a felony

24

and, which is the more troubling part, whatever that

25

increase -- the way I read it, whatever that increase is has

It's rather simply

It basically says that if you commit an offense

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 140 of 175 PageID 586
140

1
2

to be consecutive to any other sentence of imprisonment.


Now, that raises some very interesting and

difficult conceptual legal problems in my mind; but the

statute itself, to me, simply says, look, if you commit a

crime against the United States while you're already under

probation, the court under this statute can sentence you to

additional time and that time has to be consecutive, whatever

that means.

MS. HAWKINS:

And in reading that statute together

10

with the Section 3(c)1.3 of the guidelines, there is an

11

example of how this is supposed to work in application note

12

one, which talks about -- it gives by way of an example

13

there's an offense with a guidelines range of 30 to 36 months

14

for the underlying offense.

15

And then it says if the court determines, for instance, that

16

the sentence should be 36, that on the actual form, the

17

sentencing form, that the court would put 30 months for the

18

underlying offense and six months for the violation of 3147,

19

and that does give an additional penalty for the commission

20

of this offense while on bond.

21

THE COURT:

In this case, a gun offense.

Well, not really.

I mean, frankly,

22

that application note is rather nonsensical.

I understand

23

what it says, but it makes no sense to me.

24

determine the appropriate sentence for the underlying offense

25

is 36 months and if I have the authority to increase that

I mean, if I

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 141 of 175 PageID 587
141

because he committed that offense while on probation, and if

that increase has to be consecutive, and I think all those

assumptions are correct, then this guideline application note

makes no sense, because what it says is I just sentence him

as if there was no adjustment other than the three levels.

MS. HAWKINS:

Well, it is complicated, because when

you read it in conjunction with the guidelines, it's --

it's -- our point is that the government has drafted these

guidelines and they should be -- to the extent that they're

10

hard to understand, that should be read against -- any

11

ambiguity should be read against the author, which is the

12

government.

13

THE COURT:

14

I'm sorry, Mr. Ravenel.

15

paying you to be here.

16

it down.

17
18

Well, let me break this down.

Let me hear from you before I break

MR. RAVENEL:
want to.

I know the government's

Sure.

You can keep talking, if you

19

I'll respond at some point.


THE COURT:

I'm sorry.

I get carried away

20

sometimes.

21

here and I have thoughts and issues and questions, so I just

22

start saying them.

23

Since I look at these things before I come in

Sometimes I get ahead of myself.

MR. RAVENEL:

Well, I can tell you how I analyzed

24

it and some of the concerns I had and they're the concerns

25

that the defense attorney has raised.

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142

Initially, you look at the guideline and it says if

a statutory sentencing enhancement under 18, U.S.C., 3147,

applies, increase the offense level by three levels.

So initially you look at 3147.

I think unambiguously it does.

THE COURT:

MR. RAVENEL:

too.

applies.

10
11
12
13
14

Does it apply?

And

I agree.
And you've got cases that say that,

You've got cases that say, without exception, it

So then I look at notice.


notice of this particular thing?
THE COURT:

Was the defendant on

And you've got. . .

What's notice got to do with it other

than the fairness issue?


MR. RAVENEL:

Well, that's where I come down to it

15

on notice, just that he was aware of it.

And there was a

16

Ninth Circuit case, Rosis, which talked about notice a little

17

bit, and basically they said if he's got notice in a

18

Presentence Report, he's got notice.

19

Here in this case, he's got more than that, because

20

when he was released on bond, the court notified him, hey, if

21

you commit a new violation, that's going to be consecutive.

22

THE COURT:

Well, but they can tell him it might be

23

consecutive, but that bond order does not bind my sentencing

24

decision in this case.

25

MR. RAVENEL:

I don't think the bond order would,

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 143 of 175 PageID 589
143

but just as far as him being aware that that's a possible

consequence --

THE COURT:

I agree with that.

MR. RAVENEL:

You know, in terms of notice, I was also concerned

-- while he's on bond.

with whether this had to be charged, this 3147 violation.

don't believe it does.

unpublished opinion from this circuit, Clemendor, and you've

also got a Fifth Circuit opinion, Dison, that say it's not a

10

charging statute.

11

You've got two opinions, one

It's a sentencing --

THE COURT:

I don't think Ms. Hawkins is claiming

12

legally it had to be charged.

13

Are you?

14

MS. HAWKINS:

15

major point.

16

part of it.

17

Not at this point.

That's not my

I've pointed that out, but that's not my major

MR. RAVENEL:

So then you come down to you've got

18

notice.

It doesn't need to be charged.

Whether it applies?

19

And you have five different cases.

20

language of the statute.

21

new concept to argue this statute's ambiguous.

22

apply.

23

been raised.

24

Sixth Circuit, the Fourth Circuit, this Circuit as well as

25

the Ninth Circuit --

You've got the plain

And those five cases, it's not a


It doesn't

You've got to read it in favor of my client.

That's

It's been raised in the Fifth Circuit, the

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144

THE COURT:

MR. RAVENEL:

THE COURT:

All right.
-- and they've rejected it.
I think we're on the same page up to a

point.

MR. RAVENEL:

THE COURT:

Yes, sir.
The guideline 3(c)1.3 says if the 3147

provision applies, then increase the offense level by three

levels.

I agree that 3147 on its face applies.

So we

10

increase the offense level by three; and that, you know,

11

gives us the scoring of 25 minus three for acceptance of

12

responsibility, unless you're still holding one of those

13

out --

14

MR. RAVENEL:

No, I'm not.

15

THE COURT:

16

Now, the problem I have is how I apply that

-- is a 22/II and it's 46 to 57 months.

17

guideline in light of the application note, because that

18

application note clearly says -- I don't know why it says

19

this and it makes no sense for it to say this, but it clearly

20

says that if, for example, I think the appropriate sentence

21

here is 46 months for the underlying offense and that six

22

months is appropriate for the 3147 enhancement, that I should

23

sentence him to 40 months plus six months or 46 months.

24

That's what it says.

25

MR. RAVENEL:

And I agree with that.

And I think

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 145 of 175 PageID 591
145

the problem with the application note and the reason it

doesn't apply is it assumes you have the same sentencing

judge for the underlying as well as the new conduct.

it assumes what you have is either the conduct is committed

in the same jurisdiction or you have a Rule 20 situation.

THE COURT:

I know.

I guess

I've read this thing over and

over again, and it sure would be nice if they explained that,

but they don't; and this is supposedly the body that's

supposed to, you know, be the expert on sentencing issues,

10

and they give us an application note like this that's

11

essentially nonsensical.

12

MR. RAVENEL:

And I guess where I come down on that

13

is if you've got this application note which clearly doesn't

14

apply here, because you didn't sentence Mr. Diveroli in South

15

Florida, then you've got to compare that against what the

16

legislature did, and that's the statute, 18, 3147.

17

Eleventh Circuit as well as four other circuits have

18

interpreted that statute to say it's unambiguous and it

19

applies without exception.

20

THE COURT:

And the

Don't you agree with me that the intent

21

of that statute is that whatever I enhance his sentence under

22

3147, that should be what's consecutive, not the sentence for

23

the underlying offense?

24

bootstrap up the entire new offense to be consecutive to, for

25

example, what he's serving in Miami.

In other words, you don't then

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 146 of 175 PageID 592
146

I don't think that question has ever been presented

to an appellate court that I'm aware of, and that's where

that sort of interpretation, which I think you want me to

draw, simply doesn't -- it doesn't seem right to me.

see what I'm saying?

MR. RAVENEL:

Did you

I can understand that perspective,

certainly.

is under a normal situation, you could either run this

sentence concurrent or consecutive, and that's subject to

10

And I think where we're at, just so we're clear,

what you want to do.

11

In this situation, I believe that there's at least

12

an aspect of this sentence that is required to be run

13

consecutive by law.

14

have here is, how much of the sentence and how do you figure

15

that out?

16

And the real issue, I think, what we

And because you're not the sentencing judge in

17

Miami, you didn't sentence it altogether, it's difficult to

18

figure out what percentage that is.

19

know, the position you're taking and I can understand.

20

don't have a very good answer for it.

21

THE COURT:

And I do respect, you


I

I'm not really taking a position; I'm

22

asking some difficult questions that concern -- should

23

concern all of us as lawyers and officers of the court.

24

other words, I think we're basically all in agreement that I

25

need to determine what is a fair and appropriate sentence for

In

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 147 of 175 PageID 593
147

the defendant's conduct that occurred in this district for

which I am sentencing him, and the guideline for that is

enhanced by three levels under 3(c)1.3.

Then, according to the application note, which may

not apply because I'm not the sentencing judge, but which the

note doesn't say one way or the other, I need to determine

what additional consecutive punishment is appropriate for the

fact that he committed this underlying offense while on

probation in Miami.

Then, looking at the application note, I

10

have to kind of put those two together and sentence him

11

within the enhanced guideline.

12

I think that's the right answer.

I'm not saying

13

it's a logical answer, but I think that's the right answer,

14

based on the way this guideline and application note's

15

written.

16

Mr. Mason, do you have any wisdom on this?

17

THE PROBATION OFFICER:

I believe, Your Honor, the

18

way you've just stated it is the way I read this guideline

19

application.

20

MR. RAVENEL:

I would just like to put on the

21

record, Your Honor, I understand that probation is going to

22

take a different position as to whether or not this sentence

23

can run concurrent completely with the South Florida

24

sentence.

25

THE COURT:

Well, their recommendation is

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 148 of 175 PageID 594
148

concurrent.

2
3

MR. RAVENEL:

I don't believe that's their

recommendation anymore.

THE COURT:

I'm sorry.

THE PROBATION OFFICER:

We do have a written

recommendation.

I've had a chance to review the sentencing

memorandum of both parties, and I think Probation's

recommendation would be exactly the way the application note

reads; that if our recommendation is followed by the Court,

10

you do have to split those months partially to the 924(c) and

11

then to the 3147 penalty, just as the application note

12

states.

13

What part of that is concurrent with Miami, I

14

think, would be the front end; and based on the statute,

15

reading 3147, any part of that penalty must be consecutive to

16

everything else.

17

THE COURT:

18

terms of analytical framework.

19

there.

20
21

And that's where we part company in

Let's go back and reconstruct this again, and maybe


using some actual numbers would help.

22

MS. HAWKINS:

23

THE COURT:

24
25

I think we part company

Yes.
The guideline range here is 46 to 57

months.
MS. HAWKINS:

Your Honor, and I think it's

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 149 of 175 PageID 595
149

important to point out that when -- when the government is

saying that the three levels should apply in the Miami case,

that doesn't make any sense to me.

in this case.

THE COURT:

No.

It's here in this P.S.R.

His sentencing guideline has been

increased for the underlying offense as a result of 3(c)1.3.

So he's already being bumped up in the underlying offense.

MS. HAWKINS:

THE COURT:

Right.
And I think that's why this application

10

note tries to then take that back out but apply it

11

consecutively.

12

MS. HAWKINS:

Well, and I think that because

13

3(c)1.3 is being applied in this case, that the application

14

note must apply; and I would go on to say that I would

15

suggest that what the Court just said, making the overall

16

sentence 40 and having the six months to comply with the

17

note, would be a good way to do it.

18

agreeing that that should be the final sentence, of course,

19

because of my other reasons on the Booker issues.

20

THE COURT:

Then, of course, I'm not

Well, but the first question is, you

21

know, there's nothing that says I have to make the first part

22

of that sentence concurrent with Miami.

23

MS. HAWKINS:

24

THE COURT:

25

That's right.
I mean, let's assume that I think a

guideline sentence of 48 months is appropriate, and let's

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150

assume that I think eight months is appropriate for the

consecutive aspect of 3147.

the statute and the guideline and the application note if I

sentenced him to 40 months for this underlying offense

concurrent with Miami and six months -- or eight months, I'm

sorry, consecutive for the 3147 enhancement.

MS. HAWKINS:

THE COURT:

So it would be consistent with

In Orlando?
Yeah.

Well, I'm sentencing him in

Orlando for both.

10

MS. HAWKINS:

Right, but I'm just saying that

11

wouldn't be consecutive to the Miami case.

12

my memo that talks about that -- that's the Royer case on

13

footnote five on page 15, that where we're saying here, the

14

enhancement might run consecutive, but certainly this Royer

15

case said that it did not; that the enhancement would be

16

consecutive to the Orlando sentence and not the Miami

17

sentence.

18
19
20

THE COURT:
Circuit case.

I cite a case in

Well, I haven't read that Second

I'll have to go read it.

MS. HAWKINS:

And I also argued in there that

21

there's no case law contrary to that in anything the

22

government has filed.

23

THE COURT:

All right.

Mr. Ravenel, come full

24

circle with me now and tell me what you think I should do

25

from the government's standpoint.

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151

MR. RAVENEL:

Well, I still maintain the same

position, that 3147 applies.

I believe that you have to

sentence him consecutive for the entire sentence.

understand the position the Court's taken based on the

application note.

position that it has to be consecutive.

I can understand that, but I'm taking the

I'm also saying that, in any event --

THE COURT:

Consecutive to the South Florida

sentence?

10

MR. RAVENEL:

Yes, sir, the entire sentence here.

11

In any event, I'm saying, based on the facts in this case --

12

and I'll talk about that in my sentencing argument -- you

13

should want to sentence him consecutive in this case, in any

14

event, based on, you know, different factors:

15

characteristics, his circumstances of the offense and

16

whatnot.

His personal

17

So my position is you have to and you also should.

18

THE COURT:

All right.

Well, in terms of

19

objections and whatnot, I think the scoring is proper.

20

other words, I think the three-level enhancement is

21

appropriate and the score of 22/II is appropriate, and that

22

calls for 46 to 57 months.

23

In

The questions I need to decide is, to what extent

24

whatever sentence I impose is concurrent or consecutive to

25

Miami, and what portion of that sentence is consecutive

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 152 of 175 PageID 598
152

pursuant to 3147?

2
3

I would like to hear argument on that after we take


a brief break.

4
5

Ms. Hawkins, is there anything else you want to


argue on the scoring issue?

6
7

MS. HAWKINS:

10

Not as to the guidelines, no,

Your Honor.

8
9

No.

THE COURT:

All right.

3:30 now, as it turns out.

I've got to leave here at

My appointment is at four.

So

I've got another hour I can give you.

11

So we'll take about ten minutes.

12

(A recess was taken from 2:32 until 2:45 p.m.)

13

THE COURT:

14

MS. HAWKINS:

Yes, ma'am.
Your Honor, during the break the

15

government and myself had a conversation with Mr. Mason.

16

I'm sure he will correct me if I'm wrong, but this is the way

17

I understood what his recommendation or his reading of how

18

this should go; that we're talking about basically the first

19

part of how the Court said that arriving at a total sentence,

20

then determining which part of that would be the concurrent

21

part for the Orlando sentence.

22

THE COURT:

23

MS. HAWKINS:
Yes.

And

Concurrent with Miami, you mean?


No -- yes, concurrent with Miami.

24

I'm sorry.

That the -- that the -- so, in other words,

25

if the Court gave a 46-month sentence and said six months of

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153

that is concurrent for the bond, the 3(c) bond part, that

that would be a total sentence of 46 months in Orlando.

Then, after going through the guidelines, through

chapter two, chapter three, chapter four is criminal history,

chapter five is -- talks about concurrent and consecutive,

and the Probation Office's view and it's also the defense's

view is that the complete 46-month sentence can be completely

concurrent to the 48 months that he got in Miami.

I'm sure the government doesn't agree with that,

10

but that's because -- you know, in applying the guidelines --

11

and I was telling Mr. Mason I was actually a federal

12

prosecutor back before the guidelines were in place.

13

makes me pretty old.

14

start with chapter A -- I mean, one, which talks about

15

relevant conduct.

16

for grouping.

17

that's true under the statutes, that the Court has the

18

discretion to run it concurrent or consecutive.

19

So that

But that's how we were taught, that you

Then two for the offense conduct.

Four, five.

Three

And so -- and that's -- basically

We would ask for it to be fully concurrent with the

20

Miami sentence.

For instance, if you gave 40 months here,

21

that that be -- all 40 months be concurrent with the 48 in

22

Miami.

23

footnote, the Royer case, does say that.

24

entire First Amendment -- I don't know whether it's

25

necessarily the holding of the case, but that's what they

And the case that I cited to the Court in my


It does run the

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154

1
2
3
4

did.
And I did search, Your Honor.

I found no cases in

the Eleventh Circuit on the subject, and I did look.


In Royer, there was -- it was the same situation,

the same violation of -- bond violation.

indictment, let's say that -- we'll call that one "Miami."

call it first, just by way of example.

indictment would be Orlando.

The first
I

And then the second

So, in reading that footnote, what they did in the

10

Royer case, in trying to figure this out, was the sentence on

11

the Orlando indictment ran concurrent to the sentence on the

12

Miami indictment.

13

apply this three-level -- the enhancement.

14

That was what they did in that case to

THE COURT:

Well, I didn't have a chance to read

15

the whole case because it's rather lengthy; but the headnote

16

portion of the case, the judge there sentenced the defendant

17

to 60 months concurrent with the prior conviction and 27

18

months for the 3147 enhancement consecutive, I think.

19

MS. HAWKINS:

Well, no.

I was looking at page 904

20

and 905, where they ran them concurrent.

21

case, we would agree with the probation officer that going

22

through chapters in order, that the entire sentence should

23

be -- it's the Court's discretion and we would ask the Court

24

to run them entirely concurrent.

25

THE COURT:

But, in either

Well, I was getting ready to say it

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155

doesn't say I have to make them concurrent.

the discretion to make them concurrent, consecutive or split.

MS. HAWKINS:

That's right.

It says I have

I completely agree

with that.

has the authority to do that, and that's what we're asking

the Court to do under the facts of this case.

to mitigation when the Court's ready to do that.

8
9
10

I was just saying -- I was saying that the Court

THE COURT:
do it that way.

Well, I'm ready.

And I can get

Tell me why I should

Why should I sentence him, in essence, to no

additional time for all of this Orlando stuff?

11

MS. HAWKINS:

Well, I'll tell you, Your Honor, and

12

I'm not saying it's no additional time, because he has been

13

in the county jail, and you know the consequences of being in

14

the county jail as opposed to being in a federal facility are

15

different.

16

difference in just the actual hard time, and there are cases

17

that recognize the fact that county jail time is harder time

18

than the Bureau of Prisons.

There's a difference in gain time.

19

THE COURT:

20

MS. HAWKINS:

There's a

Yeah.
I will say that, yeah, I looked at

21

this case and in my memorandum I say I think the gravamen of

22

the case is really that he bought ammunition that day,

23

because he didn't come -- he didn't come into the Middle

24

District of Florida with the intent to commit a crime.

25

came to have this business deal, to have the logo branded on

He

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156

these magazines, which he could do.

I mean, I know that there's been disagreement about

whether or not -- he wasn't the importer.

and somebody else was going to buy them at the point of

delivery.

He had an importer

He wasn't the importer.


Needless to say, he had talked to lawyers about

this, a highly technical area of the law.

lawyers about it.

consultant, and that's what he did.

10

the tape, "I'm trying to be legal."

He had talked to

They told him he could do it this way as a


And he says it a lot on

11

So even though he did give the other gentleman the

12

money to buy the ammunition, and that was wrong, he came in,

13

Judge, the first chance he got, offered to plead guilty,

14

cooperated to the nth degree.

15

cooperation because, as you can see, the government had

16

different people all trying to -- you know, the jail is full

17

of snitches, Judge, and they were all trying to do each other

18

to get cooperation.

19

He's gotten nothing for that

I know the Court's seen that before.

Your Honor

20

has been on the bench a long time, and we know what goes on

21

and people get information in the jail and coming in and

22

running and telling, and that's what was going on here; but

23

he did make a real effort and he should get some

24

consideration for that.

25

through the trial.

I mean, he didn't put the government

He didn't make them get ready for trial.

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157

He tried to help in every way he could, as he did in the

Miami case.

3
4

THE COURT:

Well, he gets a three-point reduction

for that.

MS. HAWKINS:

For pleading guilty but not for his

efforts at cooperation, which he also gave information to the

Brevard County deputy sheriffs and sat with them for many

hours and sat with --

THE COURT:

I'll tell you, frankly, it's hard to

10

credit his cooperation when you listen to that phone call

11

with his father, which is shocking.

12

MS. HAWKINS:
It was shocking.

Well, let me also say this, Your

13

Honor.

Mr. Diveroli, let me tell you, when

14

I met him in the lockup, Judge, he was like that.

15

medicated.

16

almost.

17

don't know if he's bipolar.

18

stabilizers, antidepressants; and once he got on medication,

19

he was a different person and that's true.

20

government, Mr. -- I'm sorry.

He was not

He was, I would say, not completely competent

He was just -- he's got depression problems.

He's under treatment with mood

I think even the

21

Bishop, what's your last name?

22

MR. RAVENEL:

Ravenel.

23

MS. HAWKINS:

Just kidding.

24

MR. Ravenel will tell you we were in court together

25

that first day and Mr. Diveroli was different than he is now

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158

because he's getting some help for his mental health issues.

And, obviously, he hasn't had drugs and alcohol.

he's. . .

4
5

THE COURT:

People have been trying to help him for

years.

MS. HAWKINS:

THE COURT:

MS. HAWKINS:

So

And I know that, Your Honor, but -Without much success, apparently.
Well, I understand that, Your Honor.

But, on the other hand, his addictions were very severe.

10

I keep coming back to the idea -- two big points.

11

He came here -- he didn't come to Titusville to commit a

12

crime.

13

was with a legitimate businessman, and that's what he was

14

trying to do.

15
16

In his mind, he came here to do that drum deal.

It

When he got here, he gave them the money to buy


ammunition.

He shouldn't have done that, but that's it.

17

THE COURT:

18

MS. HAWKINS:

Well, he also asked to see the weapons.


You know, I -- I -- you know, as a --

19

in my experience of 20-plus years as a prosecutor, I just

20

can't imagine charging the possession of the guns by picking

21

it up and putting it down.

22

Is it a technical violation?

23

Is it something that we -- that we're -- that we

24

need to guard against as a society?

25

he trying to hurt anybody?

Yes.

Was he selling gun?

No, not really, Judge.

Was

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159

The other thing that's bothersome is the whole

action of the agents in getting him to violate his bond and

come up here.

Your Honor.

know Your Honor is looking at that and there has to be

something additional for this violation, but it's not the

worst.

8
9

That was, I thought, a little beyond the pale,


But he has suffered some consequences, and I

In the great scheme of A.T.F. violations that this


Court has seen, it's not -- it's pretty atypical in that it

10

didn't pose a large danger to anybody.

11

go shooting on a range and not to do anything else, sell it

12

to somebody that shouldn't have it or to shoot somebody or

13

anything like that.

14

THE COURT:

15

MS. HAWKINS:

16

THE COURT:

17

All right.

The ammunition was to

Who was the judge in Miami?

Judge Leonard.
Okay.

That's right.

I remember seeing

the transcript.

18

MS. HAWKINS:

Yes, I was there, Your Honor, and she

19

did give him some -- she gave him acceptance of

20

responsibility, even though he had been arrested here on this

21

case, because of his attempted cooperation and the fact that

22

he was cooperating here at the time.

23
24
25

THE COURT:

Okay.

Well, let me hear from Mr.

Ravenel.
MR. RAVENEL:

I'd like to first ask the Court just

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160

to take a step back.

the evidence, not based on a proffer of an attorney who has

an interest in putting her client in the best light.

got to be based on the evidence, and the evidence you have in

this case, you have a Plea Agreement, you have a

Congressional report, and you also have the testimony that

you heard today.

8
9

You have to decide the case based on

It's

Aside from that, if there's something in her


sentencing memo that doesn't -- is not consistent with the

10

evidence here, the Plea Agreement or that Congressional

11

report, you can't consider it.

12

You've got to look at a number of factors:

How

13

serious you believe the offense is, the characteristics of

14

the defendant, the need to promote respect for the law, an

15

adequate deterrence, and you've got to also think about other

16

sentences.

17

You know that this defendant has received a number,

18

a number of breaks.

19

Congressional report.

20

contract, he was defaulting on contracts with the Army.

21

was on the watch list.

22

"Once a firearms trafficker, always a firearms trafficker."

23

Initially, you start with the


Before he ever entered into that
He

You know that he admitted on tape to

He had numerous failures to provide the Army and

24

its allies with the necessary equipment.

The supply

25

officers -- and this just gives you an idea.

It was not

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 161 of 175 PageID 607
161

legitimate.

quality, junk.

said that he lied about his failures.

time he made up the fact that there was a hurricane in Miami.

The supply officers said they received poor


They said it was hurting their mission.

They

He made up -- at one

They consistently described his way of doing

business was bait and switch.

He entered into a contract to

provide one thing, and then he provided the cheapest, lowest

quality substitute he could find, including potentially

unsafe helmets.

He failed to deliver 10,000 pistols,

10

provided poor quality ammunition to special forces.

11

late.

12

And the Miami court essentially agreed.

He was

The Miami

13

court said that the United States and the Afghans were

14

victims.

15

greed.

16

theater of war and that he lied a number of times.

17

She said that this crime was compelled by his own


She also said that his crime imperiled people in the

The reality is what he did with that big contract,

18

is he entered into the contract and then he began scouring

19

eastern Europe for ways to meet it and he couldn't do that.

20

He couldn't do that legally under the contract and he knew

21

it, because he asked them, "Can I supply Chinese ammunition,"

22

and he was told he couldn't.

23

The reality is also that the Army has some stake in

24

this whole thing.

I think the Congressional report makes

25

clear that they could have satisfied that need without paying

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 162 of 175 PageID 608
162

for it, because Albania was looking to offload a lot of this

ammunition.

He was indicted in 2008, in the summer, and he was

released and he was told, "If you commit a new violation, the

time you receive for that will be consecutive."

his father co-signed that bond.

And you know

That's another victim.

A year later he was arrested for D.U.I.

His bond

was not revoked.

also had substance abuse issues that his mother talked about.

10

He was allowed to stay out on bond.

He

He was allowed to stay out on bond.

11

Two years after his initial arrest, this is during

12

the time period he had the same exact family that he has

13

today, who could have been there for him, two years later he

14

stars shooting high-capacity firearms in the Southern

15

District of Florida and he tells our undercover about that.

16

He seeks to import and he says he's excited about

17

the prospect -- this is in the Plea Agreement -- of having

18

200,000 high-capacity magazines brought into the United

19

States.

20

He possesses firearms in the Middle District of

21

Florida.

22

asked the undercover to shoot firearms with him.

23

that, he talks about the undercover coming to South Florida

24

to shoot machine guns.

25

And the Plea Agreement goes in detail.

July 29 he
Before

July 30th, he talks about shooting a firearm.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 163 of 175 PageID 609
163

1
2
3

August 4th, he talks about being a gun runner and


he'll always be a gun runner.
August 9th, he's excited about 200,000 magazine

drums hitting the market in the United States, and about how

if the assault weapons ban is changed, then that could affect

the business.

August 11th, he talks about shooting at a range

earlier that day.

witnesses today.

10
11
12
13
14

We know that's true, based on the

August 16th, he invites the undercover to Miami to


the shoot the undercover's registered machine guns.
August 19th, he talks about shooting firearms at
the meeting the next day.
August 20th, he's confronted with the fact the

15

undercover has weapons, and he describes himself as ant

16

(phonetic).

17

dollars worth of ammunition.

18

ammunition at the Wal-Mart, according to the witness, and

19

talks about "blasting 100 rounds."

20

He wants to shoot firearms.

He buys a thousand

He clears out several rows of

Despite this, he goes to South Florida in January

21

of this year.

22

attorney, to the fact that he's changed, he's cooperating,

23

he's a different person, and we don't believe that to be the

24

case, then or now.

25

And people testify, including his current

Despite the fact that he had several bond

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 164 of 175 PageID 610
164

violations, he had been arrested twice, he had substance

abuse problems, he received a two-point reduction for

acceptance based on the testimony of his attorney about our

case, which we don't believe fully sets forth the details of

our case, and family members, he receives a reduced sentence

in South Florida.

He says he's --

THE COURT:

MR. RAVENEL:

Reduced how?
His guidelines were reduced by two

10

levels for acceptance, even though he had been arrested twice

11

and convicted of a new crime.

12

THE COURT:

13

MR. RAVENEL:

Okay.
He continues to blame others.

If

14

you'll look at the tenor of what he's done today, he's blamed

15

an undercover, and this disputes the fact that he put three

16

normal people in harm's way.

17

The three witnesses you heard from didn't have any

18

firearms experience -- a salesmen, real estate agent, and

19

somebody who worked as a waiter -- and he picked them, just

20

like he picked the massage therapist that helped him in the

21

Southern District case.

22

He picked them and he used them.

He used them, just like he used his father and he

23

would have used his father, had his father allowed it, the

24

same person that co-signed on his bond; and that's the real

25

problem I have with this case.

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 165 of 175 PageID 611
165

There are some positives.

We've listened to a lot

of jail calls in this case, and there's no question that his

mother has tried to talk some sense into him.

will be an asset to him when he gets out.

community that he comes back to will help him as well, and

certainly he did plead guilty.

responsibility; and that's questionable at this point, based

on his attempts to blame the government for his problems.

Certainly, she

I think his

At one point he accepted

Ultimately you've got somebody who's got an

10

extremely greedy disposition, whether it's drugs, alcohol,

11

money.

12

to get what he wants.

13
14
15

He's jeopardized and he's used people again and again

His treatment records in paragraph 89 indicate he's


manipulative and antisocial.
Paragraph 93, this is treatment that he was

16

offered, indicated that he manipulated his father to take him

17

home rather than to a lawyer's office, which is why he got

18

out of treatment.

19
20
21

Paragraph 79 indicates how he treats people,


battery on a valet.
And so now you stand and you've got to think about

22

him in terms of how he compares in terms of personal

23

characteristics with other people you see.

24

the Court to lose sight of the fact that I would hope, as a

25

general principle, if somebody committed a crime while

And I don't want

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166

pending sentencing for another crime, the default would be to

sentence that person consecutively.

shifted.

three-level bond because 3147 applies, it's almost understood

that the rest of it will apply concurrently.

But now we've sort of

You've got a situation where, because he gets a

I don't believe that that's consistent with what we

do in other cases.

requires a different sentence, an additional sentence.

As a general matter, a different crime

He's had a series of breaks dating all the way back

10

to 2008.

11

only himself to blame.

12

would have used Harry Chang.

13

them as nominees or fronts.

14

were doing, the fact that they were supplying ammunition or

15

firearms to a convicted felon.

16

that, had he done them himself, would have been crimes.

17

A number of people have tried to help him.

He has

He would have used his father.


He used his friends.

He

He had

People had no idea what they

They were involved in things

You've got to consider all that and think about his

18

circumstances, his characteristics, and all the other people

19

that come before this Court that don't have nearly the

20

opportunities that he has in the sentences they receive on a

21

regular basis.

22

I'd ask you to impose a sentence within the

23

guidelines.

I'm not asking for a high-end sentence or

24

anything like that.

25

I'm asking you to run it consecutive to the other unrelated

I'm asking for a guideline sentence and

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167

conduct in South Florida that's already been imposed.

THE COURT:

So your contention is that a guideline

sentence would be at least 46 months consecutive to his Miami

sentence?

MR. RAVENEL:

THE COURT:

MS. HAWKINS:

THE COURT:

MS. HAWKINS:

Yes, sir.
All right.
If I may respond to that?
Sure.
Two things.

One, we're going to look

10

at the offense.

11

this offense is one day's events, August 20th.

12

hearing, you know, the Miami indictment and talking about

13

that, and that's not why we're here.

14

I've already talked about the gravamen of

THE COURT:

We keep

I agree that while technically it may

15

be of some relevance, that he's been sentenced for whatever

16

he did on his government contract stuff.

17

re-sentence him for that conduct.

18

So I'm not going to

However, other stuff related to his use of weapons,

19

I think, is relevant to my consideration of an appropriate

20

sentence in this case.

21

MS. HAWKINS:

No.

I understand that, Your Honor.

22

I just wanted to point out that to recall, if the Court will,

23

that this defendant was cooperating in the Southern District

24

case, and because of his arrest here, he was not allowed

25

to -- obviously, he was no longer allowed to cooperate in the

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168

Miami case.

co-defendant who went to trial, and the other cooperators,

there were three or four of them, that were in the same

position that he was and they all got probation.

And there was a trial of Mr. Merrill, the one

So the fact that he's been arrested here, he's

obviously suffered a loss of any ability to cooperate down

there and to mitigate his sentence, and that is a fact.

other cooperators did get probation.

that would have happened probably to him; and so there has

10

The

So, but for this case,

been a great impact upon him already.

11

Also, you know, a violation of his bond down there

12

was a million dollars, and that's being forfeited from him;

13

and they've already taken 100,000 and they're seeking the

14

rest.

15

say, to violate that; but that's -- that's -- I just wanted

16

the Court to know there have been financial and --

17

repercussions for him in terms of the sentence that he's

18

ultimately going to serve.

19

Obviously, I mean, he was induced or encouraged, I'll

And I had one other.

I think that there's a

20

mischaracterization of what "addiction" is.

I really do,

21

especially with drugs and alcohol.

22

and we know, the mother and the uncle have testified, that he

23

had a terrible, terrible addiction.

24

that he manipulated to get out from his treatment, of course,

25

that's what an addict does.

The fact that -- that --

So, you know, the fact

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169

But I would ask the Court to pay special attention

to what the rabbi and Efraim's mother said.

They've been

talking to him all along this last year.

first conversation with Mrs. Diveroli when said, "Thank God,

he's alive."

how she reacted.

that he's come a long way.

hit bottom and now, finally, he's in a position to rebuild;

and, Your Honor, we'd just ask you to give him that chance.

And I had that

I was on the phone with her, and I know that's


And I know that she's telling the Court

10

THE COURT:

11

MS. HAWKINS:

12

THE COURT:

And, like the rabbi, said he has

All right.

Thank you, Ms. Hawkins.

Yes, sir.
Well, I need some time to review -- I

13

mean, there's a lot here for me to digest.

14

the P.S.R. more carefully.

15

about not only the appropriate sentence, but how to structure

16

it.

17

I need to re-read

I need to consider and think

So I'm not going to complete the sentencing today.


I can do it one day next week.

If y'all have a

18

particular preference, just let Tomlyn know and I'll try to

19

schedule it around so it's not too inconvenient for you.

20

I'll be back Tuesday, although I'd like at least a day to

21

think about this.

22

Factually, there's some issues and, legally,

23

there's some questions that I want to resolve in my mind

24

before I complete the sentencing.

25

Is there anything more we can do today before we --

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170

I mean, I've dealt with the objections to the scoring and

I've indicated that I think the scoring is correct.

finding is that the scoring of 22/II is correct and is what I

will use in fashioning an appropriate sentence, and that's 46

to 57 months, two to three years' supervised release, a fine

of between 7500 and $75,000, and a $100 special assessment.

7
8

I think I've also heard everything from counsel


that they would have to say in mitigation.

MS. HAWKINS:

Yes, sir.

10

MR. RAVENEL:

Yes, sir.

11

THE COURT:

12

Hawkins?

Does he wish to say anything?


MS. HAWKINS:

14

THE COURT:

15

MS. HAWKINS:

17
18

We can do that now, Your Honor.


Okay.
He just wants to address the Court

briefly.
THE COURT:

All right.

There you go.

20

THE DEFENDANT:

22

You can stay seated, sir.

Just pull that microphone down so we can hear you.

19

21

Is that correct?

And what about your client, Ms.

13

16

So my

Thank you.
Your Honor, thank you for allowing

me the opportunity to speak.


I -- you know, it's -- it's -- it's -- I'm so

23

ashamed that -- today is the most important day of any life,

24

I feel like.

25

wedding or a childbirth.

It's -- it's -- it's -- it's not, you know, a


It's -- it's -- it's not giving my

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171

family, you know, any joy.

that I've been piling on top of -- on top of them the last

decade.

It's more and more nightmares

And -- and it is true that I have had a lot of

different opportunities, you know.

I mean, I've never done

any time before, and I'd like to think that this time is

really different.

posh rehab somewhere.

opening experience for me.

You know, this isn't just some, you know,


This is really a very, very eyeAnd I really do want you to know

10

that the person you heard on that recording -- and I

11

understand how you felt about it -- is not who I truly am,

12

Your Honor.

13

It is not who I am, not for one second.

You know, I'm -- I have issues, but I -- I do

14

believe that my -- I do believe that -- of course, I'm -- I'm

15

not going to say anything bad about myself; but I do believe

16

that in my heart, I do have, you know, good and mainly good,

17

and I only wish the best for people.

18

And, you know, a lot of those people who were

19

around me, you know, were called victims; and I'm not going

20

to -- I'm not an attorney and I'm not going to debate, you

21

know, what the government said and I have no issue with the

22

government, you know.

23

But those people, you know, for a good while, they really

24

looked at opportunities, and these people couldn't get jobs

25

in a -- in a -- in a down economy, and they knew exactly, you

They're doing what they've got to do.

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172

know, what they were getting into, and they did and they

worked hard and I paid everybody very well.

THE COURT:

sitting back here, your family.

I think the victims are the people

THE DEFENDANT:

That's -- that's what I wanted to

get to.

victims are here, and they're the real -- the real victims of

my -- of my crime.

the ammunition to rob somebody.

10

That's absolutely correct.

The victims -- the

I mean, they -- I didn't -- I didn't get


I didn't get the ammunition

to -- to make a sale off selling it to some criminals.

11

You know, I know I broke the law; and for that, I

12

really can't -- I've no way to -- I've no way to, you know,

13

justify that.

14

I've no way to do that, Your Honor.

But I also -- when I'm speaking now, I'm also

15

addressing -- I'm addressing my family.

16

family when I say that I do -- you know, I do truly realize

17

the gravity.

18

appreciate the gravity of the situation I've put everybody

19

in.

20

I'm addressing my

I mean, now it's kind of late, but I do finally

I mean, I've got a mother who drives here every

21

week to see me, and I'm just -- you know, I did -- I mean, I

22

took everything for granted when I had it, you know, when I

23

had everything in the world.

24

me, you know, I turned into a curse.

25

caused others to go down that path.

I mean, every blessing God gave


Every. . .and I have

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173

I think, like I said, the real victims are my

family.

The government also was burdened with something that

they didn't need to be burdened with twice.

was a correct way I could have done things in Miami and there

was -- and this should have never happened and -- but my --

but what I've done to my family -- I'm the role model for my

younger brother, sister.

mean, I can do this time and everything else, but I just --

for them, I really, really -- I just -- I mean, that's the

I mean, there

I'm the oldest of five kids.

10

honest-to-God reason why I want to get out as soon as

11

possible, because I need to reconnect with my family.

12

And I'm not even asking for, you know, a reduced

13

sentence.

14

leave that to Cynthia.

15

head's at.

16

Whatever's going to happen, I'm just going to


But I just want you to know where my

And, yeah, I did -- when I first got locked up, I

17

was not -- you know, it wasn't like a light switch.

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didn't just turn on.

19

was my usual selfish, you know, greedy self, and I was

20

just -- you know, instead of -- I was just trying still to

21

manipulate, trying still to just kind of, you know, get

22

around rules and gamble and, you know, whatnot; and I -- for

23

that, I'm truly -- I'm truly -- you know, it took me a little

24

bit of time to see what's going on.

25

It

I mean, first when I got in there, I

And all those friends that I had, you know, back

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174

then -- and a lot of those people that came up and testified

today were at one point some of my closest friends, and --

and I left this family that I love to death for those people,

okay?

could have done things.

And that's what I really feel sorry about, because I

I could have intervened.

I've got one brother who's not even here today,

Your Honor.

mention it, but he's sort of AWOL from our family right now.

We don't know his whereabouts, and I feel responsible for

10

I don't know where he is.

My family didn't

that.

11

And given the opportunity, I mean, I -- I can't --

12

I can't squander any opportunity that you'll give me.

13

just not physically possible at this point.

14

made up about how I want to lead my life going forward.

15

have no desire to -- to slip back into -- into that life that

16

I lived.

17

dead or he's rapidly dying, okay?

18
19
20
21

That person is dead, Your Honor.

It's

My mind is -- is
I

That person is

I appreciate the opportunity to speak today to the


Court.

Thank you.
Thank you to my family for coming.

I love all of

you very much.

22

Thank you, Your Honor.

23

THE COURT:

24

Well, I'm not going to proceed with the sentencing.

25

Thank you, sir.

So I'll withhold my thoughts and comments until later.

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175

However, I do want to thank Mr. Diveroli's family

and friends who are here.

know how many people I've sentenced now in the last eleven

years.

think that this process will at the end result in a stronger

person.

I think in my court -- and I don't

Probably more than a thousand.

It doesn't always happen.

I always want to

A lot of people in the

position Mr. Diveroli is in profess to have changed their

ways and, as it turns out, they don't or couldn't.

But I

10

think everybody here hopes Mr. Diveroli has and can; and with

11

the family support, whatever I do, God willing, he will.

12

So, with that, I'm going to conclude the

13

proceeding.

14

next week, probably it'll be another hour, maybe, and we'll

15

finish it up then.

16

And if y'all want to schedule the conclusion

Thank you.

(Proceedings adjourned at 3:18 p.m.)

17

- - - - - - - -

18

Reporter's Certification

19

I certify that the foregoing is a correct transcript from the

20

record of proceedings in the above-entitled matter.

21
22
23
24
25

Date:

October 19, 2011

s/Diane Peede, RMR, CRR


Official Court Reporter
United States District Court
Middle District of Florida