**NO COPY OF THIS TRANSCRIPT MAY BE MADE PRIOR TO 3/9/10 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

UNITED STATES OF AMERICA 

KURT SANBORN 

08-cr-128-01-PB 

November 19, 2009 

11:40 a.m. 

TRANSCRIPT OF SENTENCING HEARING 

BEFORE THE HONORABLE PAUL J. BARBADORO 

Appearances: 

For the Government: 

For the Defendant: 

Probation Officer: 

Court Reporter: 

Robert Kinsella, AUSA 

U.S. Attorney's Office 

53 Pleasant Street 

Concord, NH 03301 

Alan Baum, Esq. 

Law Offices of United Defense Group 

4181 Sunswept Drive, Suite 100 

Studio City, CA 91604 

Donald A. Kennedy, Esq. 

78 W. Merrimack Street 

Manchester, 03101 

Kevin Lavigne 

Sandra L. Bailey, LCR, CM, CRR 

Official Court Reporter 

United States District Court 

55 Pleasant Street 

Concord, NH 03301 

(603)225-1454 

v. 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 1 of 24
2 

1 BEFORE THE COURT 

2 THE CLERK: Court's in session and has for 

3 consideration a sentencing hearing in United States of 

4 America versus Kurt Sanborn, Criminal Case Number 

5 08-cr-128-01-PB 

6 THE COURT: Mr. Sanborn, the report I have for 

7 you is dated January 9th. It was revised on 

8 November 12th. Have you seen that report? 

9 THE DEFENDANT: Yes, sir. 

10 THE COURT: Have you read it and discussed it 

11 with your attorney? 

12 THE DEFENDANT: Yes, sir. 

13 THE COURT: Do you feel you understand it? 

14 THE DEFENDANT: Yes, I do, sir. 

15 THE COURT: Does the government dispute any of 

16 the facts or legal conclusions contained in the report? 

17 MR. KINSELLA: We do not. 

18 THE COURT: Are you pressing any objections on 

19 behalf of your client? 

20 MR. BAUM: Good morning, your Honor. Alan 

21 Baum appearing on behalf of Mr. Sanborn along with Mr. 

22 Kennedy. 

23 We had lodged an objection to the first draft 

24 of the PSR wherein the probation officer assessed a 

25 two-point adjustment for role in the offense. The 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 2 of 24
3 

1 revised report that the court is now referring to 

2 withdrew that adjustment but did explain in the addendum 

3 that they believed the two points for abuse of position 

4 of trust would be applicable, therefore I suppose the 

5 objection to role in the offense is moot, and after 

6 considering the application notes and the authority we 

7 would submit the issue and not object to the probation 

8 officer's conclusion on the two points for abuse of 

9 position of trust. 

10 THE COURT: It's a classic case where that 

11 adjustment fits. 

12 MR. BAUM: I agree, your Honor. 

13 THE COURT: All right, so that's fine, then, 

14 so you don't object to the revised report. 

15 I adopt the findings of fact and conclusions 

16 of law set forth in the report which will be made a part 

17 of the record under seal. I determine that the 

18 defendant's total offense level is 18, his Criminal 

19 History Category is I. The guideline sentencing range 

20 is 27 to 33 months. 

21 What's the government's recommendation? 

22 MR. KINSELLA: We're recommending 27 months. 

23 THE COURT: All right. Counsel, I'll hear you 

24 on your request for a variance and any arguments you 

25 have for a sentence lower than the --

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 3 of 24
4 

1 MR. BAUM: May I use the podium? 

2 THE COURT: Yes. 

3 MR. BAUM: And your Honor, I apologize for not 

4 having submitted this earlier this morning, but if I may 

5 ask the court to receive the -- a letter from Greg 

6 Sanborn who is the defendant's brother, it was just --

7 it was received after I filed my sentencing memorandum. 

8 THE COURT: All right, why don't you hand it 

9 up. I've read the other letters that have been 

10 submitted. Just give me a moment to read this one. 

11 (Pause.) 

12 THE COURT: All right, I've read the letter. 

13 Go ahead. 

14 MR. BAUM: Thank you, your Honor. In the 

15 defendant's sentencing memorandum the defendant is 

16 asking for a variance whereby the court would impose a 

17 sentence, rather than a commitment to the Bureau of 

18 Prisons, fashion a sentence that would enable Mr. 

19 Sanborn to continue in the very positive and productive 

20 steps that he has been able to take in connection with 

21 his current employment. I know your Honor handles 

22 sentencings probably every day and for many years and 

23 nobody wants to go to prison --

24 THE COURT: I've sentenced a small city worth 

25 of people to prison over my 17 years as a judge. 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 4 of 24
5 

1 MR. BAUM: And in my 41 years as a defense 

2 lawyer, regretfully I've represented even more. But 

3 every so often the argument presented to the court that 

4 not putting him in prison would enable him to continue 

5 to pay his child support, continue to go to church, 

6 continue to be productive and mend some old fences with 

7 his family, continue to work and pay restitution, every 

8 so often those excuses or those explanations or 

9 arguments --

10 THE COURT: Excuse me, has he made any 

11 restitution up to now? 

12 MR. BAUM: He has not because the 

13 employment -- his earnings have been growing in the job 

14 that he's now in, and it has taken him a very long time 

15 to pay the old debts that still exist in connection with 

16 orders that have been made --

17 THE COURT: I'll tell you, actions speak 

18 louder than words. I have had defendants who, for 

19 example, have taken a second job and devoted the 

20 earnings to the second job solely to making restitution 

21 in advance of sentencing, and to the extent somebody has 

22 actually made a substantial contribution to reducing the 

23 restitution obligation in advance of sentencing, that's 

24 something that often impresses me because it's easy to 

25 say how sorry you are, it's a lot harder to go out and 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 5 of 24
6 

1 do something about it. I'm not going to hold it against 

2 your client that he didn't do that, but I do think we 

3 have to take expressions of remorse into their 

4 appropriate context when we see a case like this. Your 

5 client made substantial money out of his crime and 

6 hasn't made any effort to pay it back. 

7 MR. BAUM: I understand, your Honor. The 

8 circumstances that led to this crime and other 

9 self-destructive and inappropriate and illegal behavior 

10 were dealt with a little bit in Dr. Drogan's report. I 

11 think that Mr. Sanborn is beginning to recognize the 

12 factors that led him to make it seem as though 

13 everything was okay by stealing instead of living within 

14 his own means. The low self-esteem that leads a person 

15 to do that, to hide that from your family, again, are 

16 things that recent insight we believe is going to make a 

17 big difference in his future. He's growing with this 

18 company now. His employer just told him that --

19 THE COURT: Are you able to make any 

20 representations to me concerning where this money went, 

21 what it was used for? 

22 MR. BAUM: Only generally speaking, and that 

23 was over a period of about 18 months. The family had 

24 acquired debt. We don't place blame, but as far as who 

25 it was that was charging and had like 12 credit cards 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 6 of 24
7 

1 that needed to be serviced, it wasn't Mr. Sanborn, but 

2 again, I hesitate to point fingers --

3 THE COURT: Well, I, frankly, and maybe the 

4 probation officer has some updated information, the 

5 report I have reflects very limited information 

6 concerning the defendant's current financial status. 

7 Has he submitted a statement of his net worth and 

8 documentation to support that? 

9 MR. LAVIGNE: We have no additional 

10 information, your Honor. 

11 THE COURT: So you really can't tell me what 

12 he's got for bank accounts, what he's got for --

13 MR. LAVIGNE: Not at this time. 

14 THE COURT: Yeah. 

15 MR. BAUM: I can tell you this, your Honor. 

16 THE COURT: Why didn't you give us that 

17 information which is routinely supplied by defendants? 

18 MR. BAUM: It wouldn't shed any more light 

19 than --

20 THE COURT: You're saying sort of trust me, 

21 judge, trust the defendant. How do I know he doesn't 

22 have the money sitting in a bank account somewhere? 

23 MR. BAUM: Well, there is a parallel -- well, 

24 not parallel -- but there's another action that's been 

25 going on for about two and a half years, and that's in 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 7 of 24
8 

1 the family law courts in this county, and he has been 

2 held strictly accountable as to all of his income, 

3 payments are regulated, child support is all being done 

4 through a guardian that has been appointed, it's a 

5 rather contentious not divorce, that part is over with, 

6 but in the child custody, he has a 9-year-old and 

7 12-year-old. 

8 THE COURT: As much sympathy as I have for his 

9 children and his ex-wife, they're not allowed to take 

10 money he stole from other people and use it for their 

11 support. 

12 MR. BAUM: Well, that hasn't been the case in 

13 the last four years since this crime was --

14 THE COURT: I just don't know and have no way 

15 of verifying -- does the government have any, have you 

16 done an investigation to determine whether there are any 

17 proceeds to this criminal activity that still remain and 

18 are subject to being forfeited or acquired by the 

19 government in some way? 

20 MR. KINSELLA: To our knowledge there is no 

21 criminal proceeds available for forfeiture or to be used 

22 to --

23 THE COURT: Do you have something -- is that 

24 the result of investigation because I don't have the 

25 financial information that I ordinarily have about a 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 8 of 24
9 

1 defendant. 

2 MR. KINSELLA: It's the result of our 

3 investigation of the crime and determining where he 

4 spent the money and --

5 THE COURT: Where do you say it went? 

6 MR. KINSELLA: To pay personal expenses 

7 related to his family which were exorbitant. 

8 THE COURT: You mean his former wife and 

9 children or his current family? 

10 MR. KINSELLA: His family at the time which is 

11 his ex-wife. 

12 THE COURT: So it was just debts that he and 

13 she had incurred and money was used to pay down those 

14 debts? 

15 MR. KINSELLA: Yes. 

16 THE COURT: And you believe that in fact that 

17 money was spent, that it is not available somewhere now 

18 to satisfy a restitution payment? 

19 MR. KINSELLA: Yes. 

20 THE COURT: And you believe that based on an 

21 investigation where you were able to track the source of 

22 funds through accounts? 

23 MR. KINSELLA: We saw where the stolen money 

24 went to and how it was used, yes. 

25 THE COURT: Okay. Well, that gives me some 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 9 of 24
10 

1 reassurance that he just doesn't have a lump sum of 

2 money out there hidden from all of us. Okay. All 

3 right. 

4 Thank you. Go ahead. 

5 MR. BAUM: And I'm relieved because I was 

6 relying upon that as well, and I felt perhaps I let the 

7 court down --

8 THE COURT: I don't trust criminal defendants, 

9 you know, to the extent that I don't have verification 

10 about things like that, I don't trust them, and why 

11 should I? 

12 MR. BAUM: No, I --

13 THE COURT: Ordinarily we are provided with 

14 financial records, and without the financial records I'm 

15 not going to trust the defendant, but I certainly trust 

16 the government that does a much more extensive 

17 investigation ordinarily than our probation office is 

18 capable of conducting, and the government represents to 

19 me it's tracked the proceeds of the criminal activity 

20 and determined it went into paying his and his ex-wife's 

21 and children's expenses and is no longer available to 

22 satisfy restitution, I accept that. 

23 MR. BAUM: Thank you, your Honor. Just 

24 putting things in perspective chronologically, for a 

25 couple of years after he was charged in this case and 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 10 of 24
11 

1 pled guilty, he found it very difficult to get any kind 

2 of meaningful employment. Lots of reasons for that 

3 which, again, would partially involve some finger 

4 pointing and I don't want to do that. But 18 months ago 

5 he was able to get this job with Geocomp, and since then 

6 he has built the company and has really established 

7 himself. His employer has indicated that he's willing 

8 to pay him more money if it makes a difference as far 

9 as -- that can be set aside for restitution. He told 

10 Kurt that he was going to give him a $50,000 a year 

11 raise which could be earmarked especially for 

12 restitution. 

13 Now, I know that's prospective and I know that 

14 the court has no power to bind Geocomp to do that or to 

15 order them to do that, but again, it's a representation 

16 and it's at least -- what we have shown is this recent 

17 employment which is very productive. He's in full 

18 compliance with his child support payments. His family 

19 is here. There has been some alienation over the years. 

20 Some repair has been done now and his parents are here 

21 and his sister and his brother in his support. 

22 Like I said, and I know that a lot of 

23 financial crimes come before your Honor with an argument 

24 that, well, if you put him in prison, all payments stop, 

25 and that's just the way it goes. I mean, many judges 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 11 of 24
12 

1 say, well, why didn't he think about that when he was 

2 committing these crimes --

3 THE COURT: Well, you can't allow people to 

4 buy their way out of prison either. The idea that if 

5 you can work and pay restitution you shouldn't have to 

6 be held to account for your crimes is not an idea that I 

7 think society is prepared to accept. 

8 MR. BAUM: And that's why we walk a fine line 

9 in suggesting that in the overall consideration of all 

10 the 3553(a) factors, perhaps this case, which is not off 

11 the charts in the guidelines, it's not a radical 

12 departure or variance that would put Mr. Sanborn's 

13 sentencing in a context where he could get work release 

14 or home detention, courts are now imposing sentences as 

15 long as 12 or 18 months of home detention as opposed to 

16 the old guideline structure of Zone C type cases. 

17 So, it's something for the court to weigh in 

18 the 3553(a) factors as far as the deterrence factor and 

19 what is a reasonable and appropriate sentence. 

20 THE COURT: All right. Thank you. 

21 MR. BAUM: Thank you, your Honor. 

22 THE COURT: You have an opportunity to speak 

23 before I impose sentence. You don't have to say 

24 anything. I won't hold it against you if you don't. 

25 But if there is anything you want to say, I'll be happy 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 12 of 24
13 

1 to hear it. Did you want to speak, sir? 

2 THE DEFENDANT: Yes, your Honor. 

3 THE COURT: All right, go ahead. 

4 THE DEFENDANT: Okay, I just briefly want to 

5 say I'm sorry to the court and most importantly to Mr. 

6 Weber and his family for what I've done. I've shamed 

7 myself, my family, and my children and I'm deeply sorry. 

8 THE COURT: All right, thank you. 

9 MR. KINSELLA: Judge, may I have one moment, 

10 please? 

11 THE COURT: Yes. 

12 (Pause.) 

13 MR. KINSELLA: Judge, the owner of Diamond 

14 Action is here and would like to speak to the court. 

15 He's the victim of the crime. 

16 THE COURT: All right. I do think under the 

17 current law the victims have a right to apprise the 

18 court of their views. So sir, I'll be happy to hear 

19 what you want to say. You can come up and speak here if 

20 you're comfortable, if you'd rather speak from there, 

21 that's okay. However you want to do it is fine with me. 

22 MR. WEBER: I just want to say, your Honor, 

23 that Mr. Sanborn took three years of my life that I will 

24 never get back. It's far more than money. My wife was 

25 dying of cancer at the time and I trusted Mr. Sanborn 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 13 of 24
14 

1 who was a good friend of mine I thought at the time and 

2 it was -- I didn't think I was going to make it. I 

3 didn't think I was going to get through it. And it was 

4 by far the worst time of my life. And this is an 

5 important day for me being here today. Thank you. 

6 THE COURT: All right. Thank you for coming, 

7 and I really am so sorry about what you had to go 

8 through, particularly with your wife's illness at the 

9 time. 

10 Financial crimes, particularly when they're 

11 committed by people with whom you have a trusting 

12 relationship, are particularly damaging, and because of 

13 the sense of betrayal that people feel in your position, 

14 it's hard to get over, it's hard to trust other people. 

15 I fully understand because I've heard it from so many 

16 other people over the years how seriously financial 

17 crimes can affect people, so I understand that, and I 

18 will take your concerns into account. 

19 I also know from talking to many people that 

20 there really is no sentence that can adequately address 

21 the harm that has been done to you. As I suggested, I 

22 think if someone really had wanted to try to make amends 

23 to you, what I would have liked to have seen is someone 

24 who would stand up and do something about it, and maybe 

25 if he had personally apologized and taken a second job 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 14 of 24
15 

1 and tried to pay you 40, $50,000 back over the time 

2 between the time this was discovered and now, that might 

3 go some way to helping you come to terms with this, 

4 never to fully accept or to wipe out the harm that had 

5 been done to you, but it seems to me that would have 

6 been much more valuable than simply standing up and 

7 saying I'm sorry, judge, when you know you're about to 

8 be sentenced and you're hoping the judge will treat you 

9 as leniently as possible. 

10 But I have to say to you, while I have to 

11 consider your concerns, I also have a broader set of 

12 concerns that I have to be considering. The harm done 

13 to you is one of them. The harm done to society by this 

14 defendant's actions have to be considered as well, as 

15 well as factors that concern this defendant. The law 

16 that I have to impose -- use when I impose sentence 

17 requires me to give a sentence that is equal to but not 

18 greater than necessary to achieve the purposes of the 

19 sentencing statute, and that's an important limiting 

20 principle. I simply can't impose sentences to -- that 

21 are extremely high to simply address the concerns of the 

22 victim. I have to consider all factors -- the harm that 

23 the defendant has done as well as what is the 

24 defendant's potential for rehabilitation, what are the 

25 effects of the defendant's sentence on other people, 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 15 of 24
16 

1 family members, children. I have to consider society's 

2 interest in seeing that a sentence deters others from 

3 engaging in similar conduct. I have to try to take into 

4 account concerns, proportionality concerns so that like 

5 people are treated alike around the country, and that's 

6 why the sentencing guidelines here are particularly 

7 useful because they give me a template that tells me 

8 this is what the Sentencing Commission thinks for a 

9 typical case with this kind of loss in a crime committed 

10 this way is the appropriate range of sentences to 

11 consider, and to the extent I differ from that, I have 

12 to really be able to justify it because otherwise I am 

13 acting in a way that's disproportionate when compared 

14 with other kinds of people who commit crimes in front of 

15 other judges around the country. 

16 So I appreciate what you have to say. I take 

17 it very seriously. I accept that this man has harmed 

18 your life very seriously, and I will take into account 

19 your concerns when I sentence the defendant. 

20 All right, does anyone need to say anything 

21 else before I impose sentence? 

22 MR. KINSELLA: No, thank you. 

23 MR. BAUM: We would ask the court for certain 

24 recommendations after you've imposed sentence, your 

25 Honor. 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 16 of 24
17 

1 THE COURT: All right, well, let me address 

2 the length of the sentence here. 

3 Mr. Kinsella, I understand you bargained for a 

4 sentence at the bottom of the range. I think a sentence 

5 in the middle of the range here is appropriate. In my 

6 view there's no mitigating factor, there's no 

7 aggravating factor that's not taken into account by the 

8 guidelines here. This is the quintessentially typical 

9 case that the guidelines, in my view, correctly capture 

10 the appropriate sentence, and a sentence in the middle 

11 of the range is appropriate. 

12 I have considered your psychological report, 

13 the arguments counsel have made, I considered the 

14 letters. I accept the fact that you have tried to be a 

15 good father, you tried to be a good husband, you have 

16 family members that care about you, you have done 

17 charitable works in the community, I accept all of that, 

18 but they don't excuse the seriousness of your conduct 

19 for which you have to be held to account. And I know 

20 this will harm your family, your children, they will be 

21 deprived of the support that you owe them, they will be 

22 deprived of whatever contact with your children you have 

23 while you're in prison, I know that it will harm them, 

24 but I cannot give you a lighter sentence simply because 

25 incarcerating you will harm others. I need to hold you 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 17 of 24
18 

1 to account for the serious crime you committed. In this 

2 case, a sentence within the guideline range is in my 

3 view an appropriate sentence, so that's why I'm imposing 

4 the sentence that I'm imposing. 

5 Now, what would you like me to include 

6 specifically with respect to recommendations? 

7 MR. BAUM: Thank you, your Honor. We would 

8 ask the court to recommend that he be designated to Fort 

9 Devens, Massachusetts. He lives in Massachusetts. 

10 THE COURT: I certainly have a strong interest 

11 in incarcerating him as close as possible to family 

12 members. It's not clear to me that the BOP will 

13 consider Devens an appropriate placement. I have no 

14 objection to him being incarcerated there, so I will 

15 include that as a recommendation, but it's up to the 

16 Bureau of Prisons ultimately where he should be 

17 incarcerated. 

18 MR. BAUM: We understand that, your Honor. 

19 And finally we would ask that he be allowed to 

20 self-surrender after the holidays. 

21 THE COURT: Let me ask counsel's view on that. 

22 Do you have reason to believe he poses a risk of flight 

23 or a risk of harm? 

24 MR. KINSELLA: No. 

25 THE COURT: All right. This isn't a case in 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 18 of 24
19 

1 which self-surrender is ordinarily precluded, thus where 

2 there isn't a risk of flight or a risk of harm, self3 surrender ordinarily is an appropriate thing in these 

4 circumstances. I normally give two to three weeks to 

5 allow for designation, but we're close enough to the 

6 Christmas holidays that it seems to me that it makes 

7 sense to allow self-surrender in early January. Does 

8 anybody object to that proposal? 

9 MR. KINSELLA: No, we do not object. 

10 THE COURT: All right, thank you. You can be 

11 seated. I'm going to read the sentence. It may take me 

12 a moment. 

13 Pursuant to the Sentencing Reform Act of 1984 

14 it is the judgment of the court that the defendant, Kurt 

15 Sanborn, is hereby committed to the custody of the 

16 Bureau of Prisons to be in prison for a term of 

17 30 months. 

18 Upon release from imprisonment the defendant 

19 shall be placed on supervised release for a term of 

20 three years. 

21 Within 72 hours of release from the custody of 

22 the Bureau of Prisons the defendant shall report in 

23 person to the probation office in the district to which 

24 the defendant is released. 

25 While on supervised release the defendant 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 19 of 24
20 

1 shall not commit another federal, state or local crime, 

2 shall comply with the standard conditions that have been 

3 adopted by this court, and shall comply with the 

4 following additional conditions: 

5 The defendant shall not illegally possess a 

6 controlled substance. 

7 The defendant shall not possess a firearm, 

8 destructive device, or any other dangerous weapon. 

9 The defendant shall submit to DNA collection. 

10 The drug testing condition required by 18, 

11 USC, Section 3563(a)(5) is suspended based on the 

12 court's determination that the defendant poses a low 

13 risk of future substance abuse. 

14 The defendant shall pay any financial penalty 

15 that is imposed by this judgment and that remains unpaid 

16 at the commencement of the term of supervised release. 

17 The defendant shall provide the probation 

18 officer with access to any requested financial 

19 information. 

20 The defendant shall apply all monies received 

21 from income tax refunds, lottery winnings, judgments 

22 and/or other anticipated or unexpected financial gains 

23 to the outstanding court ordered financial obligation. 

24 The defendant shall not incur new credit 

25 charges or open additional lines of credit without the 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 20 of 24
21 

1 approval of the probation officer unless he is in 

2 compliance with the installment payment schedule. 

3 The defendant shall refrain from engaging in 

4 any occupation involving fiduciary responsibilities 

5 during the term of supervision. 

6 It is further ordered that the defendant shall 

7 pay a special assessment of $100. 

8 It is further ordered that the defendant shall 

9 make restitution to the following persons in the 

10 following amounts. Diamond Action, Inc., $293,960.79; 

11 HNTB Sports Assembly Architecture, $9,450. Any payment 

12 that is not payment in full shall be divided 

13 proportionately among the persons names. 

14 The court finds that the defendant does not 

15 have the ability to pay a fine. The court will waive 

16 the fine in this case. The court has determined that 

17 the defendant does not have the ability to pay interest 

18 and it is ordered that the interest requirement is 

19 waived for the restitution. The defendant is ordered to 

20 begin payments towards the total criminal monetary 

21 penalties immediately, and upon commencement of the term 

22 of supervised release the probation officer shall review 

23 the defendant's financial circumstances and recommend a 

24 payment schedule on any outstanding balance for approval 

25 by the court. 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 21 of 24
22 

1 The defendant shall surrender himself to an 

2 institution designated by the Bureau of Prisons on or 

3 before 2 p.m. on January 8th. 

4 The court recommends that the defendant be 

5 able to serve his sentence as close to family members in 

6 Massachusetts if possible, Fort Devens if it's an 

7 appropriate facility for his incarceration in the 

8 judgment of the Bureau of Prisons. 

9 Are there any objections to the sentence other 

10 than those previously raised? 

11 MR. BAUM: May I have just a moment, your 

12 Honor. 

13 THE COURT: Yes. 

14 (Attorney Baum consulting Attorney Kinsella.) 

15 MR. BAUM: Not at this time, your Honor. 

16 There may be a joint motion filed concerning the 

17 numbers, the actual amount of restitution, but we're not 

18 prepared to deal with that now. We will accept the 

19 court's calculation --

20 THE COURT: Well, if there's going to be any 

21 modification to restitution I want the government to 

22 represent that it's consulted with the victim, and any 

23 position that the victim takes that's inconsistent with 

24 any position the government may take, that it's fully 

25 presented to the court. 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 22 of 24
23 

1 MR. KINSELLA: Of course, judge, and this is 

2 just brought to my attention this second. I'm really 

3 not in a position to do the math right now. I told him 

4 we will look at the matter, report to the victim and 

5 also to you as soon as possible. 

6 THE COURT: Yeah, you know my point, though. 

7 MR. KINSELLA: I do. 

8 THE COURT: They came here for sentencing and 

9 wanted to know what the sentence is going to be, and if 

10 there is going to be any change in the restitution 

11 portion of the sentence I want him to be consulted, I 

12 want his position to be presented to the court --

13 MR. KINSELLA: Understood. 

14 THE COURT: -- before any change is made in 

15 the sentence. 

16 MR. KINSELLA: Understood. 

17 THE COURT: All right, anything else? 

18 MR. BAUM: No, your Honor. 

19 THE COURT: I will impose the sentence as I 

20 have read it. You may have a limited right to appeal. 

21 If you want to appeal, consult with your attorney and 

22 direct him to file a notice of appeal on your behalf. 

23 If you prefer, you can ask the clerk's office for help, 

24 but the notice of appeal does have to be filed within 

25 ten days or you lose your right to appeal. 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 23 of 24
24 

1 Anything else? 

2 MR. BAUM: No, your Honor. 

3 MR. KINSELLA: Thank you, your Honor. 

4 (Adjourned at 12:10 p.m.) 

5 C E R T I F I C A T E 

6 

7 I, Sandra L. Bailey, do hereby certify that 

8 the foregoing transcript is a true and accurate 

9 transcription of the within proceedings, to the best of 

10 my knowledge, skill, ability and belief. 

11 

12 

13 Submitted: 12/9/09 /s/ Sandra L. Bailey 

SANDRA L. BAILEY, LCR, CM, CRR 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Case 1:08-cr-00128-SM Document 20 Filed 12/09/09 Page 24 of 24