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Case 1:10-cr-00158-LMB Document 39 Filed 08/20/10 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE


EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

UNITED STATES OF AMERICA )


) Criminal No. 1:10-cr-158
v. )
) The Honorable Leonie M. Brinkema
JOSEPH GEORGE ECKER, )
a.k.a. “Joe Ecker,” ) Sentencing: August 27, 2010
“Tom Ellis,” )
“James Nelson,” )
“Joseph G. Ecker,” )
“Larry James Floyd,” )
“Joseph George Wechsler,” )
)
Defendant. )

POSITION OF THE UNITED STATES WITH RESPECT TO SENTENCING

The United States of America, by and through its attorneys, Neil H. MacBride, United

States Attorney, Paul M. Rosen, Special Assistant United States Attorney, and Gene Rossi,

Assistant United States Attorney, in accord with 18 U.S.C. § 3553(a) and the United States

Sentencing Guidelines Manual, files this Position of the United States With Respect to

Sentencing. The United States respectfully submits that a within Guideline range sentence of

188-235 months, as properly calculated in the Presentence Report (PSR), is reasonable,

appropriate, and necessary to satisfy the factors set forth in 18 U.S.C. § 3553(a).

Background

The Guilty Plea & Conviction

On May 6, 2010, a Federal Grand Jury returned a five-count indictment against the

Defendant JOSEPH GEORGE ECKER (hereinafter, “Mr. Ecker” or the “Defendant”), for

conspiracy to distribute Schedule II controlled substances in violation of 21 U.S.C. §§ 841 &

846, distribution of Schedule II controlled substances, in violation of 21 U.S.C. §§ 841, and for

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health care fraud, in violation of 18 U.S.C. § 1347. The Indictment also contained a forfeiture

notice for all of the Defendant’s assets used to facilitate his drug trafficking activities, including

his residence in Middleburg, Virginia (hereinafter, the “Residence”), wherein he conducted

numerous drug trafficking transactions.

On June 16, 2010, the Defendant pleaded guilty to Counts One and Five of the

Indictment charging the Defendant with conspiracy to distribute Methadone, oxymorphone, and

hydromorphone, all Schedule II controlled substances, and Health Care Fraud, in violation of 21

U.S.C. §§ 841 & 846, and 18 U.S.C. § 1347, respectively. In exchange for his plea of guilty, the

United States moved to dismiss Counts Two, Three, and Four. The maximum penalty for Count

One is a term of imprisonment of twenty years, a fine of $1,000,000, a $100.00 special

assessment, and at least three years of supervised release. The maximum penalty for Count Five

is a term of imprisonment of ten years, a fine of $250,000, a $100 special assessment, and a term

of supervised release of up to 3 years.

The Manner and Means of the Conspiracy

As the Court knows, this case arises out of a conspiracy – with the Defendant as the chief

supplier – to distribute large amounts of prescription narcotics that the Defendant obtained at

little or no cost because Medicare paid his medical bills and prescription drug costs ever since

the Defendant successfully petitioned to be declared disabled in 2006. Unlike more traditional

drug trafficking conspiracies where distributors often must outlay or “front” large amounts of

cash to obtain the narcotics in the first instance, the Defendant was able to use taxpayer dollars –

through Medicare and Social Security disability payments – to pay for his upfront costs. Thus,

the Defendant’s profits from these illegal sales were nearly 100 percent. From January 2007

through April 2010, Medicare paid $249,701 for prescription drugs received by the Defendant.

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Over 80 percent of that amount – or $201,465 – covered the cost of narcotic pain medications

that the Defendant received. (Statement of Facts ¶ 14; Lenhart Aff. ¶ 13.) 1

During the course of this conspiracy, which began in or about mid-2006 and continued

through in or about March, 2010, the Defendant was actively involved in the distribution of

Methadone, oxymorphone, hydromorphoone in an amount that is equivalent to at least 3,000

kilograms but less than 10,000 kilograms of marijuana. (Statement of Facts ¶ 15.) This amount

includes three controlled purchases from the Defendant wherein approximately 2,040 Schedule II

controlled prescription narcotics were purchased from the Defendant for approximately $18,000

of pre-identified United States Government funds. (Id. ¶ 6.)

As part of this conspiracy, the Defendant obtained a prescription of Opana, a brand name

for oxymorphone, from his doctor, and adjusted the quantities of that prescription, for the sole

purpose of reselling it to co-conspirator Robert Andrew Berger based on Berger’s indication that

there was a street demand for Opana. (Id. ¶ 8.) 2 At one point, the Defendant asked Berger

whether there was anyone else who could re-sell certain prescriptions, because, if there was not,

the Defendant was going to change his prescription amount to reflect what Berger could actually

re-sell. (Id. ¶ 9.) The Defendant also took steps to elude detection of his illegal activities by

removing the labels on the prescription pill bottles that included his name. (Id. ¶ 7.)

Most of the drug transactions by the Defendant took place in his Residence; some took

place in the Defendant’s vehicle. (Id. ¶ 7.) The Defendant, however, often left his Residence to

further the conspiracy by, for example, driving to co-conspirator Berger’s residence and leaving

a note on Berger’s vehicle, asking Berger whether he would like to purchase narcotics directly

from the Defendant. (Id. ¶ 4.) The same day that the Defendant made that written contact with

1
All Affidavits and Exhibits referred to herein are attached and filed with this Position Paper.
2
On August 17, 2010, co-conspirator Robert Andrew Berger pleaded guilty to participating in a conspiracy with the
Defendant to illegally distribute prescription narcotics that he obtained from the Defendant.

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Berger, Berger contacted the Defendant and purchased from the Defendant prescription

narcotics. (Id.)

Since about November, 2008, the Defendant has received monthly Electronic Benefit

Transfer (EBT) funds (formerly known as food stamps) in the amount of approximately $360 per

month, totaling about $6,731. In his application for such benefits, during the time period of the

conspiracy, the Defendant reported only his Social Security benefits of $1,524 per month as his

income. (Lenhart Aff. ¶ 16.)

During the conspiracy, the Defendant obtained much or all of his expensive wine from

Addy Bassin’s MacCarthur Beverages, in Northwest Washington, D.C. Records obtained from

the business show that the Defendant had purchased more than $20,000 of wine from the store.

The Defendant’s most recent purchase was on January 12, 2010, when the Defendant went to the

store and paid $5,600 in cash on a $6,600 order for 87 bottles of wine. (Id. ¶ 24.)

Defendant’s Medical Condition

According to the PSR, the Defendant purports to suffer from “degenerative peripheral

neuropathy,” a condition that allegedly causes the Defendant pain. From 2003 to 2010, the

Defendant had been under the medical care of Dr. Norman Mauroner, Jr., in Warrenton,

Virginia. (PSR ¶ 86.) Upon the Defendant’s admittance to the Alexandria Adult Detention

Center (ADC) and subsequent medical examination, doctors became so alarmed at the level of

prescription drugs and narcotics that Dr. Mauroner prescribed to the Defendant that they reported

Dr. Mauroner to the Virginia Board of Medicine, as required by the mandatory reporting laws of

the state. (Id.; Sharieff Aff. ¶ 9.) The medical professionals at the ADC were of the “clinical

opinion as a physician that if Mr. Ecker was given the medications as prescribed, there was a

high probability that he would not survive.” (Sharieff Aff. ¶ 6; PSR ¶ 86.)

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On April 7, 2010, the day that the Defendant was arrested, law enforcement made contact

with the Defendant at his Residence by initially identifying themselves as potential homebuyers.

Before the Defendant knew that the would-be home buyers were law enforcement, FBI Special

Agent Lenhart observed the Defendant walk down four steps to unlevel, unpaved ground and

walk approximately twenty feet on the unlevel, unpaved ground. The Defendant did this without

the aid of a cane, walker, or wheelchair, all the while holding a cup of coffee in one hand and a

newspaper in the other. (Lenhart Aff. ¶ 7.)

On April 9, 2010, law enforcement interviewed employees of the Middleburg Bank,

located in Middleburg Virginia (hereinafter, the “Bank”), where the Defendant held accounts and

two safe deposit boxes. As discussed below, among other items, the Defendant maintained a 65-

pound silver bar, 49 prescription bill bottles full of Schedule II controlled substances, coins and

jewelry in these boxes. Despite the weight of the safe deposit boxes due to their precious metal

and other contents, the Defendant neither requested nor allowed assistance from Bank employees

in recovering the safe deposit boxes. The Defendant also never entered the Bank with a walker

or a wheelchair, and he walked normally, though slightly stooped. (Id. ¶ 12.)

On April 8, 9, and 14, 2010, at the Defendant’s initial appearance, detention hearing, and

preliminary hearing, he repeatedly appeared in court in a wheel chair or assisted walking device.

(Lenhart Aff. ¶ 12.)

Obstruction of Justice

During the April 7, 2010 search of the Defendant’s Residence, Mr. Ecker was shown

what experienced FBI agents perceived to be safe deposit box keys. The Defendant and his wife

were both asked if the keys belonged to safe deposit boxes that they held at any bank. Both

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denied possessing a safe deposit box at any bank, and also denied that the keys were for any safe

deposit box. (Id. ¶ 8.)

At the conclusion of the search of the Residence, agents permitted the Defendant and his

wife to embrace before the Defendant was taken to jail. During a long extended embrace, Mr.

Ecker whispered extensively into his wife’s ear before he was transported to Alexandria,

Virginia. (Id.)

Due to Mr. and Mrs. Ecker’s inability to explain the safe deposit box keys, when the

search was concluded FBI agents left the Residence and immediately proceeded to the Bank to

inquire with Bank officials whether the aforementioned keys were associated with safe deposit

boxes at the Bank. Bank officials positively identified the keys as belonging to safe deposit

boxes held by Mr. and Mrs. Ecker. Agents departed the Bank to obtain a search warrant and,

within minutes of agents leaving the front entrance of the Bank and shortly after agents departed

the Ecker Residence, Mrs. Ecker entered the Bank through a rear entrance. Surveillance video

shows she was carrying two large cloth bags that appeared to be empty. After Mrs. Ecker spoke

to Bank officials, she paced within the confines of the Bank until leaving about 10 minutes later

without accessing any safe deposit boxes or telling any Bank officials that she was leaving. (Id.

¶¶ 9-10.)

On April 8, 2010, law enforcement executed two search warrants on Mr. and Mrs.

Ecker’s safe deposit boxes at the Bank and recovered forty-nine full bottles of Schedule II

prescription narcotics, 65-pound silver brick, several hundred silver coins, and approximately

$8,000 in U.S. currency that was linked back to three controlled purchases from the Defendant.

(Id. ¶ 11.)

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Since the Defendant has been incarcerated, he has made statements on jailhouse phone

calls confirming his ongoing intent to conceal assets. In an April 29, 2010 conversation with his

wife, the Defendant acknowledged that “[t]here’s at least $10,000 worth of wine in the house.”

He also directs his wife to hide that asset: “That’s part of what I said. . . . [F]ind an apartment or

a house or a room and move as much stuff as possible.” (Id. ¶ 15.)

The Defendant’s attempts to hide assets and obstruct justice have included directions to

destroy property that he knew would be subject to forfeiture, pursuant to the Indictment, and

smuggle narcotics into jail. For example, in a May 6, 2010 consensually monitored conversation

between the Defendant and his wife, the following interaction occurred:

The Defendant: This is what I want you to do. I want you to talk to Nader and get
the name from Nader of a pain doctor and I want you to go to him.
And see if you can get some methadone and some morphine for
yourself, and also, because I think in about a week I’m going to be
transferred to the hospital.
Mrs. Ecker: And if you’re going to be transferred to a hospital…then what…
The Defendant: You can come visit me.
Mrs. Ecker: I cannot bring medication to you. They don’t allow that.
The Defendant: You just have to be careful.
Mrs. Ecker: Joseph, think about what you are saying. They are listening to
everything you are saying right now.
The Defendant: Yeah well, I’m going to write you a letter. I don’t think they’re
listening to shit.

Later in the same conversation, the following interaction occurred:

The Defendant: As far as I’m concerned, this is what I would like you to do. I
would like you to—this would be wonderful. If you wrote me a
letter and told me this happened I would be very happy. I would
like you to find an apartment, while you still have some money so
you could pay what they call the security deposit and so you could
pay the first month or two, and move move the stereo, move the
DVDs, CDs, and whatever else you—and the wine. And then,
don’t pay the mortgage, don’t pay the house insurance, and as soon
as it expires, which would be in the end of June, burn the house to
the ground.
Mrs. Ecker: [inaudible]
The Defendant: It’s very simple.

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Mrs. Ecker: So you want me to go to jail too?


The Defendant: Ok, well, if you don’t want to burn the house down, just leave it,
abandon it. Leave all the windows and doors open. Just leave it. I
don’t want the government to get shit. You understand?

(Id. ¶ 19 (emphases added).)

In light of the aforementioned evidence of Defendant’s obstruction, and his intent to use

the mail to conceal his actions, on May 24, 2010 the United States obtained a court order to

inspect and copy all of the Defendant’s non-attorney incoming and outgoing mail to and from the

ADC. (Id. ¶ 20.)

On June 16, 2010, in connection with the Defendant’s guilty plea in this matter, the

Defendant executed a Plea Agreement wherein he agreed to “Provide Full, Complete, And

Truthful Cooperation.” The Defendant also agreed to forfeit all interests in any drug trafficking

related asset or substitute property including but not limited to silver bars, cash recovered from

the safe deposit box search, and a wine collection. (Id. ¶ 21; Plea Agreement ¶¶ 13, 15, 16.)

Immediately after the Defendant’s plea on June 16, 2010, the Defendant was debriefed

whereat he stated that he had possessed approximately $10,000 worth of valuable wine, but he

surmised that his wife was depressed and had probably already consumed most or all of it.

(Lenhart Aff. ¶ 22.) At a subsequent debriefing on June 24, the Defendant repeated the lie. (Id.

¶ 23.) Yet, the day before this second debriefing – in between the June 16 and June 24 lies – the

Defendant, on June 23, wrote to his wife:

“I encourage you to rent a room and move what you can and need: clothes, stereo, t.v.,
wine, etc. You can always return the wine to Mark in D.C. for cash. Just remember you
drank it. They asked me about it last week and I said I knew nothing but that you were
depressed and had probably drank either most or all of it.”

(Id. ¶ 22; Government’s Ex. 1 [Ecker Jailhouse Letters] Bates 17) (emphasis added)). In a

subsequent June 25, 2010 letter from Mrs. Ecker to the Defendant, Mrs. Ecker wrote:

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“Remember that most of the tools and all the wine are in the Hammond’s residence. I really

hope they will keep them for me until I can figure out what to do.” (Lenhart Aff. ¶ 22;

Government’s Ex. 1 [Ecker Jailhouse Letters] Bates 21 (emphasis added)). This letter is

consistent with jailhouse recordings from April 29, 2010 wherein Mrs. Ecker told Mr. Ecker “I

wanted it [referring to the wine] to be safe.” (Lenhart Aff. ¶ 15.)

On August 5, 2010, based on the credible belief the Defendant had directed his wife –

and that his wife had complied with the Defendant’s instruction – to remove from the home the

wine collection, coupled with the fact that an inventory of the Residence conducted by the U.S.

Marshals revealed no wine, Agent Lenhart contacted and located Michael Hammond in

Alexandria, Virginia. Mr. Hammond was interviewed and stated he was keeping 114 bottles of

wine for Mrs. Ecker at her request. FBI agents seized the wine, which was consistent with

inventory sheets of the Defendant’s purchases of wine recovered from Wessels at Addy Bassins.

(Id. ¶ 25.)

On August 9, 2010, after the Defendant was informed that the Government was

monitoring his jailhouse phone calls, Agent Lenhart sought to review additional phone

communications at the ADC in reference to the Defendant. Deputy Burnham of the ADC

checked his system which revealed that no phone communications had occurred with Mr. Ecker

since before June 24, 2010. Because this was inconsistent with facts known to law enforcement,

Agent Lenhart requested that Deputy Burnham investigate further. The following day Deputy

Burnham revealed to Agent Lenhart that the Defendant had been using another inmate’s “pin

number” to access the jail’s phone system, thus defeating the ability of the government to

monitor Mr. Ecker’s phone conversations. (Id. ¶ 26.)

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Argument

Even though the Sentencing Guidelines are advisory, United States v. Booker provides

that sentencing courts “must consult those Guidelines and take them into account when

sentencing.” 543 U.S. 220, 264 (2005). “[A] district court shall first calculate (after making the

appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall

consider that range as well as other relevant factors set forth in the guidelines and those factors

set forth in [18 U.S.C.] § 3553(a) before imposing the sentence.” United States v. Hughes, 401

F.3d 540, 546 (4th Cir. 2005).

Section 3553 states that the Court should consider the nature and circumstances of the

offense and characteristics of the defendant. In addition, the Court must consider the need for

the sentence “to reflect the seriousness of the offense, to promote respect for law, and to provide

just punishment for the offense; [and] to afford adequate deterrence to criminal conduct.” 18

U.S.C. § 3553(a)(2)(A) & (B). Any sentence should protect the public from further crimes of the

defendant, and provide the defendant with needed correctional treatment. 18 U.S.C. §

3553(a)(2)(C) & (D).

A. A WITHIN GUIDELINE RANGE SENTENCE, AS PROPERLY CALCULATED


IN THE PRESENTENCE REPORT AS A LEVEL 36, IS APPROPRIATE AND
NECESSARY TO SATISFY THE FACTORS SET FORTH IN SECTION 3553(A) 3

1. This Court Should Find that the Defendant Obstructed Justice and Apply a
Two-Level Enhancement Because the Defendant Frustrated Law Enforcement’s
Investigation, Made False Statements About Assets Subject to Forfeiture, and
Directed the Concealment of Assets that he Knew Were Subject to Forfeiture

The Government supports a two-level enhancement for the Defendant’s continuous and

surreptitious obstruction of justice, both before and after the execution of the Plea Agreement.

3
While the Government does not dispute that the Defendant is a Criminal History Category I, the Government
recognizes and relies on Defendant’s numerous convictions that are similar in substance to the instance offense, as
articulated in the Presentence Report, Paragraphs 42-52.

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A two-level enhancement is merited where:

(A) the defendant willfully obstructed or impeded, or attempted to obstruct or


impede, the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction, and (B) the
obstructive conduct related to (i) the defendant’s offense of conviction and any
relevant conduct; or (ii) a closely related offense . . .

U.S.S.G. §3C1.1. The Government must prove the facts constituting obstruction by a

preponderance of the evidence, see, e.g., United States v. Kiulin, 360 F.3d 456, 460 (4th Cir.

2004), and the Court may rely on hearsay in making this determination, United States v. Roberts,

881 F.2d 95, 105-06 (4th Cir. 1989). Examples of this type of behavior include “destroying or

concealing or directing or procuring another person to destroy or conceal evidence that is

material to an official investigation or judicial proceeding.” U.S.S.G. § 3C1.1 Cmt. n. 4(d). The

Fourth Circuit has approved obstruction enhancements for making false statements to an agent

regarding a co-conspirator’s role in the offense, see Kiulin, 360 F.3d at 460-61, and for failure to

give a probation officer an accurate list of assets, United States v. Romer, 148 F.3d 359, 372 (4th

Cir. 1998); United States v. Hicks, 948 F.2d 877, 883-86 (4th Cir. 1991).

At the time of his arrest, the Defendant blatantly, willfully, and knowingly lied to FBI

agents when asked about the safe deposit box keys recovered at his Residence. Such conduct

impeded law enforcement’s continued investigation in the matter, which was potentially further

stymied by what the Government believes was the Defendant’s direction to his wife to go to the

Bank and clear out the safe deposit boxes. Indeed, that Mrs. Ecker showed up at the Bank less

than a minute after law enforcement had departed, and shortly after the search of their Residence

supports such an inference. Had agents not acted quickly and gone to the Bank after leaving the

Defendant’s Residence, significant evidence in the form of 49 bottles of Schedule II prescription

drugs, drug money, and significant drug-related assets would have been lost.

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Since his arrest, the Defendant attempted to have his wife illegally deliver to him in jail

prescription narcotics, directed his wife to burn down his Residence so the “government

[wouldn’t] get shit,” and expressed remorse that he hadn’t rigged his Residence with explosives

when law enforcement executed the search warrant because he “could’ve killed twenty of ‘em,”

referring to the FBI agents and other law enforcement. (Lenhart Aff. ¶ 15) (“I’m really sorry we

didn’t have explosives in the house. . . . I had thought about doing this but I never pursued it . . .

. If the house had been set with explosives . . . it would’ve been great. We could’ve killed

twenty of ‘em. . . . I have no use for any of them. None . . . and that asshole [cooperating co-

conspirator] Berger.”)

While the Defendant had a chance fully and truthfully cooperate and to forgo his

obstructive conduct when he pled guilty and executed the Plea Agreement, he chose not to. In

two debriefings, the Defendant lied to prosecutors and law enforcement about the existence and

location of the wine collection subject to forfeiture. Seized jailhouse letters conclusively show

that not only did the Defendant know that his wife had not consumed all the wine (Lenhart Aff. ¶

15), as the Defendant had suggested, but the Defendant on numerous occasions specifically

directed his wife to move it. The Defendant also indicated to his wife that he had told the

Government that she may have drank it. Even after Mrs. Ecker informed the Defendant that she

had in fact moved the wine, the Defendant repeated this lie to the Government at the second and

final debriefing. The fact of the material false statement is confirmed in a post-guilty plea June

23, 2010 letter from Mr. Ecker to his wife wherein he states:

If they have not been to the house yet, I encourage you to rent a room [and] move what
you can [and] need: clothes, stereo, t.v., wine, etc. You can always return the wine to
Mark in D.C. for cash. Just remember that you drank it. They asked me [about] it last
week [and] I said I knew nothing but that you were depressed [and] had probably
drunk either most or all of it. Just try to think about the future – we won’t need a lot but

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it’s much cheaper (free) to keep what you have instead of buying new. The living room
stereo [and] bedroom speakers cost thousands!

(Government’s Ex. 1 [Ecker Jailhouse Letters] Bates 17 (emphases added)) 4 Yet, in jailhouse

recordings from April 29, 2010, (Lenhart Aff. ¶ 15 (“I wanted [the wine] to be safe”)), and

confirmed in jailhouse letters, (Government’s Ex. 1 [Ecker Jailhouse Letters] Bates 17, 21, 45),

it’s clear that the Defendant knew about the wine collection and that his wife had moved it.

As if the letters were not evidence enough, Agent Lenhart recovered 114 bottles of wine

from the location where Mrs. Ecker had indicated in letters where she had hid it. (Lenhart Aff. ¶

25.) The Defendant’s conduct represents a continuous pattern of obstruction, and few cases are

as clear, blatant, and unbroken as this.

2. Defendant’s Continued Attempts to Obstruct and Impede the Government’s


Investigation and Retrieval of Assets Proves that the Defendant has Neither
Taken nor Accepted any Responsibility for his Illegal Conduct

The Defendant has agreed that the appropriate base offense level for the drug weight

involved is a Level 34. (Plea Agreement ¶ 5; Statement of Facts ¶ 15.) While the Government

was initially prepared to support a three-point reduction of this offense level based on the

Defendant’s acceptance of responsibility, that concession was conditioned on, among other

things, the Defendant’s compliance with the Plea Agreement, including his obligation to provide

full, truthful and complete cooperation. (Plea Agreement ¶ 5 (“The government further supports

a reduction of three offense levels for acceptance of responsibility, even if the Court finds that

4
The Defendant’s attempts to further conceal his direction to move, or at least knowledge of, the wine collection
continued. In a July 31, 2010 letter to his wife, the Defendant stated: “The only thing the Govt asked about the
house was where is the wine. . . .? I already told them that you may have drunk it – and now that you told me when
you last visited that you did drink it all I will let my attorney know. Don’t worry, since you weren’t aware that it
was subject to forfeiture you have not committed any crime.” (Government’s Ex. 1 [Ecker Jailhouse Letters] Bates
45.) The Defendant’s questionable legal analysis about his wife’s exposure aside, what is clear is that the Defendant
had knowledge of the existence of the wine through his wife’s letter telling him that she had moved it to the
Hammonds, (id. at Bates 21; Lenhart Aff. ¶ 22), and Defendant’s futile attempts to cover his and his wife’s actions,
of which he had knowledge, are too smart by half. The Government submits that his conduct only further supports
both the Defendant’s obstruction in this case and his complete failure to take any responsibly for his conduct.

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the defendant obstructed justice, unless the defendant does not comply with the terms of this

agreement.”)) Moreover, this Circuit has held that a reduction for acceptance of responsibility is

ordinarily not appropriate for a defendant who receives an enhancement for obstruction of

justice. See United States v. Hudson, 272 F.3d 260, 263-64 (4th Cir. 2001); see also U.S.S.G. §

3E1.1 Cmt. n. 4. Indeed, continued criminal conduct is purely inconsistent with a reduction for

acceptance of responsibility. See United States v. Dugger, 485 F.3d 236, 241 (4th Cir. 2007);

United States v. Kidd, 12 F.3d 30, 34 (4th Cir. 1993). The Defendant bears the burden to prove,

by a preponderance of the evidence, that he is entitled to a reduction for acceptance of

responsibility. United States v. Harris, 882 F.2d 902, 907 (4th Cir. 1989).

In this case, not only has the Defendant failed fully to accept responsibility for his

actions, he continues to fight the Government and seek to conceal assets that he knows are

subject to forfeiture. The terms of the Plea Agreement in this case, however, are clear and

unambiguous: the Defendant must “cooperate fully and truthfully with the United Slates” (Plea

Agreement ¶ 11), and the agreement expressly “is conditioned upon the defendant's providing

full, complete, and truthful cooperation,” (id. ¶ 13). And, equally clear and unambiguous is the

evidence that the Defendant breached these terms and failed in his obligations, which is an

independent basis for the Court to deny any acceptance credit. United States v. Walker, 112 F.3d

163, 166 (4th Cir. 1997) (violating the terms of a plea agreement by failing to preserve assets is

an independent basis for denying acceptance of responsibility credit).

In this case, several aspects of the Defendant’s debriefings after his plea were not

credible. For example, the Government believes the Defendant lied about selling co-conspirator

Berger silver bars and lied about whether his wife was ever present during drug trafficking

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transactions in the Defendant’s vehicle. The Defendant’s assertions in this regard are belied by

debriefings of other, credible co-conspirators.

The Defendant further lied about his involvement in concealing his wine collection,

which is subject to forfeiture. The terms of the Plea Agreement require the Defendant “to

identify all assets over which the defendant exercises or exercised control, directly or indirectly,

within the past four years, or in which the defendant has or had during that time any financial

interest.” (Plea Agreement ¶ 15.) It includes a specific reference to the wine collection. (Id. ¶

16.) Put simply, by frustrating law enforcement’s efforts to retrieve the wine, and lying about it,

the Defendant has not complied with the terms of the Plea Agreement, and therefore the

Government does not support any credit for acceptance of responsibility. See United States v.

Chase, 466 F.3d 310, 314 (4thh Cir. 2006) (Government’s view that the Defendant had not been

fully cooperative was a sufficient basis for the Government’s decision not to motion the court for

a third point reduction for acceptance of responsibility).

That the Defendant pleaded guilty to two indicted counts in exchange for the

Government’s dismissal of three counts does not change the result: a guilty plea does not

necessarily entitle a defendant to a reduction for acceptance of responsibility. United States v.

Nale, 101 F.3d 1000, 1005 (4th Cir. 1996); U.S.S.G. § 3E1.1, cmt. n.3 (a guilty plea is evidence

of acceptance of responsibility, but “may be outweighed by conduct of the defendant which is

inconsistent with an acceptance of responsibility”).

Since his guilty plea and supposed acceptance of responsibility, the Defendant has railed

against the Government, calling Agent Lenhart “corrupt and morally bankrupt,” (Government’s

Ex. 1 [Ecker Jailhouse Letters] Bates 79.) The Defendant went on: “After seeing so many

public officials and police lie under oath as I have I’m more surprised to hear of an honest

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official. A Tyrant will always invent a pretext for their Tyranny.” (Id.) On August 3, 2010, the

Defendant refers to the “near-police state we now live under,” (id. at Bates 50), rails against the

“stench of corruption [and] moral decay [that] lays think upon this land,” (id.), and, after learning

about the FBI’s seizure of his wine collection, states that the FBI is “acting more [and] more like

the German Gestapo” and advises his wife not to “talk to Lenhard [sic] about anything except the

computers – he’s a snake,” (id. at Bates 79-80). Regardless of what Defendant may purport to

allocate at the sentencing hearing, his true feelings about the crimes he’s committed and his

responsibility therefor are permanently – and candidly – etched throughout letters like these.

Defendant’s failure to accept responsibly extends to his attempts to avoid paying his

mandatory $200 special assessments. In a June 19, 2010 letter to Mrs. Ecker, the Defendant

stated: “If you have not sent me the $250 [Money Order] yet please change it to $100. The

Court is required to fine me $200 [and] will take it from my commissary funds if I have it so I

want to keep the balance below $150.” (Id. at Bates 95.) Such conduct belies any suggestion

that the Defendant has accepted responsibility for his conduct.

Accordingly, the Government respectfully submits that, given the evidence, coupled with

the nature and circumstances of the Defendant’s conduct throughout the course of this

investigation and continuing post-guilty plea, the Defendant is not entitled to any credit for

acceptance of responsibility.

3. The Defendant is not Eligible for a Two-Level Safety Valve Reduction Because,
Both Before and After his Guilty, the Defendant Failed to be Truthful About all
Conduct Closely Relevant to his Offense of Conviction

Certain defendants may be entitled to an additional two-level reduction in offense level

pursuant to Section 2D1.1(b)(11) of the Sentencing Guidelines Manual if he or she satisfies all

the criteria set forth in Section 5C1.2 of the Manual. However, as set forth in the Presentence

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Report (PSR, Page A-2), the Defendant in this case fails to satisfy the criterion that he “has

truthfully provided to the Government all information and evidence the defendant has concerning

the offense or offenses that were part of the same course of conduct.” U.S.S.G. § 5C1.2(a)(5);

see also 2D1.1(b)(11). The Guidelines interpret this language to include the offense of

conviction “and all relevant conduct.” U.S.S.G. § 5C1.2 Cmt. n. 3.

Based on the foregoing facts, the Defendant plainly has not been fully forthcoming and

truthful with the Government with regard to assets subject to forfeiture. He also obstructed the

Government’s attempts to recover evidence of his convicted offense by lying to the Government

about the existence of any safe deposit boxes. Therefore, the Government respectfully asks this

Court to concur with the findings of the Presentence Report and find that the Defendant is not

entitled to a two-level Safety Valve reduction and that an Adjusted Base Offense Level of 36

appropriately applies in this case.

B. NO FACTOR IN 18 U.S.C. § 3553(a) SUPPORTS A DEPARTURE OR


VARIANCE FROM THE 188- TO 235-MONTH SENTENCING GUIDELINE
RANGE

The Government respectfully submits that, after closely considering the nature and

circumstances of the Defendant’s offense, his history and characteristics, the need for the

sentence imposed to promote respect for the rule of law, provide just punishment, deter this

Defendant and others who would seek to defraud Medicare and traffic in narcotics, an

appropriate sentence is within the 188- to 235-month sentencing guideline range.

1. A 188-235 Month Sentence will Recognize the Seriousness of this Offense,


Promote Respect for the Law, Provide Just Punishment, and Appropriately
Deter this Defendant and Others

In this case, the Defendant engaged in a sophisticated conspiracy to defraud the United

States Government and social programs designed to help those most in need, and he manipulated

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these services to pay for his illegal drug trafficking activity and support a high class lifestyle. It

was not enough that the Defendant was able to live comfortably off of Medicare and disability,

to the tune of nearly $250,000 in prescription drug costs since January 2007, disability payments

of about $1,700 per month, and food stamps of about $360 per month. The Defendant

shamelessly took it one step further: he sold his prescription narcotics at great profit, earning

more than $200,000 in pure profit over the course of his conspiracy. (Lenhart Aff. ¶ 27.) All the

while, the Defendant bought silver, collected and drank $1,000 bottles of wine. Put bluntly, the

nature and a circumstance of the Defendant’s conduct not only is utterly shameless, but it shocks

the conscience.

For a period of three years, the Defendant was distributing enormous amounts of

dangerous prescription narcotics. The danger and addictive nature of these substances cannot be

overstated, and only adds to the serious nature of the offense. Moreover, the investigation into

the Defendant began when local authorities were investigating prescription narcotic distribution

to high school-age youth in Fauquier County; narcotics recovered in that investigation were

traced back – through several layers – to the Defendant. (Lenhart Aff. ¶ 27.) In some instances,

the Defendant adjusted his prescription needs based solely on the resale ability of his largest

customer, with, at best, an utter disregard for where the dangerous narcotics would end up. The

Defendant tried to cover up his tracks by peeling his name of prescription pill bottles, but his

desire for more and more “free” money overwhelmed any common sense of right and wrong.

The Defendant’s conduct demonstrates an utter disdain for the rule of law and prove that

he needs to be deterred. The Defendant has been involved in prescription drug fraud for 30

years, dating back to 1982 when he was first convicted of forging prescriptions. His disdain for

these laws clearly continues to this day. Moreover, he obviously has no regard for the rules

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governing so many social programs that he defrauded and lived off of for years. As this Court

knows, programs for the disabled and needy – Medicare, social security, and food stamps – are

precious programs paid for by hardworking American taxpayers. Those in need who obtain

access to these programs must know that in this country, those who seek illegally to take

advantage of them will be punished. The Defendant needs to be deterred, and those that may try

to copy his ploys must also be deterred; a within guideline range sentence is necessary to achieve

that result.

Finally, there is a legitimate need to protect the public from future criminal activity of the

defendant. As mentioned above, the Defendant has a total disregard for how he makes the

money he needs to purchase a $20,000 wine collection, or live in a nearly $800,000 home.

Narcotics that the Defendant sold were traced to high school-age youth, and the public, including

those potential customers, will be safer the longer the defendant spends time behind bars and

separated from others in society.

Therefore, the Government respectfully submits that a within guideline range sentence is

appropriate and necessary in light of these various factors.

2. Neither the Defendant’s Medical Condition Nor Any Other Factor Supports a
Departure or Variance from the 188 to 235-Month Sentencing Guideline Range

The evidence submitted to the Court demonstrates that, at best, Defendant’s medical

condition and needs are subject to professional disagreement. Based on the most reliable

evidence available, it appears that the Defendant’s medical condition is more apparent than real.

The Government submits that the medical conclusions of the Defendant’s prescribing

physician from 2003 to 2010, Dr. Mouroner, cannot be relied on by the Court. There is evidence

submitted by the Alexandria Detention Center Medical staff indicating that Dr. Mouroner was

prescribing the Defendant a lethal cocktail of prescription drugs and narcotics (Sharieff Aff. ¶ 6),

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either without regard for the Defendant’s well-being, with knowledge that the Defendant was

redistributing the pills, or without exercising even a modicum of sound medical judgment. No

matter what circumstance is true, Dr. Mouroner’s medical conclusion about the Defendant, or

any conclusion about his prescription drug needs, cannot be relied on by the Court. (See id. ¶ 9

(“The list of medications provided by Dr. Marouner’s office was sufficiently alarming to cause

Dr. Dean Rieger to report Dr. Marouner’s treatment regimen to the Board of Medical Examiners

pursuant to mandatory reporting statutes under Virginia law.”))

Rather, the most recent and independent medical option of Doctors Sharieff and Rieger of

Correct Care Solutions, which oversees medical care at the Alexandria Detention Center, is the

most reliable medical information available. Dr. Sharieff, after a thorough neurologic

examination of the Defendant, found no objective clinical evidence of a bilateral neuropathy and

is “unable to confirm the diagnosis of ‘degenerative peripheral neuropathy’.” (Sharieff Aff. ¶¶ 8,

10.) Moreover, medical officials observed that when the Defendant was admitted to the ADC,

based on the list of prescriptions he was receiving from Dr. Mauroner, they expected significant

withdrawal from those drugs; that, however, did not occur. This suggests to doctors that he was

not taking the medications that he was prescribed. (Id. ¶ 7.)

Thus, while any sentence necessarily must take into account the history and

characteristics of the defendant, 18 U.S.C. § 3553(a)(1), the Government respectfully submits

that – given the Defendant’s longstanding use and abuse of prescription drugs, his obtaining

them by fraud, the fact that his prescribing physician’s medical conclusions cannot be relied on,

a recent medical evaluation cannot confirm the diagnosis that the Defendant claims to have, and

that the Defendant has clearly sought to gain the sympathy of this Court by using a walker and

wheelchair on multiple occasions – the Court should give minimal weight to this factor.

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C. AN ORDER OF RESTITUTION IS MANDATORY UNDER 18 U.S.C. § 3663A

Although not stated in the Plea Agreement, restitution is mandatory where a Controlled

Substances Act offense was committed by fraud or deceit, or whenever there is an identifiable

victim that has suffered a pecuniary loss. 18 U.S.C. §§ 3663A(c)(1)(A)(ii) & (c)(1)(B).

In this case, the Defendant defrauded Medicare out of $249,701 since January 2007. This

amount includes $201,465 that Medicare paid for prescription narcotics, with the remaining

$48,236 paid for non-narcotic prescriptions. (Lenhart Aff. ¶ 13.) Pursuant to the Statement of

Facts, the Defendant has admitted that Medicare paid over $200,000 for the narcotics that he

obtained during the drug trafficking conspiracy. (Statement of Facts ¶ 14; PSR ¶ 28.)

Thus, the Government respectfully requests an order of restitution to Medicare in the

amount of $201,465.

D. A FORFEITURE ORDER & MONEY JUDGMENT IN THIS CASE IS


NECESSARY

Pursuant to his Plea Agreement, the Defendant agreed to forfeit all of his interests in the

property listed in that Agreement. Specifically, the Defendant agreed to forfeit his Residence in

Middleburg, Virginia, coins, a 65-pound silver bar, cash recovered in the search of the

Defendant’s safe deposit box, a wine collection, and other silver bars. In addition, the Defendant

has profited at least $200,000 in illegal proceeds as a result of the drug trafficking conspiracy,

and he should be held liable for that amount in the form of a money judgment. (Lenhart Aff. ¶

27.) 5 Thus, the Government asks the Court to execute the forfeiture order and accompanying

money judgment.

5
The equity in the Defendant’s Residence is of insufficient value at this time for the Government to process a sale of
the Residence.

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E. A FIVE-YEAR PERIOD OF SUPERVISED RELEASE IS APPROPRIATE

Upon the Defendant’s reentry into society, the Government submits that a significant

period of supervised release – not less than five years – is necessary in order to satisfy restitution

obligations and ensure that the Defendant reenters society without resorting to illegal activity.

Conclusion

For the reasons stated herein, and based on the specific facts and circumstances of this

case, the United States asks this Court to impose a sentence within the 188-235 sentencing

guidelines range, which the Government believes is necessary to punish the Defendant, deter him

and others from committing similar offenses, promote respect for the rule of law, and

appropriately serve all of the factors set forth in Title 18, United States Code, Section 3553(a).

Respectfully Submitted,

Neil H. MacBride
United States Attorney

By: _________/s/_______________
Paul Rosen
Special Assistant United States Attorney

Gene Rossi
Assistant United States Attorney

Attorneys for the United States


Office of the United States Attorney
2100 Jamieson Avenue
Alexandria, Virginia 22314
Phone: (703) 299-3700
Fax: (703) 299-3980

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CERTIFICATE OF SERVICE

I hereby certify that on the 20th day of August 2010, I electronically filed the foregoing

with the Clerk of Court using the CM/ECF, which will send a notification of such filing (NEF) to

the following:

Aamra S. Ahmad, Esquire


Office of the Federal Defendant
1650 King Street, Suite 500
Alexandria, Virginia 22314
(703) 600-0800
aamra_ahmad@fd.org

By: ______/s/____________
Paul Rosen
Special Assistant United States Attorney
Attorney for the United States
Office of the United States Attorney
2100 Jamieson Avenue
Alexandria, Virginia 22314
Phone: (703) 299-3700
Fax: (703) 299-3980
Paul.Rosen2@usdoj.gov

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