government sentencing memo - botti case

8/8/2019 Government Sentencing Memo - Botti Case

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UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA :::

v. : Case No.: 3:08cr230(CSH):::

JAMES BOTTI : September 8, 2010

GOVERNMENTS SENTENCING MEMORANDUM

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

James Botti (hereafter Botti) scheduled for September 17, 2010 at 10:30 a.m. and in response to

Defendant James Bottis Sentencing Memorandum (hereafter Botti Sent. Mem.) filed August 24,

2010. To be clear, the United States opposes Bottis request to be sentenced to a minuscule jail

sentence that would constitute a 90% reduction from the applicable Guidelines imprisonment range

of 235 to 293 months. Defendant, who has never accepted any responsibility for his extensive

criminal conduct, should not be permitted to escape imposition of a just and reasonable sentence

when he reaped millions of dollars in profit from his campaign of corruption. Nor should Botti, a

defendant who repeatedly sought to obstruct the federal investigation and prosecution of his criminal

activity, be rewarded with an enormous Guideline reduction that would amount to an unreasonable

sentence for his three felony convictions. In short, Botti has failed to offer a single reason to justify

the extraordinarily light sentence he seeks.

BACKGROUND

As the Court is well aware, Botti was convicted by two separate juries in two separate

trials of three felony offenses. On his convictions for structuring and conspiracy to structure,

Botti faces a total of ten years of imprisonment. On his conviction for mail fraud arising from his

bribery scheme to deprive the citizens of Shelton of the honest services of its public officials,

Botti faces a maximum of twenty years of imprisonment. In total, Botti faces a maximum

Case 3:08-cr-00230-CSH Document 383 Filed 09/08/10 Page 1 of 29


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Shortly prior to filing this sentencing memorandum, the Government learned that Botti submitted1

a letter to Probation dated August 26, 2010 regarding the initial May 2010 PSR. For reasonsunknown to the Government, Botti chose not to provide a copy of this letter to the Government. Thebelated objection to the PSR violates the federal rules in two respects. First, Rule 32(f)(1), Fed. R.Crim. P. clearly and expressly provides that a party has only 14 days to object to a PSR afterreceiving the initial PSR. Second, the fact that Botti submitted his letter to Probation withoutdisclosing the letter to the Government violates Rule 32(f)(2), Fed. R. Crim. P. which expresslyprovides that [a]n objecting party must provide a copy of its objections to the opposing party . . .. Defendants clear violation of two long standing rules of fairness should not be tolerated by aCourt that has done everything in its power to ensure that both parties are treated fairly in accordancewith the rules. In any event, once the Government has had a full opportunity to review the belatedex-parte letter to Probation and the revised PSR, if any, it will decide whether to submit asupplemental sentencing memorandum.

Bottis request for a sentence of less than two years would constitute a two to three year reduction2

from the structuring Guidelines imprisonment range of 51 to 63 months which would not be justifiedeven if the only crimes he were convicted of were the structuring crimes.

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sentence of 30 years in prison on all of his convictions. After a thorough and comprehensive pre-

sentence investigation, the United States Probation Office has concluded that the applicable

Guidelines imprisonment range is 235 to 293 months of imprisonment with a Guidelines fine

range of $25,000 to $250,000. Presentence Report dated May 13, 2010 (PSR) 78, 84. After

reviewing the initial PSR, Botti chose not to object to any finding or conclusion set forth in the

PSR. Indeed, not only has Botti never objected to the conclusion that his final Guidelines1

imprisonment range is 235 to 293 months, he agrees that the calculation is a correct application

of the Guidelines.

Furthermore, Botti has not filed a single downward departure motion requesting that the

Court depart from the applicable Guidelines range under the various departure motions available

to convicted defendants. Rather, without any analysis whatsoever of why his Guidelines range is

235 to 293 months, Botti has unilaterally decided that the Guidelines, while correctly calculated,

are staggeringly high. Botti Sent. Mem. at 12. Thus, Botti claims ipse dixithe is entitled to be

sentenced to a term of imprisonment of less than two years. In other words, Botti requests that

this Court sentence him to a sentence 18 years below the minimum of the Guidelines range

merely because Botti does not want to serve a Guidelines sentence. Bottis current request for a2



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mere slap on the wrist is not warranted under any justifiable legal analysis.

On the contrary, Botti has justifiably earned a significant prison sentence well in excess

of his two year request. A significant jail sentence is a reasonable and just sentence, and should

be imposed in this matter. Not only is such a sentence consistent with the Guidelines, it is

consistent with the requirements of 18 U.S.C. 3553(a). Indeed, a significant prison sentence

will: (a) promote respect for the law; (b) serve as a just punishment for Bottis multiple felonies

and the harm he has caused to the citizens of Shelton; (c) specifically deter defendant Botti from

committing yet another crime; and (d) send a message of general deterrence to prevent other

developers and local businessmen from engaging in corrupt actions that deprive the citizens of

Connecticut communities of the honest services of their public officials and foster a culture of

cynicism toward Government officials and Government institutions.

A. Botti Cannot Relitigate The Fact of His Guilt at Sentencing.

There is no doubt that the Court has complete familiarity with the criminal actions of

defendant Botti as a result of presiding over two trials and resolving numerous pre-trial and post-

trial motions. Nor is there any doubt (or defense objection) to the extensive recitation of Bottis

offense conduct as prepared by the Probation Office in the PSR. PSR 4-25. As a result, the

record amply supports the PSR conclusion that Botti engaged in extensive criminal conduct over

many years by corruptly providing benefits and items of value to public officials, seeking to hide

hundreds of thousands of dollars in cash from the IRS, and using his cash to corruptly engage in

acts of bribery that resulted in Botti reaping millions of dollars of profit.

Throughout his sentencing memorandum, Botti seeks to rehash and recast his conduct in

an effort to perhaps convince himself that his conduct was not really criminal. Not surprisingly,

in his recitation of his own conduct he chooses once again to ignore the trial evidence that waspresented to two different juries that demonstrated his guilt beyond a reasonable doubt on both



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Rather than repeat what has already been extensively described in previous Government filings,3

the Government respectfully refers the Court to the summary of evidence presented in each of the post-trial responses filed by the Government. See Doc. # 218 Governments Response toDefendants Motion for a Judgment of Acquittal at 5-13, Doc. # 219 Governments Response toDefendants Motion for a New Trial at 4-7; Doc. # 344 Governments Response to DefendantsMotion for Judgement of Acquittal at 5-14 (detailing the bribes and other benefits presented at trialthat proved defendant engaged in a bribe scheme);see also Doc. # 345 Governments Response toDefendants Motion for a New Trial at 4-10 (detailing how defendant Botti deprived the public ofits right to honest services of particular Shelton public officials by providing those officials withbribes and other benefits). The Government requests that the aforementioned descriptions of theevidence be incorporated herein by reference.

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structuring and corruption crimes. Botti does not seem to appreciate the fact that he has now3

been convicted, his motions to vacate the verdict and for a new trial had not been granted, and

that his attempt to revisit the fact of his guilt in yet another closing argument is futile. Rather

than accept any responsibility for his extensive criminal conduct, he chooses to lash out at a

witness who testified against him, or the Government that dared to present his criminal conduct

to two different juries, or the length of the Governments investigation into corruption in Shelton.

See, e.g., Botti Sent. Mem. at 18-19. In short, Botti still does not get it - - he is a convicted

criminal and he has nobody to blame for his multiple felony convictions other than himself.

Furthermore, Botti continues to cling to a non-existent reed when he tries to make some

hay out of the fact that the jury in the corruption trial hung on some counts. Botti Sent. Mem. at

6. As previously explained by the Government, the jurys decision to hang on some counts in

the corruption trial is meaningless. See Doc. # 375, Governments Supplemental Response to

Defendants Post Trial Motions for Acquittal and a New Trial at 23-24; Yeager v. United States,

129 S.Ct. 2360, 2368 (2009). Not only is a hung jury meaningless to evaluate the evidence on

the corruption count on which the jury convicted Botti, it is also entirely irrelevant in the context

of sentencing. As the Court is well aware, courts in our Circuit find facts relevant to sentencing

by a preponderance of the evidence standard not by a reasonable doubt standard. See, e.g.,

United States v. Vaughn, 430 F.3d 518, 525 (2d Cir. 2005);see also United States v. Johnson,

507 F.3d 793, 797 (2d Cir. 2007) (citing Vaughn and explaining that district courts may find



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facts relevant to sentencing and in doing so may take into account acquitted conduct). Thus, this

Courts intimate familiarity with the record makes it more than capable of deciding by a

preponderance of the evidence that Botti engaged in a corruption conspiracy and that Botti bribed

the mayor of Shelton, even though the jury did not render a verdict on some counts at the

corruption trial.

Moreover, having now been convicted, Botti cannot claim that his utter refusal to accept

responsibility and demonstrate remorse for his crimes is a matter which the Court should ignore

in fashioning the appropriate sentence. To the contrary, although

the due process clause of the fifth amendment prohibits a court frompunishing a defendant for exercising a constitutional right, [t]here is adistinction . . . , however, between punishing a defendant for exercising his

right to remain silent and considering the defendant's character indetermining an appropriate sentence. We disagree with the defendants'claim that these remarks evince an intent on the part of the court to punishthem for their silence. It is well established that a sentencing judgemay consider lack of remorse when imposing a sentence.

United States v. Johnson, 903 F.2d 1084, 1090 (7th Cir. 1990) (emphasis added)(internal

citations omitted);see also United States v. Blackman, 66 F.3d 1572, 1578 (11th Cir.

1995)(district court properly enhanced defendants sentence following his sentencing hearing

outburst which demonstrated a lack of remorse for his crimes).

B. The Guidelines Range is Amply Supported by Specific Offense Characteristics.

In his 27 page sentencing submission, Botti has chosen not to mention a single word

about any of the offense characteristics that apply to the corruption conviction and that result in a

Guidelines imprisonment range of 235 to 293 months. Nevertheless, Botti has the audacity to

suggest that he has engaged in a close parsing of the guidelines and a careful examination of the

enhancements. Botti Sent. Mem. at 18. It should be noted that Botti did not, and does not,

object to any of these enhancements. Botti simply ignores them hoping perhaps that the Court

will also ignore the offense characteristics that justify the final Guidelines calculations. Botti

has chosen instead to complain about the Guidelines imprisonment range without even



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The fact that Botti has not objected to the enhancement that increases his sentencing exposure4

because he provided multiple bribes is yet another indication that the honest services mail fraudconviction was based on a bribery theory.

Botti did not object to this enhancement. In any event, the value of the 828 project certainly5

exceeds millions of dollars. When the bank valued the property to determine whether to approve theloan to defendant Botti, the bank estimated that the property as is (undeveloped) was worth $5.5million and when developed would be worth more than $11 million. Given that defendant did notspend anywhere near $11 million to develop the property, the benefit that Botti obtained as a resultof his corrupt actions in bribing public officials to obtain approval of this project exceeds millionsof dollars.

Botti did not object to this enhancement and thus, did not contest the PSR conclusion that Botti6

bribed both the mayor and P & Z commissioners. Thus, Bottis constant complaining that his

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addressing the underlying offense characteristics. Rather than respond to his claim that the

Guidelines are too high because he does not wish to serve such a sentence, the Government

respectfully suggests that a more fruitful exercise would be to examine why the Guidelines

imprisonment range has been calculated at 235 to 293 months for the corruption conviction.

The Guidelines Calculations

The Probation Office has determined that the total offense level for the honest services

mail fraud conviction at the corruption trial is level 38 and the applicable Guidelines range is 235

to 293 months. This number is derived as follows:

(a) the base offense level under U.S.S.G. 2C1.1(a)(2) is 12 (PSR 34);

(b) two levels are added under U.S.S.G. 2C1.1(b)(1) as the offense committed by

defendant involved more than one bribe (PSR 35);4

(c) 18 levels are added under U.S.S.G. 2C1.1(b)(2) and U.S.S.G. 2B1.1(b)(1)(J) as the

benefit received by the defendant for engaging in the corrupt actions enabled him to receive a

benefit of millions of dollars in financing (more than $2,500,000 but less than $7,000,000) (PSR

36);5

(d) four levels are added under U.S.S.G. 2C1.1(b)(3) as the offense of conviction

involved elected public officials as the mayor and all the P & Z commissioners are elected public

officials (PSR 37); and6



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conviction does not involve bribes he made to the mayor (Botti Sent. Mem. at 14) is completelyundermined by the PSR conclusion that he did bribe the mayor and Bottis decision not to object tothis enhancement.

Numerous acts of obstruction are set forth in the PSR at 22. In addition, as the Court has7

already been made aware, Botti threatened to harm both a federal prosecutor and a state prosecutor.See Government Letter to the Court dated September 17, 2009 and its attachment.

Bottis citation to a statistical table involving Fraud cases (Botti Sent. Mem. at 21-22) is8

meaningless given the Commissions conclusion that corruption crimes are more serious than fraudcrimes. Furthermore, statistical tables cannot possibly examine each particular case, whether thedefendant pled guilty or was convicted after trial, whether the defendant engaged in acts of

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(e) two levels are added under U.S.S.G. 3C1.1 as defendant James Botti repeatedly

sought to obstruct and impede the administration of justice (PSR 40).7

Totaling the above enhancements results in a level 38. Given that defendant Botti has

never acknowledged his corrupt conduct and has never accepted any responsibility for the

criminal conduct proven at his corruption trial, he is not entitled to any reduction for acceptance

of responsibility. Under the current Sentencing Guidelines in effect as of November 2009, a total

offense level of 38 with a Criminal History category I results in a range of 235 to 293 months'

imprisonment. It should be noted that this range does not in any way take into account Bottis

structuring conduct as the corruption conduct is 14 levels more serious than the structuring

conduct and does not yield an increase to the higher corruption level. PSR 42-47; U.S.S.G.

3D1.4 (Determining the Combined Offense Level).

The aforementioned calculation in the PSR reflects a number of important considerations

pronounced by the Sentencing Commission. First, a corruption crime establishes a base level of

12 which is 5 or 6 levels higher than the base level for a crime of fraud. Compare U.S.S.G.

2B1.1(a) with U.S.S.G. 2C1.1(a). This reflects the Commissions belief that defendants who

engage in crimes involving public corruption should be punished more severely than defendants

who engage in crimes involving fraud. In short, because Botti has engaged in an extremely

serious crime (public corruption), his base level should be higher than defendants who engage in

fraud without corruption.8



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obstruction, whether the defendant received a huge windfall from his criminal conduct, whether thedefendant had meritorious downward departure motions, or whether the defendant engaged in anyother criminal conduct at the same time as the crime upon which he was sentenced. Botti himselfrecognizes this conclusion when he explained that [e]ach case is different. Each individual isdifferent. Each case is to be judged on its own merits and so each defendant. Botti Sent. Mem. at21. Finally, a statistical table regarding length of imprisonment does not reflect the actualsentences imposed but rather the average period of incarceration which no doubt takes into accountearly release dates based on good behavior.

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Second, by enhancing a defendants Guidelines range due to the presence of multiple

bribes, the Commission intended that defendants who engage in multiple bribe payments receive

a longer sentence than a defendant who engaged in only one bribe payment. Given that Botti

made numerous bribe payments over a number of years to the mayor, P & Z officials and a

building official, Botti deserves this sentencing enhancement.

Third, the Commission also recognized that the amount of the bribe paid is not always an

accurate indication of the severity of the crime. Hence, defendants who bribe public officials

should be punished on the amount of the benefit the defendant receives as a result of the bribe,

not on the amount of the bribe paid, if the benefit received exceeds the amount of the bribe. As

the PSR makes clear Botti executed the criminal activity that he has been convicted of with

intent to benefit financially. PSR 92. At trial, the Government introduced, through banker Al

Clemente, the New Alliance Banks appraisal of 828 Bridgeport Avenue, in which the Michaud

Company of New Haven appraised the property upon completion, i.e. after P & Z approval of

Bottis proposal, at $11,200,000, an amount well in excess of the undeveloped appraised value of

$5,500,000, and in excess of the $6,500,000 loan for which Botti applied to purchase and

develop the property. See Government Corruption Trial Exhibit 3002 (p. 7). And, as Botti

pointed out at trial, the development was even more valuable with a hotel on it, a hotel which has

now been built. Even discounting the value of the gift baskets, restaurant certificates, reduced

truck price and cash bribes, Botti still made millions of dollars as a result of his corrupt acts.

Given that Botti reaped a huge windfall from his bribe activity in the form of approval of a multi-

million project, he deserves a more severe sentence than a defendant who received nothing from



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Defendant warned Kelly Botti that she better not talk to the federal agents, that Kelly Botti should9

watch her back, and that if Kelly Botti spoke the truth to the agents, James Botti and their children

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the payment of bribes to public officials.

Fourth, the Commission recognized that a bribe paid to an elected official is more serious

than a bribe made to a non-elected official by providing for a four level enhancement when the

offense involved an elected official. A bribe to a public official destroys the foundation of a

democracy where citizens elect public officials to act in the publics best interest, not in the

interest of developers who provide bribes and other benefits to elected officials. Given that Botti

repeatedly bribed the mayor and elected members of the P& Z commission to further his own

financial interests, Botti deserves this sentencing enhancement. Ironically, Botti argues that a

short sentence adequately serves the need for general deterrence as the effect on the people of

Shelton has been and will continue to be enormous. Botti Sent. Mem. at 18. That Botti does

not understand that his criminal conduct has caused damage to the citizens of Shelton and

the reputation of the community (Botti Sent. Mem. at 21) is simply another indication how

Botti does not get it; if anything, the pall his conduct has cast over the citizens of Shelton

justifies a higher-than-typical sentence. See, e.g., United States v. Newton, 2007 U.S. Dist.

LEXIS 26287, at *5 (D. Ct. Apr. 10, 2007)(justifying upward departure from guidelines in

corruption case because the 2003 guidelines calculation also fails to adequately account for the

loss of public confidence in the honesty and integrity of their elected officials that the defendants

charged and uncharged criminal conduct caused or the fact that he betrayed the public trust at a

time when there was a virtual epidemic of highly publicized public corruption in Connecticut,

which was so widespread that the state earned the unfortunate nickname Corrupticut ).

Fifth, as the Court is well aware from having presided over two trials and pre and post-

trial motions, Botti has repeatedly engaged in obstructive acts to hinder his prosecution. These

acts include Bottis threat to cause physical harm to a known witness, Kelly Botti, whose nameappeared on a Government witness list provided to Botti. Given that Botti was under a Court9



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were going into the witness protection program.

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Order from a Magistrate Judge not to discuss the case with any prospective witness, Bottis threat

to cause harm to this witness if she told the truth cannot be ignored. The Commissions

conclusion to enhance a defendants sentence for obstructionist conduct reflects a long

established principle that defendants who seek to obstruct justice should receive a longer

sentence than a defendant who plays by the rules. It should be noted that while Botti has

repeatedly engaged in acts of obstruction, and that any one act of obstruction could support a

two point enhancement, the PSR recommends that he receive only one two point enhancement.

Sixth, the Guidelines do provide for a reduction of a defendants sentence where a

defendant clearly demonstrates acceptance of responsibility for his offense. U.S.S.G. 3E1.1.

The reduction reflects the Commissions conclusion that defendants who accept responsibility for

their criminal conduct should receive a shorter prison sentence than defendants who accept no

responsibility for their conduct. Given that Botti has never once even sought to accept

responsibility for his corrupt actions, he is not entitled to receive this break.

Thus, upon close examination, the Guidelines imprisonment range is completely justified

by the Commissions philosophy to treat corruption as a serious crime, to punish those who profit

from corrupt activity and to incrementally punish those that seek to obstruct justice. Moreover,

the fact that Bottis Guidelines range does not in any manner include his two structuring crimes,

or his additional obstructionist conduct, suggests that Bottis total Guidelines range in fact

understates the seriousness of his entire criminal conduct rather than overstates the

seriousness of his offenses. In short, Botti would have this Court look everywhere else other

than the Guidelines to find an appropriate sentence that Botti likes and is, according to Botti,

consistent with sentences imposed on other similarly situated defendants. See Botti Sent. Mem.

at 21-24, Exhibit A. What Botti fails to appreciate is that the Sentencing Guidelines werepromulgated, in part, to minimize disparities in federal sentences. Although those Guidelines are



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no longer mandatory, the importance of eliminating sentencing disparities remains an important

factor which the Court must separately consider pursuant to 18 U.S.C. 3553(a)(7). Thus, rather

than compare his criminal conduct to a statistical table that cannot possibly account for the

various offense characteristics analyzed under the Guidelines, an appropriate sentence for Botti

can be more accurately derived by considering the applicable Guidelines analysis set forth in the

PSR and above. Because the Guidelines are based on extensive empirical evidence derived

from the review of thousands of individual sentencing decisions (Gall v. United States, 552 U.S.

38, 46 (2007)), the Guidelines provide a far better gauge and reference point (Botti Sent. Mem.

at 21) to fashion a fair and just sentence than the meaningless statistical table offered by Botti.

C. A Substantial Prison Sentence is Reasonable and Warranted.

While Botti seeks to ignore the calculation of the Guidelines set forth above, Botti

reluctantly concedes that the Court must consider the Sentencing Guidelines. Botti Sent. Mem.

at 10. Nevertheless, Botti seeks to distance himself from the Guidelines at every opportunity.

Rather than discuss the Guidelines and the applicable enhancements, Botti attempts to find

comfort in meaningless statistical tables, and citations to other cases that bear no similarity to

Bottis unique circumstances. For example, citations to cases where a defendant stood before a

Court, acknowledged criminal conduct, and fully accepted responsibility for his criminal conduct

are meaningless comparisons to defendant Botti who took none of those actions and who sought

to obstruct justice at every turn.

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

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

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

2005); Gall v. United States, 552 U.S. at 50 n.6 (district courts must begin their analysis withthe Guidelines and remain cognizant of them throughout the sentencing process). Ultimately, a

district courts sentence is reviewed for reasonableness. Booker, 543 U.S. at 260-61; Crosby,

397 F.3d at 114-15. Reasonableness is a flexible concept and district courts are given latitude in



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their exercise of discretion to fashion an appropriate sentence, even a non-Guidelines sentence.

See United States v. Jones, 460 F.3d 191 (2d Cir. 2006). But reasonableness does not result in

unfettered discretion to ignore the Guidelines as Botti suggests, and the Second Circuit has

recognized post-Bookerthat the Guidelines remain highly instructive in determining a reasonable

sentence.

Contrary to Bottis suggestions, the Guidelines are not just a minor inconvenience that the

Court is free to ignore simply because Botti has decided he does not like his applicable range.

The Second Circuit has held in an appeal of a non-Guideline sentence that [i]n calibrating our

review for reasonableness, we will continue to seek guidance from the considered judgment of

the Sentencing Commission as expressed in the Sentencing Guidelines and authorized by

Congress. United States v. Rattoballi, 452 F.3d 127, 133 (2d Cir. 2006). InRattoballi, the

Second Circuit squarely rejected an attempt to downplay the Guidelines. Indeed, our Circuit

noted the preeminence of the Guidelines among the 3553(a) sentencing factors, holding that they

cannot be considered just another factor in the statutory list . . . because they are the only

integration of the multiple factors and, with important exceptions, their calculations were based

upon the actual sentences of many judges. Id. (citation omitted);see also Gall v. United States,

552 U.S. at 46(though the Guidelines are advisory rather than mandatory, they are, as we

pointed out in Rita, the product of careful study based on extensive empirical evidence derived

from the review of thousands of individual sentencing decisions) (footnote omitted).

Accordingly, while noting that it has not adoptedper se rules regarding its reasonableness review

of sentences, the Second Circuit held inRattoballi that:

Nevertheless, on appellate review, we will view as inherently suspect a non-Guidelines sentence that rests primarily upon factors that are not unique or

personal to a particular defendant, but instead reflects attributes common to alldefendants. Disparate sentences prompted the passage of the Sentencing ReformAct and remain its principal concern.

Id. at 133-34.

In this case, there are no factors unique to Botti that would support a conclusion that the



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After the initial PSR was released, Botti filed no objection to the structuring Guidelines10

calculation. If his sentencing memorandum is supposed to constitute a belated objection to the PSR,the Government submits that the PSR calculation that the applicable Guidelines range is 51 to 63months is correct. PSR at 27-33. In short, Botti deserves the enhancements as the structuredfunds were part of an illegal endeavor, he was the leader of his fathers criminal activity, and Bottisought to obstruct justice by, among other methods, threatening Kelly Botti and repeatedly seekingto interfere with the testimony of Al Papa.

At the Courts request, the Government did not offer into evidence at trial James Bottis11

statement in the presence of Kelly Botti and Peter Botti where James Botti queried whether anyonewas whacked to enable James Botti to have tens of thousands of dollars of cash in his possession.This fact is yet another piece of evidence indicating that the funds were not Peter Bottis money butrather funds James Botti received from another source.

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non-Guidelines sentence of less than two years proposed by Botti is appropriate. To the contrary,

a significant jail sentence would be eminently reasonable in this case given that Botti has been

engaged in extensive criminal activity over a number of years. Furthermore, such a sentence

reflects the considered judgment of the Sentencing Commission, an expert agency whose

statutory charge mirrors the 3553(a) factors that the district courts are required to consider

Rattoballi, 452 F.3d at 133, and is based on extensive empirical evidence derived from the

review of thousands of individual sentencing decisions. Gall, 552 U.S. at 46 Accordingly, Botti

should be sentenced to a significant term of imprisonment much closer to the Guidelines range of

235 to 293 months than the two year sentence recommended by Botti.

D. Botti Continues to Mislead this Court.

While the Sentencing Guidelines regarding the structuring offenses do not impact the

Guidelines range for the corruption offense, Bottis discussion of the structuring Guidelines is10

yet another example of how Botti continues to mislead this Court. As the Court will recall, the

Government argued at Bottis structuring trial that the funds Botti was structuring were funds

Botti obtained in a real estate deal, not Peter Bottis (Bottis fathers) funds. The trial evidence11

demonstrated that Botti used his fathers bank accounts to launder the money and hide these

funds from the IRS to avoid paying his (James Bottis) fair share of taxes. As the summary

charts demonstrated, all of the funds laundered through Peter Bottis bank accounts by James



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The Court correctly ruled that this self serving statement by defendant James Botti was12

inadmissible hearsay that the jury could not consider. After all, Botti had lied to Czaplinski aboutthe source of the funds to hide from Czaplinski that Botti actually had the funds to repay Czaplinskia loan that Botti had taken from him.

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Botti and others were then returned to James Botti for his use. As James Botti explained to Al

Papa when he instructed Mr. Papa not to tell the authorities about the cash, James Botti needed to

hide the cash otherwise he would have to pay more in taxes. See Testimony of Al Papa at the

Structuring Trial.

Incredibly, Botti now claims that [t]here is sufficient evidence to show that the monies

involved were monies belonging to James father, Peter Botti. Botti Sent. Mem. at 26. As is

typical of Bottis submissions, he has chosen not to list the so-called sufficient evidence. For

the Courts edification, the only scintilla of information that could arguably suggest that the

funds belonged to Peter Botti was James Bottis self serving statement to Mr. Czaplinski that the

funds belonged to Peter Botti. Having previously argued that every statement made by12

defendant James Botti was false, hyperbolic, bombast and nothing more than pure exaggeration,

the defense is now inviting this Court to conclude that James Bottis rank hearsay statement

constitutes substantial evidence. The Court should swiftly reject the invitation.

Perhaps more importantly, Bottis current attempt to shift blame to his father for the

source of the funds is belied by the evidence Bottis companies provided pursuant to a subpoena.

As the Court will recall, in the records Bottis companies produced was a note in James Bottis

handwriting in which James Botti wrote Gave Dad Cash, Dad wrote check. See Government

Structuring Exhibit 601 PI. The post-it note was attached to July 2006 payments that James

Botti made to pay off high interest credit card balances and was contemporaneous to the

structuring. To believe that Peter Botti was accepting cash from James Botti in exchange for

writing a check, while simultaneously providing cash to James Botti to structure defies common

sense.

In any event, Peter Botti has already provided this Court with sworn testimony to rebut



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any suggestion that the structured funds were Peter Bottis funds. On June 1, 2009, Peter Botti

entered his plea of guilty before the Court to one count of structuring. The Indictment count to

which Peter Botti pled lists the same structured funds that were the subject of James Bottis

indictment and trial. In his plea agreement - - an agreement Peter Botti swore was complete and

accurate - - Peter Botti stipulated that he (Peter Botti) did act with reckless disregard of the

source of the funds that were structured. This stipulation enhances Peter Bottis Guidelines

exposure. Thus, it is rather axiomatic that if Peter Botti did not know the source of the funds

that were structured, the funds were not his own monies. Defendant James Bottis current

attempt to suggest otherwise, and to shift blame to his father for his own decision to structure

funds and thereby implicate his father for perjury, should not be tolerated. As the Probation

Office correctly concluded, defendant James Botti organized, led, managed and supervised his

father in the commission of the [structuring] conspiracy. PSR 30. Even though the Court will

not be directly using the structuring Guidelines to sentence defendant on the corruption count, the

Government requests that when imposing sentence, the Court consider the fact that defendant

used his father, directed his father to commit criminal activity for James Bottis benefit, and now

seeks to blame his father for Bottis own criminal conduct.

E. The Section 3553 Factors Support a Lengthy Prison Sentence.

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

(a) Factors to be considered in imposing a sentence.--The court shall impose asentence sufficient, but not greater than necessary, to comply with the purposes setforth in paragraph (2) of this subsection. The court, in determining the particularsentence to be imposed, shall consider--

(1) the nature and circumstances of the offense and the history andcharacteristics of the defendant;

(2) the need for the sentence imposed

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

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and



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Sadly, Botti will never be able to compensate the citizens of Shelton for the damage he has done.13

16

(D) to provide the defendant with needed educational or vocationaltraining, medical care, or other correctional treatment in the mosteffective manner;

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

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

(7) the need to provide restitution to any victims of the offense.13

For the reasons discussed above, Bottis conduct, weighed in view of the factors set forth

in Section 3553(a), call for a sentence of imprisonment more consistent with the terms

recommended by application of the Sentencing Guidelines, than the two year prison sentencerecommended by Botti. See 18 U.S.C. 3553(a)(4) (Court shall consider the sentence applicable

under the Guidelines).

1. The Nature and Circumstances of the Offense.

Bottis criminal and corrupt conduct is a serious, costly, and damaging offense as crimes

of local corruption destroy the publics confidence in the integrity of local government and

undermine the perceived integrity of the decisions made on a daily basis by local government

officials. As the PSR aptly concludes, [t]here seems to be no mitigating factors that led to

defendants involvement in the instant offense, as he has no addiction, financial, or other

substantial life issues of note that would have precipitated his involvement in the instant matter.

PSR 92. Furthermore, as the PSR correctly notes, Bottis structuring crimes reflect financial

transactions to avoid taxes. PSR 91. That Botti, a man who claimed to be a financial success

without resort to criminal activity, would repeatedly violate the law to further his own greed,

speaks volumes.

Public corruption cannot be tolerated at any level in any amount and those who



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participate in corrupt activities should face severe consequences. Bottis repeated bribes to

Shelton public officials constitute a continued betrayal of the public trust. This type of crime

contributes to the loss of public confidence in the integrity of elected officials and public

commissions and institutions. Bottis conduct as a developer in Shelton cast a harmful shadow

on all businesses trying to work legitimately with public officials to bring legitimate commercial

enterprises to the City of Shelton. The citizens of Shelton, and others in the State of Connecticut,

are no doubt sick of reading stories of public officials on the take, being bought by individuals,

like Botti, who are selfishly looking to line their own pockets by corrupting government officials.

The cynicism engendered by Bottis conduct, and those whom he emulates, undermines the

publics faith not only in its public officials, but in Government as a whole. Cf. United States v.

Ganim, 2006 U.S. Dist. LEXIS 26569, at *15-16 (D. Ct. May 5, 2006)(Government corruption

breeds cynicism and mistrust of public officials. It causes the public to disengage from the

democratic process because . . . the public begins to think of politics as only for the insiders.

Thus corruption has the potential to shred the delicate fabric of democracy by making the average

citizen lose respect and trust in elected officials and give up hope of participating in government

through legitimate channels.)(Arterton, J.)

Indeed, as the Second Circuit recently found, in upholding a First Amendment challenge

to a Connecticut law that banned contractors from contributing to political campaigns, [t]he

CFRAs ban on contractor contributions, by contrast unequivocally addresses the perception of

corruption brought about by Connecticuts recent scandals. . . . [A]lthough the CFRAs ban on

contractor contributions is a drastic measure, it is an appropriate response to a specific series of

incidents that have created a strong appearance of corruption with respect to all contractor

contributions. Green Pty. of Ct. v. Garfield, 2010 U.S. App. LEXIS 14248 at *40 (2d Cir. July

13, 2010)(emphasis in original);see also Green Pty. of Ct. v. Garfield, 590 F. Supp. 2d 288, 307

(D. Ct. 2008)(citing a 2005 poll in which 82% of likely Connecticut voters agreed that it was

necessary to limit the influence of money on politics)(Underhill, J.). It is exactly this perception



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18

of insider privilege and special treatment that a significant jail sentence will serve to root out.

By any measure the seriousness of Bottis illegal conduct, the harm he has caused to the

citizens of Shelton, the windfall he has illegitimately obtained through his corrupt actions, and

the impact on the public as demonstrated by the loss of public confidence in local government as

a result of corruption a substantial prison sentence is warranted. The Government respectfully

submits that this factor warrants a sentence consistent with the Sentencing Guidelines and a

sentence well in excess of the two year prison sentenced advocated by Botti.

2. History and Characteristics of Botti.

There are many important facts about the history and characteristics of defendant James

Botti that merit the Courts consideration. First, the duration of his criminal conduct shows that

Bottis criminal conduct was not isolated. Botti, at the very least, knowingly engaged in corrupt

conduct over a period of many years with numerous government officials as evidenced by the

testimony adduced at the corruption trial. When faced with the prospect of being exposed in a

federal investigation, Bottis instinct was to lie to federal authorities and to hide his slush fund by

engaging in structuring through his fathers bank accounts. Second, Bottis criminal conduct was

not born out of any real economic necessity, deprived upbringing or lack of formal education and

opportunity. His upbringing should have provided him with a moral compass to permit him to

play by the rules rather than to corrupt the process by bribing public officials and hiding his cash

from the IRS. Third, as evidenced by the separate convictions by separate juries for mail fraud,

conspiracy to structure and structuring, Bottis criminal acts of corruption are not his only

criminal activity. Fourth, Bottis repeated insistence at seeking to obstruct justice, and

threatening a witness when faced with the prospect of a criminal investigation and trial (not to

mention his complete disregard of a Court Order to surrender the forfeited funds), speaks

volumes as to his character.

Furthermore, not only is Botti not St. Francis of Assisi (Botti Sent. Mem. at 16), he

apparently thinks he is not required to contribute to society in any meaningful way as he does not



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even offer to use his talents to provide housing for the poor or to contribute his time to worthy

causes. Noticeably absent from Bottis sentencing submission and the PSR is any information

that Botti has ever used his abilities or offered his time to better his community in any manner.

In short, a lengthy prison sentence is clearly warranted for this selfish and self-absorbed criminal

who led his father into criminal activity to hide his own criminal acts of corruption, and

threatened the mother of his children in a misguided effort to prevent his conviction.

3. The Sentence Must Promote Respect for the Law

The sentence in this case must reflect the seriousness of the offenses committed by Botti,

and provide a message of deterrence to all local developers or businessmen who are thinking of

engaging in acts of public corruption to further their business interests. When developers like

Botti bribe local public officials, they cheat the citizens of the local community as well as every

honest businessman who play by the rules. A clear message must be sent to the local

communities in Connecticut that corrupt conduct will be severely punished. Developers must

understand that if they encounter a public official who has his or her hand out, the developer will

be severely punished if they provide that public official with a corrupt payment. A significant

amount of prison time should be imposed in these types of cases to demonstrate that those who

corrupt local government processes are punished with something more than a proverbial slap on

the wrist and an order not to do it again. It is only when developers or local businessmen see

other similarly situated developers, such as Botti, go to jail for a lengthy term of imprisonment,

that these other developers will think twice before bribing local public officials. As significant

prison sentence would also choke off the source of funds that fuels corrupt public officials.

General deterrence serves an important function and works, perhaps even more effectively than

in the context of other types of criminal conduct, to prevent crimes of corruption and structuring

of the sort committed byBotti. Thus, it is a rather axiomatic that the sentence in this case must

be long enough to reflect the fact that Bottis criminal conduct constitute serious offenses.

The sentence must also be significant enough to promote public respect for the law. How



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As the Court will recall, at Bottis corruption trial, he used a witness with a criminal record to14

falsely provide the jury with an alternative explanation to explain Mr. Czaplinskis testimony thatBotti admitted to paying a $50,000 bribe to the Shelton mayor. As the Government argued in itsclosing and rebuttal summation, this rent a criminal perjured himself for Bottis benefit when thewitness claimed that Mr. Czaplinski had threatened to falsely accuse defendant Botti of engaging incriminal activity because Botti did not sell Mr. Czaplinski a commercial property. While the witnessdenied receiving anything from defendant Botti, a vehicle purchased by defendant Botti for

20

can legitimate businessmen be encouraged to play by the rules when others like Botti are

corrupting the process and looking to get away with it by asking for a mere slap on the wrist in

the event they are exposed and convicted by a jury? Citizens of Shelton and elsewhere need to

believe that their local governments are not cesspools of corruption,see United States v.

Friedman, 854 F.2d 535, 541 (2d Cir. 1988), where only the bribe payers succeed and the honest

businessmen who refuse to pay to play are precluded from achieving any financial success.

4. The Court Should Consider Both General and Specific Deterrence.

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

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

prison sentence for such conduct can serve as a powerful deterrent against the commission of

crimes of corruption by persons who, like Botti, seek to minimize their term of incarceration after

they get caught and are convicted.

As this case shows, there can be a huge financial windfall when one is willing to pay

bribes to obtain approvals of local development projects. Botti suggests that only a short term of

imprisonment is necessary to achieve the goals of general and specific deterrence in this case.

He suggests that he has already been taught a lesson because he has been hurt in the

pocketbook. Botti Sent. Mem. at 16. Once again, such an argument demonstrates that Botti does

not get it. He fails to understand that his conduct was criminal, not merely a bad business

decision that has ultimately hurt his own net worth. In order to make certain that Botti receives

the proper message and is specifically deterred from ever again engaging in criminal conduct, he

should receive a significant prison sentence. His repeated acts of obstructing justice even after he

was indicted in November 2008 suggests he has not been specifically deterred.14



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approximately $35,000 has been sitting in the witnesss garage since prior to the start of thecorruption trial.

21

General deterrence also serves an important function and works, perhaps even more

effectively than in the context of other types of criminal conduct, to prevent the crimes of

corruption committed byBotti. A prison sentence for such conduct can serve as a powerful

deterrent for those who believe they can buy public officials for personal gain. A significant

sentence of incarceration for Botti would send an important message to others who may be

tempted to corrupt governmental processes. It should be made clear to all persons that they

cannot seek personal profit at the expense of the citizens of the State of Connecticut by bribing

public officials. Sadly, in a time when corruption is prevalent in this State and throughout the

United States at both the federal, state and local level, this message must be sent in a manner that

can be easily understood.

Sending a message of general deterrence is especially appropriate in this case. White

collar felons such as developers like Botti make decisions everyday based on a cost-benefit

analysis. In a recent securities fraud case, United States v. Stein, 2010 WL 678122 (E.D.N.Y.,

Feb. 25, 2010), the district court noted the particular importance of general deterrence in

financial crimes committed by educated persons:

Persons who commit white-collar crimes like defendant's are capable ofcalculating the costs and benefits of their illegal activities relative to the severity

of the punishments that may be imposed. A serious sentence is required todiscourage such crimes.

Id. at *3;see also United States v. Livesay, 587 F.3d 1274, 1279 (11th Cir. 2009) (financial

crimes are prime candidate[s] for general deterrence) (quotation omitted). Hence, these types

of persons can only be deterred if they realize that the cost of committing a crime of corruption

will come with a high cost in the form of a lengthy prison sentence. Indeed, the author of a

survey of academic research regarding the efficacy of criminal sanctions for white collar crimes

had this to say:

White-collar crime is believed to be particularly amenable to



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At the time of the release of the initial PSR, Botti had not submitted the required Personal15

Financial Statement. PSR 76;see also Doc. 373, Courts July 28, 2010 Ruling at 2-3 (Court rulesthat [e]ven more egregious is the fact that, notwithstanding the Courts order two months agoDefendant still has not submitted a financial affidavit to the Probation Office). Thus, the UnitedStates has not had an opportunity to review Bottis sworn Financial Statement. The United Statesreserves its right to supplement its sentencing submission after it has reviewed Bottis sworn

22

deterrence due to its rational and profit-oriented motivation. In aconceptual analysis of the topic, Braithwaite and Geis observedthat white-collar offenders are not committed to a lifestyle ofillegality, are risk aversive, and have more to lose as a result of acriminal conviction than street offenders. Elsewhere Geis notedthat [j]ail terms have a self-evident deterrent impact uponcorporate officials, who belong to a social group that is exquisitelysensitive to status deprivation and censure. It is generallyperceived that executives exhibit distress at the thought of beingsentenced to incarceration: It results in hypertension, it causesheart attacks, it is very serious.

Most judges and prosecutors view general deterrence as the one ofthe goals, if not the major purpose, in sentencing white-collaroffenders. Punishment should serve to discourage others fromcommitting similar offenses and jail or prison sentences, judgesand scholars alike tend to believe, are particularly effective as ageneral deterrent.

Elizabeth Szockyj, Imprisoning White-Collar Criminals?, from Symposium: A Fork in theRoad Build More Prisons or Develop New Strategies to Deal with Offenders, 23 S.Ill.U.L.J.

485, 492 (1999)(footnotes omitted).

In short, Bottis efforts to corrupt the democratic process by buying and influencing the

votes of a public commission and seeking to influence the actions of a local mayor through a

series of bribes and other benefits cannot be tolerated. The Government respectfully requests

that the Court sentence the defendant to a significant term of imprisonment. Such a sentence

would properly punish Botti for his conduct and deter him and others from engaging in corrupt

criminal behavior. In short, it would be a just sentence for Bottis repeated criminal conduct.

F. The Court Should Impose a Fine on Botti.

In addition to imposing a prison sentence on Botti on each of his three convictions, the

Court should also impose a criminal fine. Botti has displayed a rather cavalier attitude regarding

his financial obligations. According to the initial PSR, Botti owes hundreds of thousands of15



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statement when the final PSR is released to the Government.

As noted earlier, a 1955 red Thunderbird Convertible purchased by Botti in 2007 for16

approximately $35,000 is currently in the garage of the witness Botti called at trial in an effort todiscredit Mr. Czaplinski.

23

dollars in federal and state taxes. Yet, throughout the last several months, Botti continues to

build a 7400 square foot home in Shelton to accompany the two carriage houses previously built

on his five acre lot at 35 Maple Avenue in Shelton. Botti proudly values his Mandalay at $1.5

million. PSR 57. Given that Botti is in a position to lavishly spend money on his home, he is

certainly capable of paying a fine. Furthermore, since the PSR concludes that restitution in this

case is not applicable, the Court should impose a fine to ensure that Botti does not reap a

windfall from his corrupt activities.

As the Court is all too familiar, Botti plays games with his finances. See, e.g,. Doc. 373,

Courts Ruling on Motion for Extension of Time (Court observes that Defendant intends to

keep the location and value of his assets to himself and expresses concerns about Defendants

potential dissipation of his assets, which, based on the evidence at trial, were not

inconsequential). During both trials, the Court heard extensive evidence that Botti possessed

approximately $1,000,000 in cash in June 2006. Botti has never accounted for the disposition of

the $1,000,000. The Court is also well aware that Botti continuously buys and sells automobiles.

Botti has not accounted for the whereabouts or the disposition of these vehicles. Given that it is16

Bottis burden to demonstrate his inability to pay a fine, the Court should require that Botti

account for all his assets and their current whereabouts or explain to the Court the disposition of

these assets. It is respectfully requested that Botti be ordered to pay a significant criminal fine.

G. The Court Should Enter a Final Order of Forfeiture.

As the Court will recall, on November 10, 2009, Botti was ordered by the jury in the

structuring trial to forfeit $120,500 to the United States pursuant to Title 31, United States Code,

Section 5317(c)(1) . On November 30, 2009, the Court entered a Preliminary Order of Forfeiture

requiring defendant Botti to forfeit $120,500 to the United States. See Doc. 211. The Court



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ordered that the Preliminary Order shall become final as to defendant Botti at the time of

sentencing and shall be made part of the sentence and included in the judgment. Id.;see also

Rule 32.2(b)(4) (At sentencing . . . the preliminary order becomes final as to the defendant).

In May 2010, the Court ordered defendant to deposit the $120,500 to be forfeited with the

Clerk of the Court on or before July 26, 2010. When defendant sought to treat the order as a

suggestion and thereby ignore this order of the Court, the Court issued a second Ruling. See

Doc. 373 ([i]t is troubling that Defendant has adopted this casual attitude toward compliance).

In no uncertain terms, the Court ordered Botti for a second time to deposit the $120,500 with the

Clerk of the Court to secure the judgment of forfeiture. Upon threat of incarceration, Botti

deposited the $120,500 with the Clerk of the Court within days of the Courts ruling.

At the September 17, 2010 sentencing in this matter, the United States requests that the

Court: (a) make the Preliminary Order of Forfeiture final; (b) include the forfeiture when orally

announcing the sentence per Rule 32.2(b)(4)(B), Fed. R. Crim. P.; (c) include the Order of

Forfeiture in the written judgment per Rule 32.2(b)(4)(B); and (d) order the Clerk of the Court to

release $120,500 of the deposited funds (without the interest) to the United States to satisfy the

forfeiture judgment.

H. Botti is Not Entitled to Bail Pending Appeal.

In his sentencing submission, Botti requests bail pending appeal. Botti Sent. Mem. at 1.

Once again, Botti fails to provide any legal or factual analysis to support his request to delay

serving any prison sentence the Court chooses to impose at the September 17, 2010 sentencing.

Apparently, Botti, who has complained bitterly about the length of the Governments

investigation and the time it has taken to convict him before two separate juries, would

nevertheless like to delay his proceedings further by putting off the service of his sentence.

Because Botti has utterly failed to meet his burden to demonstrate that he is entitled to bail

pending appeal, the Court should deny Bottis request.

The Bail Reform Act of 1984 (BRA) establishes a presumption in favor of detention



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where, as here, a defendant like Botti has been convicted. United States v. Abuhamra, 389 F.3d

309, 319 (2d Cir. 2004). The Government has a strong and obvious interest in detaining

defendants who have been found guilty beyond a reasonable doubt of serious crimes. Id. at 320.

Such detention promotes public safety by removing a presumptively dangerous person from the

community; it also encourages general respect for the law by signaling that a guilty person will

not be able to avoid or delay imposition and service of the sentence prescribed by law. Id.

Moreover, [t]he interest in ensuring that guilty persons receive and serve their sentences

was . . . a significant impetus to the enactment of the BRA. Id.; see, e.g., United States v.

Powell, 761 F.2d 1227, 1231 (8th Cir. 1985) (en banc) (in enacting the BRA, Congresss intent

was, bluntly, that fewer convicted persons remain at large while pursuing their appeals).

Consequently:

even when the conviction does not involve a crime of violence or drug offense,detention (following conviction and sentencing) is mandatory unless the judicialofficer finds inter alia that the appeal is not for the purpose of delay and raises asubstantial question of law or fact likely to result in a reversal, new trial, orreduced term of imprisonment that would expire during the expected duration ofthe appeal process.

United States v. Colon-Munoz, 292 F.3d 18, 20 (1st Cir. 2002) (emphasis added) (quoting 18

U.S.C. 3143(b)(1)).

Not surprisingly, there are numerous examples where white collar criminals have been

denied bail pending appeal by both district courts and our Circuit Court. See, e.g., United Statesv. Fore, 169 F.3d 104, 106 & n.1 (2d Cir. 1999 ) (following conviction by jury for misuse of

social security numbers and unlawful receipt of . . . benefit payments, district court and Second

Circuit denied defendants motions for bail pending appeal); United States v. Gaind, 31 F.3d

73, 75-76 (2d Cir. 1994) (following conviction by jury for submitting false EPA reports,

defendant applied to the district court to be released on bail pending appeal; the district court

denied the application); United States v. Sabbeth, 125 F. Supp. 2d 33 (E.D.N.Y. 2000) (denying

bail pending appeal following defendants conviction by jury for bankruptcy fraud and money

laundering because no substantial issues raised), affd, 262 F.3d 207 (2d Cir. 2001), reconsid.



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Where, as here, Botti has repeatedly ignored the Courts directive to provide a complete and17

accurate personal financial statement, it is difficult to conclude that he is not a flight risk, or that hehas satisfied his burden to demonstrate that he is not such a risk by clear and convincing evidence.

26

denied, 227 F.3d 94 (2d Cir. 2002); United States v. Delanoy, 867 F. Supp. 114 (N.D.N.Y. 1994)

(denying bail pending appeal following defendants convictions by jury for conspiracy, mail

fraud and wire fraud because no substantial issues raised); United States v. Jasper, No. S1 00 Cr.

825 (PKL), 2004 WL 112939 (S.D.N.Y. Jan. 23, 2004) (denying bail pending appeal following

defendants conviction by jury for embezzlement because no substantial issues raised), affd, 104

Fed. Appx. 781 2d Cir. 2004); United States v. Viana, No. 01 Cr. 1043 (SAS), 2003 WL

22480046 (S.D.N.Y. Nov. 3, 2003) (denying bail pending appeal following defendants

conviction by jury for conspiracy and wire fraud because no substantial issues raised); United

States v. Sturman, No. 96 Cr. 318 (BSJ), 1999 WL 305094 (S.D.N.Y. May 14, 1999) (denying

bail pending appeal following defendants convictions by jury for conspiracy and making false

statements to banks because no substantial issues raised), affd sub nom. United States v.

Schwartz, 213 F.3d 627 (2d Cir. 2000).

Therefore, Bottis naked request for bail pending appeal may be granted only if this Court

finds: (1) by clear and convincing evidence that he is neither a risk of flight nor a danger to the17

community; and (2) that the contemplated appeal is not for purposes of delay and raises a

substantial question of law or fact likely to result in reversal, a new trial, or a new sentence less

than the expected duration of the appeal process. See 18 U.S.C. 3143(b). Botti bears the

burden of persuasion for all the criteria set out in 3143(b). United States v. Randell, 761

F.2d 122, 125 (2d Cir. 1985). Given that Botti has made no attempt whatsoever to satisfy his

burden, there is no basis to grant his request for bail pending appeal. For example, Botti has

chosen not to provide the Court with the so-called substantial issue that he intends to raise on

appeal. Nor has Botti sought to demonstrate that this so-called substantial issue will lead to a

complete reversal of his corruption conviction and his structuring convictions. Indeed, if the

Court were to impose separate prison sentences on both the corruption conviction and the



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structuring convictions, Botti would have to satisfy this Court that his appeal would lead to a

reversal or an adjustment of both his prison sentence such that the length of his appeal would

exceed his prison sentences. Botti has wholly failed to sustain his burden. Therefore, the

Government submits that Bottis request for bail pending appeal should be denied.



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CONCLUSION

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

defendant James Botti to a significant term of imprisonment, impose a significant criminal fine,

enter a final order of forfeiture, direct the Clerk of the Court to release $120,500 from the funds

deposited with the Court to satisfy the forfeiture judgment and deny Bottis motion for bail

pending appeal.

Respectfully submitted,

NORA R. DANNEHYACTING UNITED STATES ATTORNEY

/S/RICHARD J. SCHECHTERSENIOR LITIGATION COUNSELUnited States Attorneys Office915 Lafayette BoulevardBridgeport, Connecticut 06604(203)696-3000Federal Bar No. CT24238

/S/RAHUL KALEASSISTANT U.S. ATTORNEYUnited States Attorneys Office

915 Lafayette BoulevardBridgeport, Connecticut 06604(203)696-3000Federal Bar No. phv0256



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CERTIFICATION OF SERVICE

I hereby certify that on September 8, 2010, a copy of the foregoing was filedelectronically, by facsimile and served by mail on anyone unable to accept electronic filing.Notice of this filing will be sent by e-mail to all parties by operation of the Courts electronicfiling system or by mail to anyone unable to accept electronic filing as indicated on the Notice ofElectronic Filing. Parties may access this filing through the Courts CM/ECF System.

/S/___________________________________Richard J. SchechterSenior Litigation Counsel


government sentencing memo - botti case

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