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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

UNITED STATES OF AMERICA 

v. 

DANIEL DVORKIN 

 

Case No. 12 CR 500 

Judge Edmond E. Chang 

 

GOVERNMENT=S REPLY TO DEFENDANT’S SENTENCING MEMORANDUM 

While not expressly stated, defendant Daniel Dvorkin appears to be seeking a sentence of 

time served and probation or home confinement in his sentencing memorandum (Dkt. No. 154 at 

14-15). Such a sentence would utterly fail to adequately account for the factors set forth in 18 

U.S.C. § 3553(a). Defendant sought to have Larry Meyer killed rather than pay the $8 million 

judgment. Defendant obstructed justice when he told Robert Bevis to lie and attempted to 

intimidate Ellie Farkas after she testified in the grand jury. Defendant managed to solicit a hit 

man and obstruct justice despite being in his 70s and dealing with several health issues. 

Defendant portrays himself as the victim and will not accept responsibility for his actions. 

Even now, in his Sentencing Memorandum, defendant will not even acknowledge that Larry 

Meyer and his family suffered as a result of defendant’s actions and choices. Instead, he 

blames the Federal Bureau of Investigation for “terrif[ying]” the Meyer family as a result of 

FBI’s “gross overreaction.” Dkt. No. 154 at n.2. The seriousness of this offense, defendant’s 

choices and actions, the need to instill in defendant a respect for the law, and, finally, the need to 

deter both this defendant and all defendants, these 3553(a) factors surely demand that defendant 

receive a significant and meaningful sentence. Time served and probation or home 

confinement will not achieve this. 

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The government acknowledges that defendant’s age and health should be considered by 

the Court in deciding defendant’s sentence, as well as several of defendant’s positive character 

traits highlighted by the defense, including defendant’s lack of prior criminal history and family 

support. But those positives, in addition to defendant’s age and health, should not be to the 

exclusion of the other 3553(a) factors, particularly given the serious nature of this crime, 

defendant’s conduct with respect to this crime, and that defendant chose to commit this offense 

in his 70s with medical issues. As such, the government seeks a sentence of no less than 11 

years’ imprisonment in this case, which is over ten years below the low end of the Guideline 

range of 262 to 327 months’ imprisonment. Such a sentence will comprehensively account for 

each of the 3553(a) factors. 

ARGUMENT

I. Defendant obstructed justice despite there being no negative impact to the 

investigation or case. 

As stated in the government’s sentencing memorandum, the Presentence Investigation Report 

correctly added two points to the Guideline calculation as a result of defendant’s obstruction of 

justice. While the PSR cited only to the recorded May 11 conversation in support of this 

enhancement, the government also believes that defendant’s attempt to intimidate long-time 

employee and family friend, Ellie Farkas, from telling the truth also supports the obstruction 

enhancement.1

 See Dkt. No. 151 at 4-6. 

Defendant claims that the obstruction enhancement is not applicable to him. See Dkt. No. 

 1

Ellie Farkas and her husband submitted a letter in support of defendant. Dkt. No. 154-001 at 30. 

While the letter appears to have been written by Ms. Farkas’ husband, it does bear Ms. Farkas’ purported 

signature. Notably absent from the letter is any mention of defendant’s seeking Ms. Farkas assistance with 

locating locate Larry Meyer or defendant’s asking Ms. Farkas, his longtime employee and family friend of 

he and his wife, “You don’t want to see me go to jail, do you?” 

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154 at 4-6. Defendant’s arguments should be rejected because they fail to account for the 

factual basis articulated by Probation and the government – which and not disputed by the 

defendant – in support of the obstruction enhancement. Specifically, defendant cites to 

Guideline language and case law addressing obstruction in the context of a defendant’s own false 

statements, rather than a defendant’s attempts to intimidate or influence a witness’s testimony, 

the allegations at issue in this case. 

First, defendant cites to Guideline§ 3C1.1, Application Note 4(G), one 

Guideline-provided example of obstructive conduct that could support the enhancement. 

Application Note 4(G) provides: “providing a materially false statement to a law enforcement 

officer that significantly obstructed or impeded the official investigation or prosecution of the 

instant offense.” The government agrees that this example does not fit the scenario at issue here, 

as both the PSR and the government do not seek the obstruction enhancement as a result of 

material misstatements that defendant himself made to law enforcement.2

 Rather, the basis for 

the enhancement stems from defendant’s attempts to intimidate or influence Bevis and Farkas to 

lie, see also Dkt. No. 151 at 4-6, conduct which falls squarely within a different example provided 

by the Guidelines, specifically Guideline§ 3C1.1, Application Note 4(A): “threatening, 

intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or 

indirectly, or attempting to do so.” 

Similarly, the cases cited by defendant are also factually inapposite because they deal with 

factual scenarios involving a defendant’s material false statements either to law enforcement or 

 2

Defendant also states that the May 11 call was “a retelling of Bevis’ past meeting with FBI agents, 

not a coaching session for future meetings.” Dkt. No. 154 at 5. That is a mischaracterization of the 

conversation, as defendant clearly tells Bevis what to tell the agents. See, e.g., Gov’t Ex. 7 Tr. at 2:7 (“Tell 

them I was looking at guns.”); see also Dkt. No. 147-007 (containing entire transcript); Dkt. No. 151 at 4-5. 

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under oath at trial. For example, in United States v. Kroledge, 201 F.3d 900, 905-08 (7th Cir. 

2000), the Seventh Circuit affirmed the district court’s application of the obstruction of justice 

enhancement relating to four defendants, based on the following: defendant Charles Kroledge’s 

false testimony regarding the guilt of his co-conspirators; defendant Kathleen Kroledge’s false 

testimony and false statements to investigators regarding the guilt of her co-conspirators; 

defendant Tony Kroledge’s false testimony and false statements to investigators in which he 

provided a false alibi for his brother and sister-in-law; and, defendant Ethel Kroledge’s false 

statements to investigators and instructing a witness to lie to investigators. With respect to 

Kroledge, the only factual issue similar to the instant case stems from the Seventh Circuit’s 

analysis relating to defendant Ethel Kroledge, who, along with making false statements to 

investigators, also pointed investigators to a witness that Ethel had instructed to lie if approached 

by law enforcement. Id. at 907-08. However, again factually distinct from the scenario at issue 

here, the court’s analysis focused on Ethel’s own misstatements to law enforcement, which led 

investigators to a witness she attempted to influence. Id. 

Further, the cases cited in Kroledge, and relied upon by defendant in his sentencing 

memorandum, all analyze application of the obstruction of justice enhancement relating to a 

defendant’s own misstatements to law enforcement and the materiality of those statements. See 

United States v. Wells, 154 F.3d 412, 414-15 (7th Cir. 1998) (affirming district court’s application 

of obstruction of justice where defendant lied about whereabouts of money he stole from bank); 

United States v. Barnett, 939 F.3d 405, 407 (7th Cir. 1991) (reversing district court’s application of 

two-level increase for obstruction where defendant’s only pretrial misstatement was that he denied 

committing the offenses about which he was questioned). Again, defendant is attempting to 

defeat the obstruction of justice enhancement here based on cases that are factually distinct. 

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The crux of defendant’s argument appears to be language from Wells, in which the Seventh 

Circuit wrote (again, in the factually-distinct context of a defendant’s own statements to law 

enforcement) that “it is true that an attempt at obstruction of justice that has no consequence 

(suppose that he had told the police that he had swallowed the money) is not a permissible basis for 

an obstruction of justice enhancement.” Wells, 154 F.3d at 414. While that might apply with 

respect to a defendant’s statements to law enforcement that are outlandish and result in no further 

steps by law enforcement, a different scenario is at issue here and the Guidelines clearly 

contemplate that an attempt (thus, having no consequence) to obstruct, and specifically an attempt 

to influence or intimidate another witness, is sufficient to apply the obstruction enhancement. 

Indeed, “attempt” appears in the language of the guideline itself, as well as several of the listed 

examples in the commentary to the obstruction guideline. See Guideline § 3C1.1 (“If (1) the 

defendant willfully obstructed or impeded, or attempted to obstruct or impede, . . .”); see, e.g., 

Guideline § 3C1.1, Application Note 4(A). 

The Seventh Circuit acknowledged the same in United States v. Chuychula, -- F.3d --, 2014 

WL 2964597, at *5 (7th Cir. July 2, 2014). In Chuychula, the Seventh Circuit affirmed the 

district court’s application of the obstruction enhancement based on defendant’s false statements 

in the grand jury. The Court cited to the same language in Wells relied on by defendant in his 

sentence memorandum, and then qualified (again, in the context of a defendant’s own false 

statements and the materiality standard) that “a statement need only ‘tend to influence or affect the 

issue under determination’ to be material, U.S.S.G. § 3C1.1, cmt. 6 (emphasis added); the 

statement need not have any influence or effect.” Chuychula, -- F.3d --, 2014 WL 2964597, at *5. 

The Seventh Circuit further clarified that the enhancement was appropriate in Chychula even 

though the defendant’s false testimony in the grand jury did not impact defendant’s apprehension, 

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conviction, or sentencing because “the enhancement is applicable not only when a defendant 

actually obstructed or impeded the administration of justice, but also when a defendant attempted

to do so. The fact that Chychula’s attempts to deceive the grand jury ultimately failed is of no 

moment.” Chuychula, -- F.3d --, 2014 WL 2964597, at *5 (emphasis in original). 

 Moreover, the Seventh Circuit has found that the obstruction enhancement was applicable 

in several cases where a defendant attempted to influence or intimidate a witness without 

addressing whether the defendant’s efforts ultimately were successful. See, e.g., United States v. 

Strode, 552 F.3d 630, 635 (7th Cir. 2009); United States v. Robinson, 14 F.3d 1200, 1203-04 (7th 

Cir. 1994); United States v. Cherif, 943 F.2d 692, 703 (7th Cir. 1991). Indeed, in Strode, the 

conversation upon which the obstruction enhancement was based was consensually recorded by a 

cooperating witness, whose testimony was impossible to influence because of the witness’ 

ongoing cooperation with the government. Strode, 14 F.3d at 632. Thus, here, even though 

defendant’s attempts to intimidate and influence Bevis and Farkas were unsuccessful, defendant’s 

conduct is sufficient to support the obstruction enhancement. 

II. While defendant’s age and health should be accounted for by the Court in its 

sentence, they do not equate to a free pass for soliciting a murder-for-hire. 

In his sentencing memorandum, defendant asserts that the government’s recommendation of at 

least 11 years’ imprisonment amounts to a de facto life sentence given defendant’s current age of 

76 and, per the 2012 U.S. Census Bureau Statistical Abstract Table, defendant has an average life 

expectancy of approximately 9.5 more years to live. See Dkt. No. 154 at 9. The government 

agrees that defendant’s age and health are appropriate factors for this Court to consider in 

sentencing defendant. However, his age and health do not equate to a free pass, which is basically 

defendant’s position given that he is seeking time served. 

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The defendant relies on United States v. Johnson, 685 F.3d 660, 662 (7th Cir. 2012), for his 

reliance on the life expectancy tables. And, again, the government agrees that defendant’s life 

expectancy should be one factor considered by the Court, which was the court’s point in Johnson. 

Specifically, in that case the Seventh Circuit affirmed the district court’s sentence of 78 months’ 

imprisonment, the low end of the applicable Guideline range, despite defendant’s age of 70 years 

at the time of sentencing. With respect to what role tables of life expectancy should play at 

sentencing, the court emphasized that the tables are instructive but not exact, and that a sentence 

that is a term of years but is likely to be a “de fact life sentence because of the defendant’s age is 

improper if the statue under which he was convicted provides that only a jury can authorize a life 

sentence.” Id. at 663. However, the court also noted other factors that should be considered 

when sentencing an older defendant, including that while a defendant’s propensity to commit 

crime declines with age, the defendant’s age at the time of the crime, and the rationale that a longer 

term of imprisonment should have a greater deterrent effect, were additional factors to consider. 

Id. (“The 70-year –old criminal is a rara avis, and by engaging in criminal activity at such an age 

provides evidence that he may be one of the few oldsters who will continue to engage in criminal 

activity until they drop.”). The court concluded that Johnson’s sentence of 78 months, within the 

life expectancy table’s range of 12.4 years, did not constitute a de facto life sentence, but that even 

“if it did, it would just be one more consideration that the judge might be asked to weigh in 

determining the sentence, properly so if the prospect of dying in prison is thought to make a 

sentence of otherwise appropriate length harsher.” Id. 

More recently, the Seventh Circuit addressed the issue of de facto life sentences in United 

States v. Volpendesto, 746 F.3d 273 (7th Cir. 2014), and underscored the analysis in Johnson with 

respect to age being just one factor that a sentencing court should consider. In Volpendesto, 

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defendant Michael Sarno was age 54 at the time the district court sentenced him to 25 years’ 

imprisonment. Id. at 299. On appeal, Sarno argued that, due to his health issues, the sentence 

amounted to an impermissible de facto life sentence even though his projected release date fell 

within his life expectancy. With respect to the role of life expectancy tables, the court stated that 

it has “never held that a sentencing court must check certain boxes in order to justify an effective 

life sentence.” Id. The appellate court found Sarno’s sentence to be reasonable given the district 

court’s consideration of defendant’s risk of recidivism and need for general deterrence. Id. 

Here, the government seeks a term of imprisonment of at least 11 years, which is nearly half 

off the low end of defendant’s Guideline range. With good time and credit for time served, if the 

defendant is sentenced to 11 years in prison, his projected release date will be in approximately 

8.35 years (approximately 100.2 months). That falls within the life expectancy table relied upon 

by defendant, as well as defendant’s own estimation. See Dkt. Nos. 154 at 9 (citing life 

expectancy to be 9.5 years given defendant’s current age of 76); Dkt. No. 154-002 (citing life 

expectancy of 75 year-old to be 10.6 years). 

However, even if a sentence of 11 years’ imprisonment did constitute a de facto life sentence, 

such a sentence is reasonable considering all of the 3553(a) factors – the seriousness of this offense 

(namely, that defendant solicited the murder of another human being), the toll the offense has 

taken on victim Larry Meyer and his family, defendant’s calculated and cold conduct in 

committing the solicitation at the age of 74 while suffering from poor health, his efforts to obstruct 

(again, despite his age and medical conditions), his obstruction efforts, his refusal to accept 

responsibility for his actions, and the need for both general and specific deterrence. See, e.g., 

Volpendesto, 746 F.3d at 67-68 (affirming district court’s sentence of 60 years for 44-year old 

defendant Mark Polchan given the seriousness of the offense, and the need to protect the public 

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and promote general deterrence); United States v. Chapman, 694 F.3d 908, 916 (7th Cir. 2012) 

(affirming lower court sentence of 40 years for 54-year old defendant given gravity of the crime 

and need to deter others as well as the defendant: “Yet a sentence within a properly calculated 

guidelines range, like Chapman’s, is presumptively reasonable, and that presumption holds true 

even when a sentence to a term of years will effectively result in life imprisonment.”); United 

States v. Kincannon, 567 F.3d 893, 901 (7th Cir. 2009) (affirming district court’s sentence of 30 

years’ imprisonment for 77-year old defendant where the district court noted that his age “had not 

deterred or slowed his criminal activity to date”); United States v .Wurzinger, 467 F.3d 649, 

652-53(7th Cir. 2006) (affirming a 262 month sentence for 54-year old defendant given district 

court’s consideration of all of the 3553(a) factors, including need for punishment, deterrence, and 

defendant’s age at the time of the crime). 

Conclusion 

The government acknowledges that defendant has factors that may weigh in his favor, 

including his lack of criminal history, and the generosity and family support highlighted in his 

sentencing memorandum. Dkt. No. 10-14.3

 But those positive factors, even when combined 

with his age and health, should not, and do not, outweigh the fact that defendant has been 

convicted of soliciting a murder. The government’s recommendation of a sentence of no less than 

11 years’ imprisonment, more than 10 years below the low end of the Guideline range, is 

reasonable because it will comprehensively account for all of the 3553(a) factors, including the 

 3

Defendant’s charitable generosity cuts both ways, as defendant was apparently donating money 

prior to and after Dvorkin Holdings LLC filed for bankruptcy. See generally In re Dvorkin Holdings, LLC, 

12-31336 (N.D. Ill.) (petition filed on August 7, 2012); see also In re Dvorkin Holdings, LLC, 12-31336 

(N.D. Ill.) at Dkt. No. 55 (referring to adversary proceeding 12-31336, alleging that Dvorkin caused 

Dvorkin Holdings to make $5 million in fraudulent loans to hide assets from creditors); In re Dvorkin 

Holdings, LLC, 12-31336 (N.D. Ill.) at Dkt. No. 258 (regarding adversary proceeding 13-00686, alleging 

that Dvorkin and his wife fraudulently channeled money from Dvorkin Holdings to pay their daughter’s 

health insurance and caused Dvorking Holdings to charge their daughter sub-market rent). 

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nature and seriousness of the crime, the defendant’s choices and conduct, and the need to deter and 

promote respect for the law. 

Dated: July 29, 2014 Respectfully submitted, 

 ZACHARY T. FARDON 

 United States Attorney 

By: /s/ Heather K. McShain 

HEATHER K. McSHAIN 

JEFFREY D. PERCONTE 

 Assistant United States Attorneys 

 United States Attorney=s Office 

 219 South Dearborn Street 

 Chicago, Illinois 60604 

 (312) 353-1414 

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CERTIFICATE OF SERVICE 

The undersigned Assistant United States Attorney hereby certifies that, in accordance 

with Fed. R. Crim. P. 49, Fed. R. Civ. P. 5, LR 5.5 and the General Order on Electric Case Filing 

(ECF), the Government=s Reply to Defendant’s Sentencing Memorandum was served on defense 

counsel pursuant to the District Court=s ECF system, on July 29, 2014. 

 

By: /s/ Heather K. McShain 

HEATHER K. McSHAIN 

Assistant United States Attorney 

219 S. Dearborn Street 

Chicago, Illinois 60604 

(312) 353-1414 

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