HTJ Sentencing Memo

Case 1:12-cr-00003-JDB Document 15
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UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA ___________________________________ ) UNITED STATES OF AMERICA ) ) v. ) ) HARRY L. THOMAS, JR., ) ) Defendant. ) ___________________________________ )
No. 1:12-cr-00003-001-JDB
DEFENDANT HARRY L. THOMAS, JR.S MEMORANDUM IN AID OF SENTENCING
Seth A. Rosenthal (Bar No. 482586) Karl A. Racine (Bar No. 431534) Gilead I. Light (Bar No. 980839) VENABLE LLP 575 7th Street, N.W. Washington, D.C. 20004 (202) 344-4000
TABLE OF CONTENTS Page INTRODUCTION..........................................................................................................................1 ARGUMENT..................................................................................................................................3 I. A SENTENCE OF 18 MONTHS IMPRISONMENT, FOLLOWED BY THREE YEARS OF SUPERVISED RELEASE WITH SIX MONTHS OF HOME DETENTION AND 1,500 HOURS OF COMMUNITY SERVICE, IS WARRANTED UNDER 18 U.S.C. 3553(a) ....................................................................3 A. Mr. Thomas Personal History and Characteristics and the Nature and Circumstances of the Offense Justify the Requested Sentence (18 U.S.C. 3553(a)(1)) ...............................................................................................................4 1. Mr. Thomas Personal History and Characteristics ...............................................5 a. b. Dedication to Community .................................................................................5 Devotion as a Father ......................................................................................26
2. The Nature and Circumstances of the Offense ......................................................26 B. C. D. The Requested Sentence Is Available (18 U.S.C. 3553(a)(3))........................33 The Guidelines Calculation (18 U.S.C. 3553(a)(4) & (5)) .................................34 The Requested Sentence Would Not Create Unwarranted Disparities (18 U.S.C. 3553(a)(6)) ..............................................................................................36 The Requested Sentence Would Facilitate Restitution (18 U.S.C. 3553(a)(7)) .............................................................................................................39 The Requested Sentence Is Sufficient, But Not Greater than Necessary, to Satisfy the Purposes of Punishment (18 U.S.C. 3553(a)(2)) ..............................40 1. 2. 3. 4. II. Seriousness of Offense, Respect for Law, Just Punishment............................40 Deterrence ......................................................................................................43 Incapacitation .................................................................................................45 Correctional Treatment ..................................................................................46
E. F.
BECAUSE USSG 2B1.1 DOES NOT EMBODY EITHER PRE-GUIDELINES SENTENCING PRACTICES OR THE NATIONAL EXPERIENCE IN THEFT ii
CASES IN THE YEARS SINCE THE GUIDELINES WERE ADOPTED, THE COURT SHOULD HAVE NO RESERVATIONS ABOUT VARYING DOWNARD FROM THE ADVISORY GUIDELINES RANGE ON THE GROUNDS THAT IT DOES NOT FULLY REFLECT SECTION 3553(a) CONSIDERATIONS. ......................................................................................................47 III. CONSISTENT WITH THE PLEA AGREEMENT, THE AMOUNT OF THE RESTITUTION AWARD UNDER 18 U.S.C. 3663A SHOULD BE $283,500...............51 NO FINE SHOULD BE IMPOSED ..................................................................................52 ........................................................................................................................53
IV.
CONCLUSION
TABLE OF LETTERS ................................................................................................................55 TABLE OF EXHIBITS ...............................................................................................................57
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INTRODUCTION Harry L. Thomas, Jr. will appear before this Honorable Court for sentencing on May 3, 2012, having pled guilty to a two-count Information alleging theft from a program receiving federal funds and the filing of false tax returns. Through undersigned counsel, Mr. Thomas submits this memorandum in support of a sentence of: (i) 18 months of imprisonment, followed by three years of supervised release, to include six months of home detention and 1,500 hours of community service; (ii) restitution in the amount of $283,500 ($353,500 less $70,000 already paid), consistent with the plea agreement executed in this case; and (iii) no fine, given both his inability to pay a fine and the restitution amount he has agreed to pay. Such a sentence is sufficient, but not greater than necessary, to achieve the purposes of sentencing set forth in 18 U.S.C. 3553(a)(2). Mr. Thomas acknowledges that his crimes were an inexcusable breach of the public trust. Having pled guilty prior to indictment, he has fully accepted responsibility for his conduct and stands ready to accept the consequences. Ex. 1 (H. Thomas). Counsel respectfully submits, however, that neither the Probation Offices advisory Guidelines range (41-51 months imprisonment) nor the parties stipulated, advisory Guidelines range (37-46 months imprisonment) prescribes an appropriate sentence for Mr. Thomas because neither calculation adequately reflects all of the considerations set forth in 18 U.S.C. 3553(a). By requiring a sentence that is sufficient, but not greater than necessary, to satisfy the purposes of punishment, Section 3553(a) advises the Court to look at the full picture of Mr. Thomass life, not simply the snapshot capturing his crimes. Here, the advisory Guidelines range reflects only the snapshot. As the dozens of attached letters attest, Mr. Thomas tireless work in the community over the past 25 years, often through the medium of sports, has improved the lives of
innumerable District residents, especially District youth living in poorer, largely AfricanAmerican communities. Despite his crimes, Mr. Thomas fortified this record of service during the offense period, devoting substantial time, energy and resources to the development of youth through sports. For the reasons explained below, imprisonment is not necessary to protect society from Mr. Thomas, to provide Mr. Thomas rehabilitative treatment or training, or to achieve the goal of deterrence. Under these circumstances, the central purpose to be served by imposing a sentence of imprisonment is retribution. Mr. Thomas acknowledges, as he must, the importance of the Courts consideration of this purpose and, accordingly, he accepts that a term of imprisonment is warranted. Counsel submits, however, that a lengthy term of imprisonment akin to what the advisory Guidelines suggest is not the best means of achieving genuine retributive justice. Rather, in view of Mr. Thomas unequivocal acceptance of responsibility, his well-documented history of extraordinary community service, the vital role he plays in his young family and the need for him to make further restitution, the best means of attaining genuine retributive justice and, more broadly, of satisfying the full command of Section 3553(a) is to impose the sentence set forth above. By including a consequential term of imprisonment, the requested sentence would adequately reflect the seriousness of Mr. Thomas offenses; and unlike the long period of incarceration contemplated by the Guidelines, it would also realize the equally important retributive objective of just punishment by requiring Mr. Thomas to repay the victim of his offenses directly and more quickly through speedier restitution and substantial community service. Significantly, the requested sentence actually approximates the sentence that the Commission envisioned when it first issued the Guidelines. And contrary to its mandate, the Commission has not justified its doubling of the recommended sentence on the basis of judicial decisions, sentencing data or criminological research since then.
ARGUMENT I. A SENTENCE OF 18 MONTHS IMPRISONMENT, FOLLOWED BY THREE YEARS OF SUPERVISED RELEASE WITH SIX MONTHS OF HOME DETENTION AND 1,500 HOURS OF COMMUNITY SERVICE, IS WARRANTED UNDER 18 U.S.C. 3553(a). A district court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2), which are the need for the sentence imposed (A) (B) (C) (D) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
18 U.S.C. 3553(a) & (a)(2). In devising a sentence compliant with the overarching provision instructing sentencing courts to impose a sentence that is sufficient but not greater than necessary to accomplish the goals of sentencing, Kimbrough v. United States, 552 U.S. 85, 101 (2007); see also Pepper v. United States, 131 S. Ct. 1229, 1242 (2011), a district court must also consider the nature and circumstances of the offense and the history and characteristics of the defendant, 18 U.S.C. 3553(a)(1), the kinds of sentences available, 18 U.S.C. 3553(a)(3), the sentencing guidelines and policy statements, 18 U.S.C. 3553(a)(4) & (a)(5), the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct, 18 U.S.C. 3553(a)(6), and the need to make restitution to any victims of the offense, 18 U.S.C. 3553(a)(7). See also United States v. Booker, 543 U.S. 220, 245-46, 259-60 (2005). The Supreme Court repeatedly has made clear that the range prescribed by the now-advisory Guidelines is but one of the sentencing courts considerations a starting point and initial benchmark and that the court must weigh all relevant Section 3553(a) factors to 3
make an individualized assessment based on the facts presented. Gall v. United States, 552 U.S. 38, 50-52 (2007); Pepper, 131 S. Ct. at 1242-43. The plea agreement does not appreciably alter the Courts task. Under 18 U.S.C. 3553(a)(4) & (a)(5), the Court should take into account the parties stipulated Guideline range (or, if the Court agrees instead with the Probation Office, the Probation Offices range). But the plea agreement expressly allows Mr. Thomas to argue for a sentence below the advisory range based on other Section 3553(a) considerations, and under Booker, the Court remains free to impose such a sentence. For the reasons described below, it is appropriate to sentence Mr. Thomas to 18 months imprisonment, followed by a three year period of supervised release, to include, inter alia, six months in home detention and 1,500 hours of community service. A. Mr. Thomas Personal History and Characteristics and the Nature and Circumstances of the Offense Justify the Requested Sentence (18 U.S.C. 3553(a)(1)). Section 3553(a)(1) is a broad command to consider the nature and circumstances of the offense and the history and characteristics of the defendant. Gall, 552 U.S. at 50 n.6. The command is consistent with the Supreme Courts observation that the punishment should fit the offender and not merely the crime. Pepper, 131 S. Ct. at 1240, citing Williams v. New York, 337 U.S. 241, 247 (1949). It is similarly consistent with Congress express directive that [n]o limitation shall be placed on the information a sentencing court may consider concerning the [defendants] background, character, and conduct. Id., citing 18 U.S.C. 3661. In Mr.
Thomas case, the considerations contemplated by Section 3553(a)(1) weigh in favor of a belowGuidelines sentence. While Mr. Thomas offenses involving the misappropriation of grant funds from a public-private partnership are serious, Mr. Thomas should receive consideration for the extraordinary time, effort and resources that, throughout his life, he has successfully devoted to
serving, teaching, mentoring and leading others, particularly youth. Together with the needs of his young family, Mr. Thomas exemplary record of good works supports a measure of leniency and favors a sentence that genuinely fits the offender. See, e.g., U.S. v. Cooper, 394 F.3d 172, 177 (3d Cir. 2005) (affirming 4-level departure to probation in securities fraud and tax evasion case because defendant did not simply donate money to charity but organized and ran youth football team in depressed area, making hands on personal sacrifices which have a dramatic and positive impact on the lives of others); U.S. v. Thurston, 544 F.3d 22, 26 (1st Cir. 2008) (affirming district courts choice of three months rather than 60 month guideline term for Medicare fraud conspiracy of more than $5 million, citing, inter alia, defendants charitable work, community service, generosity with his time and the support he provided others). 1. Mr. Thomas Personal History and Characteristics a. Dedication to Community To the many District of Columbia residents who know him, Mr. Thomas is not principally identified by his former position as a Council member. Rather, he is identified indeed, he is defined by his demonstrable, life-long commitment to community service, particularly service to young people. While the precise number of children Mr. Thomas has positively influenced over the years may be hard to pinpoint, it is substantial. For over two decades, Mr. Thomas passion for mentoring, coaching and creating opportunities for the children of this city has been consistently on display. From the baseball/softball clinics and sports camps that he has run in poorer District neighborhoods, to the youth and high school baseball players he has coached and counseled, to the considerable volunteer work he has done with the Boys and Girls Clubs, local YMCA and other charitable organizations, Mr. Thomas stands out as being one of the Districts most compassionate and effective teachers, character-
builders and leaders. And to many at-risk youth, he also has served as a surrogate parent. That is why, in the dozens of attached letters, see Exhibits 1-93,1 the Court will see an outpouring of support for Mr. Thomas, notwithstanding his admitted crimes. Collectively, the letter writers express just how much Mr. Thomas has done for them, their children and their community. What follows cannot capture either the full content of the letters or the breadth and depth of support that they convey. Mr. Thomas commitment to service is in his DNA. His father grew up in Richmond and dropped out of high school before enlisting in the Army during World War II. After the war, he moved to Washington, where he held a series of federal government jobs, beginning with janitor and ending in the Interior Departments Office of Public Affairs. After Mr. Thomas, Sr. retired, the citizens of Ward 5 elected him to serve three terms on the Council. Many people, including former Mayor Anthony Williams and Representative Eleanor Holmes Norton, have described him as a life-long advocate of civil rights and a community activist dedicated to the citys underserved neighborhoods. Mr. Thomas mother, Romaine, is cut from the same cloth. She is a well-known, beloved retired elementary school principal, teacher and community leader. As Mrs. Thomas says, As a family, our passion for working in the neighborhood, helping others and serving community needs were important aspects of our lives together. Thomas). Mr. Thomas followed in his parents footsteps. Very early in his professional career, for two years spanning three summers, he worked for the Mayors Youth Leadership Institute (YLI), where he managed youth programs and mentored teenagers in Wards 5 and 8. Lou Hall, a former colleague who later became YLI Director and is now Director of Teen Programs Ex. 80 (R.
All letters are cited by exhibit number followed by the writers first initial and last name in parentheses. They appear on the exhibit list in alphabetical order, except that Mr. Thomas letter to the Court is first.
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at the Department of Parks and Recreation, witnessed Harry work with the youth in a very positive way [and] saw him go above and beyond the call of duty to provide our youth with food, clothing, books and funds to get to and from home. He served not only as a Mentor but a Father figure as well. Ex. 31 (L. Hall). George Williams, YLI Director at the time, confirms Mr. Thomas dedication to working as a youth trainer, Ex. 90 (G. Williams), as do students whom he counseled then. Ex. 17 (L. Clay); Ex. 92 (K. Winston). Mr. Thomas went on to pursue independent business ventures through HLT Associates, a company he created in the 1990s. Yet he remained focused on serving the citys youth. A family neighbor, Juanita Dennis, writes: What I know about this young man could fill pages; pages of positive contributions and selfless service to the community Throughout the 1980s and 90s, while other young men his age were busy in pursuit of social pleasures, Harry focused on community service. He was selflessly devoted to counseling young people and organizing many other activities. Ex. 20 (J. Dennis). Mr. Thomas had begun volunteering as a baseball and softball coach for the Metropolitan Police Boys & Girls Clubs in the 1980s, and he continued through the 1990s. Ex. 55 (N. Owens). He also spent many hours working with youth at Club #14 on Benning Road, where Neal Owens, the now-Regional Director of Boys & Girls Clubs: witnessed first-hand how well [Mr. Thomas] mentors the youth and encourages them to graduate from school and go on to college or learn a trade He played with and taught the children and motivated them with his words and actions. I have devoted my career to youth development, and I can tell that children are drawn to Harry. Children know when an adult is genuine, and the children Harry has worked with definitely know he is genuine. Id. While Mr. Thomas has continued his work with the Boys & Girls Clubs through the present, id., he devoted extra time in the 1990s when he organized the annual Toys for Tots campaign in Ward 5, a very tedious job that commits your service 7 days a week for 16 hours a day for 3 7
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weeks so that needy children received a toy on Christmas day. Id. It was in the 1990s that Mr. Thomas began his pioneering efforts to revitalize the sport of baseball in poorer, predominantly African-American neighborhoods in the District. This timeconsuming, passionate pursuit has continued through the present. A number of the attached letters and local news articles attest to the hard-fought success Mr. Thomas has achieved, both individual-by-individual and community-wide, using baseball and softball as a tool for youth development. By virtue of his efforts, Mr. Thomas is one of the patriarchs of the rebirth of youth baseball in District neighborhoods east of Rock Creek Park. Mr. Thomas work with youth baseball and softball began when he persuaded his competitive co-ed softball teammates to volunteer with him as Team Thomas to conduct free clinics at recreation centers in Ward 5. Ex. 11 (T. Braxton); Ex. 26 (A. Ericsson); Ex. 41 (C. Johnkins); Ex. 45 (A. Lee). The clinics, which would have cost hundreds of dollars to attend if Mr. Thomas had not invested his sweat equity to provide them for free, became a community fixture. Local publications touted their success. The attached June 2001 article from the former Northeast News is one example, describing Team Thomas clinics at Taft, Fort Lincoln and Turkey Thicket Recreation Centers in Northeast Washington. Ex. 94. See also Ex. 95 (Summer 2002 Washington Hospital Center Newsletter). baseball instruction. Sometimes the clinics included more than
For example, Mr. Thomas had teammate Aprille Ericsson, a NASA
engineer who describes Mr. Thomas as a champion for the community, build and launch rockets with clinic participants, teaching them the importance of mathematics and physics. Ex. 26 (A. Ericsson). Certain clinics also included computer training, homework assistance and conflict resolution training for parents and children. Ex. 94; Ex. 95. The District Council recognized Mr. Thomas for his work in 1998. Ex. 95; Ex. 96 (1998 Council Resolution). See
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also Ex. 97 (2001 letter from Councilmember Brazil regarding Mr. Thomas efforts). Mr. Thomas expanded upon his work in the clinics by going into local schools. Leroy Swain, Eastern High School Assistant Principal from 1996-2000, writes about how Mr. Thomas created a mentoring program centered on academic tutoring and sports and staffed with volunteers motivated by the example he set. Ex. 74 (L. Swain). Mr. Swain also recalls the assistance Mr. Thomas provided to Easterns baseball program. Id. Sandra Dupree, the former principal of Hyde Public Charter School (now Perry Street Prep), similarly writes about how Mr. Thomas filled a void in our instructional program until the school could secure additional staffing by volunteering to teach baseball to her second and third graders two to three days per week for several months during the school year. Ex. 24 (S. DuPree). A winter 2003 article from the Northeast News reported Mr. Thomas volunteer efforts, as well as the weekend baseball and softball clinics he and Team Thomas were holding. Id. Mr. Thomas also ran clinics for DCPS students at the DC Armory, John Burroughs Elementary School and Noyes Elementary School. Even as Mr. Thomas began to pursue elective office he ran and lost the race for Ward 5 Councilmember in 2002 he remained committed to mentoring children through baseball and softball. In fact, the clinics grew. See, e.g., Ex. 30 (G. Hall); Ex. 34 (L. Henderson); Ex. 39 (P. Inman); Ex. 41 (C. Johnkins); Ex. 45 (A. Lee); Ex. 51 (D. McGee); Ex. 64 (B. Scott); Ex. 65 (T. Settles); Ex. 76 (D. Thomas); Ex. 86 (S.K. Truhart). They have attracted hundreds of children over the past decade. During the school year, Mr. Thomas offered after-school clinics at
recreation centers in Northeast Washington. Additionally, from October/November through March/April, Mr. Thomas and Team Thomas, which was expanded to include high school players he coached, see infra, have provided Saturday baseball and softball instruction to boys and girls, running them through hitting, pitching and catching drills, with a focus on repetition.
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See, e.g., Ex. 98, Ex. 99 and Ex. 100 (clinic training materials); Ex. 33 (C.H.); Ex. 39 (P. Inman); Ex. 41 (C. Johnkins); Ex. 45 (A. Lee); Ex. 64 (B. Scott). The clinics also have offered health and wellness instruction. The winter clinics usually take place indoors but move to outdoor fields when the weather is nice. Clinics held in the warmer months have been outdoors. Ex. 39 (P. Inman); Ex. 45 (A. Lee). The winter clinics are unique. Mr. Thomas and his colleagues believe that, in order to rejuvenate baseball in inner city neighborhoods, year-round opportunities must be made available. Ex. 30 (G. Hall); Ex. 39 (P. Inman). The winter clinics are one of the few places in the metropolitan area to offer indoor training for children in the offseason, particularly batting practice using an inflatable cage and state-of-the-art swing trainers and the clinics are the only place to offer such training for free.2 Because Mr. Thomas firmly believes that children from the Districts poorer neighborhoods should be provided the same opportunities as children from the Districts wealthier neighborhoods and suburbs, he has made sure that clinic attendees have had access to high quality training equipment top-of-the-line bats and catchers equipment, swing trainers, batting cages and other hitting aids. Ex. 10 (M. Boardley); Ex. 30 (G. Hall); Ex. 41 (C. Johnkins); Ex. 44 (C. King); Ex. 45 (A. Lee); Ex. 51 (D. McGee); Ex. 64 (B. Scott); Ex. 92 (K. Winston). He also has made sure that every child, no matter the wherewithal of his or her family, is equipped to play. Unlike attendees at baseball and softball clinics in Ward 3 and the suburbs, who have their own top-of-the-line bats, gloves and cleats, many children have come to Mr. Thomas clinics with nothing more than sweatpants and sneakers. Often at his own expense, Mr. Thomas has distributed gloves, cleats, bats, balls, t-shirts, hats and training materials, including instructional cards, DVDs and manuals. Ex. 39 (P. Inman); Ex. 41 (C. Johnkins); Ex.
2
Periodically, Mr. Thomas also has worked with other organizations to help with baseball clinics, including those held by the Washington Nationals. See, e.g., Ex. 101 (Washington Informer article). At the clinics described in Exhibit 101, Mr. Thomas not only provided instruction but furnished the equipment used during the training.
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45 (A. Lee); Exs. 99 & 100. This is a theme that appears throughout the letters: Mr. Thomas personally has donated, purchased or secured donations for equipment, uniforms and tournament participation fees for numerous District youth, not only for clinic participants he has mentored but for many youth baseball, softball, football and basketball teams as well. See, e.g., Ex. 21 (M. Dickerson); Ex. 27 (T. Farmer); Ex. 30 (G. Hall); Ex. 31 (L. Hall); Ex. 39 (P. Inman); Ex. 41 (C. Johnkins); Ex. 44 (C. King); Ex. 45 (A. Lee); Ex. 51 (D. McGee); Ex. 53 (J. Mowatt); Ex. 54 (K. Nesbitt); Ex. 65 (T. Settles); Ex. 87 (J. Walker); Ex. 89 (A. Williams); Ex. 92 (K. Winston). As those familiar with youth athletics (like many letter writers) understand, having access to high quality equipment, uniforms and tournament competition is significant to all children, but especially those from poorer areas, as it reinforces the message that they are able to compete with anyone and that they, no less than their more privileged counterparts, can proudly call themselves members of a team. Mr. Thomas also has delivered life lessons as part of his clinics. At each session, he gives motivational speeches on the importance of education, hard work, perseverance and integrity. Ex. 33 (C.H.); Ex. 39 (P. Inman); Ex. 45 (A. Lee); Ex. 64 (B. Scott). Mr. Thomas reinforces his message by having celebrity guests work with and speak to clinic attendees. Guests in recent years have included former professional baseball players Chuck Hinton (also long-time Howard University Coach), Al Bumbry, Ken Dixon, Paul Blair and Fred Valentine, current San Francisco Giant and former clinic attendee Manny Burris, Senior Olympian Sue Barnes, and former Georgetown Hoya basketball player John Bay Bay Duran, among others. Ex. 8 (S. Barnes); Ex. 14 (A. Burriss); Ex. 39 (P. Inman); Ex. 45 (A. Lee). In addition to the free clinics he has run, Mr. Thomas, before becoming a Council member, worked at different times with the Department of Parks and Recreation (DPR) to
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train and certify other youth baseball and softball instructors, prepare training manuals, provide baseball and softball instruction during the school year, and lead full-day summer sports camps at DPR recreation centers, including Fort Lincoln, Langdon Park and Turkey Thicket. Baseball and softball were important components of the camps. Mr. Thomas ran the first camp in 2002. Ex. 64 (B. Scott); Ex. 85 (S. Truhart). He also ran camps in subsequent years. One of the camps Mr. Thomas operated took place in 2005 at Taft Recreation Center. On Thursdays and Fridays, the camp focused on baseball and softball, partnering with the Amateur Softball Associations Summer Fun Series and the Reviving Baseball in the Inner Cities program. Ex. 102 (Amateur Softball Association Newsletter); Ex. 103 (2005 camp/clinics schedule). In addition, outside camp hours, Mr. Thomas would travel to different recreation centers in Northeast Washington to provide both hitting and health/nutritional instruction, while Colgate would simultaneously provide dental screenings to participants in its mobile van. Ex. 103; Ex. 3 (T. Adderley). DPR awarded Mr. Thomas a certificate in early 2007 to recognize Team Thomas for all of the work it had done on behalf of District youth. Ex. 104. Some of the children who attended Mr. Thomas clinics and camps came from the Calomiris YMCA, located in Ward 5. Mr. Thomas has long had a special relationship with the local Y, especially the Calomiris Y and its children. He has spent many, many hours with [the children] at the [Calomiris] center, along with including many of them in his clinics and camps. Ex. 44 (C. King). Carolyn King, the director of the Calomiris Y for the past 12 years, writes: From the beginning, I have partnered with Harry to expose the children at the Calomiris YMCA to baseball, which they would not have otherwise been exposed to. I have sent the children, with their parents consent, to Harrys clinics and camps at Taft, Langdon Park and Turkey Thicket. These clinics and camps have run at different times throughout the year. Some have been during the school year, some on weekends, some during the summer. At any given time, I might have as many as 50 children in Harrys clinics or camps, sometimes more in the summertime. Harry never has charged the children to attend. Many of these 12
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children are needy and come from poor homes. Harry and his Team Thomas crew would not only give them instruction and life lessons, but bats, balls, cleats, gloves and backpacks. Harry also gave them food to eat. If there was one child who was hungry, Harry would feed all of them. Id. After the Washington Nationals arrived in 2005, Mr. Thomas would often secure tickets for clinic participants and their families, including those associated with the YMCA. Ex. 105 (photos and sign in sheets from Nationals Nights); Ex. 44 (C. King). Mr. Thomas had been very involved in rallying city youth to support brining the Nationals to Washington. Ex. 86 (S.K. Truhart). He continued to accompany youth to Nationals games through last summer. Mr. Thomas used his clinics and camps to instill in older youth a commitment to community service. When he coached the Archbishop Carroll baseball team in the mid-2000s, his players became members of Team Thomas, help[ing] many young men who came from disadvantaged neighborhoods. All of Team Thomas received coaching tips and were trained to teach younger players. Ex. 51 (D. McGee). According to Stephen Kyle Truhart, who attended and provided instruction at the clinics and camps from 1998-2006, [t]he opportunity to coach not only served as a development lesson, but it exposed me to lower-income communities and the fulfillment that good leadership can provide to them. Mr. Thomas was essentially grooming me for future responsibilities in leadership and volunteerism. He put me in a supervisory role, requiring me to manage my own station while campers rotated through. I also had the opportunity to help create engaging lesson plans that introduced new skills Ex. 86 (S.K. Truhart). See also Ex. 42 (M. Johnson); Ex. 64 (B. Scott); Ex. 85 (S. Truhart). It is important to note that Mr. Thomas work focused not only on baseball, but girls softball as well. If enthusiasm for baseball in the inner city has been wanting, enthusiasm for girls softball has been even more so. Mr. Thomas is an Amateur Softball Association-certified 13
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coach and assisted for several years in the 1990s with the Bowie State University womens softball team. PSR 132; Ex. 11 (T. Braxton). His clinics and camps invariably included a softball component to attract young girls. See, e.g., Ex. 102; Ex. 43 (M. Jones); Ex. 53 (J. Mowatt); Ex. 76 (D. Thomas). Women softball players like Dr. Ericsson, Tonja Braxton
(current womens softball coach at South Carolina State University) and Mr. Thomas wife (who played collegiate softball) were part of Team Thomas. Coach Braxton describes Mr. Thomas as having a major soft spot for children and has the ultimate respect for those of us who work tirelessly to expose young women to the game and ultimately earn possible scholarship opportunities to play at the college level. Ex. 11 (T. Braxton). Apart from operating clinics and camps, Mr. Thomas coached youth football and baseball teams in the well-established Woodridge Warriors Youth Organization up through 2006. He also coached and helped fund several youth travel teams, including a girls RBI softball team. Ex. 87 (J. Walker); Ex. 89 (A. Williams). At the same time, he coached at the high school level at Coolidge and Archbishop Carroll High Schools. Ex. 51 (D. McGee); Ex. 61 (L. Quander); Ex. 86 (S.K. Truhart); PSR 141. At the youth level, Mr. Thomas began coaching before his son was old enough to play, and later coached teams that his son played on, including a unique 12-andunder travel team that realized the vision of drawing together players from different racial and socio-economic backgrounds across the city. Ex. 22 (P. Donellan). As a rival youth coach, Malcolm Boardley, observes, The battles were highly competitive on the field but neither of us was concerned about winning. We focused on more important things, like how sportsmanship, teamwork and good work habits are not just required to win a game, but to succeed in life. Ex. 10 (M. Boardley). Paris Inman, head of Little League Baseball in the District and a former Woodridge parent, writes:
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I gravitated toward Harry Tommy Thomas because of his passionate and consistent delivery of high quality baseball focused clinics and workshops. Tommy was [my sons] first real baseball coach. [My son] played with the Woodridge Warriors It was very difficult for me to find [my son] a good place to play close to where we lived. The options east of Rock Creek Park were minimal at the time. Tommys team at Woodridge was what I was looking for. Ex. 39 (P. Inman). According to Richard Sheler, another Woodridge parent, Mr. Thomas involvement with the Warriors was remarkable. Ex. 68 (R. Sheler). See also, e.g., Ex. 3 (T. Adderley); Ex. 14 (A. Burriss); Ex. 30 (G. Hall); Ex. 33 (C.H.); Ex. 34 (L. Henderson); Ex. 40 (M. Jackson); Ex. 66 (D. Shaw); Ex. 91 (V. Winfield); Ex. 92 (K. Winston). Mr. Thomas commitment to youth sports and development did not cease when he became a Council member in 2007. Indeed, Mr. Thomas continued his prior work, devoting considerable time, effort and resources to promoting and facilitating youth sports in the District, not simply in his capacity as a part-time Council member but in his private capacity as well. These efforts, which he has maintained until now, are described in detail in the following section. The impact of Mr. Thomas service to District youth through the medium of athletics has been profound. Mr. Thomas has been at the forefront of a successful but still-developing initiative to bring baseball and softball back to underserved, predominantly African-American communities. Well-known local coach John McCarthy, who has helped broaden baseballs appeal through his Home Run Baseball Camps, maintains: Many times Harry and I imagined ways to create and expand programs that would introduce baseball to children living in poverty. I found Harry to be focused, determined and informed on the issue. I admired his passion for social justice and his eye on incremental progress. Ex. 50 (J. McCarthy). Similarly, DC Dynasty Baseball President Antoine Williams notes: We later worked together on Major League Baseballs RBI (Reviving Baseball in the Inner Cities) program. Harry helped as both a coach and supporter of the program. He provided uniforms, bats and baseballs. Harry and his 15
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wife single-handedly put together the first DC RBI girls softball team in 2010. Ex. 89 (A. Williams). London Hitchman, a DC Dynasty and Maret School assistant and former Northwest Little League coach who worked with Mr. Thomas on the Stars and Strikes baseball tournament from 2008 - 2010, see infra, likewise writes: Mr. Thomas is extremely committed to developing and growing [baseball]. There are a handful of people in Washington who have taken the lead in trying to revive youth baseball in poorer African-American neighborhoods in the city, and Mr. Thomas is one of them. His dedication to the cause runs deep. What Mr. Thomas has done for the citys youth through baseball does not excuse what he did, but I feel strongly that it shows what kind of visionary he is. There are a number of people in town who talk the talk when it comes to youth baseball in Washington, DC, but there are only a few who walk the walk. Mr. Thomas is one of the people who walks the walk. Ex. 36 (L. Hitchman). Gerard Hall, a long-time coach, umpire and youth baseball activist, offers the same assessment: Harry and I used to have long discussions about how can we promote and improve minority baseball in the city. We came to the conclusion we have to provide some type of player development in order to improve the skill level being displayed in our leagues. Harry organized and led the Saturday morning player development clinics at Turkey Thicket Recreation Center. They were free and they ran from November through March the following year. Remember this was before the Nationals came to town. Also at that time no one was providing any type of player development clinics in the city. Harry has been a great asset to baseball, the city and the Ward 5 community. Ex. 30 (G. Hall). See also, e.g., Ex. 26 (A. Ericsson); Ex. 45 (A. Lee); Ex. 49 (G. McCarthy). More important than what Mr. Thomas has done to help revive youth baseball in the city, his service often through baseball and softball has positively shaped and transformed young lives and given hundreds of young people opportunities they otherwise would not have had. Notwithstanding their disapproval of Mr. Thomas
crimes, a number of letter writers attest to this, helping to paint the full picture of Mr.
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Thomas life that Section 3553(a)(1) advises the Court to consider. representative sample:
Here is a
Kandace Winston, Woodridge Warrior/clinic parent: Working with Coach Tommy, my son developed a lifelong love for baseball. Coach Tommy taught the boys and girls a love for the sport that had long sense been neglected in our Ward. He taught them the importance of teamwork, good sportsmanship and character. Coach Tommy provided uniforms, equipment and state of the art training tools to aid in the development of the kids. As a parent, it was inspiring watching him teach and develop these kids. Many of them were there simply to have something to do and left with a love and passion for the sport. The kids fostered lifelong friendships and many have since gone on to play high school and college baseball. It was a blessing to watch my shy introverted bookworm branch out and develop friendships and athleticism. My son went on to play high school baseball at Wilson, many of his teammates are playing at Coolidge and McKinley Tech. The 2010 DCIAA Championship game held at Nationals Park was full of Coach Tommys former players on both sides of the field. Coach Tommy was more than a baseball coach, he was a mentor, teacher, tutor, and friend. Gregory McCarthy, Washington Nationals Vice President for Government and Municipal Affairs and former Deputy Chief of Staff to Mayor Anthony Williams: Harrys whole persona, his overarching purpose, was to expose young people to sports and recreation, especially baseball He was painfully articulate about the lack of resources and opportunities available to most youth in the District compared to children from affluent families in the suburbs. I got the impression that Harry thought it was his life calling to be the father, coach, mentor, driver, trainer and cheerleader for as many children as he could touch. For me it was always striking to know that in Harry there was an advocate [for youth sports] whose personal sacrifices and sweat equity would actually outshine whatever we could fund through the Department of Parks and Recreation or wherever [Harry Thomas life has been] a confluence of public service, sports, and leadership, with a personal commitment to better the lives of young people. Paris Inman, Administrator of District of Columbia Little Leagues, Woodridge Warrior/clinic parent: [My son] is now a junior [in a high school], where he plays on the baseball team. It is hard to overstate what baseball has meant to [my son], and what it has meant to me as his father. Baseball has given [my son] selfconfidence, provided him direction, and taught him to focus not only on the sport but on academics. This is exactly as I had hoped when [my son] began playing as a young child. I am not exaggerating when I say that, without Harry Thomas, my hope would not have been realized. To put it as straight as I can, [my son] would not be playing baseball today if it werent for Tommy, and if [my son] werent playing baseball, I dont believe he would be the same kind of confident, responsible, well-adjusted teenager he is now. From what I have seen through my own involvement with youth baseball in the District, I know Tommy 17
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has done the same thing for many other children and their parents. Tommy is a great coach and an extraordinary motivator. Toni Adderley, DDS, Woodridge Warrior/clinic parent: Coach Tommy exposed both of my children [a boy and a girl] to a sport that they probably never would have played. He contributed to both developing into well-rounded kids. Stephen Kyle Truhart, clinic/camp instructor and nephew: Harry Thomas has not only left a mark on my family, but the entire Ward 5 community. His efforts to constantly reach out to those in need and provide support when needed are apparent. Hes impacted and changed lives of individuals who, without his guidance, may have taken a different life path. I have witnessed it with my own eyes. Jack Mowatt, Commissioner, Amateur Softball Association: [Mr. Thomas] ambition was to teach skills, motivation, self-reliance and overall improve [the youths] way of life. His approach was not only successful, but it keeps them out of trouble, like staying away from drugs, gangs, and inappropriate behavior. He was always concerned about the well-being of these young people. Leroy Clay, III, Ward 5 resident and former YLI student: [Mr. Thomas] played baseball with youth in the community. He used sports as a tool to connect with at-risk youth growing up in Ward 5. I was raised in a strong family but many of my friends in my neighborhood were not. Mr. Thomas was a mentor to some of these young men, and I can say without a question that there are many young men in the District of Columbia whose lives were changed because Mr. Thomas took an interest in them. These young men knew that Mr. Thomas genuinely cared for them, and they listened to his guidance, which often kept them out of trouble. Toby Settles, President, Satchel Paige Little League: [Mr. Thomas] has always been instrumental in our plight to reach and connect with our youth. No matter how big the challenge, Harry would always set aside time to come to the aid of our children. Affectionately known as Coach Thomas, he has volunteered in every aspect in the daily operation of running a successful youth program. He not only coached but he would facilitate baseball clinics that would be free to all kids of all ages. Donnie Shaw, YMCA, Public Affairs Director: [Mr. Thomas] provided children with structured activities during a time that they were most likely to engage in negative behavior or be a victim of negative circumstances. Harry was a positive, responsible and caring adult. My son was a [camp] attendee so I can personally attest that Harry Thomas Jr. was indefatigable in his quest to provide children with great programs that challenged their spirit, mind and body. Paul Donellan, President, Northwest Little League: [The travel team Mr. Thomas assembled] was comprised of kids from varied racial and socio-economic 18
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backgrounds. Mr. Thomas had a drive and a passion to unite the youth of the District through baseball; to get them to play together and grow together. We had long talks about bringing people together, breaking through barriers and starting it with the kids. He had the vision and passion to bring out the good in people. To teach these kids to break down barriers before they even existed through interaction and camaraderie, Mr. Thomas taught these kids to respect the game of baseball and to respect each other. To this day, my oldest son would tell you that Mr. Thomas is one of his favorite people. He encouraged my oldest son to persevere, not to be discouraged by setbacks. The lessons my son learned from Mr. Thomas are lessons reinforced with all of these boys; lessons that any father would be proud to say his son has learned. Respect for others, dedication, and caring. Mark A. Jones, Vice President, DC State Board of Education, and clinic parent: Mr. Thomas has had a positive impact on my daughter as her softball coach for many years. He has been instrumental in teaching her athletic and life skills that have helped her to develop socially and academically. My daughter was always enthused about attending Mr. Thomas softball clinics, and that sentiment is shared by the many students that have enjoyed working with him. My experience as a parent and as a friend is just one of many in our community, as Harry has been involved in the development of thousands of youth in the city. He has mentored teenagers and young adults for the past 25 years, and he has instilled in them the value of giving back to the community. As the Vice President of the DC State Board of Education, I can attest to his commitment to improving the lives of all youth in the city. Marvin Dickerson, Chairman, Batter Up Foundation: [As a member of] the board of directors of the Boys and Girls Clubs of Washington, DC, President of 100 Black Men of Greater Washington, DC, and chairman of the Batter Up Foundation I have had the opportunity to personally witness [Mr. Thomas] commitment to youth in the community. Diane Thomas, wife and clinic instructor: When I arrived in Washington, DC, I was fortunate enough to meet and connect with someone who not only loved participating in sports but realized the potential sports offered as a medium to help others through volunteerism, coaching and mentoring. Growing up in the inner city, Harry knew there was a lack of quality instruction, training tools and facilities to foster solid and consistent interest in baseball in his community. Harry worked to fill that need. Barry Scott, Jr., clinic/camp attendee and instructor, former Council employee: [H]e train[ed] me physically and mentally in sports and how to become a wellrounded man. Mr. Thomas was vital in showing me that although sports are my number one passion it is just as important to assist and give back to my community and from watching him train and coach these young children I wanted to follow in his footsteps and began coaching. 19
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LaJuan Cook Quander, parent of former player and intern: [Mr. Thomas] not only imparted baseball skills to the young men he coached; he also provided them with life skills. Coach would always insist his players do more than just play baseball. He encouraged them to be active in their communities, by volunteering and being civically active. He also demanded they do well in school. Coach was responsible for introducing my son to service in the community. Through programs connected to the DC Dept. of Recreation and the campaign process of Harry Thomas Jr., my son was afforded the unique opportunity to gain hands on experience in learning how government works and what it means to be service oriented. Allen Burris, father of Major League Baseball player Emmanuel Burris: [I have] personal knowledge of Harry Thomas Jr.s dedication and sincere faithfulness in working with children to build their self-esteem and in helping to teach them how they should behave. I will be forever thankful for his guidance, on a continuous basis, in contributing to the positive development of my son, Emmanuel Burriss, and many of my sons friends and baseball teammates. We so badly need his experience and commitment to addressing the challenges of our children that must be met head on, now more than ever. Cedrick Johnkins, youth coach and clinic instructor: There are few people in this town who spend as much time working with DC kids as Harry. Harry has been a role model and a leader for hundreds and hundreds of people, both young and adult, over the past 44 years I have known him. Spillman Truhart, clinic/camp instructor and nephew: Some of the young people he helped to mold in these camps are high school athletes here in DCIAA sports; others have attended and graduated from college. Having worked with Mr. Thomas in the community mostly as a volunteer for sport training programs I could see the difference he made in the lives of boys and girls, some who never would have had the opportunity for skills training on the level that was provided, especially in baseball. Darin Burks, clinic/camp instructor and intern: The knowledge and skills I gained from knowing and working with Tommy is still essential in my life. Tommy is not only a neighbor or former employer; he is a friend and a mentor. He provided so much for my friends and I over the years Deron McGee, former player, clinic/camp instructor and Junior Council Member: Many of us came from disadvantaged neighborhoods and [Mr. Thomas] was the mentor who encouraged us never to give up. He is a father figure, a brother, and a coach. If it wasnt for Mr. Thomas and all the programs he ran, I wouldnt be a college graduate and I would likely have headed down the wrong path myself.
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Richard Sheler, Woodridge Warrior/clinic parent: We have been the benefactors of [Mr. Thomas] involvement in these sporting events and organizations, as my son is now a standout athlete at Wilson Senior High. C.H., former player and family friend: Coach Tommy has been a father figure of sorts since I first met him I must credit Coach Tommys love for the game of baseball that helped me learn to appreciate the game. Whether it was pitching, hitting, or base running these skills were crafted while attending his camps and clinics. I am still playing baseball, and representing the School Without Walls High School I have grown up with a single mother but I have always had Coach Tommy to lean on. Pierpont Mobley, family friend: He not only showed the youth the skill of the game, but taught them the values to which we live and play by on and off the field. Antoine Williams, President, DC Dynasty Baseball: While coaching baseball at a local high school, I helped run baseball camps and clinics with Team Thomas and Swing-Away. This experience helped spark an interest in starting a similar organization around baseball and mentoring. [Mr. Thomas] was not only a natural as a coach and mentor but you could see that he was passionate about his work. As I started to grow as a coach and run my own organization, Harry served as a mentor to me and someone that became a reliable and trustworthy liaison. Carl Thomas, former State Director and Out of School Time Program Director for Capitol Educational Support, Inc.: For the entire time I have known him, Mr. Thomas has been a mentor and coach within several programs. Harry has often given selflessly of his time and effort. My first substantive interactions with Mr. Thomas began in 2002, as my nephew readied himself to begin learning the sport of baseball. Mr. Thomas was my nephews baseball coach from 2003-2005. During that time I was able to identify specific characteristics about him as a man, without actually knowing him. He showed not only exceptional interest in the social and academic development of his scholar athletes, but also exhibited the appropriate way to win (and lose). Alonzo Bell, clinic volunteer and cousin: I strongly believe, prior to Tommys intervening this young man [who displayed a gun at a baseball clinic] never gave much thought to high school let alone college. Tommy could have easily called the police on this young man, but Tommy chose to reach out to him and teach him how to be a productive citizen in the community. Andre Lee, President, Senators Little League and clinic instructor: [Mr. Thomas] is always coaching, always instructing, always mentoring, always focusing on those kids who need the most help. Tommy deserves an enormous amount of credit for bringing baseball back to life among kids in the District. He has done it 21
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because he is more than just a baseball coach; he is a motivator, a teacher, and a friend. Ive seen firsthand how Tommy focuses on those kids who are particularly struggling with motivation, and he uses team sports to prevent kids from going down the wrong path in life. He inspires kids, he turns their lives around, and through baseball or other sports he turns them into confident, productive, and responsible youth. There are few individuals Ive known who are as devoted to the children of the District of Columbia as Tommy. Michael Johnson, former player and intern: From the time I have known Harry Thomas he was been more than a coach to me. During my baseball career I learned important life lessons from him. He believed in my abilities even when I didnt believe in myself. As an employee of his I was able to learn how to be courageous, ambitious, strong-minded, hard-working, and how to be a better human being. He has been a second father figure to me because my father had moved to Texas or worked overseas for these 6 years In life you dont always come across people like Harry Thomas. I am speaking for myself in this letter but I guarantee if you ask anyone who knows him as a person you would get the same response to me. He is a great father, coach, mentor, leader, role model, and person. The world needs more people like Harry Thomas Jr. Younger generations deserve to have great leaders and teachers. I believe he is one of the best examples of this character. Sue Barnes, Senior Olympian and clinic guest speaker: Whether Thomas Jr. was teaching, coaching or developing the young athletes in the skills of citizenship, the community saw his gift for shaping lives of our future leaders. Mentoring large groups of active young people up-close is a tough job. Brendan V. Sullivan, III, President and Founder, HeadFirst Camps: In the [ten] years since [I met him], Ive watched Tommy positively impact baseball fans and young student athletes in this city as few before him. I watched as he led the crusade to bring baseball to the District, coached alongside him in Team Thomas clinics, and entered our Headfirst teams in his annual youth tournament in Ward 5: Stars and Strikes the first such event in decades. Every hour spent with Tommy has been marked by a contagious energy and positive attitude that affects all around him. In each of the roles Ive seen him fill, Tommy set standards for himself, his ballplayers and his fellow coaches that forced everyone around him to put aside selfish goals and motivation and instead commit himself to a pursuit of excellence for the group or team. [Despite his transgressions] I am well aware of the positive impact that Harry has had on the youth of this city over the past decades and I know the type of man, coach and father he is. I know that he will do as he has always taught: he will dust himself off, learn from his mistakes and emerge a stronger and better person a more valuable member of our community. Christine Brooks-Cropper, clinic parent: [Mr. Thomas] taught my son and other kids how to properly swing the club or bat. My son will now and forever have the fundamentals of swing sports because of Mr. Thomas. These little things one will 22
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never forget and will always appreciate Lou Hall, Director of Teen Programs, Department of Parks and Recreation: I managed the recreation centers where Harry held numerous programs for our youth. When called upon Harry has never wavered to assist and lend a helping hand to provide services to our youth, whether it has been planning and organizing a sports league or refereeing or umpiring a game. For many years, Harry has organized baseball/softball clinics at various recreation centers throughout the year, all at no cost to our youth. He conducted many of them on a strictly volunteer basis. All this began years before Harry became an elected official but Harry demonstrated his passionate commitment to youth by continuing to give countless hours of his time, plus funds, to these activities even after being elected to the Council. Nate Archey, friend: He has demonstrated over the years on numerous times the desire to assist people that were in need. He has done this with individuals that did not have the history and longevity of a friendship that we have shared. He has always had a passion for kids and sports. His programs and tournaments to assist youth in the City have made a difference in the lives of so many young men and women and through Tommy's efforts, numerous youth have gone on to become productive citizens. If you ask, some of them they were going a different direction in life until he provided options and he showed them an alternative route to be successful. John McCarthy, Director, Home Run Baseball: Harry is a natural coach and motivator and brought out the best in all the campers he worked with. I admired Harrys optimistic, can-do attitude and his willingness to stick up for the kids living in Washingtons underclass. Every coach on staff knew and admired him. While Mr. Thomas has spent considerable time and effort nurturing youth through athletics, he has served his community in a number of other ways, both as a Council member and as a private citizen. Among other things, he was as an Advisory Neighborhood Commissioner for approximately 10 years, chaired the Woodridge Neighborhood Health Clinic, held a position on the Washington Hospital Centers community advisory board, volunteered with the American Cancer Society (for which he served in several roles, including local chapter president, and participated in educational outreach, fundraising and community service projects), and was part of the organization devoted to reopening McKinley Tech High School. For many years before he was elected in 2007, Mr. Thomas also helped organize Turkey giveaways on Thanksgiving, 23
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see, e.g., Ex. 15 (L. Carter); Ex. 26 (A. Ericsson); Ex. 82 (D. Thornton); Ex. 83 (D. Truhart); Ex. 90 (G. Williams); dressed up as Santa on Christmas and distributed toys to hundreds of children at a local recreation center, see, e.g., Ex. 48 (K. Manning); Ex. 59 (S. Poole); and orchestrated Harry Thomas, Sr. Day, a large community event in honor of his late father, which featured sporting events like softball games and boxing matches, moon bounces and batting cages for children, health/nutrition booths, science demonstrations, mortgage assistance, and free food and drink. He continued to hold these events on an annual basis after assuming office. See, e.g., Ex. 3 (T. Adderley); Ex. 26 (A. Ericsson); Ex. 82 (D. Thornton); Ex. 106 (Diamondsxcel article regarding Harry Thomas, Sr. Day). In his official role as a Council member, Mr. Thomas maintained his focus on assisting youth. He paid similarly close attention to assisting seniors. Ex. 7 (W. Ballard); Ex. 19 (V. Daniels); Ex. 37 (P. Hobson); Ex. 52 (P. Mobley); Ex. 74 (L. Swain); Ex. 90 (G. Williams).) Within his own office, he launched a Junior Ambassador program in which college interns whom he mentored shadowed him, worked on his staff and engaged in community outreach and constituent service. Several letter-writers tout the benefits of that program. Ex. 42 (M. Johnson); Ex. 48 (K. Manning); Ex. 51 (D. McGee); Ex. 58 (S. Pone); Ex. 61 (L. Quander); Ex. 64 (B. Scott). Mr. Thomas also partnered with the YMCA and DCPS to mentor students in the Youthin-Government Program, actively participating in workshops and other events. Ex. 44 (C. King) (Of all the Council members, Harry was almost certainly the most dependable on this. All we needed to do was end Harry an email, and he would be there.). In addition, Mr. Thomas helped with a curriculum for teaching students in certain Ward 5 schools about the legislative process, which included having them participate in Council hearings. Mr. Thomas regularly supported and participated in youth programming conducted at
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local recreation and tutoring centers, schools and churches, Ex. 2 (B. Adderley); Ex. 15 (L. Carter); Ex. 18 (J. Coleman); Ex. 27 (T. Farmer); Ex. 57 (C. Perkins); Ex. 58 (S. Pone); Ex. 69 (W. Sherrod); Ex. 107 (Coalition for Econ. Empowerment Certificate); actively intervened with DPRs Roving Leaders to prevent gang violence among youth, Ex. 25 (R. Duren); assisted with a local food bank, Ex. 82 (D. Thornton); and nurtured and provided assistance to both new and existing organizations devoted to youth development, including Woodridge Warriors, SiNGA, Revel Youth Shine, Good Ground Good Life, Metro Warriors, Ivey 23, Friends of Carter Barron Foundation for the Performing Arts, DC Fashion Foundation for the City, and others. See, e.g., Ex. 3 (T. Adderley); Ex. 12 (C. Brooks-Cropper); Ex. 35 (G. Hightower); Ex. 54 (K. Nesbitt); Ex. 64 (B. Scott); Ex. 108 (SiNGA certificate of appreciation). Mr. Thomas supported some of these groups in his private capacity. For instance, when the Metro Warriors (f/k/a Ward 5 Warriors) started up in late summer 2009, Mr. Thomas personally donated tackling dummies, blocking shields, 100 pairs of Reebok pants and 120 blue Reebok uniforms, and then furnished the team another 50 white uniforms when the team won the Pop Warner City Championship and made the regional playoffs. Ex. 3 (T. Adderley); Ex. 54 (K. Nesbitt). As a Council member, Mr. Thomas defining traits were his energy, his accessibility and his empathy; no person and no issue were too small or unimportant to command his attention. See, e.g., Ex. 6 (C. Bailey); Ex. 25 (R. Duren); Ex. 32 (C. Harris); Ex. 47 (M. Lowe-Howard); Ex. 57 (C. Perkins); Ex. 58 (S. Pone); Ex. 74 (L. Swain); Ex. 84 (D./S. Truhart); Ex. 92 (K. Winston); Ex. 109 (Woodland Foundation Father of the Year Award). These same traits are what has driven his commitment to community service and what has made him, in his private capacity, such an asset to the District and its youth for so many years.
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b. Devotion as a Father Mr. Thomas and his wife Diane have three school-age children. They are a close-knit unit. Ex. 76 (D. Thomas). Mr. Thomas has been actively engaged in all of his childrens educational and athletic endeavors, PSR 117, 119, Ex. 76 (D. Thomas); and they have been similarly engaged in his pursuits. As his wife conveys, they are a sports family. Mr. Thomas met his wife playing softball. Mrs. Thomas helped run Mr. Thomas baseball and softball clinics, and has energetically supported girls softball. Mr. Thomas son attended Team Thomas clinics and camps with his father and, when he became old enough, provided instruction to younger children. Mr. Thomas girls have attended the clinics as well. Mr. Thomas coached several of his sons youth baseball teams. He has gone on to assist with his daughters softball teams. Family outings and vacations often revolve around sporting events. Ex. 76 (D. Thomas). Mr. Thomas has provided far more than financial support to his family. He is a constant figure in each of [his childrens] lives, from parent to instructor to coach to extreme fan. I could not have asked for a more engaged father. Each child has his and her own special relationship with him Id.; Ex. 77. A lengthy term of incarceration could prove devastating to them. PSR 116, 121-22. 2. The Nature and Circumstances of the Offense The crimes Mr. Thomas committed are serious. As Mr. Thomas has expressly
acknowledged, they were an indisputable violation of the public trust: It is clear that, as an elected official, I should not have arranged to divert grant funds to organizations in which I had an interest and should not have used any of the funds myself. Ex. 1 (H. Thomas). It is equally clear, as Mr. Thomas has written, that his crimes betrayed everything [he has] tried to accomplish as a coach and mentor. I have preached responsibility and tried to lead by
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example. I did not live by my words and rather than leading by example, I set a poor example. My conduct was inexcusable. Id. While the offenses of conviction are both serious and inexcusable, it is important to note that, during the offense period, Mr. Thomas continued the work he had done prior to becoming an elected official. Mr. Thomas developed, helped organize and personally provided instruction at a number of youth sports programs especially baseball and softball programs while he was on the Council. To be clear, these activities do not excuse Mr. Thomas crimes and do not change, or seek to change, the parties agreed-upon Sentencing Guidelines calculations. But they help to put Mr. Thomas crimes into context. The following is a brief outline of certain youth sports and activities that Mr. Thomas devised, facilitated and/or conducted during the period of the offense: 1. In the winter and early spring of 2008, and again in the winter and early spring of
2009, Mr. Thomas ran baseball and softball clinics every Saturday morning for dozens of boys and girls at Turkey Thicket Recreation Center. Ex. 39 (P. Inman); Ex. 45 (A. Lee). The thensite manager at Turkey Thicket has confirmed that the winter 2008 clinics ran for 15-16 weeks on Saturday mornings, that Mr. Thomas ran the clinics, that Mr. Thomas and several other coaches or parents provided instruction, and that he thought Mr. Thomas was operating a legitimate program. Exhibit 110, an article from the March/April 2008 edition of Brookland Heartbeat, describes the clinics and contains photographs from one of them. Exhibit 111 contains photographs from one of the Saturday morning clinics held in or about February 2008. As noted supra, these clinics continue to this day. Andre Lee, who helped Mr. Thomas run the clinics and has taken the lead role since 2010, writes about how important these more recent clinics have been to reviving baseball in
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Ward 5. The Ward 5 Little League, Senators, folded in 2007 due to lack of participation. According to Mr. Lee, Mr. Thomas took it upon himself to rectify the situation. Tommy called a meeting early in his Council tenure He was determined to revive Little League in his ward, and in the many other wards where Little League baseball was struggling. He asked me to take on the role of commissioner of the Ward 5 Senators Little League and I accepted. Tommy continued to do his free weekend clinics when he was a Council member. He used them as a way to drum up interest in baseball and register kids for Little League. In my first winter as commissioner in 2008, I remember only four kids showed up to one of the clinics. Tommy said that he would make some calls and get more kids interested. He began to advertise the clinics through flyers, e-mails and word of mouth Even though he was very busy with his Council member responsibilities, he showed up every Saturday at Turkey Thicket, arriving early to setup all the batting stations and equipment. He encouraged everyone he knew to attend, and he coached, taught, and motivated the kids himself. Sometimes he could not stay all morning because of a ward emergency or some other Council issue but he always set up the clinics, started them off with a motivational speech, and made sure that I or one of the other volunteer coaches was there taking care of the program. The week after we only got four kids, Tommy got 15 kids. After that, we were attracting between 20 and 80 kids that level of attendance continues to this day. These clinics feed excitement for our Little League program, which has grown a lot since it folded in 2007. After being lifeless five years ago, there are at least 200 kids playing youth baseball in Northeast DC on over a dozen different teams in different age groups. This would NEVER have happened without Tommy. Ex. 45 (A. Lee). Paris Inman, District Little League Administrator, similarly credits Mr. Thomas with helping to rejuvenate baseball in Ward 5 (and elsewhere), in part through the clinics he continued to run after becoming a Council member: [W]ith Tommys help and support, the Senators Little League in Ward 5 started up again. Tommy recruited one of his Team Thomas colleagues and coaches, Andre Lee, to serve as president. Andre is still president. Tommy and Team Thomas also provided critical support for the new league, using the Saturday morning clinics at Turkey Thicket as a way of recruiting and teaching new parents and children. Ex. 39 (P. Inman). Mr. Thomas also furnished youth leagues and teams with equipment and uniforms. Id.; Ex. 45 (A. Lee); Ex. 65 (T. Settles).
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In addition to conducting the clinics and assisting youth teams and leagues, Mr. Thomas arranged for, and coached youth baseball players at, workouts held during weekdays at RFK Stadium during the winter of 2008. Ex. 110; Ex. 112 (permission slip/waiver form for RFK Stadium for 2007-08). The Director of the Calomiris YMCA writes that [t]his was a once in a lifetime experience for these children, many of whom came from her center. Ex. 44 (C. King). Mr. Thomas also periodically secured tickets for his clinic participants and other youth baseball players, as noted above. See, e.g., Ex. 105 (sign in sheets for Aug 15, 2007). Harry would come with lots of young people, often a lot more than we had thought. It seemed as though on most occasions he would find one more team or one more class the day before that really wanted to come. He would eschew the trappings an elected official might expect and would ask, instead, that we try to give the young people he brought special experiences. Ex. 49 (G. McCarthy). On several occasions, Mr. Thomas made arrangements for clinic participants to tour the new Nationals Park after it opened. Harry insisted that they not just see the batting cages but that they experience the batting cages. He introduced me to the groups and asked me to explain a bit about how the team operates and then loosed his tie and worked with every boy and girl on their swing. Id. In addition, Mr. Thomas was instrumental in arranging for every DCPS high school baseball team to conduct one spring practice on the field at Nationals Park a unique experience for high school players. Id.; Ex. 10 (M. Boardley). 2. Mr. Thomas helped create, helped organize, helped fund and served as master of
ceremonies for a successful showcase youth baseball tournament called Stars and Strikes that ran all day at Fort Lincoln Park on July 5, 2008. The tournament required Mr. Thomas and his co-organizers, London Hitchman, Mr. Inman and Mr. Thomas wife, to put in a considerable amount of work. Ex. 36 (L. Hitchman); Ex. 39 (P. Inman); Ex. 45 (A. Lee). As several letters
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note, the tournament was something of a watershed for youth baseball in the city. Ex. 36 (L. Hitchman); Ex. 39 (P. Inman); Ex. 45 (A. Lee); Ex. 73 (B. Sullivan). Mr. Thomas goal was to use the event, as he used his clinics and camps, to promote youth baseball throughout the District, especially in poorer, largely African-American neighborhoods. He hoped to expose children from these neighborhoods to top flight youth baseball and facilitate interaction between these children and children from District neighborhoods and suburbs where youth baseball has flourished. His vision, according to Mr. Hitchman, had a much stronger impact than I could foresee. Ex. 36 (L. Hitchman); Ex. 39 (P. Inman). There were no tournament entry fees. Mr. Thomas arranged for many of the amenities and much of the entertainment: a show-mobile stage, a sound system, use of an inflatable batting cage, moon bounces, free drinks, free Italian ices, people to work the grill cooking donated hot dogs, donated instruction from Home Run and Headfirst baseball camps, trophies for the winners, plaques for each player on the winning teams, medals for every player, free t-shirts bearing the Stars and Strikes logo, Ex. 117, and a professional fireworks display overseen by firefighters. Letters from Mr. Hitchman, Mr. Inman, Andre Lee, Stephen Kyle Truhart and others discuss the tournament in detail. By all accounts, [t]he tournament was a great success. Ex. 39 (P. Inman). Mr. Hitchman writes: The tournament was better than I ever imagined. It was bigger than I had hoped, and it included some very good teams. But as Mr. Thomas and Paris [Inman] envisioned, it also drew lots of people, black and white, from all across the Washington community. It was just a great day for baseball in Washington, DC. Ex. 36 (L. Hitchman). Exhibit 113 is a flyer for the event. Exhibit 114 is a media advisory for the event. Exhibit 115 is an event schedule. Exhibit 116 contains photographs from the event. Exhibit 117 contains close-up photographs of some of the t-shirts that participants received. Exhibit 118 is an article from the Northwest Current about the event. 30
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Due to the success of the 2008 tournament, there has been a Stars and Strikes tournament in each of the following three years. Ex. 36 (L. Hitchman); Ex. 39 (P. Inman); Ex. 45 (A. Lee). Mr. Thomas played an active role in the 2009 and 2010 tournaments, which were bigger and more competitive than the inaugural tournament but continued, because of Mr. Thomas, to include less experienced teams from District neighborhoods. Ex. 36 (L. Hitchman); Ex. 39 (P. Inman). As in 2008, Mr. Thomas made sure trophies, medals and shirts were provided to all participants in 2009 and 2010. Ex. 36 (L. Hitchman). Like 2008, championship day of the 2009 tournament also featured a show-mobile, sound system, inflatable playgrounds and fireworks. Id. 3. Mr. Thomas developed the idea for, helped organize and promote, and
participated in a full-day spring break sports camp for a number of children at Turkey Thicket Recreation Center from March 24-28, 2008. Children who attended the camp received baseball and softball instruction, golf instruction at Langston Golf Course, tennis instruction and soccer training. Ex. 64 (B. Scott); Ex. 119 (photographs from camp). Mr. Thomas personally provided baseball and softball instruction, and accompanied the children to golf lessons. Ex. 2 (B. Adderley); Ex. 64 (B. Scott); Ex. 119; Ex. 120 (camp flyer). 4. After becoming a Council member, Mr. Thomas became actively engaged in
promoting another swing sport among District youth: golf. On October 5, 2007 and May 29, 2008, Mr. Thomas held golf tournaments that drew over 100 school children apiece to Langston Golf Course. Exhibit 121 is a video from the October 5, 2007 event. Exhibit 122 is a flyer for the May 29, 2008 event. The children were exposed to golf, using and receiving instruction at the driving range and putting green, and received lunch. At a third tournament held in October 2008, pairs of adults teamed up with pairs of youth to provide instruction during a nine-hole
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round. Ex. 31 (L. Hall). In addition, Mr. Thomas would accompany Ward 5 children to Langston Golf Course for instruction, including as part of the First Tee program. Ex. 31 (L. Hall); Ex. 44 (C. King); Ex. 51 (D. McGee). 5. Mr. Thomas helped arrange a summer sports camp held at Charles Young
Elementary School to serve youth in Northeast Washington, particularly in the Langston-Carver neighborhood, in the summer of 2008. The camp was Mr. Thomas idea. He recruited a wellknown local coach to run it and, as the Statement of the Offense says, worked with the Department of Parks and Recreation, its Roving Leaders and the Department of Employment Services-Summer Youth Employment Program to put the camp together. Mr. Thomas
acknowledges that he helped organize the camp in his official capacity as a Council member, with a staff member playing a key role. However, he also devoted some of his personal time to the camp. He provided baseball instruction for at least one day and also accompanied
participants to Langston Golf Course for golf instruction. 6. Mr. Thomas helped arrange, helped secure sponsors, facilities and equipment for,
and gave an opening speech at a well-attended football camp hosted by San Francisco 49er and Dunbar High School graduate Vernon Davis on July 18, 2008. Ex. 123 (photographs from clinic). 7. Mr. Thomas did several things for a one-week football and cheerleading camp
conducted in late June 2009 by an organization identified in the Statement of the Offense as Organization #3. As paragraph 42 of the Statement of the Offense acknowledges, Mr. Thomas should not have received any money from Organization #3, regardless what he did for the camp, because of his position as a Council member. Nevertheless, in connection with the camp, Mr. Thomas arranged for a one-day fitness program conducted by a trainer from Indiana affiliated
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with the company Bigger, Faster, Stronger, Ex. 62 (J. Rowbotham), Ex. 54 (K. Nesbitt); worked with the players that day, Ex. 62 (J. Rowbotham); lent to the camp tackling dummies and blocking shields that he had in inventory, Ex. 54 (K. Nesbitt); spent $1,255 from Team Thomas to purchase pom-poms for the cheerleaders and practice jerseys for the football players, according to invoices, see infra, and the person identified in the Statement of the Offense as Individual #4; had food donated, according to the same individual; delivered a motivational speech, Ex. 62 (J. Rowbotham); and arranged for television sports personality Lou Holder to give a speech. Ex. 38 (L. Holder). In addition to devoting his time and energy to youth sports and development during the offense period, Mr. Thomas also spent some of the diverted grant funds on youth activities. See, e.g., Ex. 41 (C. Johnkins); Ex. 45 (A. Lee); Exs. 117, 124 145. In its impact statement, the District of Columbia accepts that many of the payments Mr. Thomas made from the Team Thomas bank account were intended to serve the community ECF No. 14. Again, this information is in no way intended to excuse Mr. Thomas crimes. Nor is it intended to suggest that the loss amount, for purposes of USSG 2B1.1, is any less than the amount to which the parties jointly stipulated in Mr. Thomas plea agreement. Mr. Thomas acknowledges that, regardless what the grant money he obtained was used for, he should not have received or been in control of any of it. B. The Requested Sentence Is Available (18 U.S.C. 3553(a)(3)). A sentence of imprisonment is not statutorily required for Mr. Thomas. Because the offenses of conviction are not Class A or B felonies, Congress has left open the option of probation, 18 U.S.C. 3561(a), a substantial punishment in its own right. Gall, 552 U.S. at 59596. Accordingly, the Court has broad discretion to fashion a sentence that is sufficient, but not
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greater than necessary, to satisfy the purposes of punishment. Prison, supervised release with conditions, community confinement, home detention, or any combination of these options is authorized. The requested sentence split between prison and supervised release featuring home detention and community service is thus plainly available. Such a sentence would be consistent with Congress resolve that sentencing decisions should be designed to ensure that prison resources are, first and foremost, reserved for those violent and serious offenders who pose the most dangerous threat to society, Pub. L. No. 98-473, 239, 98 Stat. 1987, 2039 (1984) (set forth at 18 U.S.C. 3551 note). C. The Guidelines Calculation (18 U.S.C. 3553(a)(4) & (5)). Under the plea agreement, Mr. Thomas total offense level is 21 and his advisory Guidelines range is 37-46 months. This calculation is based upon a base offense level of 6 for the theft conviction, an agreed loss amount of $353,500 (12 levels), adjustments for leadership role (2 levels) and abuse of position of trust (2 levels), a non-grouped conviction for filing false tax returns (2 levels), and acceptance of responsibility (-3 levels). The Probation Office has reached a slightly different conclusion, finding that the total offense level is 22 and that the advisory range is 41-51 months. What drives the difference is the disagreement between the Probation Office and the parties regarding the loss amount. The Probation Office believes it is $446,000, PSR 158, or $92,500 more than the parties. The Probation Offices determination is based on the conclusion that the loss attributable to Mr. Thomas from the grant for the 51st State inaugural ball from Public-Private Partnership #1 is the full amount of the grant, $100,000, whereas the parties maintain that it is the $7,500 that Mr. Thomas was reimbursed from the grant for having advanced that sum to arrange for certain entertainment. That reimbursement was unlawful because it was self-interested and Mr. Thomas
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failed to inform Public-Private Partnership #1 about it when he and his staff attempted to secure funding for the ball and later failed to report it to the Council. The parties agreed-upon loss amount is the correct figure. Mr. Thomas did not know that funds for the ball grant would come from a tax check-off fund for drug prevention and at risk children. That is why the Statement of the Offense avoids stating that Mr. Thomas knew the original source of the money. Mr. Thomas also did know that his actions would cause pecuniary harm beyond the improper $7,500 reimbursement he received. This is implicit in Mr. Thomas guilty plea. Count I of the Information charges Mr. Thomas with embezzling, stealing,
obtaining by fraud, or otherwise without authority knowingly converting to use of any person other than the rightful owner or intentionally misapplying $353,500 in District funds, in violation of 18 U.S.C. 666(a)(1)(A). The $353,500 figure includes the $7,500 reimbursement. It does not include the full amount of the grant. Mr. Thomas thus has pled guilty to knowingly misappropriating $7,500 of the grant, not to knowingly misappropriating the full amount. Under USSG 2B1.1, Application Note 3, it cannot be concluded that the actual or intended loss is more than $7,500 because it cannot be concluded that, beyond the improper $7,500 payment, Mr. Thomas either intended pecuniary harm or knew or reasonably should have known at the time that such pecuniary harm would occur. The loss amount appropriately attributed to Mr. Thomas from the ball grant is $7,500. Counsel respectfully submits that charging Mr. Thomas with the full amount of the grant for the ball is also unjustified as a matter of fact. First, having investigated the grant, the government is the entity closest to the relevant facts. And as the entity closest to the relevant facts, it made a considered decision that the loss attributable to Mr. Thomas is $7,500. Respectfully, its determination is entitled to deference. Second, unlike with the other grants at
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issue in this case, Mr. Thomas did not personally obtain the grant money for the ball and then use it as he saw fit; he never personally received or controlled the allocated grant funds at all. Rather, Mr. Thomas was reimbursed $7,500. recouping money he already had expended. D. The Requested Sentence Would Not Create Unwarranted Disparities (18 U.S.C. 3553(a)(6)). The requested sentence would not create a disparity, much less an unwarranted disparity, among defendants with similar records who have been found guilty of similar conduct. 18 U.S.C. 3553(a)(6). Since Booker, below-guidelines sentences have been prevalent in USSG 2B1.1 cases generally and in embezzlement cases in particular. The most recently available statistics, which are from the first quarter of FY2012, show that courts imposed below-guidelines sentences in over 30% of all embezzlement cases. See U.S. Sentg Commn, Preliminary Quarterly Data Report, First Quarter FY 2012, tbl. 3. This continues a post-Booker trend in embezzlement cases that, since 2006, has seen a steady increase in the percentage of below-guidelines sentences imposed by courts nationwide. See U.S. Sentg Commn, Sourcebook of Federal Sentencing Statistics FY 2006-2011, tbl. 27. Since 2006, the percentage of below-guidelines sentences in embezzlement cases has jumped from 21.5% to 35.3%. Id. By contrast, courts have imposed above-guidelines sentences in only .0005% of all embezzlement cases during the same period. Id. To take the most recent full-year examples: In FY2010, courts imposed below-guidelines sentences in 29.9% of all embezzlement cases, with 21.3% non-government-sponsored and 8.6% government-sponsored, see U.S. Sentg Commn, 2010 Sourcebook of Federal Sentencing Statistics, tbl. 27-A; in FY2011, courts imposed below-guidelines sentences in 35.3% of all embezzlement cases with 27% non-government-sponsored and 8.3% government-sponsored, an 36 He obtained no financial benefit other than
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increase due almost exclusively to non-government-sponsored variances. Commn, 2011 Sourcebook of Federal Sentencing Statistics, tbl. 27-A.
See U.S. Sentg
The following table
summarizes the post-Booker below-guidelines statistics for embezzlement cases: Table 1 - Sentences Relative to the Guideline Range for Embezzlement Offenses3 Year % of Embezzlement Offenders Receiving Below Guidelines Sentences 21.5 23.8 29.3 31.1 29.9 35.3 41.8 30.4 % of Embezzlement Offenders Receiving Govt. Sponsored Below Guidelines Sentences 4.6 5.1 8.7 5.4 8.6 8.3 6.3 6.7 % of Embezzlement Offenders Receiving NonGovt. Sponsored Below Guidelines Sentences 17.4 18.7 20.6 25.7 21.3 27.0 35.5 23.7
2006 2007 2008 2009 2010 2011 Q1 FY2012 AVERAGE
Commission data from 2006 through the first quarter of FY 2012 similarly shows that courts frequently impose below-guidelines sentences in the broader swath of cases covered by the relevant guideline here, USSG 2B1.1. In the most recent fiscal year, FY2011, courts imposed below-guideline sentences in a full 43% of all Section 2B1.1 cases. See table, infra. And as with sentences in embezzlement cases, the data evidences a steady and consistent increase in below-guidelines sentences in Section 2B1.1 cases since 2006, when 27% of defendants received below-guidelines sentences. The following table summarizes the 2006-2011 below-guidelines statistics for offenders sentenced under Section 2B1.1:
Source: U.S. Sentg Commn, Sourcebook of Federal Sentencing Statistics, FY 2006-2011, tbl. 27.
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Table 2 - Sentences Relative to the Guideline Range for 2B1.1 Offenses4 % of all 2B1.1 Offenders Receiving Below Guidelines Sentences 27.42 29.19 33.30 37.05 40.86 43.12 43.68 36.37% % of 2B1.1 Offenders Receiving Govt. Sponsored Below Guidelines Sentences 12.86 14.10 15.53 15.80 17.73 19.22 19.20 16.35% % of 2B1.1 Offenders Receiving Non-Govt. Sponsored Below Guidelines Sentences 14.55 15.10 17.77 21.24 23.13 23.90 24.47 20.02%
2006 2007 2008 2009 2010 2011 1Q 2012 AVERAGE:
The trend evidenced by these statistics is clear: since 2006, an average of 30.4% of embezzlement offenses and 36.37% of Section 2B1.1 offenses resulted in below-guidelines sentences. In other words, roughly one out of three defendants convicted of the same or a similar primary offense have received a below-guidelines sentence since 2006. Equally telling, the average sentence imposed in Section 2B1.1 cases over the past five years has been below the average guideline minimum (i.e., below the low-end of the range). See U.S. Sentg Commn, Final Quarterly Data Report, FY 2011, Figure D. Based on these statistics alone, the requested sentence would not create an unwarranted disparity. Nor would it create an unwarranted disparity given the fact that other courts have imposed sentences like the requested sentence, or have gone well below the advisory Guidelines range, in cases involving similar offenses. For example, Nicholas Blase, a mayor who took over $400,000 in kickbacks from an insurance agency, was sentenced to 12 months for fraud, despite an advisory range of 41-51 months. Judgment, United States v. Blase, No. 1:06-cr-00421(N.D. Ill. Jan. 29, 2010). Additionally, Evelyn James, President of the San Juan Southern Paiute Tribal
Source: U.S. Sentg Commn, Sourcebook of Federal Sentencing Statistics, FY 2006-2011, tbl. 28.
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Council, pled guilty to a scheme of embezzling a total of $289,000 in Council funds and, without the unique record of good works that Mr. Thomas has, was given a within-guideline sentence of 24 months. Transcript of Record at 36, United States v. Evelyn James, No. 3:08-cr-01035 (D. Ariz. Nov. 30, 2009). See also Criminal Sentencing Minutes, United States v. Joseph Bruno, No. 1:09-cr-00029 (N.D.N.Y. May 5, 2010) (variance from 97-121 month Guidelines range to 24 months for elderly state legislature majority leader convicted of mail fraud of over $200,000); Judgment, United States v. Luis Ramirez, No. 09-CR-30021 (D. Ore. July 19, 2010) (State Bureau of Land Management employee pled guilty to fraud for scheme of payments of over $480,000 to family members for work that was unnecessary or never performed and was sentenced to below-guidelines term of 36 months, despite Guidelines range of 51-63 months and government high-end recommendation); Amended Judgment, United States v. Vincent Fumo, No. 2:06-cr-00319 (E.D.P.A. Nov. 28, 2011) (former state legislator convicted at trial of embezzling over $4.2 million sentenced to 61 months, despite Guidelines range of 17-21 years). Finally, even if the requested sentence were to create a disparity among offenders who committed similar crimes, the disparity would not be unwarranted. As explained in detail in Section I.A, Mr. Thomas has a unique and extraordinary record of community service. Coupled with a sentence that includes not only a term of imprisonment, but a period of supervised release involving home detention, 1,500 hours of community service and considerable restitution to both the District and the Internal Revenue Service, this record provides ample justification for any potential disparity. E. The Requested Sentence Would Facilitate Restitution (18 U.S.C. 3553(a)(7)). The restitution that the parties have agreed upon is substantial $353,500, less the $70,000 paid to date, or $283,500. The restitution that the PSR calls for (which Mr. Thomas
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submits is incorrect, see infra) is even more substantial $446,000, less $70,000, or $376,000. PSR 181. The victim in this case, the District of Columbia, has emphasized its desire to obtain restitution, and Mr. Thomas is intent on providing it. Mr. Thomas is also intent on providing restitution to the United States for the tax loss to which he has stipulated, which is $346,000. Mr. Thomas will not be capable of making restitution payments in prison. PSR 148153a. The only way he will be able to make them is when he finds gainful employment following his period of incarceration, as he hopes he will given his work history and community ties. The sooner Mr. Thomas gets out of prison, the sooner restitution will be made. In view of all of the other Section 3553(a) factors militating in favor of the requested sentence, a term of imprisonment shorter than what the Guidelines prescribe is authorized under 18 U.S.C. 3553(a)(7). See, e.g., United States v. Menyweather, 447 F.3d 625, 634 (9th Cir. 2006)
(acknowledging courts discretion to impose probationary sentence since the goal of obtaining restitution for the victims is better served by a non-incarcerated and employed defendant); United States v. Coleman, 370 F. Supp. 2d 661 (S.D. Ohio 2005) (defendants sentenced to probation, rather than Guidelines sentence, in part because five years of probation, as opposed to one year of imprisonment or imprisonment with supervised release, will afford Defendants more time to pay restitution); United States v. Peterson, 363 F.Supp.2d 1060, 1061-62 (E.D. Wis. 2005) (granting variance so that defendant could work and pay restitution). F. The Requested Sentence Is Sufficient, But Not Greater than Necessary, to Satisfy the Purposes of Punishment (18 U.S.C. 3553(a)(2)). 1. Seriousness of Offense, Respect for Law, Just Punishment The requested sentence achieves retributive justice. For a number of reasons, it reflects the seriousness of Mr. Thomas offense, promotes respect for the law and provides just punishment. See Publication 107, Office of Probation and Pretrial Services, Administrative 40
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Office of the United States Courts, at II-70-72 (identifying considerations for assessing whether a sentence serves the purpose of retribution). First, Mr. Thomas is a non-violent, first-time offender with a well-documented record of good works. See Section I.A., supra. Second, as set forth above, the harm Mr. Thomas caused was mitigated by the efforts and resources he devoted to youth sports and development during the offense period. Third, Mr. Thomas has fully accepted responsibility for his conduct, having pled guilty pre-indictment, and has expressed genuine remorse. By requesting a sentence that includes a term of imprisonment, Mr. Thomas acknowledges the seriousness of his crimes and tangibly demonstrates a willingness to accept the consequences.5 As he has written to the Court: I pled guilty because I am truly sorry for what I did and because I know that I myself must adhere to the lessons I have taught others about the importance of owning up. As I have always said to those I have mentored: 1% or 100%, wrong is wrong. Clearly, what I did I was wrong. The only way for me to move forward in my life is to own up to acknowledge how poor my judgment was, to admit that I broke the law and to accept the consequences. I am particularly sorry for the harm I have caused others. By violating the trust that people placed in me, I brought shame not only on myself, but on my family and my supporters. I could not have let them down more. I also let down my former colleagues in District government and the citizens of the District of Columbia, especially the young people. To all of them, I apologize. Because of my misdeeds, I forfeited the chance of a lifetime the chance they gave me to serve them in government. Taking full responsibility for my conduct and accepting the punishment that will be imposed is the first step I am taking. I will need to spend a lot of time making amends and seeking to earn the forgiveness I hope one day to receive. Words, I know, will not be sufficient. Only actions will be. I look forward to working to make a difference in the lives of others, especially those whose trust I must restore. Ex. 1 (H. Thomas).
5
Counsel notes that the requested sentence of 18 months imprisonment would preclude Mr. Thomas from attending his sons high school graduation. Acknowledging the propriety of a sentence that would keep him from attending such an important event is another clear measure of Mr. Thomas acceptance of responsibility.
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Fourth, since his guilty plea, Mr. Thomas has demonstrated his respect for the law by complying with the terms of his release and fully cooperating with law enforcement. Fifth, Mr. Thomas already has experienced substantial non-judicial punishment. The fall from grace he has experienced because of his actions is well-known. He has pled guilty to two felonies, resigned from his position as a Council member and ended his long-term involvement in city politics. His reputation is in ruins. The media, both television and print, have run myriad stories covering, at length, the governments allegations, the governments investigation and the guilty plea. Editorials have correspondingly excoriated Mr. Thomas. The examples are too numerous to cite. Mr. Thomas must now rebuild a life and a career burdened by the admittedly selfinflicted stigma of his convictions. Dunbar High Schools athletic director accurately sums it up: The Harry I know and remember, for a brief moment, lost his way, a moment in time that cost him a lifetime of work. Ex. 87 (J. Walker). This is a valid consideration in determining whether a sentence is sufficient, but not greater than necessary, to assure that Mr. Thomas pays for his crime. United States v. Anderson, 533 F.3d 623 (8th Cir. 2008) (suffered atypical punishment such as the loss of his reputation and his company); United States v. Pauley, 511 F.3d 468 (4th Cir. 2007) (lost his teaching certificate and state pension as a result of his conduct, consideration of which is consistent with 3553(a)s directive that the sentence reflect the need for just punishment and adequate deterrence.); United States v. Vigil, 476 F.Supp.2d 1231 (D.N.M. 2007) (suffered incalculable damage to his personal and professional reputation as a result of tremendous media coverage of his case and the case against his coconspirators and was forced to resign his position as State Treasurer); United States v.
Samaras, 390 F. Supp. 2d 805, 809 (E.D. Wis. 2005) (granting variance in part because defendant lost a good public sector job as a result of his conviction); United States v. Gaind, 829 F. Supp. 669,
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671 (S.D.N.Y. 1993) (granting downward departure where defendant was punished by the loss of his business).
Counsel respectfully suggests the best way to attain genuine retributive justice in this case is not to sentence Mr. Thomas to a lengthy term of imprisonment. Rather, it is to require him to remediate the specific harm caused by his crime. That objective, which is fundamental to the concept of retribution, can be satisfied by pairing a shorter prison term with obligations to (i) perform substantial community service and (ii) make restitution, which Mr. Thomas will not be able to make while in prison. 2. Deterrence A term of imprisonment of 18 months, followed by six months in home detention, 1,500 hours of community service and the imposition of a large restitution penalty are substantial punishment that will amply ensure that Mr. Thomas never breaks the law again. Having to endure two felony convictions, a lost career and an irreparably damaged reputation will be enough, standing alone, to deter Mr. Thomas from future criminal behavior. The fact that Mr.
Thomas has accepted full responsibility for his misconduct and is genuinely remorseful about what he did bolsters this conclusion. So, too, do the detailed studies of the Sentencing Commission,
which, as described at greater length infra, show that offenders fitting Mr. Thomass profile are extremely unlikely to recidivate. Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines, U.S. Sentencing Commission (2004), at 10-14 & Exs. 10-12 (very low recidivism rates are associated with offenders who have no criminal history points, had stable employment in the year prior to arrest, are married, have attained higher educational levels, have no history of illicit drug use, and are sentenced under the theft/fraud guidelines). The upshot is that, for someone like Mr. Thomas, a remorseful first-time offender with a stable family and an exemplary record of good works, any sentence of imprisonment will 43
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achieve the goal of specific deterrence. Considerable empirical research confirms as much, finding no relationship between sentence length and deterrence. [I]ncreases in severity of punishments do not yield significant (if any) marginal deterrent effect. Three National Academy of Science Panels, all appointed by Republican presidents, reached that conclusion, as has every major survey of the evidence. Michael Tonry, Purposes and Functions of Sentencing, 34 Crime and Justice: A Review of Research 28-29 (2006). For federal defendants like Mr. Thomas who are convicted of economic crimes, there is not even a difference between the deterrent effects of probation and those of imprisonment. David Weisburd, et al., Specific Deterrence in a Sample of Offenders Convicted of White Collar Crimes, 33 Criminology 587 (1995); Zvi D. Gabbay, Exploring the Limits of the Restorative Justice Paradigm: Restorative Justice and White Collar Crime, 8 Cardozo J. Conflict Resol. 421, 448-49 (2007) ([T]here is no decisive evidence to support the conclusion that harsh sentences actually have a general and specific deterrent effect on potential white-collar offenders.). In this case, it is the certainty of punishment, not the severity of punishment, that will deter. See Andrew von Hirsch, et al., Criminal Deterrence and Sentence Severity: An Analysis of Recent Research (1999) ([T]he studies reviewed do not provide a basis for inferring that increasing the severity of sentences generally is capable of enhancing deterrent effects.). There is little doubt that, based on these same facts, the requested sentence also will achieve the goal of general deterrence. Having to live with the ignominy of felony convictions, a spate of humiliating press coverage, the cratering of a prestigious career and the loss of a oncestellar reputation is itself a powerful deterrent. Coupling all of that with imprisonment, community service and restitution is more than enough to keep other public servants from doing what Mr. Thomas admittedly did. In fact, as noted, the empirical research shows that, in cases
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like this one, even a sentence of straight probation is enough to achieve general deterrence. Weisburd, supra; Gabbay, 8 Cardozo J. Conflict Resol. at 448-49. (It is also worth mentioning that, in the midst of the publicity surrounding this case, the Council passed new legislation authorizing expulsion of any member convicted of a felony. See
http://www.washingtonpost.com/local/dc-politics/dc-council-overhauls-ethicslaws/2011/12/20/gIQA3Sk17O_story_1.html. With the passage of this legislation and the cautionary tale that Mr. Thomas case has become, the goal of general deterrence arguably has been achieved already.) 3. Incapacitation Mr. Thomas poses no danger to society that would require his incapacitation. To the contrary, as each of the attached letters demonstrates, he has been a valued member of the community with the continuing capacity to make tremendous, positive contributions. See, e.g., Ex. 3 (T. Adderley); Ex. 39 (P. Inman); Ex. 43 (M. Jones); Ex. 45 (A. Lee); Ex. 51 (D. McGee); Ex. 54-A (N. Nixon); Ex. 66 (D. Shaw); Ex. 84 (D./S. Truhart). Although Mr. Thomas is not seeking a sentence of probation, many letter writers who know him and his capabilities suggest that, coupled with a stringent community service requirement, probation would be the most appropriate punishment. Among them are a 37 year veteran probation officer from the Districts Court Supervision and Offender Services Agency, Ex. 28 (C. Fleming); a former MPD officer who is now athletic director of a well-known local high school, Ex. 87 (J. Walker); and members of the clergy, Ex. 82 (D. Thornton). See also, e.g., Ex. 54-A (N. Nixon); Ex. 56 (M. Penn); Ex. 74 (L. Swain); Ex. 88 (S. Waymer).
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Moreover, as a result of the plea agreement, Mr. Thomas resigned from the job that provided him the opportunity to commit his crime. As a result, Mr. Thomas is not in a position to commit the same crime again. Finally, statistics compiled by the Sentencing Commission show that Mr. Thomas is exceedingly unlikely to recidivate. For all Criminal History Category I male offenders, the recidivism rate is 15.2%. But for those who share Mr. Thomas traits, it is far less. Recidivism rates decline dramatically for first-offenders over 50 who were working in the year prior to sentencing, are married, do not have a history of drug use, and are convicted of non-violent offenses. For CHC I offenders over age 50 at the time of sentencing, the recidivism rate is just 6.2%. For those who are college graduates, the rate is 7.1%. For those who have been employed in the year before arrest, the CHC I rate is 12.7%. For those who were ever married, the CHC I rate is 9.8%. For those with no history of illicit drug use, the rate, 10.8%, is half that of those who have such a history. For those convicted of larceny offenses, the rate is 11.6%, nearly the lowest of any offense category. And for offenders like Mr. Thomas who have all of these traits, the combined rate is doubtlessly lower still. Measuring Recidivism, supra, at 11-14 & Exs. 9-11. Based on these findings, the Commission has concluded, Possible sentencing reductions for first offenders are supported by the recidivism data and would recognize their lower reoffending rates. Id. at 15. 4. Correctional Treatment While Mr. Thomas has accepted responsibility for his crimes by acknowledging the propriety of a term of imprisonment, a sentence of imprisonment is not necessary to provide him with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner, 18 U.S.C. 3553(a)(2)(iv), as the PSR confirms. PSR 125-135.
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II.
BECAUSE USSG 2B1.1 DOES NOT EMBODY EITHER PREGUIDELINES SENTENCING PRACTICES OR THE NATIONAL EXPERIENCE IN THEFT CASES IN THE YEARS SINCE THE GUIDELINES WERE ADOPTED, THE COURT SHOULD HAVE NO RESERVATIONS ABOUT VARYING DOWNARD FROM THE ADVISORY GUIDELINES RANGE ON THE GROUNDS THAT IT DOES NOT FULLY REFLECT SECTION 3553(a) CONSIDERATIONS. When it devised the Guidelines, the Commission abandoned the goal of structuring
sentences to satisfy the purposes of punishment because the commissioners could not agree on which purposes should predominate. As a proxy for sentencing purposes, the Commission generally looked to past sentencing practices in each kind of case. USSG, Ch. 1 Pt. A(3); Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 Hofstra L. Rev. 1, 7 (1988). The Supreme Court has found that this reliance on past practice is one of two primary reasons why the Guidelines might reflect an approximation of sentences that achieves the purposes of sentencing; the other is that the Commission has the expertise to review and revise the Guidelines, as needed, to capture judicial decisions, further sentencing data, criminological research and input from criminal justice community stakeholders. Rita v. United States, 551 U.S. 338, 348-50 (2007). The Court has recognized,
however, that not all guidelines were developed in this manner. Gall, 552 U.S. at 46 & n.2 (2007); Kimbrough, 552 U.S. at 96 (2007). In those circumstances, where the Commission has abandoned
its institutional role and fails to develop a particular guideline based on empirical data and national experience, a sentencing court is free to conclude that the guideline yields a sentence greater than necessary to achieve 3553(a)s purposes, even in a mine-run case. Kimbrough, 552 U.S. at 109-10. For offenders sentenced under what is now USSG 2B1.1, the Commission did not craft guidelines to reflect past practice, nor has it revised those guidelines to capture the nations experience with theft/fraud cases in the years since the Guidelines were adopted. When the 47
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Commission adopted the original guidelines in 1987, it decided to abandon the touchstone of prior past practice with respect to white collar offenses, Breyer, supra, 17 Hofstra L. Rev. at 22-23, and instead prescribed significantly more severe sentences than courts had imposed. Id.; U.S. Sentg Commn, Fifteen Years of Guidelines Sentencing 47 (2004). The Commission explained that the definite prospect of prison, though the term is short, will act as a significant deterrent to many of these crimes, particularly when compared with the status quo where probation, not prison, is the norm. USSG, ch. 1, intro., pt. 4(d) (1987); see also Fifteen Years of Guidelines Sentencing 56 (Commission sought to ensure that white collar offenders faced short but definite period[s] of confinement). As described above, the Commissions deterrence rationale was not based on
empirical evidence, which shows that probationary sentences are sufficient to deter economic crimes. See Section I.F.2, supra. The Commission soon abandoned the goal of ensuring short, but definite sentences but again, without the necessary supporting data. Whereas Mr. Thomas offenses would have resulted in a total offense level of 16 when the Guidelines were adopted in 1987 (base offense level 4; amount for loss 9; leading role 2; abuse of position of trust 2; add 2 for tax offense; subtract 3 for acceptance) and a range of 21-27 months,6 USSG App. C, amend. 99 (Nov. 1, 1989), the Commission increased the number of levels for the applicable loss amount to 11 in 1989,7 which would have increased the total offense level to 17 (add only 1 level, not 2, for the tax offense based on operation of USSG 3D1.4) and the range to 24-30 months, id.; and then, in 2001, the Commission increased the base offense level to 6 and the added levels for the relevant loss amount to 14, which, together with parallel increases in the tax loss table, increased the total offense level to 22, and the range to 41-51 months, according to the PSR 106 & 156, or to 21 and a range of 37-46
6
This calculation would have resulted whether the loss amount were $353,500, as the parties have agreed, or $446,000, as the Probation Office suggests, because the loss range for the adjustment was $200,001 - $500,000. Id. 7 The increase to 11 levels for loss amount would have occurred whether the loss amount were $353,500, as the parties have agreed, or $446,000, as the Probation Office suggests, because the new loss range for the 11-level adjustment was $350,000 - $500,000. Id.
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months, according to the plea agreement. USSG, App. C, amend. 617 (Nov. 1, 2001). So, the Guidelines-recommended term of imprisonment for Mr. Thomas offenses has nearly doubled since the adoption of the Guidelines. As with the original guideline, these changes were entirely divorced from judicial decisions and sentencing data and research. Carlton Gunn and Myra Sun, Sometimes the Cure Is Worse Than the Disease, ABA Human Rights Journal 11 (Summer 2011) (The changes always tended to increase guideline sentences for economic offenders, and they were not prompted by the empirical research that the Supreme Court described in Kimbrough as the Sentencing Commissions important institutional role. conclusions) (citations omitted). The 1989 amendments purportedly increase[d] the offense levels for offenses with larger losses to provide additional deterrence and better reflect the seriousness of the conduct. USSG App. C, amend. 99. But this statement, a bald assertion, cited no supporting evidence. And in addition to the empirical research on deterrence cited supra, an article published by a former commissioner and deputy chief counsel showed that there was none. Jeffery S. Parker & Michael K. Block, The Sentencing Commission, P.M. (Post-Mistretta): Sunshine or Sunset?, 27 Am. Crim. L. Rev. 289, 318-20 (1989) (reporting that, in response to lobbying by the Justice Departments ex officio member, the Commission gratuitously increased punishments for economic crimes for overtly political and inexpert reasons and abandoned its statutory mandate to revise guidelines based on research and scientific data). Something similar happened in 2001, when for theft offenses the Commission increased both the base offense level and the levels for loss amount. The Commission stated that the changes reflected comments received from the Department of Justice, the Criminal Law Committee of the Judicial Conference, and others that [the theft/fraud guidelines] under-punish individuals in moderate and high loss amounts, relative to penalty levels for offenses of similar seriousness sentenced under other guidelines. USSG, App. C, amend. 617. The national experience belied this explanation. Rather, the Commission started with its
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According to the Commissions own research, courts were not clamoring for higher sentences for economic crimes. In the year prior to the amendment, which was pre-Booker, courts sentencing offenders under the theft guideline (then 2B1.1) departed upward in only .06% of all theft cases, while granting downward departures in 9.6% and departing downward for substantial assistance in another 6.3%. See U.S. Sentg Commn, 2000 Sourcebook of Federal Sentencing Statistics, tbl. 28 (2000). And in within-guideline embezzlement cases in the period before the 2001 amendment, a full 70% of the sentences imposed were low-end sentences, while only 4% were high-end. See U.S. Sentg Commn, Symposium on Federal Sentencing Policy for Economic Crimes and New Technology Offenses 63 (remarks of James Felman) (2000). Moreover, the other guidelines to which the Commission wished to bring theft/fraud sentences closer were the drug offense guidelines, id. at 54-72 (entertaining discussion on the question: if there is a current problem with the
guidelines that is in need of repair, is it that fraud and theft are punished too leniently or that drug crimes are punished too harshly?), and as Kimbrough and Gall suggest, the drug offense guidelines themselves were not based on empirical evidence or the national experience. Kimbrough, 552 U.S. at 96; Gall, 552 U.S. at 46 n.2. Rather, they have been designed to be proportional to statutory mandatory minimums, USSG 2D1.1 comment. (backgd) (1987), lacked any empirical basis, and increased sentences far above what had been typical in past practice, and in many cases above the level required by the literal terms of the mandatory minimum statutes. Fifteen Years of Guidelines Sentencing 49. Based on these manifest shortcomings in the Commissions expressed rationale for the 2001 amendments, one commissioner warned that the perceived absence of empirical research establishing the need for ratcheting up sentences for economic crimes meant that the Commissions mandate of policy development through research was being supplanted by symbolic signal sending by Congress. Id. at 56. Perhaps due to the absence of any need for prescribing harsher sentences for economic crimes, the national experience in the post-Booker years has seen widespread disagreement with the
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theft/fraud guideline, USSG 2B1.1, including for embezzlement offenses. Since 2006, as explained in Section I.D, supra, sentencing courts nationwide have consistently imposed a high percentage of below-guideline sentences in USSG 2B1.1 cases generally and in embezzlement cases in particular. In fact, as noted, the average sentence imposed under USSG 2B1.1 following Booker has been below the low-end of the average applicable guideline range. See id. Yet the Commission, despite its statutory obligation to review and revise the Guidelines based on data and research, has not amended USSG 2B1.1.
Because USSG 2B1.1 does not reflect pre-Guidelines sentencing practices or judicial decisions, sentencing data and criminological research during the Guidelines era, there is no reason to assume that the advisory Guidelines range in this case captures Section 3553(a)s considerations. And for all of the reasons set forth in Section I, supra, the range the Guidelines prescribe in this case is, in fact, greater than necessary to satisfy the purposes of punishment. The Court should have no compunction about imposing a sentence that varies downward from the advisory Guidelines range. Kimbrough, 552 U.S. at 109-10; Rita, 551 U.S. at 351, 357; United
States v. Spears, 555 U.S. 261, 265-266 (2009); Pepper, 131 S. Ct. at 1247.
III.
CONSISTENT WITH THE PLEA AGREEMENT, THE AMOUNT OF THE RESTITUTION AWARD UNDER 18 U.S.C. 3663A SHOULD BE $283,500. The parties have agreed upon a restitution amount of $353,500. As noted, Mr. Thomas
already has paid $70,000, PSR 79-80, which leaves an agreed-upon remaining restitution figure of $283,500. The Probation Office, however, believes the restitution amount should be co-extensive with the amount of loss it has calculated under the Guidelines: $446,000, less $70,000, or $376,000. PSR 181. Regardless whether the Court agrees with the parties loss figure or the Probation Offices loss figure, see Section I.C., supra, the parties restitution figure is correct. Contrary to what the Probation Office concludes, the amount of restitution to be
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ordered under 18 USC 3663A is not equivalent to the amount of loss calculated under the Guidelines. See, e.g., United States v. Reed, 80 F.3d 1419, 1422 (9th Cir. 1996); United States v. Frith, 461 F.3d 914, 920 (7th Cir. 2006). Whereas the amount of loss calculated under the Guidelines is the greater of actual or intended loss and may include any loss caused by relevant conduct, USSG 2B1.1, App. Note 3, an award of restitution under Section 3663A must not reflect intended loss, relevant conduct loss or even actual loss as contemplated by the Guidelines, but is instead statutorily authorized only for the loss caused by the specific conduct that is the basis of the offense of conviction. Hughey v. United States, 495 U.S. 411, 413 (1990) (improper to award restitution based on use of 21 credit cards when defendant pled guilty to using only one). See also United States v. Dorcely, 454 F.3d 366, 377 (D.C. Cir. 2006) (following Hughey); United States v. West, 646 F.3d 745, 751 (10th Cir. 2011) (applying Hughey, which interpreted the precursor to the permissive restitution statute, 18 U.S.C. 3663, to cases sentenced under the MVRA, 18 U.S.C. 3663A); Reed, 80 F.3d at 1422 (following Hughey); Frith, 461 F.3d at 920 (same). Here, Count I of the Information specifically charged Mr. Thomas with misappropriating $353,500. It did not charge Mr. Thomas with misappropriating $446,000. Therefore, when Mr. Thomas pled guilty to the Information, he pled guilty to misappropriating $353,500, not $446,000. Correspondingly, the loss caused by the specific conduct that is the basis of the offense of conviction is $353,500, not $446,000. Hughey, 495 U.S. at 413 (emphasis added). Under Section 3663A, Hughey and related cases, the amount of restitution is $353,500, less $70,000, or $283,500.
IV. NO FINE SHOULD BE IMPOSED. As the PSR establishes, PSR 153a, Mr. Thomas does not have the ability to pay a fine. This is especially so given the remaining amount of restitution he will owe to the District of Columbia
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$283,500, counsel submits, see Section III, supra as well as the amount of tax restitution he will owe to the IRS, which could be in excess of $100,000 given the tax loss amount stipulated in the plea agreement. Based on the facts the Court must consider under 18 U.S.C. 3571(a), including Mr.
Thomas resources, the needs of financial dependents and the need to make restitution, no fine
should be imposed. In fact, Congress essentially has proscribed a fine under the circumstances here.
18 U.S.C. 3571(b) (If, as a result of a conviction, the defendant has an obligation to make restitution to a victim of the offense, other than the United States, the court shall impose a fine or other monetary penalty only to the extent that such fine or penalty will not impair the ability of the defendant to make restitution.). CONCLUSION For the foregoing reasons, Mr. Thomas respectfully requests that the Court impose a sentence of (i) 18 months imprisonment, followed by three years of supervised release that includes six months home detention and 1,500 hours of community service; (ii) restitution in the amount of $283,500; and (iii) no fine.
Respectfully submitted, _____________/s/______________ Seth A. Rosenthal (Bar No. 482586) Karl A. Racine (Bar No. 431534) Gilead I. Light (Bar No. 980839) VENABLE LLP 575 7th Street, N.W. Washington, D.C. 20004 (202) 344-4000 sarosenthal@venable.com karacine@venable.com gilight@venable.com
DATE:
April 27, 2012
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CERTIFICATE OF SERVICE I hereby certify that on this 27th day of April, 2012, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send a notification of such filing to the following:
Jonathan Haray, Esq. Judiciary Center 555 Fourth St., N.W. Washington, D.C. 20530 Attorney for the United States
_____________/s/_______________
Seth A. Rosenthal Venable LLP 575 7th St. NW Washington, DC 20004 202-344-4000 sarosenthal@venable.com
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TABLE OF LETTERS Exhibit No. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. Author Thomas, Jr., Harry Adderley, Barbara Adderley, Toni Archey, Deanna Archey, Nate Bailey, Caryn Ballard, Rev. Wenners Barnes, Sue Bell, Anthony Boardley,III, E. Malcolm Braxton, Tonya Brooks-Cropper, Christine Burks, Durin Burriss, Allen Carter, Lorenzo Chan-Mann, Andree Clay, III, Leroy Coleman, Rev. Dr. James Daniels, Viola Dennis, Juanita Dickerson, Marvin Donellan, Paul Downs, Mark DuPree, Sandra Duren, Ricardo Ericsson, Aprille Farmer, T-Jai Fleming, Carol Graham, Shelly Robinson Hall, Gerard Hall, Jr., Louis Harris, Carl C.H. Henderson, Elizabeth Hightower, Gloria Hitchman, London Hobson, Phyllis Holder, Lou Inman, Paris Jackson, Malika Crystal Johnkins, Cedrick 55
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42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 54-A. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85.
Johnson, Michael Jones, Mark A. King, Carolyn Lee, Andre Lee, Richard Lowe Howard, Monica Manning, Kimberly McCarthy, Gregory McCarthy, John McGee, Derron Mobley, Pierpont Mowatt, Jack Nesbitt, Kevin Nixon, Norman Owens, Neal Penn, Milissa Perkins, Cynthia Pone, Sandra Poole, Sheila Intentionally left blank Quander, LaJuan Rowbotham, John Sandifer, Leroy & Arlene Scott, Jr., Barry Settles, Toby Shaw, Donnie Sheler, Donna Sheler, Sr., Richard Sherrod, Wanda Simpson, Donnie Smith, Marcia Intentionally left blank Sullivan, III, Brendan Swain, Leroy Thomas, Carl Thomas, Diane (HT) (KT) (RT) Thomas, Romaine Thomas, Timothy Thornton, Daniel Truhart, Danae Truhart, Debra and Spillman Truhart, Jr., Spillman 56
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86. 87. 88. 89. 90. 91. 92. 93.
Truhart, Stephen Kyle Walker, Johnnie Waymer, Sophia Mason Williams, Antoine Williams, George Winfield, Vera Winston, Kandace Woods, Ronald A.
TABLE OF EXHIBITS
Exhibit Description No. 94. Anthony Ball, Team Thomas Goes to Bat for Youth, NORTHEAST NEWS, June, 2001. 95. Community Leader Profile: Harry Thomas, Jr., WASHINGTON HOSPITAL CENTER NEWSLETTER, Summer, 2002, at 9. 96. Council of the District of Columbia, Youth Sports Program Support Resolution of 1998 97. Letter from Harold Brazil, District of Columbia CouncilmemberAt-Large, to Bobby Goldwater, D.C. Sports and Entertainment Commission (Sept. 14, 2001) 98. TeamThomas Flyer, Hit like a pro! Free Weekly Indoor Clinics, (December 2003) 99. TeamThomas Training materials: Training Guide and Live Hitting Instructional Card 100. TeamThomas/Swingaway, DC First Swing, Baseball/Softball Training Manual (2005) 101. Carla Peay, Nationals in the Community, THE WASHINGTON INFORMER (July 14-20, 2005) 102. E. Shawn Aylsworth, Washington, D.C. a hotbed for Summer Fun Softball with 30 new programs, PLAYBALL REPORT (August 2005) 103. DC First Swing Team Thomas Calendar and Schedule (June 2005) 104. Certificate of Appreciation presented to DC First Swing Team Thomas from District of Columbia Department of Parks and Recreation (May 2, 2007) 105. Photos from Washington Nationals Nights with Harry Thomas, Jr. 105-A. Sign in sheets from Washington Nationals Night, August 15, 2007 106. DXM Profile: Our Kids Matter, Article on Harry Thomas, Sr. Day, DIAMONDS XCEL MAGAZINE, (Fall 2008). 107. Certificate from Coalition for Economic Empowerment Presented to Harry Thomas, Most Supportive Councilmember, (20072008) 57
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108.
109. 110. 111.
112. 113. 114. 115. 116. 117. 118. 119.
120. 121. 122. 123. 124.
125. 126. 127. 128. 129.
Certificate of Appreciation from SiNGA, in appreciation for coordinating efforts with DPR for Summer Youth Employment Students (Aug 31, 2009) Father of the Year Award from The Calvin Woodland Foundation (June 16, 2007) Vinson Stringer, Eye On Local Sports, BROOKLAND HEARTBEAT, March/April 2008, at 16 Photographs from February 2008 Team Thomas baseball/softball clinic at Turkey Thicket Recreation Center in Northeast Washington, D.C. (FILED UNDER SEAL) 2007-2008 Washington Nationals Batting and Pitching Practice Waiver for events hosted by Harry Thomas Flyer for Stars and Strikes Youth Baseball City Showcase, Saturday, July 5, 2008 Media Advisory, Thomas Promotes Little League Baseball at Stars and Strikes D.C. Youth Baseball Showcase, July 3, 2008 Schedule of Events, Stars and Strikes Youth Baseball City Showcase, July 5, 2008 Photographs of Stars and Strikes Youth Baseball City Showcase, July 5, 2008 (FILED UNDER SEAL) Photograph of T-Shirt worn by participants at Stars and Strikes Youth Baseball City Showcase, July 5, 2008 David Iscoe, Fifth of July event aims at providing spark to D.C. youth baseball, NORTHWEST CURRENT, July 9, 2008 at 11 Photographs of spring break sports camp held at Turkey Thicket Recreation Center in Northeast Washington, D.C., March 26, 2008 (FILED UNDER SEAL) Media Advisory, Councilmember Thomas Announces Spring Break Swing Sports Day Camp, March 18, 2008 Video of Team Thomas 1st Annual Fore Our Youth Golf Tournament on October 5, 2007 Flyer announcing 2nd Annual Team Thomas Fore Our Youth Golf Tournament, May 27, 2008 Photographs of Vernon Davis Football Clinic at Dunbar High School, Washington, D.C., taken July 18, 2008 Team Thomas check to AASBEA for $3,000, for purchase of copies of African Americans: Reviving Baseball in Inner Cities, June 30, 2008 HLT Development checks to BS Sports Apparel for Stars and Strikes t-shirts, July 1 & 22, 2008 Team Thomas check to Laser Art/Andre Lee to sponsor softball team, June 4, 2008 Team Thomas checks made to Stripe 3 and receipts of purchases Affidavit of Felix Kim re: uniform purchases made by Harry Thomas at Stripe 3 Team Thomas check to Cedrick Johnkins for services provided at 58
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130. 131.
132.
133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145.
Stars and Strikes baseball tournament, July 1, 2008 Receipts for purchases made at Team Express to purchase youth sports equipment Team Thomas check to Ego Sports and receipt for purchase of twenty-five varsity jackets for Dunbar High School Track Team, August, 2008 Receipt for purchase at Shoppers Food Warehouse for drinks and condiments for Stars and Strikes Baseball Tournament, July 5, 2008 Receipt for purchase at Champion Trophies for boxing medals distributed to youth at Harry Thomas Sr. Day in September 2008 Transfer Express Web Order Request, July 7, 2008 Team Thomas check to Woodridge Warriors Youth Organization, September 11, 2008 Team Thomas check to Calomiris YMCA on July 1, 2008 Team Thomas check to Good Ground Good Life on June 25, 2008 Team Thomas checks to Revel Youth Shine on October 8 & 24, 2008 Team Thomas check to DC Coaches Association on January 7, 2009 Team Thomas check to Young Adult Corps on November 21, 2008 Team Thomas check to DC Boys Choir on July 21, 2008 Team Thomas check to Howard University for Food 2 Feed on November 20, 2008 Team Thomas check to Ida Mae Campbell Foundation on July 14, 2008 Photographs of Adidas t-shirts from Stars and Strikes tournament Photographs of Adidas Team Thomas t-shirts distributed at spring break sports camp in 2008
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DEFENDANT HARRY L. THOMAS, JR.S MEMORANDUM IN AID OF SENTENCING

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TABLE OF LETTERS ................................................................................................................55 TABLE OF EXHIBITS ...............................................................................................................57

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For example, Mr. Thomas had teammate Aprille Ericsson, a NASA

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