Case 1:10-cr-00600-DLI Document 190 Filed 12/13/11 Page 1 of 3 PageID #: 1197 U.S.

Department of Justice

United States Attorney Eastern District of New York PC:RB F.#2010R00826

271 Cadman Plaza East Brooklyn, New York 11201

December 13, 2011 By ECF and Hand Delivery The Honorable Dora L. Irizarry United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 Re: United States v. Thomas Cavanagh Criminal Docket No. 10 CR 600 (DLI)

Dear Judge Irizarry: The government respectfully writes in anticipation of the above-captioned defendants December 16, 2011 sentencing to oppose the defendants request for a non-Guidelines, nonincarceratory sentence. The Presentence Investigation Report accurately sets forth the facts underlying the defendants crime of conviction, as well as the defendants personal, professional, financial and criminal past. While the parties agree to the accuracy of these facts, the government disagrees with the defendants view that together they merit a non-Guidelines, non-incarceratory sentence. First, there are no mitigating factors associated with the crime itself. While the defendant states that he accepts responsibility for his crime, he seeks a measure of credit for the manner in which he carried it out. He repeatedly notes that he committed the crime solely to shield the money that he structured from his creditors, and states that the situational nature of his crime is a factor that argues in favor of leniency. The defendant further notes that he committed the crime in a simple and transparent manner, did not attempt to disguise the source of his funds, did not cash checks in connection with any criminal scheme involving drug trafficking or terrorism, and that [t]he precise amount he received would be easy to calculate by anyone who received RM Enterprises checking records. Defendants December 9, 2011 Sentencing Submission (Def. Ltr.) at 2, 10, 16.

Case 1:10-cr-00600-DLI Document 190 Filed 12/13/11 Page 2 of 3 PageID #: 1198

2 That the defendant did not conceal the transactions in a manner that would have merited a money laundering prosecution, or that he was not engaged drug trafficking or a terrorism offense is wholly irrelevant to the propriety of a Guidelines sentence. His Guidelines range reflects what the Sentencing Commission and Congress deem to be appropriate for the crime he did commit structuring. Had he engaged in other, more serious crimes, his Guidelines range would be higher. The fact that he did not commit such crimes in no way supports his plea for a sentence below a Guidelines range driven solely by the crime that he did commit. Similarly, the defendants motivation for the crime to prevent the United States District Court for the Southern District of New York, the Internal Revenue Service, the Securities and Exchange Commission, and the State of New York from collecting any money toward the repayment of the more than $20 million owed by the defendant in connection with his prior violations of the registration and anti-fraud provisions of United States securities laws in no way merits leniency. Indeed, given that the defendants 2003 perjury conviction stems from the lies he told to hide assets from the same creditors he successfully evaded here, his failure to learn from that experience suggests that the lenient sentence he received did not adequately serve the goal of specific deterrence enumerated in 18 U.S.C. 3553(a). As such, the government respectfully suggests that the nature and circumstances of this offense, viewed in the proper context, counsel against a further exercise in leniency. The defendants other arguments in support of a nonincarceratory sentence also fall short. First, the defendant notes that he has cancer in his rectum that is currently in remission, but which needs to be closely monitored. As the Court is aware, the Bureau of Prisons is well equipped to provide a full range of medical care, and the defendants condition, while unfortunate, does not rise to the level of physical malady that warrants the consideration the defendant seeks. Next, the defendant argues that he should receive special consideration because he did not flee from the charges to which he pled. As with his argument that he should receive leniency for not committing other, more serious crimes, the defendant should not receive special consideration for failing to do something that would have merited additional punishment. Finally, the defendant argues that his agreement to promptly pay forfeiture of $105,000 argues in favor of a lenient sentence. To the contrary, the fact that the government provided

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3 the defendant with a plea agreement that allowed him to pay more than $600,000 less than the full $748,055 in forfeiture called for under the law, in no way argues in favor of the sentence the defendant seeks. The defendant committed the crime of conviction. He accepted responsibility for his actions in a timely fashion and in return received the three points off his Guidelines offense level to which he is entitled. The resulting, stipulated Guidelines range, driven solely by the straightforward facts of the defendants crime, provides an appropriate, and far from draconian sentencing range for his actions. The Court should sentence the defendant within that range. Respectfully submitted, LORETTA E. LYNCH United States Attorney By: /s/ Roger Burlingame Assistant U.S. Attorney (718) 254-6422

cc:

James Sherwood, Esq.