steven finkler sentencing memo - defendant

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA :

vs. : CRIMINAL NO. 3:13CR79(SRU)

STEVEN FINKLER : November 26, 2013

DEFENDANT’S MEMORANDUM IN AID OF SENTENCING

Steven Finkler knows that his actions have taken everything from him that matters. He lost his

marriage. He lost his relationship with his son. His aunt, a true-blue supporter of his for many years,

died while he was incarcerated. He could not attend her funeral. His incarceration will only further

estrange him from his ex-wife and his son. He does not need a consecutive set of sentences to teach

him a lesson about the consequences of his criminal conduct. He knows already what his actions have

cost him.

Mr. Finkler is not a person who lacks the capacity to care about others. The letters attached to

this memorandum show that he can be a good man. Those closest to him, and the rabbi he has

counseled with for most of the last year, describe a man who has a heart. If this is true, how does one

explain his repeated fraudulent behavior? And how can Mr. Finkler prevent future crimes? Mr. Finkler

is trying to resolve these questions himself. He has gained some insight and has made some significant

changes.

First, Mr. Finkler has long been diagnosed with Bipolar Disorder and Depression, but he has not

been faithful to treatment in the past. Either he did not take his medications, or he took them for a

while, and then, convincing himself that he did not need them, he abruptly stopped taking them. During

the last year and a half, he has been faithfully taking two medications that have helped him. The

combination of Lamictal and Prozac has greatly reduced his anxiety. When very anxious, he used to

experience panic attacks. Looking back at his past offense conduct, he often made terrible decisions

while experiencing high levels of anxiety. Indeed, the offense conduct in this case of writing fraudulent

checks to himself is surely not a well-thought out strategy for committing a fraud. It is the sign of an

Case 3:13-cr-00079-SRU Document 15 Filed 11/27/13 of 5

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unwell mind. It was very easy for the authorities to solve this crime. Mr. Finkler deposited the checks

in his own account, in his own name. Some of the fraudulent checks were so easy to spot that they were

not honored in the first instance. There was nothing clever or subtle about this crime.

Second, Mr. Finkler has been exploring his behavior and the course of his life with a rabbi who

started visiting him in February of 2013. Rabbi James Prosnit sees reasons to be hopeful about Mr.

Finkler. Mr. Finkler is remorseful for his conduct, and he wants desperately to have a relationship with

his son. He and his son were very close prior to Mr. Finkler’s incarceration in this case. The rabbi has

offered to continue counseling with Mr. Finkler when Mr. Finkler’s incarceration is over.

In short, Mr. Finkler’s plan for the future consists of four parts. First, he realizes he must take

his medications. Second, he wants to live somewhere near to his son and ex-wife. He has amends to

make there. He has hurt them both deeply. Third, he wants to keep counseling with his rabbi. He has

found comfort and insight in their sessions. Finally, he wants to obtain employment so he can support

himself and so that he can help his ex-wife and son with their needs.

It is likely that the government will dismiss his efforts over the last year and a half as “doing

what is necessary to get a good sentence.” Mr. Finkler realizes that he has earned such skepticism by

his past conduct. He cannot undo the past. He has a significant record of convictions, and he knows

that, as a result of his record and as a result of the conduct that is at issue in this case, people will view

him with great suspicion. He knows that the only way to demonstrate the sincerity of his efforts is by

sustaining them. He has been consistent in taking his medications, and he has been counseling for many

months. He could have done neither, but he wants to be a better person. The rabbi believes Mr. Finkler

is sincere.

Mr. Finkler is facing a significant period of incarceration. His guideline range for the instant

offense is 33-41 months, and he also faces a supervised release violation term of up to 24 months. Mr.

Finkler seeks a sentence of 36 months. This proposed sentence is not at the bottom of the range. He

believes that such a sentence is sufficient, but not greater than necessary, to meet the goals of a criminal

sentence for his criminal offense as well as the supervised release violation. See 18 U.S.C. § 3553(a).


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This is so for three reasons.

First, 36 months in jail for a 49 year old man is significant punishment. Re-establishing oneself

in the community and in the job market in one’s 50s will be very difficult. His time in jail will pass

slowly. It is not easy being a middle aged man in jail, and the likelihood of getting visits in his case is

pretty small. He will not be housed in Connecticut.

Second, the cumulative effect of the guideline enhancements increased Mr. Finkler’s sentencing

range in a way that is artificial and overstated. That is, reduced to its essence, Mr. Finkler actually

obtained approximately $9800 that did not belong to him, and he did that while on supervision. That

was his crime. His sentencing guidelines, however, are increased four levels above the loss he actually

caused based on an intended loss of more than $39,000. He gets an additional two-level increase for

obstructing justice for lying about his finances and another increase to his criminal history category for

committing the offense while on supervision. Thus, the guidelines that would have applied without

those enhancements rises from 18-24 months to 33-41 months. To now say that he should receive a

consecutive sentence for a supervised release violation (that already operated to increase his criminal

history category for committing an offense while on supervision) results in an effective sentencing

exposure that compounds and overstates what actually happened here.

Third, Mr. Finkler’s proposed sentence would sufficiently meet the goals of a criminal sentence.

Three years of incarceration is a significant punishment. It would certainly incapacitate him for a

lengthy period. It should deter any member of the public who is contemplating a similar offense. Three

years is, again, real jail time, not a slap on the wrist. As for deterring Mr. Finkler, the number of months

of incarceration has not had a deterrent effect. His problems run deeper, and it appears he may be

finally on the right track to understanding the motivations for his crimes, his need for medication and

counseling, and the effect his conduct has on his familial relations. He lost his wife and child in the

process here. It has finally registered with him that others cannot and will not stand by him forever

unless he changes. So specific deterrence will not be affected one way or another by the addition of

some months of incarceration. It is the other consequences – loss of family – that will ultimately deter


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him or not. Finally, there is no rehabilitative goal that can only be achieved with a consecutive

sentence. If anything, Mr. Finkler would be better off in achieving rehabilitation by having a shorter

sentence and continuing to counsel with his rabbi.

In United States v. Ministro-Tapia, 470 F.3d 137 (2d Cir. 2006), the Second Circuit explained

that if the sentencing court believes a lower sentence will be as effective as a higher sentence in serving

the purposes of sentencing, it must choose the lower sentence. 470 F.3d at 142. Three years of jail is

enough, under the circumstances in this case, to achieve the goals of a criminal sentence.

Mr. Finkler has attached as Ex. A letters for the Court’s consideration.

Respectfully submitted,

THE DEFENDANT,Steven Finkler

FEDERAL DEFENDER OFFICE

Dated: November 27, 2013 /s/ Terence S. Ward Terence S. WardFederal Defender10 Columbus Blvd, 6 FLth

Hartford, CT 06106Phone: (860) 493-6260Bar No.: ct00023Email: [email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 27, 2013, a copy of the foregoing defendant’smemorandum in aid of sentencing was filed electronically and served by mail on anyone unable toaccept electronic filing. Notice of this filing will be sent to all parties by operation of the Court’selectronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Noticeof Electronic Filing. Parties may access this filing through the Court’s CM/ECF System.

/s/ Terence S. Ward Terence S. Ward


mailto:[email protected]

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steven finkler sentencing memo - defendant

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