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CR. NO. 2:10cr186-MHT

UNITED STATES’ SENTENCING MEMORANDUM Defendant Jarrod Massey is before the Court for sentencing, having pled guilty to a long running bribery conspiracy that is unparalleled in scope – in both the number of public officials it targeted as well as the sheer value of the bribes. The facts of his crimes are not in dispute Massey has signed a detailed factual basis, and has testified at trial, describing the corruption scheme at length. All told, Massey has admitted offering bribes to six different state legislators. The enormity and seriousness of Massey’s crimes merit a lengthy term of imprisonment. The United States agrees with the Probation Office’s calculations under the United States Sentencing Guidelines, which provide a Total Offense Level of 35 with a sentencing range of 168-210 months. Massey, however, has offered substantial assistance in the investigation and prosecution of others, and the government hereby moves for a downward departure. Based on the relevant factors under 18 U.S.C. § 3553, balanced against the totality of Massey’s cooperation, the government recommends a sentence of imprisonment of 134 months. I. Background Beginning in April 2006, Defendant Massey owned his own lobbying firm in Montgomery, Alabama. Massey employed lobbyist Jennifer Pouncy. One of Massey’s largest clients was Ronald Gilley. Gilley and his then business associate Milton McGregor both owned

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controlling interests in large entertainment projects that depended in part on electronic bingo. When the Alabama state government began to challenge the ability of Gilley and others to operate electronic bingo machines, Gilley turned to Massey for help protecting his investment in electronic bingo, including by bribing state legislators when necessary. In 2009 and 2010, Massey conspired with McGregor1, Gilley, Pouncy, and others to commit bribery to pass pro-gambling legislation, which in 2010 took the form of Senate Bill 380 (“SB 380”). Had SB 380 become law, its effects would have been extraordinarily far reaching – a state-wide referendum to amend the Alabama constitution. Not only could the corrupt scheme have changed the bedrock of Alabama law, but it likely would have led to limitless profits for Gilley and McGregor. Their joint financial motive meant they, Massey, and their coconspirators were prepared to pay colossal sums of money to buy the votes they needed, promising millions of dollars of bribes to public officials. Although both Massey and Gilley pled to the same bribery conspiracy, Massey pled guilty to fewer substantive counts based on the fact that he had only a minor role in Gilley’s bribery of Senator Harri Ann Smith, and no role in the money laundering Gilley committed in order to disguise the true nature of $200,000 of Gilley’s bribes to Smith.

Although McGregor and many of Massey’s other coconspirators were acquitted by a jury, it is appropriate for the Court to consider their conduct in sentencing Massey. First, as the Court found on two separate occasions, the evidence at trial proved by a preponderance the existence of a bribery conspiracy involving all of the acquitted defendants. (See, e.g., Doc. No. 1916 (Court’s conclusion that the evidence established a conspiracy among the charged defendants). The same preponderance standard governs the Court’s factual determinations at sentencing. United States v. Whitesell, 314 F.3d 1251, 1255 (11th Cir. 2002). Moreover, Massey himself has admitted conspiring with McGregor, Thomas Coker, Jarrell Walker and others to bribe Larry Means, James Preuitt, Quinton Ross, and Harri Ann Smith. 2


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March-April 2009: Attempted Bribery of Representative Benjamin Lewis

In 2009, Massey helped Gilley offer attempted bribes to Representative Benjamin Lewis. Unbeknownst to Massey, Lewis was cooperating with the government’s investigation. In a March 2009 conversation with Gilley, Lewis, and Massey, the group discussed Lewis’s problems with then pending pro-gambling legislation. Gilley then asked Lewis how much his most recent campaign had cost. (Lewis Test., 6/22/11 Trans. at 28). When Lewis responded $200,000, Massey said Lewis’s next campaign would cost double, and Gilley told Lewis that one of Gilley’s contacts could write a check for that entire amount. (Id. at 29). Later, Gilley talked separately with Lewis and, “[T]o cut through all the rhetoric, I offered Mr. Lewis a bribe to vote for our legislation.” (Gilley Test., 6/24/11 Trans. at 130). As part of his agreement, Massey pled guilty to Count 2, a substantive count of § 666 bribery involving the offer of $200,000 to Lewis to influence and reward Lewis in connection with a vote on the 2009 pro-gambling legislation. B. February 2010: Attempted Bribery of Senator Scott Beason

In February 2010, Massey worked with Gilley and McGregor to attempt to bribe Senator Scott Beason in return for his favorable vote on SB 380. On February 16, 2010, Massey paid an unannounced visit to Beason’s legislative office, telling Beason that, if Beason did not commit to voting in favor of SB 380, he “might miss an opportunity to really cut yourself a good deal.” (Doc. No. 300, Massey Fact Basis at ¶ 12). On February 18, Massey, McGregor, and Gilley met with Beason. Unbeknownst to all three, Beason was cooperating with the government’s investigation and tape recorded the meeting. During that meeting, the group discussed giving Beason public relations consulting work, with Massey telling Beason, “[L]et me visit with them


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[McGregor and Gilley] and get a little bit deeper in the weeds. And you and I can come up with a kind of template of sorts....” (J008 at 50:9-15). In the days that followed, Massey met with Beason to expand on the details of the public-relations-firm bribe, offering “‘a million dollars of business that is going to come through that PR entity, one way or the another [sic], you know, annually.’” (Docket No. 300, Massey Fact Basis at ¶ 16). As a result, Massey pled guilty to Count 4, a substantive § 666 bribery count stemming from Massey and Gilley’s promise to Beason of $1 million annually “as income from, or an equity interest in, a public relations entity, to influence and reward” Beason in connection with his vote on SB 380. C. March 2010: Bribery of Senator Preuitt

On March 2, 2010 - the day before the initial Budget Isolation Resolution (“BIR”) vote on SB 380 - Massey called Gilley to suggest that Gilley purchase trucks from Preuitt’s automobile dealership if necessary to secure Preuitt’s vote. (Ex. J-024 at 2). After the failed BIR vote, Massey told Pouncy to communicate to Preuitt (1) that Gilley would fund Preuitt’s reelection campaign, and (2) that Gilley had “$1 million to $2 million ‘to play with.’” (Doc. No. 300, Massey Fact Basis at ¶ 32). On March 24, in an intercepted call with Gilley, Massey recounted how he had confirmed to Preuitt earlier offers of free campaign assistance from political consultant Jarrell Walker and significant in-kind contributions in the form of free country music concerts as campaign fundraisers. Massey said: [Preuitt] told me point blank, he said, “Well, as you know, I’ve gone, come a long way,” and you gotta know Preuitt to understand all this code. “I’ve come a long way.” And, he’s winking at me .... I told him, I said, “Look, I know you rock solid with Larry.” I said, “I know you’re covering him.” I said, “Y’all got, y’all got this thing locked up right now and it’s whatever y’all want.” And I said, “So, that’s, you know, hey, that’s great. That’s the way this process works.” 4

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(Ex. J-78 at 4:42-5:6). Massey pled guilty to Count 8 of the Indictment, a substantive § 666 bribery count involving the cumulative offer of at least $2 million in direct and in-kind campaign contributions to Senator Preuitt to influence and reward Preuitt in connection with the upcoming vote on SB 380. D. March 2010: Bribery of Senator Means

Late in March 2010, Senator Larry Means asked Jennifer Pouncy for $100,000 in campaign contributions, a request that Pouncy, Massey, and Gilley all viewed as the solicitation of a bribe. On March 24, Massey called Gilley to tell him, “‘with regard to Means ... He’s asking for $100,000, if he votes for this bill.’” (Ex. J-75). After getting approval from Gilley, Massey told Pouncy to go back to Means and agree to the terms of the corrupt deal, thereby committing to paying Means $100,000. (Pouncy Dir., 2/13/12 Trans. at 139). As a result, Massey pled guilty to Count 5, charging him with a substantive count of § 666 bribery involving the offer of $100,000 in campaign contributions in return for Means’ yes vote on SB 380. E. December 2009 - March 2010: Bribery of Senator Ross

In late December 2009 or early January 2010, Senator Quinton Ross called Pouncy to solicit $5,000 to $10,000 in campaign contributions, telling Pouncy that he felt he deserved the contribution because he had sponsored the pro-gambling legislation in the 2009 legislative session and was no longer “‘feeling the love.’” (Pouncy Plea Agreement at ¶ 23). On March 14, 2010, Massey told Gilley that Ross was seeking an additional $20,000 in campaign contributions, over and above the $15,000 Massey and Gilley already had provided. (Ex. J-44).


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Ultimately, Massey pled guilty to Count 10, charging him with § 666 bribery for offering Ross $25,000 in campaign contributions in connection with a yes vote on SB 380. F. Uncharged Conduct Involving State Representative Terry Spicer

In a separate uncharged bribery conspiracy, Massey and Gilley gave things of value to Representative Terry Spicer. In particular, prior to 2006, Massey began paying Spicer approximately $1,000 to $1,500 in cash per month, and in April 2006, Massey and Spicer agreed that Massey would begin paying larger sums in exchange for Spicer using his legislative position to obtain lobbying business for Massey. (Spicer Plea Agreement at ¶ 3). As a result, Massey increased the cash payments to Spicer to roughly $2,000 to $3,000 per month beginning in June 2008 and continuing through January 2010. (Id. at ¶ 11). Massey also provided additional things of value, such as an additional $9,000 cash payment in about December 2008, and a ski trip for Spicer and his family to Breckenridge, Colorado, in or about January 2009. (Id. at ¶ 12). Finally, Massey helped Gilley pay additional bribes to Spicer in return for Spicer’s use of his official position to assist Gilley. (See id. at ¶¶ 15-20). II. Guidelines Calculations The goal of sentencing is to achieve a sentence that is “sufficient but no greater than necessary.” 18 U.S.C. § 3553(a). A district court “should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” United States v. Gall, 128 S. Ct. 586, 596 (2007) (citation omitted). The Sentencing Guidelines represent a “heartland” for a particular criminal offense – “a set of typical cases embodying the conduct that each guideline describes.” See U.S.S.G., ch. 1, pt. A, comment 4(b). Imposing a sentence within this heartland promotes


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fairness by helping to ensure that individuals who engage in similar conduct are treated similarly in the federal criminal justice system. As noted above, the Presentence Report contains an accurate calculation of the defendant’s offense level. In addition, Massey has stipulated that these calculations and enhancements are correct. Finally, the facts supporting these calculations were the subject of testimony (from Gilley, Massey, Pouncy, and others), court authorized interceptions of telephone calls, consensual recordings, and other additional evidence, all of which is familiar to the Court after two jury trials. Pursuant to Sentencing Guidelines § 3E1.1, the government hereby moves for an additional one-level reduction of Mr. Massey’s offense level due to his timely notice of his intent to enter a plea of guilty. In sum, Massey’s Sentencing Guidelines Range should be calculated as follows: 2C1.1(a)(1) Base Offense Level 2C1.1(b)(1) More than One Bribe 2C1.1(b)(2) and 2B1.1(b)(J) Value of Amount Offered Between $7,000,000 and $20,000,000 2C1.1(b)(3) Payment Was for Purpose of Influencing an Official Act of An Elected Official 3E1.1 Reduction for Timely Notice of Intent to Plead Guilty Final Sentencing Guidelines Level III. 12 +2 +20


-3 35 (168-210 months)

Motion for a Downward Departure Pursuant to § 5K1.1 for Substantial Assistance The Sentencing Guidelines identify a non-exhaustive set of five factors as an aid to the

Court in considering the amount of a departure to be granted on the government’s substantial


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assistance motion. U.S.S.G. § 5K1.1. As explained below, Massey’s cooperation - as measured against those factors - merits a departure, and the government recommends a 20% reduction from the low end of the final Sentencing Guidelines level. The recommended departure is less than that recommended for Gilley and Pouncy given the difficulties experienced with Massey’s cooperation. (1) The significance and usefulness of the defendant’s assistance. The significance and usefulness of Massey’s cooperation merits a downward departure, although one tempered by the problems with Massey’s reliability. In particular, Massey deserves credit for the guilty pleas of two coconspirators, Ronald Gilley and Terry Spicer. Gilley’s decision to plead guilty undoubtedly was affected by the knowledge that much of Massey’s testimony at trial would directly implicate Gilley. Indeed, Gilley witnessed first hand how Massey would implicate him when Massey testified at the February 12, 2011 bond revocation hearing for Gilley. Massey’s cooperation also directly and substantially contributed to the guilty plea of Representative Terry Spicer. Massey provided information that Spicer was accepting monthly cash payments in exchange for official action that benefitted Massey’s lobbying business. As a result of Massey’s cooperation (combined with Gilley’s), Spicer plead guilty to a substantive bribery charge.2

Massey also has cooperated in an ongoing corruption investigation by the Alabama Attorney General’s Office. The undersigned have been unable to obtain an assessment of the value of Massey’s cooperation to the state investigation, so the instant recommendation does not include additional consideration for his cooperation with the state. 8


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Unfortunately, Massey severely undercut his usefulness by repeatedly violating instructions he was given by the government. Massey was instructed not to read or listen to anything about the trial. He, however, repeatedly violated that instruction. For example, during the direct examination of Gilley in the first trial, on June 24, 2011, Massey called his wife from jail and asked her, “What did you hear on Gilley today?” and then discussed with her what she had gleaned from the news coverage. (Ex. J-750-11). Likewise, Massey was repeatedly instructed not to discuss the case with anyone outside of his attorneys or immediate family. Nevertheless, several months after the first trial, on October 27, 2011, Massey initiated contact with a blog titled The Legal Schnauzer, offering to provide information on improprieties he had observed. (Att. A - Legal Schnauzer article). When the blog failed to respond to Massey’s offer, Massey sent another solicitation on November 1, 2011. To his very limited credit, Massey wrote that he was not interested in discussing “anything ... directly related to pending trial points.” (Id.). In violating the clear instruction to avoid the press, Massey needlessly created additional material with which to cross examine him, rendering less useful his cooperation and testimony in a second trial. More damaging to his usefulness, however, was how Massey responded to cross examination during the first trial. Massey displayed contempt and disrespect for defense counsel, notwithstanding contrary instruction by the government and, ultimately, the Court. Within minutes of beginning to testify on cross, Massey told a defense attorney that he kept answering in narrative fashion because, “I have a dislike for you and I was getting a little fun out of aggravating you.” (Massey Cross, 7/12/12 Trans. at 143). This outburst required the first of several increasingly strong admonishments from the Court, until the following day when the


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Court was forced to excuse the jury and threaten Massey with contempt if he continued to argue with defense counsel. (Massey Cross, 7/13/12 Trans. at 105-106). In spite of this and other stern admonishments, Massey continued to be disrespectful, culminating with his final exchange with McGregor’s defense counsel, when Massey asked, “Is that the best question you got to end with?” (Massey Cross, 7/14/12 Trans. at 78). Moreover, Massey later admitted that one answer he had given during cross had been incorrect. On cross, Massey testified that he initially had withheld information about Means’ solicitation of $100,000 out of a desire to “protect Senator Means till the eleventh hour when I found out I couldn’t.” (Massey Cross, 7/15/11 Trans. at 125). When pressed on the plausibility of this claim given that he did not personally know Senator Means, Massey persisted, reaffirming not only that he had tried to protect Senator Means but also claiming that he had been open and honest about that fact, informing the government about it during a debriefing session. (Massey Cross, 7/19/11 Trans. at 49-52). In fact, Massey later admitted that he had not explained to the government previously that he wanted to protect Means.3 (Att. B - 2/2/12 302 of Massey). All told, the significance and usefulness of Massey’s cooperation – particularly his contribution to two guilty pleas – weighs in favor of a departure, although one tempered by the ways Massey hurt his usefulness by failing to follow the government and the Court’s instructions to display respect for defense counsel and to answer the questions posed to him.

The government cites this admission only to illustrate how Massey damaged his usefulness as a cooperator. The government does not content that this fact should be used by the Court to calculate Massey’s sentence. See U.S.S.G. ¶1B1.8(a) and Massey Plea Agreement ¶ 15 (other than the factual basis, self-incriminating information provided by the defendant pursuant to a plea agreement may not be used in determining the applicable guideline range). 10


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(2) The truthfulness, completeness, and reliability of any information and testimony provided by the defendant. Massey’s information and testimony largely was truthful, complete, and reliable. Unlike both Gilley and Pouncy, Massey initially minimized his conduct, including by failing to disclose the $100,000 solicitation by Senator Means and later claiming that the omission was caused by a desire to protect Means as opposed to a hope of minimizing Massey’s own conduct. In the end, the government was able to corroborate much of the information and testimony Massey provided. On balance, the truthfulness, completeness, and reliability of Massey’s information and testimony weighs in favor of a departure. (3) The nature and extent of the defendant’s assistance. The nature and extent of Massey’s assistance was substantial. He made himself available at the convenience of the government, meeting during the nights and on weekends for numerous debriefings and trial prep sessions. Massey also devoted a significant amount of time to preparing for the initial trial, including by spending many dozens of hours listening to recorded conversations and then helping the government to understand the context and background for each. Further, Massey testified in the first trial, spending all or part of 9 days on the witness stand, cumulatively. The nature and extent of Massey’s assistance weighs in favor of a departure.


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(4) Any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance. Other than the reputational and economic injuries regularly suffered by white collar cooperators, there was nothing unique about Massey’s circumstances that should affect the Court’s analysis of the appropriate departure. (5) The timeliness of his assistance. Massey’s cooperation was timely. Indeed, Massey first sat for a debriefing on October 12, only 12 days after indictment. Similarly, Massey pled guilty on December 20, months in advance of the first trial. Because Massey began cooperating in time to provide useful information and was the second witness in the door, the timeliness of his cooperation merits substantial consideration in terms of a departure. IV. Application of the § 3553(a) Factors The factors set forth in 18 U.S.C. § 3553(a) support the government’s recommendation of a lengthy sentence of imprisonment, even after crediting Massey for the assistance he provided. The nature and circumstances of Massey’s crimes compel a sentence of incarceration. See 18 U.S.C. § 3553(a)(1). Massey’s crimes were not crimes of necessity. He was not forced to join Gilley in a conspiracy to offer millions of dollars in bribes out of fear, or because he was a victim of corrupt public official extorting bribes from an innocent businessman. Rather, Massey was a willing partner in these crimes. He was motivated by greed, namely a desire to please his largest client and increase his lobbying practice. Moreover, the corruption offenses committed by Massey and his coconspirators were serious, and Massey deserves substantial punishment. See 18 U.S.C. § 3553(a)(2)(A). Bribery


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strikes at the heart of our system of government, which depends on the participation of citizens. When wealthy businessmen purchase the votes of public officials, democracy is undermined because ordinary citizens become disenchanted and less likely to participate in the system. A lengthy sentence of imprisonment will properly promote respect for the law, serving as a reminder of the seriousness with which our system of government treats threats to its integrity. V. Conclusion For the foregoing reasons, the government respectfully recommends a sentence of 134 months imprisonment, combined with such other conditions as the Court deems necessary. Respectfully submitted, LANNY A. BREUER Assistant Attorney General Criminal Division Attorney for the United States Acting Under Authority of 28 U.S.C. § 515 JACK SMITH Chief


/s/ M. Kendall Day M. Kendall Day E. Rae Woods Marquest Meeks Public Integrity Section U.S. Department of Justice 1400 New York Ave., NW, 12th Floor Washington, DC 20005 (202) 514-1412


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CERTIFICATE OF SERVICE I hereby certify that on July 9, 2012, I provided, via the CM/ECF system, a copy of the foregoing to Brett Bloomston and Joseph Basgier, counsel of record for Jarrod Massey.

/s/ M. Kendall Day M. Kendall Day Deputy Chief Public Integrity Section U.S. Department of Justice 1400 New York Ave., NW, 12th Floor Washington, DC 20005 (202) 353-2248


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