UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Criminal Action No. 99-10200
UNITED STATES OF AMERICA
BEFORE THE HONORABLE REGINALD C. LINDSAY
UNITED STATES DISTRICT JUDGE
Courtroom 11, 5TH Floor
1 Courthouse Way Boston,
Date: October 12, 2000
Denise Casper, AUSA, on behalf of the government.
Paul V. Kelly, Esq., on behalf of the defendant.
ALSO PRESENT: Frederick Lawton, Probation Officer.
TERI CELESTE GIBSON,
OFFICIAL COURT REPORTER
1 COURTHOUSE WAY,
COURTROOM 11, SUITE 5204
BOSTON, MASSACHUSETTS 02210
Mechanical Stenography; computer aided transcription.
THE CLERK: All rise. (Judge Lindsay entering the courtroom.)
THE CLERK: Court is in session, please be seated: Criminal Action 99-10^00," United States versus" ' Alphonse Mourad.
Counsel, please identify themselves.
MS. CASPER: Good morning. Your Honor. Denise Casper for the United States.
MR. KELLY: Good morning. Your Honor. Paul Kelly on behalf of the defendant, Alphonse Mourad, who is seated with me at counsel table.
THE COURT: Good morning, counsel.
Good morning, Mr. Mourad.
We are here today for the disposition of the matter of United States of America versus Alphonse Mourad, who was, after a bench trial in this Court in December 1999, was found guilty of contempt in violation of Title 18, United States Code 401, Section 3, the contempt being a contempt of an order of the Bankruptcy Court.
Ms. Casper, have you seen the presentence report?
MS. CASPER: Yes, I have. Your Honor.
THE COURT: Mr. Kelly, have you seen the presentence report?
MR. KELLY: I have. Your Honor. THE COURT: Okay. This is a non-guidelines
MS. CASPER: It is. Your Honor.
THE COURT: Arid maximum'penalties or alternative penalties, they are a term of imprisonment up to six months, a fine of -- a fine -- what is the maximum fine amount?
PROBATION OFFICER: Not more than $5,000.
THE COURT: A fine of $5,000 or a'period of probation; have I got that right?
MS. CASPER: .That's correct. Your Honor.
THE COURT: All right. Ms. Casper, do you have
MR. KELLY: Your Honor, if I could before turning to Ms. Casper with the Court's permission with respect to the presentence report ---
THE COURT: I didn't think there were any objections. Are there objections?
MR. KELLY: Well, there is kind of a fundamental problem with the presentence report, which really I only learned yesterday, and I discussed it with the probation officer. The report indicates in Paragraph 26 on Page 6 that Mr. Mourad communicated to the probation department through his attorney, I believe that was Martin Richie of
the Federal Defender's office, that he was unwilling to undergo a presentence interview.
Mr. Mourad says that is not accurate, and that at no time did he express his unwillingness to undergo a presentence interview, that he' in fact was looking forward to being interviewed, wished to be interviewed, and never authorized Attorney Richie to communicate this message to the probation office.
It seems to me. Your Honor, there is a bit of a miscommunication here that may have transpired between Mr. Mourad and his prior counsel, Mr. Richie, and I am not faulting Mr. Lawton or the Probation Department in any respect. But Mr. Mourad does not believe that the report, as it is presently constituted contains any of the information about him personally or about his version of the offense because he was never given an opportunity to speak.
THE COURT: I heard his version of the offense. It was, after all, a trial in this case.
MR. KELLY: That is true.
THE COURT: And he was a witness, and he has submitted to me a rather substantial document. I guess it's primarily about the matter before the Bankruptcy Court.
MR. KELLY: If I could have just one moment.
(Off the record.)
MR. KELLY: Your Honor, in light of the Court's comments and the Court's advising that it has received the submissions by Mr. Mourad, he advises me that to the extent that any personal or biographical history might become relevant to the Court's disposition of the matter, that perhaps we could deal with it in the context of this hearing, and he is willing to withdraw his objection to not having been formally interviewed.
THE COURT; Okay. Well, in light of that, is there something Mr. Mourad wishes to tell me by way of biographical information that he thinks would be relevant to the disposition of this matter?
The biographical information typically talks about how and where he grew up, his family situation, his educational background, employment history, and any illnesses and the like.
MR. KELLY: This is one area of some note. Your Honor, with the Court's permission if I could pass up a document, which I have handed to Ms. Casper as well as to Mr. Lawton. This relates to the health issue. Your Honor. This is a -- I just received this yesterday. This is some medical reports from Mr. Mourad's longtime physician, Dr. Butaney and the relevant portions here. Your Honor, are first of all in the first page. If you look under the
comment section, it indicates that given --THE COURT: On the first, page? MR. KELLY: The first page. Your Honor. THE COURT: The cover page?
MR. KELLY: The cover page,,yes. There is two numbers circled there.
THE COURT: The PSA is high.
MR. KELLY: The PSA.
THE COURT: Okay.
MR. KELLY: According to the comment that given the blood pressure ranges and some of these other factors, that Mr. Mourad is at a very, very high risk of coronary
heart disease. I think that is what this report
On the second page in the materials that I have passed up. Dr. Butaney has given kind of a typewritten summary of Mr. Mourad's medical history, indicating that he has had a number of difficulties. He continues to have very high blood pressure, recurrent chest pains and dizziness, difficulties with anxiety and depression. He is at risk of diabetes and is being monitored for the onset of diabetes.
He takes a number of medications for high blood pressure and stress and sleep medications and the like. He has been told as recently within the last week by his
physician, that his health is in very, very poor condition, and that his -- if he doesn't address some of these fundamental problems, that his life is seriously at risk.
THE COURT: What about the -- what can you tell me, if anything, about the above normal PSA?
MR. KELLY: If I could have just a moment. Your Honor.
THE COURT: As I look through this quickly, I don't see any commentary about that. (Off the record.)
MR. KELLY: Mr. Mourad tells me that the doctor administered a blood test. He has been having some prostate difficulties. They were checking for whether there was prostate cancer. While the blood test apparently came back normal -- excuse me. The blood test, he tells me, came back abnormal and the doctor would like him to undergo further tests.
THE COURT: Okay. So what I see is an abnormal or high PSA, and cardiac --a high cardiac CRP. I am not sure what I know what cardiac CRP is, but it says high, the notes indicate that a risk, highest -- that the level of the cardiac CRP is associated with a high risk of coronary heart disease and some difficulty with diabetes. Okay. Is there anything else you wish me to know?
MR. KELLY: No, Your Honor.
THE COURT: All right. Then is there anything else I need to explore with either of you before I get your -- Ms. Casper's recommendation?
MS. CASPER: No, Your Honor.'
THE COURT: All right. Why don't I hear from you first, Ms. Casper.
MS. CASPER: Yes, Your Honor.
As you mentioned, the options in terms of a sentence here. Your Honor, are either imprisonment, probation, or a fine. In light of the information that is contained in the presentence report and in light of the
medical information that Mr. Mourad has submitted today as
well as in light of the evidence presented at trial, the government recommends a period of probation of three years with the standard conditions, and I would note that the standard conditions includes that the defendant not violate any state, federal, or local law during the term of his probation. And I mention that because I understand from Bankruptcy Court, that the November 16 order is still in effect, and obviously, if there was any other willful violation of that order, that would be a violation of his term of probation.
We also ask that the Court impose a A^ $10 special assessment.
THE COURT: Mr. Kelly, do you have a recommendation?
MR. KELLY: Yes, Your Honor.
Your Honor, on behalf Mr. Mourad, I would recommend that the Court Consider the imposition of a fine. While I am court appointed counsel here for Mr. Mourad, he advises me that his family would be in a position to come up with funds to pay a fine of about --up to $500 or alternatively. Your Honor, I would ask the Court to consider a short period of incarceration, perhaps at a location such as Coolidge House or some other appropriate facility.
Mr. Mourad has asked me to make a couple comments to the Court if I could in relation to that recommendation. Your Honor.
Mr. Mourad intends to waive his right of allocution, and does not wish to address the Court directly yet, has asked me to do so.
Mr. Mourad believes that probation is not an acceptable or appropriate disposition in his case for the following reasons: 1. It will restrict his travel. Your Honor, and he desires the ability to travel. He has a daughter who is being married in May of 2001, and she is being married in Italy, and Mr. Mourad very much would like to attend his daughter's wedding in that country.
In addition, Mr. Mourad advises me. Your Honor, that he is -- I believe the Court may already be aware of this from some of the previous proceedings, but he is seriously considering renouncing his United States citizenship and leaving the country, permanently, which he will be unable to do if placed on a long period of probation.
In addition, as a result of some of the health
concerns, which are reflected in the report, which I
i passed up to the Court, Mr. Mourad advises me that being
placed on a period of probation will in fact be more stressful and more damaging to his health than would be the case if he were to serve a short period of incarceration, and so he actually would ask the Court to place him in custody as opposed to placing him on probation, and I understand that under the statute, the Court doesn't have the ability to impose custody followed by probation. It's a kind of either or situation.
With the Court's permission and indulgence, if I could just take another minute. In .light of Mr. Mourad's desire not to address the Court, directly, he has asked me if I would just make a couple comments with the Court's permission, and I will do so at this time
THE COURT: Yes.
MR. KELLY: Mr. Mourad has asked me to
communicate that he maintains his innocence. He at the time of this offense was under the impression that the order of Judge Kenner was not in effect, that it had effectively been suspended. He had been advised by a Superior Court Judge the previous day on May llth to go obtain certain information from the Bankruptcy Court, which was the reason that he went there.
He claims that due to his confusion about whether that order was in effect, that is the reason that he telephoned the FBI the evening prior to his arrival at the Bankruptcy Court, and it is his position that he did not knowingly violate an order of the Bankruptcy Court.
Mr. Mourad also has asked me to communicate to the Court that he does not feel that he received a fair trial for a couple reasons, including the fact that he believes that there are certain witnesses who should have been compelled to appear and testify, and were not brought before the Court to testify, including the FBI agent with whom he smoke by telephone and Agent Welch, as well as the Bankruptcy Judge.
He understands the Court made a ruling on that. He respectfully disagrees with the Court's ruling on the need for the attendance of Judge Kenner. And finally, Mr. Mourad would respectfully express his displeasure at the fact that the Court did not credit his testimony
during the trial, but rather credited the testimony of certain government officials, and'he wishes me to advise the Court that he testified candidly and truthfully and, therefore, maintains his innocence on this particular
I have nothing further, Your Honor.
THE COURT: Thank you very much, Mr. Kelly.
Ms. Casper, do you see any reason why I should not now impose sentence?
MS. CASPER: No, Your Honor.
THE COURT: Mr. Kelly?
MR. KELLY: 'No, Your Honor.
THE COURT: Mr. Mourad, having waived his right to allocution, I will now proceed to impose sentence. (Defendant standing.)
THE COURT: Pursuant to the Sentencing Reform Act of 1984, it's the judgement of the Court that the defendant, Alphonse Mourad, be ordered to pay the United States a fine of $1,000. The fine will be paid immediately or according to a Court Order Repayment Schedule.
The fine is to be continued to be paid until the full amount has been paid. Mr. Mourad must notify the United States Attorney for this district within 30 days of any change or mailing address or residence that occurs on
any portion of the fine that remains unpaid.
It is further ordered that Mr. Mourad pay to the United States a special assessment of $10, which shall be due immediately.
Are there any questions?
MR. KELLY:' No, Your Honor.
I do have one request and that is Mr. Mourad has asked me to request a transcript of this hearing, and I am advised by your court reporter that the proper way to do that is for me to hand up this form for your signature.
THE COURT: Well, proper way is for me to get a form. It's not necessarily handed up, but since you are here and the form is here, you may hand it up. (Off the record.)
MR. KELLY: The last thing I would --
THE COURT: I signed the order for the transcript.
Let me advise you, Mr. Mourad, that you have the right to appeal. If you believe that the -- that you are found guilty of any -- found guilty as a consequence of any errors of law, and any right to appeal, and you have a right to appeal your sentence if you believe this sentence that I have imposed on you is unlawful or contrary to law.
With very few exceptions, any appeal that you wish to file must be filed within 10 days of judgement
being entered in your case. If you are unable to file --to pay the cost of filing a notice of appeal, you may --and you wish to file an appeal, you may notify the clerk to that effect, and the clerk will prepare and fil^ a notice of appeal on your behalf.
MR. KELLY: Mr. Mourad has asked me to'in fact advise the Court that he does wish to appeal, and does
wish the clerk to assist him in that regard.
THE COURT: All right. Okay. Is there anything further? MS. CASPER: No, Your Honor. MR. KELLY: No, Your Honor. THE COURT: Thank you very much. (Recess.)
COURT REPORTER'S CERTIFICATE
I, TERI CELESTE GIBSON, Certified Shorthand Reporter, do hereby certify that the foregoing pages 1 through 14, are a true and accurate transcription of my stenographic notes taken in the above-entitled proceedings, prepared to the best of my knowledge, skill, and ability at the time and place aforementioned.
TERI CELESTE GIBSON, CSR
This certificate only applies to transcripts produced, copied, and signed by Teri Celeste Gibson, Official Court Reporter.