Case 3:13-cr-00079-SRU Document 15 Filed 11/27/13 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA vs. STEVEN FINKLER : : : CRIMINAL NO. 3:13CR79(SRU) November 26, 2013

DEFENDANTS MEMORANDUM IN AID OF SENTENCING Steven Finkler knows that his actions have taken everything from him that matters. He lost his marriage. He lost his relationship with his son. His aunt, a true-blue supporter of his for many years, died while he was incarcerated. He could not attend her funeral. His incarceration will only further estrange him from his ex-wife and his son. He does not need a consecutive set of sentences to teach him a lesson about the consequences of his criminal conduct. He knows already what his actions have cost him. Mr. Finkler is not a person who lacks the capacity to care about others. The letters attached to this memorandum show that he can be a good man. Those closest to him, and the rabbi he has counseled with for most of the last year, describe a man who has a heart. If this is true, how does one explain his repeated fraudulent behavior? And how can Mr. Finkler prevent future crimes? Mr. Finkler is trying to resolve these questions himself. He has gained some insight and has made some significant changes. First, Mr. Finkler has long been diagnosed with Bipolar Disorder and Depression, but he has not been faithful to treatment in the past. Either he did not take his medications, or he took them for a while, and then, convincing himself that he did not need them, he abruptly stopped taking them. During the last year and a half, he has been faithfully taking two medications that have helped him. The combination of Lamictal and Prozac has greatly reduced his anxiety. When very anxious, he used to experience panic attacks. Looking back at his past offense conduct, he often made terrible decisions while experiencing high levels of anxiety. Indeed, the offense conduct in this case of writing fraudulent checks to himself is surely not a well-thought out strategy for committing a fraud. It is the sign of an

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-2unwell mind. It was very easy for the authorities to solve this crime. Mr. Finkler deposited the checks in his own account, in his own name. Some of the fraudulent checks were so easy to spot that they were not honored in the first instance. There was nothing clever or subtle about this crime. Second, Mr. Finkler has been exploring his behavior and the course of his life with a rabbi who started visiting him in February of 2013. Rabbi James Prosnit sees reasons to be hopeful about Mr. Finkler. Mr. Finkler is remorseful for his conduct, and he wants desperately to have a relationship with his son. He and his son were very close prior to Mr. Finklers incarceration in this case. The rabbi has offered to continue counseling with Mr. Finkler when Mr. Finklers incarceration is over. In short, Mr. Finklers plan for the future consists of four parts. First, he realizes he must take his medications. Second, he wants to live somewhere near to his son and ex-wife. He has amends to make there. He has hurt them both deeply. Third, he wants to keep counseling with his rabbi. He has found comfort and insight in their sessions. Finally, he wants to obtain employment so he can support himself and so that he can help his ex-wife and son with their needs. It is likely that the government will dismiss his efforts over the last year and a half as doing what is necessary to get a good sentence. Mr. Finkler realizes that he has earned such skepticism by his past conduct. He cannot undo the past. He has a significant record of convictions, and he knows that, as a result of his record and as a result of the conduct that is at issue in this case, people will view him with great suspicion. He knows that the only way to demonstrate the sincerity of his efforts is by sustaining them. He has been consistent in taking his medications, and he has been counseling for many months. He could have done neither, but he wants to be a better person. The rabbi believes Mr. Finkler is sincere. Mr. Finkler is facing a significant period of incarceration. His guideline range for the instant offense is 33-41 months, and he also faces a supervised release violation term of up to 24 months. Mr. Finkler seeks a sentence of 36 months. This proposed sentence is not at the bottom of the range. He believes that such a sentence is sufficient, but not greater than necessary, to meet the goals of a criminal sentence for his criminal offense as well as the supervised release violation. See 18 U.S.C. 3553(a).

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-3This is so for three reasons. First, 36 months in jail for a 49 year old man is significant punishment. Re-establishing oneself in the community and in the job market in ones 50s will be very difficult. His time in jail will pass slowly. It is not easy being a middle aged man in jail, and the likelihood of getting visits in his case is pretty small. He will not be housed in Connecticut. Second, the cumulative effect of the guideline enhancements increased Mr. Finklers sentencing range in a way that is artificial and overstated. That is, reduced to its essence, Mr. Finkler actually obtained approximately $9800 that did not belong to him, and he did that while on supervision. That was his crime. His sentencing guidelines, however, are increased four levels above the loss he actually caused based on an intended loss of more than $39,000. He gets an additional two-level increase for obstructing justice for lying about his finances and another increase to his criminal history category for committing the offense while on supervision. Thus, the guidelines that would have applied without those enhancements rises from 18-24 months to 33-41 months. To now say that he should receive a consecutive sentence for a supervised release violation (that already operated to increase his criminal history category for committing an offense while on supervision) results in an effective sentencing exposure that compounds and overstates what actually happened here. Third, Mr. Finklers proposed sentence would sufficiently meet the goals of a criminal sentence. Three years of incarceration is a significant punishment. It would certainly incapacitate him for a lengthy period. It should deter any member of the public who is contemplating a similar offense. Three years is, again, real jail time, not a slap on the wrist. As for deterring Mr. Finkler, the number of months of incarceration has not had a deterrent effect. His problems run deeper, and it appears he may be finally on the right track to understanding the motivations for his crimes, his need for medication and counseling, and the effect his conduct has on his familial relations. He lost his wife and child in the process here. It has finally registered with him that others cannot and will not stand by him forever unless he changes. So specific deterrence will not be affected one way or another by the addition of some months of incarceration. It is the other consequences loss of family that will ultimately deter

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-4him or not. Finally, there is no rehabilitative goal that can only be achieved with a consecutive sentence. If anything, Mr. Finkler would be better off in achieving rehabilitation by having a shorter sentence and continuing to counsel with his rabbi. In United States v. Ministro-Tapia, 470 F.3d 137 (2d Cir. 2006), the Second Circuit explained that if the sentencing court believes a lower sentence will be as effective as a higher sentence in serving the purposes of sentencing, it must choose the lower sentence. 470 F.3d at 142. Three years of jail is enough, under the circumstances in this case, to achieve the goals of a criminal sentence. Mr. Finkler has attached as Ex. A letters for the Courts consideration. Respectfully submitted, THE DEFENDANT, Steven Finkler FEDERAL DEFENDER OFFICE

Dated: November 27, 2013

/s/ Terence S. Ward Terence S. Ward Federal Defender 10 Columbus Blvd, 6th FL Hartford, CT 06106 Phone: (860) 493-6260 Bar No.: ct00023 Email: terence_ward@fd.org

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November 27, 2013, a copy of the foregoing defendants memorandum in aid of sentencing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent to all parties by operation of the Courts electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Courts CM/ECF System.

/s/ Terence S. Ward Terence S. Ward

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