Case 1:10-cr-00384-RJJ ECF No. 89 filed 07/08/11 PageID.265 Page 1 of 3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
-------------UNITED STATES OF AMERICA,
Plaintiff,

Case No. 1:10-CR-384

vs.

Hon. Robert J. Jonker
U.S. District Judge

ANTHONY D. RINKUS,
Defendant.

/

GOVERNMENT’S BRIEF IN SUPPORT OF MOTION FOR DOWNWARD
DEPARTURE BASED UPON SUBSTANTIAL ASSISTANCE
On March 25, 2011, Defendant pled guilty to Count Nine of the Indictment, charging him
with wire fraud. On July 14, 2011, this Court will sentence Defendant. The presentence report
calculates Defendant’s Adjusted Offense Level at 20 in Criminal History Category III, which
provides for a sentencing guideline range of 41-51 months. For the reasons stated below, the
government believes that Defendant has provided substantial assistance to the government and
suggests a one-level downward departure.
DEFENDANT RINKUS HAS PROVIDED SUBSTANTIAL ASSISTANCE TO THE
GOVERNMENT.
Section 5K1.1 of the United States Sentencing Guidelines provides that upon motion of the
government the Court may depart from the guidelines. USSG § 5K1.1. The Court may consider (1)
the significance and usefulness of the defendant’s assistance, taking into consideration the
government’s evaluation of the assistance rendered; (2) the truthfulness, completeness, and reliability
of any information provided by the defendant; (3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from

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his assistance; and (5) the timeliness of the defendant’s assistance. USSG § 5K1.1.
Starting in June 2010, Defendant expressed a willingness to cooperate with the FBI in its
investigation of this case. Despite his willingness to cooperate, Defendant did not provide
completely truthful statements to FBI Agents when questioned by them in June and August of 2010.
While Defendant freely implicated others in the scheme to defraud investors detailed in the
Indictment, he was untruthful as to his own conduct. Even after his Indictment, Defendant continued
to minimize his involvement. This Court had the benefit of taking Defendant's plea and saw first
hand that Defendant has grappled with acknowledging the full scope of his role in the scheme to
defraud. Defendant would like to believe that he is a well-educated, honest, family-man who has
just made some mistakes. He is not. Defendant's record shows that he is a grifter, who has
participated in a series of fraudulent schemes and shady business deals in an attempt to get rich
quick.
Despite his slow road to cooperation, Defendant has continued to make progress. While his
prior misstatements to law enforcement will provide fodder for cross-examination, Defendant
supplied a very helpful piece of evidence to the government: access to his email account. As detailed
in the presentence report, the emails provided by Defendant provide an inside-look at how he and
co-Defendants James Wiederhold, Neal Wiederhold and Niewenhuis were operating the scheme to
defraud and conceal assets, and their panic as they struggled to keep the scheme afloat. (See e.g.,
PSR ¶¶ 45-47, 50, 54, 60, 74, 80, 85, 88, 98-102, 104 and 106.)1 The Wiederholds have consistently

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During the course of its investigation, the government did obtain emails from other
sources, including some of the emails provided by Defendant. Given the electronic nature of
emails, however, it is often difficult to obtain historical email communications through
traditional law enforcement methods. Defendant retained over 5,000 of his emails, many of
which directly implicate the remaining Defendants. It is fair to say that Defendant provided
emails that the government would not otherwise have acquired.
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maintained that James Wiederhold had absolutely no involvement in the Atlas Fund, despite being
listed as a co-manager of the fund in the prospectus. With the addition of the emails provided by
Defendant, the Wiederholds' previously untenable defense is now completely absurd. Further,
Defendant retained an email Niewenhuis email that attached an important letter from Macatawa
Bank. (See PSR ¶ 109.) Niewenhuis used that letter to defraud investors into believing that he was
obtaining alternative financing to repay the hard-money loan he supposedly had received from the
Atlas Fund. Thus, those emails provide substantial assistance to the government's case, and will be
especially useful should any of the remaining defendants elect to exercise their right to trial.
WHEREFORE, the government requests and recommends a downward departure of one
guideline level to reflect Defendant’s assistance in this case, leaving him with a final guideline base
offense level as low as 19, criminal history category III, with a range of 37-46 months. The
government recognizes that the decision of whether or not to grant a downward departure, and the
extent of any such downward departure, is entirely within the discretion of the Court.
Respectfully submitted,
DONALD A. DAVIS
United States Attorney
Dated: July 8, 2011

Matthew G. Borgula
MATTHEW G. BORGULA
Assistant United States Attorney
P.O. Box 208
Grand Rapids, Michigan 49501-0208
(616) 456-2404

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