Case 3:13-cr-00079-SRU Document 16 Filed 11/29/13 Page 1 of 16

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. November 29, 2013 STEVEN FINKLER UNITED STATES’ MEMORANDUM IN AID OF SENTENCING The government respectfully submits this memorandum in aid of sentencing for the sentencing hearing of the defendant Steven Finkler, scheduled for December 4, 2012. For the reasons provided below, this Court should sentence the defendant to 65 months incarceration, an 8-year term of supervised release, and restitution in the amount of $9,828.83. INTRODUCTION Webster’s New Collegiate Dictionary defines the word “incorrigible” as “incapable of being corrected or amended; not reformable.” There is no better word to describe this defendant. Since becoming an adult, he has repeatedly, flagrantly and with total disregard for the law engaged in fraud, after fraud, after fraud. One mental health professional who assisted the defendant described him as “a manipulative individual.” The defendant’s own brother described him as a “vindictive” “nasty “scam artist” who “is not to be trusted.” The government herein describes him as a recidivist of the worst order, who needs to be incarcerated for as long as possible in order to punish him, send a message of general deterrence, and to protect the public as it appears unlikely that any sentence will specifically deter this defendant from continuing his life of crime. 3:13CR79(SRU)


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PROCEDURAL BACKGROUND On September 15, 2010, the defendant commenced supervised release following his discharge from custody for his most recent federal conviction. Just over a year later, on

November 10, 2011, he was arrested for violating the terms of that release as a result of his several Connecticut State arrests for theft over the course of 2011. From November 10, 2011 until February 2012, his violation proceedings were continued and then transferred to the District of Connecticut, where the defendant lived. This matter was docketed as United States v. Steven Finkler, 3:11CR223-001(SRU). During this time, the defendant was on home detention. On February 28, 2012, this Court detained the defendant pending sentencing for the violation at the Donald W. Wyatt Detention Facility (“Wyatt”). On June 22, 2012, at the request of the Government, this Court modified the terms of the defendant’s supervision, releasing him from Wyatt on the conditions of home confinement and GPS monitoring. While on release, the defendant engaged in the crimes described below. On July 26, 2012, the defendant was arrested for violating the term of his supervisory release that prohibits him from engaging in criminal activities. On April 23, 2013, the defendant pled guilty to an Information charging him with one count of Bank Fraud in violation of 18 U.S.C. § 1344. Pursuant to the plea agreement, the defendant also pled guilty to violating the terms of his supervised release. The violation of 18 U.S.C. § 1344 carries a maximum penalty of 30 years imprisonment and a $1,000,000 fine. In addition, under 18 U.S.C. § 3583, the Court may impose a term of supervised release of not more than five years to begin at the expiration of any term of


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imprisonment. The defendant understands that, should he violate any condition of the supervised release, he may be required to serve a further term of imprisonment of up to three years with no credit for time already spent on supervised release. The defendant also is subject to the alternative fine provision of 18 U.S.C. § 3571. Under this section, the maximum fine that may be imposed on the defendant is the greatest of the following amounts: (1) twice the gross gain to the defendant resulting from the offense; (2) twice the gross loss resulting from the offense; or (3) the amount specified in the section defining the offense which is $1,000,000. As to the supervised release violation, the defendant faces a maximum penalty of two years’ incarceration and not more than three years of supervised release. Pursuant to his plea agreement, the defendant agreed that his adjusted offense level for the bank fraud conviction was 13 and that his Criminal History Category was VI, resulting in a range of 33 to 41 months of imprisonment, a fine range of $3,000 to $30,000, and a supervised release term of 2 years to 5 years. With respect to the violation, the defendant agreed that he faces a guideline range of 2124 months’ incarceration because his original Criminal History Category in the underlying case was VI, the violation in that case is a Grade B violation for state claims of theft, U.S.S.G. § 7B1.1(a)(2), and the maximum statutory penalty for the supervised release violation is 24 months under 18 U.S.C. § 3583(e). The parties agreed that neither a downward nor an upward departure from either the 33 to 41 month sentencing range for the bank fraud conviction or the 21 to 24 months sentencing range for the supervised release violation was warranted and that sentences within those agreed ranges


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were reasonable. Accordingly, both parties agreed not to seek a departure or any adjustment not set forth in the plea agreement. Moreover, the defendant agreed to not seek a non-Guidelines sentence on either the bank fraud or supervised release violation. With respect to the sentence on the supervised release violation, however, the parties reserved their respective rights to argue that the sentence on the supervised release violation should be served concurrent, partially concurrent or consecutive to the sentence as to the bank fraud conviction in this case. FACTUAL BACKGROUND Finkler committed each of the offenses listed below between June 22, 2012 and July 26, 2012 – the limited period of time when he was released at the Government’s request by this Court. 1. The Charged Conduct: Sovereign Bank and Fidelity Brokerage Service

On July 19, 2012, a fraudulent check from Fidelity Brokerage Services, LCC made payable to Finkler in the amount of $10,000.46 was deposited into Finkler’s pre-existing bank account at Sovereign Bank. According to a Sovereign Bank loss prevention specialist, this check was deposited at the drive-up window of Sovereign Bank’s Torrington branch. Over the course of the next week, $9,828.83 was withdrawn from the account through check card transactions, ATM withdrawals, and cashed checks made payable to Finkler’s wife. The loss prevention specialist at Sovereign Bank explained that the Fidelity check bounced on July 24, 2012. He then contacted National Financial Services (“NFS”), which is a brokerage platform for Fidelity, on July 25, 2012, and they verified that this check was never issued. Thus, Sovereign Bank classified the check as being counterfeit. Nonetheless, because the NFS was the entity to first catch the fraud, Sovereign Bank had to refund the money, much of


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which had already been withdrawn. Therefore, Sovereign Bank is the actual victim. Sovereign Bank is FDIC insured. 2. Related Relevant Conduct

In addition to the fraud detailed above, Finkler engaged in similar frauds with different victims. Specifically, while on release, he deposited fraudulent, forged checks from Torrington Honda, Wyatt, and United States Life Insurance Company in the City of New York. A. The Torrington Honda Fraud

On June 27, 2012, Steven Finkler deposited a forged check from Torrington Honda in the amount of $6,229.00 into his account at Merrill Lynch (“Merrill”). The check was dated June 22, 2012 – the day Finkler was released from Wyatt – and it was made payable to Finkler. Finkler worked at Honda before he was arrested for violating his post-conviction supervision. Employees of Torrington Honda have stated that the check had been modified from their standard checks. Specifically, the check had only one signature as opposed to their legitimate checks which have two signatures, that single signature was forged, and the check number had been changed. With respect to the last alteration, the forged check bore the check number “74956”. Torrington Police informed the FBI that check number “34956” was issued by direct deposit to Steven Finkler on March 4, 2011 in the amount of $160.00. This was Finkler’s final paycheck from the business. According to the Torrington Honda employee, when paychecks are direct deposited, an actual check is not issued. Rather, the employee receives a paystub, attached to which is a check on which is stamped “Non-negotiable.”


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According to representatives from Merrill, the forged check was deposited via mobile deposit into a pre-existing account held in Finkler’s name. Mobile deposit allows the depositor to photograph the check and submit it electronically. The Merrill account had been opened with a $100.00 deposit just days before Finkler was detained on his violation of supervised release. The account lay dormant until June 22, 2012 – the day that Finkler was released. At that point, the account was almost entirely drawn down and remained so until the Honda forged check was deposited on June 26, 2012. According to Merrill and the issuing bank – Union Savings Bank – the check was vacated and never cleared into Finkler’s account. Thus, there was no actual loss. B. The Wyatt Fraud

On the day of his release, Finkler requested in writing that Wyatt send him a check for the remaining funds in his commissary and phone accounts. On July 11, 2012, Wyatt issued check number 108326 in the amount of $22.82, which represented that balance, made payable to Steven Finkler and sent it to Finkler’s home. On July 16, 2012, a check bearing the same check number, purportedly issued from Wyatt to Finkler in the amount of $6,022.82 was negotiated. Documents from and interviews with Wyatt personnel confirm that Wyatt never issued a check in the amount of $6,022.82 to Finkler. According to officials from Bank of America, the bank at which Wyatt maintains its account, and Merrill, this check was negotiated through Finkler’s account at Merrill. Both officials confirmed that the check was negotiated via mobile deposit. On July 23, 2012, the original Wyatt check for $22.82 was negotiated through a Webster bank account.


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According to officials from Merrill and Bank of America, the check was vacated and never cleared into Finkler’s account. Thus, there was no actual loss. C. United States Life Insurance Co. in the City of New York Fraud

According to officials at Merrill, Finkler deposited three checks from United States Life Insurance Company in the City of New York that were subsequently deemed fraudulent. On July 2, 2012, the following two checks from this institution were deposited into Finkler’s Merrill account via mobile deposit: (1) check number 5134472 in the amount of $3,200.00 and (2) check number 5134473 in the amount of $7032.00, both made payable to Steven Finkler. On July 9, 2012, check number 5135473 from this insurance company made payable to Steven Finkler in the amount of $7,032.00 was deposited via mobile deposit into Finkler’s Merrill account. All of these checks were drawn on an account at Bank of America. According to officials at Merrill, Bank of America contacted them shortly after the deposit, informing them that the checks were fraudulent. According to officials from Merrill, the checks were vacated and never cleared into Finkler’s account. Thus, there was no actual loss. 3. Finkler’s Prior Criminal Record

The Pre-Sentence Report in this case provides extensive detail about this defendant’s prior criminal conduct. It establishes that the defendant began his criminal career in 1982 at the age of 18 by stealing a small sum of money from a cash register at a store where he worked. Over the course of the next nine years, the defendant engaged in a series of petty scams and larcenies, but ultimately cultivated more extensive and elaborate schemes that led to the first of what would be four federal fraud convictions. As detailed below, the defendant often committed these crimes while on supervised release and in one instance, while he was incarcerated. His


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victims ranged from individuals to companies. furtherance of his fraud. A.

Indeed, he even used his own mother in

The First 1993 E.D.N.Y. Conviction and the 1998 Supervised Release Violation

As detailed in the PSR, over the course of a single year from June 1990 through June 1991, the defendant operated a fraudulent telemarketing operation which involved selling and receiving payment for merchandise through fraudulent representations; demanding payment from victims for shipments of merchandise they did not order; making unauthorized charges on victims' credit card accounts and making unauthorized charges on stolen credit cards. The fraudulent orders taken from 30 victims totaled $133,739.43. For this crime, the defendant was sentenced on April 16, 1993 to 46 months in prison and three years of supervised release. He was released from custody on March 14, 1997. Within six months of his release, he engaged in yet another fraud. Using his position as an employee at a long distance telephone service provider, the defendant defrauded a customer out of goods worth approximately $280,000. When confronted by the victim, the defendant allegedly hit the victim over the head with a metal chair and fled from the store. For this violation, the defendant was sentenced on April 10, 1998 to 24 months in prison. B. The Second 1993 E.D.N.Y. Conviction

While on bond for the federal fraud detailed supra, the defendant engaged in a further fraudulent scheme. Specifically, within three months of his arrest for the previously discussed fraud, the defendant entered into a fraudulent agreement with a company called CSM Environmental System, Inc. (CSM) pursuant to which CSM acquired Finkler Laboratories, Inc., and employed the defendant to run a newly established subsidiary of CSM, called CSM -8-

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Environmental Laboratories, Inc., (CSM Labs). On the Employment Agreement, Finkler made two false representations to CSM: (1) he denied having any pending litigation against him, when in fact, he had been arrested and indicted and (2) he submitted to CSM a 1990 Federal Corporate Tax Return that showed he made $1,803,541 in sales for 1990 when in fact he had only made $272,394. At the end of August 1991, CSM issued a check to Finkler for $25,000 as a lump sum advance payment for having entered into the Employment Agreement. While employed at CSM, Finkler submitted fraudulent business expense reimbursement vouchers to CSM for which CSM paid him a total of $63,469,60. He used all of this money his personal gain, buying two Rolex watches, a 1992 leased BMW, a mink coat, and making payments on his former condominium in Great Neck, New York, Notably, the checks were made payable to various individuals and filtered through their accounts, with proceeds given to the defendant in return for his payment to the individuals he solicited. Finally, CSM estimated that 75 percent of all the sales the defendant claimed were made by his subsidiary (approximately $175,000) were false. For this fraud conviction, he was sentenced on April 16, 1993 to 46 months in prison to run concurrently with his other federal sentence and, for committing the crime while on bail, he was sentenced to 11 months imprisonment to run consecutively. C. The 2002 S.D.N.Y. Conviction

The defendant, while an employee of Teligent Inc., a telecommunications company, defrauded the company by submitting fraudulent sales contracts in order to receive commissions. He did this by forging names and signatures, making false statements and submitting false documents. Mr. Finkler was responsible for a loss of between $30,000 and $70,000. The Court


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ordered that Mr. Finkler undergo psychiatric testing and treatment. For this conviction, the defendant was sentenced on January 3, 2002 to twenty-seven months in prison and three years of supervised release. D. The 2005 E.D.N.Y. Conviction

In this case, the defendant engaged in three distinct frauds, some of which occurred within months of his arrest for the Teligent fraud and two of which occurred while he was incarcerated. In the first, over the course of a year from February 2001 and to January 2002, the defendant falsely represented to a colleague that the defendant had real estate investment opportunities with Chase Properties in which the colleague could invest. In order to convince the colleague of the legitimacy of the investments, the defendant created emails which purported to come from real Chase employees. The emails provided information about the investments, specifically, real property for sales at reduced rates. Through the course of the scheme, the colleague provided the defendant with a total of $59,571 for alleged down payments and other related expenses for the real estate. The money was never repaid. When the colleague attempted to locate the defendant to demand repayment, the defendant instructed an associate to tell him that the defendant suffered a heart attack and was hospitalized. Moreover, when the colleague contacted the defendant’s wife to corroborate the story, the defendant’s wife, Sara Finkler, implied that her husband was in the hospital, when in fact, he was incarcerated at the Federal Correctional Institute at Fort Dix, New Jersey. The defendant perpetrated the second fraud while incarcerated at Fort Dix. There, he defrauded a fellow inmate of $17,875 by falsely representing to him that the defendant was investing money in a non-existent company, Infoport Communications Group (“ICG”) and that


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the inmate could do so as well at a discount prior to an initial public offering of the company’s shares. At the defendant’s direction, the inmate wrote a check to We Got It, Inc. (“WGI”) – a company that the defendant purported was a clearinghouse of ICG. WGI was a company incorporated in the State of New York on August 29, 2000 and the defendant and his wife were listed as its officers. In March 2002, Steven Finkler instructed his wife to open a bank account at JP Morgan Chase in the name of WGI. That account listed Sara Finkler as the president of WGI and signatory on the account. She later deposited the inmate’s check for $17,875 into the account. The final scheme occurred between August 2000 and January 2003 – both before and during his incarceration. In this scheme the defendant obtained numerous credit cards from various credit card issuers. On most of the accounts, he was either a joint card holder with his mother or an authorized user of cards of which his mother was the primary holder. He ran up charges in these accounts, leaving unpaid balances. When the credit card issuers sought payment, the defendant forged correspondence and bank documents to create the appearance that his mother was writing to the issuers, claiming their identities had been stolen and that they had not incurred the charges. At this time, Finkler's mother was either in the final stages of cancer or deceased. The case agent advised that the fraud loss totaled $412,996.80. For these schemes, the defendant was sentenced on October 28, 2005 to 92 months in prison and three years of supervised release. Within less than one year of his release from prison for this conviction, the defendant committed the Connecticut State crimes that led to his supervised release revocation in the instant case.


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DISCUSSION As the facts establish, the defendant is a perpetual recidivist, who has defrauded individuals and institutions alike. He has committed these crimes – including the instant

offenses – while on supervised release in flagrant disregard of court orders. He has no moral compass and there is nothing that this Court, Probation or the Government can do to instill him with one. The need to stop him from committing further crimes against more victims requires him to be institutionalized for as long as reasonable: 65 months. The Sentencing Standards In accordance with the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), and the Second Circuit’s decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed must be reached through consideration of the advisory Guidelines and all of the factors identified in 18 U.S.C. § 3553(a). In so doing, the Court has a statutory responsibility “to ‘impose a sentence sufficient, but not greater than necessary’ to accomplish the goals of sentencing,” Kimbrough v. United States, 552 U.S. 85, 102 (2007) (quoting 18 U.S.C. § 3553(a)). The Guidelines, consisting of offense characteristics and various grounds for departure, address all of the considerations relevant to sentencing, as articulated in 18 U.S.C. §3553 including, but not limited to “(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed -- (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or


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vocational training, medical care, or other correctional treatment in the most effective manner; ... (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.” Accordingly, in determining an appropriate sentence for the defendant, the Court must take into account all of the factors delineated in Section 3553. The Nature And Circumstances Of The Offense And The History And Characteristics Of The Defendant Support A Sixty-Five Month Guideline Sentence. The crime for which the defendant was convicted and the related crimes that are included in his sentencing calculation were serious in so far as they demonstrate a wild hubris, selfishness, and disrespect for the law. These are the very same characteristics that mark this defendant. For these reasons, a 65-month sentence is just. Although the fraud amount in this case includes intended loss amounts, the government is not using those amounts as a proxy for the defendant’s dangerousness. Rather, the resulting Guideline range of 33 to 41 months is appropriate because the defendant is actually dangerous. Indeed, while the government remains committed to its plea agreement, it is respectfully submitted that 33 to 41 months grossly understates the danger that this defendant poses to society. In this regard, this case is wholly inapposite to United States v. Corsey, 723 F.3d 366 (2d Cir. 2013). Moreover, unlike the crime in Corsey, the fraud amount here contains one consummated fraud and the unconsummated frauds were neither “clumsy” nor “almost comical”. They involved well-constructed forgeries that failed because the victims had better constructed fraud prevention methods. Additionally, unlike the defendants in Corsey, who had either no or minimal criminal records, this defendant has demonstrated a significant commitment to crime. Despite (1) the


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efforts of the judicial and probation systems to help him and (2) significant sentences because of which he spent long periods of time away from his loved ones, the defendant has committed fraud at every opportunity. Indeed, the attached timeline demonstrates that during most of the last twenty-four years, the defendant has been victimizing others. (See Exhibit A (providing a timeline of the defendant’s crimes, arrests and sentences based on the PSR).) Beyond the overwhelming number of prior convictions, their facts and the facts of the instant case also counsel in favor of a significant sentence. While not particularly sophisticated or complex, the hubris of the crimes is staggering; it is respectfully submitted that few defendants would be so bold as to rip off the very jail that had housed them while on supervised release. But in that way, this crime is no less offensive than his past crimes, where he defrauded a fellow inmate while incarcerated or used his dying mother’s identity as means to get money. All of these facts support the Government’s position that it is appropriate and necessary to incarcerate him now for as long as possible. In Order To Promote Respect For The Law, Provide A Just Punishment For The Offense And Protect The Public, A Sixty-Five Month Sentence Should Be Imposed. Since he was eighteen, the defendant has sustained four federal fraud convictions. As a result of these convictions, the defendant has been sentenced to more than sixteen years in prison. Thus, he has spent a significant part of his adult life in custody, where a myriad of people have attempted to address his deficient character. But these sentences – many of which were greater than that which the government seeks herein – and that help have done nothing to stop the defendant. Given the opportunity, he will re-offend. The question for this Court is when. The government contends that it should not be until after he has served 65 months.


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CONCLUSION For the reasons set forth above, the Government respectfully submits that a sixty-five month term of incarceration followed by eight years of supervisory release and restitution as outlined herein and as set forth in the Plea Agreement, dated April 23, 2013, is appropriate and should be imposed in this case.

Dated: November 29, 2013 Bridgeport, CT



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CERTIFICATE OF SERVICE I hereby certify that on November 29, 2013, a copy of the above submission was filed electronically. Notice of this filing will be sent by email to all parties by operation of the Court’s 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 Court’s CM/ECF System.



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A Timeline of Crime: 1990-2012
Commits PLI telemarketing fraud (EDNY)
June 1990 app. June 1991

Commits CSM Fraud and NYS insurance fraud (EDNY)
Sept. 1991 – app. Mar. 1992

Commits supervised release violation: Fraud on telephone company customer
Sept. 1997

Commits Teligent fraud (SDNY)
Some time between April 2000 and Feb. 2001

Commits credit card fraud
Aug. 2000 – Jan. 2003

Commits Chase real estate fraud (EDNY)
Feb. 2001 – Jan. 2002

Commits IPO fraud (Fort Dix )
Aug. 2002

Commits supervised release violation: various CT frauds
Feb. 2011 – Feb. 2012

Commits the instant bank fraud
June – July 2012

Incarcerated June 1993 – Mar. 1997

Incarcerated Apr. 1998– app. Apr. 2000

Incarcerated for Teligent fraud Jan. 2002 – app. May 2003

Incarcerated Oct. 2003 – Sept. 2010

Incarcerated Feb. – June 2012

June 1991

Mar. 1992

Jan. 1998

Feb. 2001

Oct. 2003

Feb. 2012

Arrested for PLI telemarketing fraud (EDNY)

Arrested for CSM fraud (EDNY)

Arrested for violation of supervised release (EDNY)

Arrested for Teligent fraud (SDNY)

Arrested for Chase real estate, Fort Dix, and credit card frauds (EDNY)

Federally arrested for supervised release violation (SDNY/EDNY)


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