Case 3:12-cr-00171-EBB Document 114 Filed 12/24/14 Page 1 of 12

UNITED STATES DISTRICT COURT

FOR THE
DISTRICT OF CONNECTICUT
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UNITED STATES OF AMERICA,
Plaintiff

CRIMINAL MATTER
NO. 3:12-CR-00141-EEB

Vs.

DAVID J. CRESPO,
Defendant

NOVEMBER 26, 2014

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DEFENDANT DAVID J. CRESPO S SUPPLEMENT TO HIS
MEMORANDUM IN AID OF SENTENCING
Defendant David J. Crespo, in the above captioned criminal mat ter, through
counsel, respectfully provides to the Court this Supplement to his Memorandum in
Aid of Sentencing, filed October 16, 2014 (ECF No. 100). In this Supplement, the
Defendant w ishes to address tw o issues relevant to sent encing: relevant conduct,
and the calculation of loss. Specifically, the Defendant int ends to argue that certain
acts of the Def endant , alleged by the Government and mentioned in the
Present ence Report, should not be included as relevant conduct in the
determination of t he Defendant s sentence, for the reason that such acts are not
part of a common scheme or plan, or part of the same course of conduct.
Additionally, the Defendant int ends to cont est the Government s calculation and
determination of loss for purposes of enhancement under Section 2B1.1(b)(1) of
the Sent encing Guidelines. For the reasons that follow , the Def endant asserts that
the proper amount of loss is $199,401.

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The Defendant additionally reiterates t hose arguments made in his

Memorandum in Aid of Sentencing (ECF #100). In particular, the Def endant w ishes
to again assert that t he fraud guidelines are not based on empirical data; have
increased in severity as a result of political, rather than policy-based, reasons; and
do not accurat ely reflect the goals of sentencing. Finally, the Def endant again
draw s the Court s attention to his personal factors w hich show a low statistical
probabilit y of recidivism.
I.

The alleged activities involving Jan Ehrenw erth should not be considered
as relevant conduct for purposes of sentencing.
Under Section 1B1.3 of the Sent encing Guidelines, a sentencing court may

take into account conduct other than that f or w hich a defendant has pled or been
found guilt y. Such license is not unlimited, how ever, and in order for such acts to
be considered, they must either be part of the same course or conduct as the
offense of conviction, or part of a common scheme or plan. U.S.S.G. 1B1.3(a).
Application Note 9 to Section 1B1.3 provides that a common scheme or plan
requires that the proposed relevant conduct and the off ense of conviction share at
least one common factor, such as common victims, common accomplices,
common purpose, or similar modus operandi. U.S.S.G. 1B1.3 Application Note
9(A).
The same course of conduct is a broader concept, and requires only that
the proposed relevant conduct and the off ense of conviction be sufficiently
connect ed or related t o each other as to w arrant the conclusion t hat they are part
of a single episode, spree, or ongoing series of offenses. Facts t hat are appropriat e
to [such] det ermination . . . include t he degree of similarity betw een t he off enses,
the regularit y (repetitions) of the offenses, and the time int erval betw een the
offenses. U.S.S.G. 1B1.3 Application Note 9(B).

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In this case, the offense of conviction is the single count of the indictment to
w hich the Defendant pled guilty, namely the purchase by an undercover FBI agent
of a Chagall lithograph in 2010. According the Present ence Report, the Defendant
falsely represent ed the nat ure of the Chagall lithograph, t elling the underc over
agent that the w ork w as an original lithograph, w hen subsequent testing by an FBI
document examiner concluded the w ork w as consistent w ith a book printing.
By contrast, the allegations regarding Mr. Ehrenw erth present a different
factual scenario. Beginning in 2002, the Defendant and Mr. Ehrenw erth began an
ongoing relationship w hereby Mr. Ehrenw erth w ould invest in artw ork acquired by
the Def endant. This artw ork w ould then be re-sold, and, if all w ent w ell, both
parties w ould realize a return on their respective investments. This relationship
continued into 2005 w hen Mr. Ehrenw erth invested w ith the Defendant regarding a
set of w orks by Picasso. 1 Or, more accurately, a specified set of w orks from a
larger collection. As noted in t he Present ence Report , Mr. Ehrenw erth invested not
in the entire collection of w orks acquired by the Defendant from the Arruza,
Carpentier, and Ordonez est ates, but in a set of five Picasso w orks. PSR 17.
While the Defendant sold other w orks from this collection, t he specific w orks
invested in by Mr. Ehrenw erth w ere not sold by the time of their seizure by the FBI.
The conduct involved in the offense of conviction is of a fundamentally
different nature than that alleged in the Presentence Report regarding Mr.
Ehrenw erth. Whereas the former w as the misrepresent ation and sale of a singular
artw ork, t he latter w as an investment arrangement for the acquisition and resale of
a set of w orks from a larger collection. The former occurred in 2010, w hile the
latter occurred five years earlier in 2005. Finally, t he former involved an identifiable

While the Presentence Report and the Government s Sent encing Memorandum refer to t hese
w orks as the Arruza Collection, t he w orks came from various sources, including the est ates of
Carlos Arruza, Alejo Carpentier, or Ant onio Ordonez.
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loss (i.e., the purchase price), w hile the latter involves the inherent risk in any
investment.
Due to the stark differences in nature, timing, and risk of loss, t he alleged
activities involving Mr. Ehrenw erth cannot be considered as part of a common
scheme or plan under the Sent encing Guidelines. As noted above, to be considered
as a common scheme or plan requires a substantial connection betw een the tw o
offenses by at least one common factor. The only common fact or uniting t hese
tw o offenses is that each involved, in varying circumstances, art w ork. Even this
connection is tenuous, how ever, as the alleged off enses pertaining to Mr.
Ehrenw erth involved t he investment in original Picasso w orks, w hile the offense of
conviction involved the sale of a Chagall lit hograph. To allow the Ehrenw erth
investment to be considered as relevant conduct for the sole reason that it, like the
offense of conviction, involved some art nevermind the nature of that involvement
or the specifics of the w orksw ould be to stretch the concept t oo far.
Similarly, the alleged offenses involving Mr. Ehrenw erth should not be
considered under even the broader concept of same course of conduct. Again, as
noted above, this concept requires that off enses may be considered together as
relevant conduct if they can be classified as part of a single episode, spree, or
ongoing series of offenses. U.S.S.G. 1B1.3 Application Note 9(B). Appropriate
factors for such a det ermine include similarity, regularity, and the time betw een
offenses. When one of [these] factors is absent, a stronger presence of at least
one of t he ot her f actors is required. Id. As discussed above, the offense of
conviction and the Ehrenw erth investment are significantly diff erent; the tw o
offenses cannot be said to be similar except insofar as each involved, in diff ering
fashion, art. Furthermore, the fact that these tw o offenses are separat ed by five
years significantly reduces the impact of the remaining f actors of regularity and

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time betw een off enses. Thus, the Ehrenw erth investment and the offense of
conviction cannot be said to part of the same course of conduct .
For the foregoing reasons, the alleged offense involving Mr. Ehrenw erth
should not be considered by this Court as relevant conduct w ithin the meaning of
Section 1B1.3.
II.

The Governments loss calculation is not supported by the evidence, and

suffers from arithmetic errors.
In the Presentence Report, the USPO calculates the loss in this case as

$417,166. PSR 45. This is the combined loss w hen factoring in the off ense of
conviction (loss of $2,000) w ith the other alleged losses and off ense conduct. The
Government relies on this figure in order to argue that t he Defendant should have
an additional 14 levels imposed on his base offense level under the Guidelines.
How ever, this figure is not support ed by the evidence presented, and instead relies
on unspoken assumpt ions regarding the aut henticit y of various artw orks, and on
questionable calculations.
Additionally, the Second Addendum to the Present ence Report makes
additional allegations regarding previously unidentified victims and losses. The
Defendant not es that no evidence regarding these alleged losses w as presented to
the court, and any allegations cont ained in this addenduminsof ar as such
allegations have bearing on the calculation of loss under Section 2B1.1should not
be considered by the Court in determining t he Guidelines sentence.
Finally, the Defendant disputes the assertion by the Government , cont ained
in a foot note to its Supplement ary Sentencing Memorandum, (ECF #113, Fn.1),
that the Court could find a loss of more than $1,000,000 . Such a figure is not
supported by the evidence present ed. While the Defendant appreciates the
Government s advice to the Court to apply the more conservative loss calculation
from the Presentence Report, even that figure, as not ed above and discussed

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below , suffers from reliance on conduct that cannot be considered a relevant under
1B1.3, a lack of supporting evidence, and errors in calculation.
a. Jan Ehrenw erth
As an initial matt er, the Def endant w ould argue that, for the reasons outlined
above, the because t he amount of lossif anyattributable to Mr. Ehrenw erth
does not st em from any relevant conduct, it should not be considered in
determining the total loss for purposes of Sect ion 2B1.1(b)(1). Thus,
notw ithstanding any of the additional concerns w ith the Government s loss
calculation as outlined below , t he appropriate amount of loss, absent any
attributable to Mr. Ehrenw erth, is $287,166. This w ould result in only 12 levels
added pursuant to Section 2B1.1(b)(1)(G).
Furthermore, on the subject of Mr. Ehrenw erth, the Presentence Report
states that betw een 2000 and 2010, Mr. Ehrenw erth paid the Defendant
$130,000 in money and art. PSR 20. How ever, only $78,000 of this is linked to
the acquisition of the allegedly fraudulent Arruza Collection. PSR 18. This
purchase took place exclusively in 2005. There is no indication t hat the rem aining
$52,000, spread over a decade, w as in any w ay connected w ith any fraudulent
activity on the part of the Def endant. Even assuming, arguendo, that Mr.
Ehrenw erth s investment in the Arruza Collection is pertinent t o the loss
calculation under the Guidelines, there is no basis for the inclusion of an additional
$52,000 into that calculation. 2
b. Mark Lew is
In the Presentence Report, Mr. Lew is s loss is calculat ed as $83,000, based
on his purchase of a Picasso artw ork from the Def endant, consisting of $35,000
charged t o Mr. Lew is s credit card, and the trade to the Def endant of a painting
2

It is w orth noting that in its Supplementary Sent encing Memorandum (ECF #113), the Government
only mentions the $78,000 loss on the part of Mr. Ehrenw erth, and makes no mention of an
additional $52,000. Gov t Supp. Sent g Memo., P. 9.

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valued at $48,000. PSR 27. How ever, in evidence present ed t o the Court, and as
noted by the Government in its Supplementary Sentencing Memorandum, the
extent of Mr. Lew is s loss comes to $65,000. The difference is account ed for by
evidence that the painting Mr. Lew is traded to the Defendant w as valued at
$30,000, not $48,000. Thus, $18,000 should be excluded from the 2B1.1
calculation as presented in the Present ence Report.
c. Michael Board
Other figures employed by the USPO and t he Government in det ermining the
level of loss present t heir ow n challenges. The Presentence Report lists a loss
attributable to Michael Board of $49,935. PSR 46. How ever, t he only conduct
alleged in the Report pertaining to Mr. Board involves a w ork by Picasso know n as
The Artists Studio or The Painter and t he Model. PSR 28. This piece w as
purchased by Mr. Board in 2004, according the Report, and subsequently resold to
Daniel Beardsley for $35,000. The Government offers no explanation for t he
$49,935 loss amount attributable to Mr. Board. The loss amount attributable to Mr.
Beardsley, in connection w ith the same art w ork, is reported as $35,000. Although
one imagines that the loss amount involved w ith tw o sales of the same artw ork
w ould be t he same, t he Government offers no explanation for the differing
amounts. The Defendant w ould thus argue that Mr. Board s loss amount , absent
additional evidence, should be reduced from $49,935 to $35,000.
d. Thomas Lombardi
The Presentence Report lists a loss amount for Thomas Lombardi of
$25,000. PSR 46. Mr. Lombardi purchased more than ten pieces from the
Defendant over a five year period. PSR 37. How ever, the USPO and the
Government offer no evidence or argument that any of t he pieces w ere inauthentic.
The Presentence Report and the Government do not claim that t he Picasso
purchased by Mr. Lombardi w as part of the allegedly fraudulent Arruza
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Collection, nor that t he Chagalls purchased by Mr. Lombardi w ere fraudulent

w orks purchased from Gallery 25. The Presentence Report not es that one of the
w orks purchased by Mr. Lombardi w as seized by law enforcement, PSR 37, but
fails to elaborate on any tests or examinations conduct ed on that w ork to
determine its aut henticity.
Additionally, the Report provides no itemization or breakdow n of value for
these more than ten pieces, and instead imposes a blanket loss amount under the
unstated argument that all business conducted by the Def endant, at any time, must
have been fraudulent. The evidence does not support such an argument; and the
amount of money spent by Mr. Lombardi over the years is not an appropriat e
stand-in. Lacking any additional evidence as to particular losses suffered by Mr.
Lombardi, the entire loss amount the Government argues is attributable to him
should be excluded from the 2B1.1(b)(1) calculation.
e. John Desjardins
The Government argues, based on the Presentence report, that t he loss
attributable to John Desjardins is $17,845. This figure is arrived at using the
follow ing figures: $8,000 for three pieces t raded by Mr. Desjardins to the
Defendant; additional, unspecified payment s (presumably in cash) to the
Defendant, possibly f or framing services, of $5,955; $850 for the purchase of
another piece from the Def endant; and an investment of $3 ,000 by Mr. Desjardins
w ith the Def endant t ow ards the auction of cert ain w orks by Picasso. PSR 38.
There are several problems presented in this calculation, how ever. 3 As w ith
Mr. Lombardi, the Government offers no evidence t hat any of t he w orks involved
w ere inauthentic. Further, w hile it is not clear from the Present ence Report, it
appears that Mr. Desjardins paid the Def endant $5,955 to frame one of the pieces
3

Using the figures provided in the Presentence Report, the total amount of loss suffered by Mr.
Desjardins is $17,805, not $17,845. The Defendant assumes this is a simple typographical or
mathematical error, rat her than another, unspecified loss of $40.

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he purchased. This amount is not properly included in the calculations under

2B1.1(b)(1) unless the Government is arguing, w ithout actually alleging, that
firstly, the Defendant failed to perf orm said framing, and that secondly, this f ailure
is properly included as relevant conduct in the loss calculations.
Additionally, the Report mentions that Mr. Desjardins purchased a Chagall
lithograph titled The Red Rooster for $850. PSR 38. The Report does not
assert, and it does not appear, that this lithograph w as one of the alleged book
cut-outs the Def endant purchased from Gallery 25. No evidence w as present ed by
the Government alleging this particular w ork w as anything other than authentic.
Indeed, w hen considering the difference in sales price betw een t his piece and the
Chagall lithograph included in the offense of conviction, that this w as a diff erent
class of w ork altoget her. In the off ense of conviction, t he Defendant sold an
undercover officer an inauthentic Chagall for $2,000. The Defendant sold The Red
Rooster to Mr. Desjardins, how ever, for less than half that price. Lacking any
evidence that this particular Chagall w as one of those obt ained from Gallery 25,
and that it w as anything other aut hentic, this $850 is not properly included in the
loss calculations.
Finally, the Presentence Report fails to say w hether the Picasso w orks in
w hich Mr. Desjardins invested $3,000 w ere ever in fact sold at auction. Absent
any evidence that these w orks w ere sold, and that the Defendant did not pay Mr.
Desjardins his share of any proceeds, the Defendant w ould argue that this $3,000
investment should not be included in any loss calculations.
In total, then, at least $9,805 should be excluded from the calculation of
loss amounts attributable t o Mr. Desjardins.
f. Tom and Maureen Scott
Among other transact ions noted in the Presentence Report, Mr. and Mrs.
Scott purchased tw o Picasso w orks from t he Def endant in 2 008 for a tot al of
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$33,750. PSR 21. Only one of these w orks is noted as being from the Arruza
Collection. No evidence has been offered that the other w ork, titled Opium
Smoker, w as inauthentic. Again, unless the Government is att empting to claim
that each and every w ork sold by the Def endant, regardless of provenance or (lack
of) evidence, the value of this w ork should not be included in the loss calculations.
Because, how ever, there w as a singular price off ered for this transaction, the
difficulty present ed is exactly w hat amount s should be included and excluded from
the loss calculation. Lacking any evidence as to the value of the Opium Smoker,
the Def endant w ould argue that $16,875one half of the combined price for the
tw o paintingsbe excluded from the calculation.
g. Sherry Hansley
The Presentence Report states, w ithout further discussion, that Ms. Hansley
purchased tw o w orks from the Defendant: one by Picasso and another by Chagall,
for a tot al of $3,150. PSR 39. There is no evidence that the Picasso w ork w as
one of t he allegedly fraudulent w orks from the Arruza Collection, or that the
Chagall w ork w as one of the allegedly fraudulent w orks purchased from Gallery 25
as part of the Daphnis and Chloe collection. No evidence, in fact, is offered that
either of the w orks w as anything ot her than authentic. Absent any such evidence,
this amount is appropriately excluded from the 2B1.1(b)(1) loss calculation.
h. Other Victims
Assuming, arguendo, that the Government has made a sufficient case for the
inauthenticity of w orks contained in the Arruza Collection, and Chagall
lithographs obtained f rom Gallery 25, the f act remains that not every sale
mentioned in the Presentence Report involved artw ork from one of these groups.
The Government w ould have this Court believe that, based on t he inauthenticity of
some w orks sold by t he Def endant, all w orks sold be the Defendant, obt ained from
any source and sold at any time, must therefore be inauthentic. This argument
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implicit in the Present ence Report and the Government s sent encing memogoes
too far, and farther than the evidence can support. Lacking particularized evidence
as to the inauthenticit y of these w orks, sales thereof should not be included in the
2B1.1(b)(1) loss calculation.
i. Total Excluded Amounts
The total amount the Defendant argues should be excluded from the loss
calculation under 2B1.1(b)(1) is $ 217,765, as follow s:
$130,000 attributable to Jan Ehrenw erth;
$18,000 attributable to Mark Lew is;
$14,935 attributable to Michael Board;
$25,000 attributable to Thomas Lombardi;
$9,805 attributable t o John Desjardins;
$16,875 attributable to Tom and Maureen Scott; and
$3,150 attributable t o Sherry Hansley.
Again, assuming, arguendo, that t he Government has met its evidentiary
burden w ith respect t o the remaining victims and loss amounts, the tot al loss
amount, therefore, should be calculated as $ 199,401. This w ould result in the
imposition of only an additional 10 levels under 2B1.1(b)(1)(G), rather t han 14
levels, as asserted by the Government. If the Court agrees w ith the arguments
made by the Government in its Supplementary Sentencing Memorandum (ECF #
113) that the Def endant should be denied a reduction for accept ance of
responsibility, and that tw o additional levels should be imposed f or obstruction of
justice, this w ould give a t otal off ense level of 2 1. 4 With a Criminal History
Category I, the Def endant s Guideline range, therefore, w ould be 37 to 46 months.

This offense level also takes into account the tw o levels added under 2B1.1(b)(2)(A).

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THE DEFENDANT,
DAVID J. CRESPO
By: /s/ Richard C. Marquett e________________
Richard C. Marquette, Esq.
Goldblatt, Marquette & Rashba, PC
60 Washington Avenue, Suite 302
Hamden, Connecticut 06518
Tel: (203) 288-6293 Fax: (203) 288-0283
Juris: ct07585

CERTIFICATION
I hereby certify that a copy of the foregoing w as filed electronically and
served by mail on anyone unable to accept electronic filing. Notice of this filing
w ill be sent by e-mail to all parties by operation of the Court s electronic filing
systems 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 Court s
CM/ECF Syst em.

/s/ Richard C. Marquette_____________________

RICHARD C. MARQUETTE
GOLDBLATT, MARQUETTE & RASHBA, PC

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