UNITED STATES COURT EASTERN DISTRICT OF NEW YORK 03 Cr. 328 (RJD) UNITED STATES OF AMERICA -against?? SIMON MOSHEL, et al., Def CE MEMORANDUM ON BRAFMAN ROSS, P.C. Attorneys for Defendant Simon Moslsel 767 Third Avenue, 26th Floor New York, New York 10017 Tel: (212) 750-7800 Fax: (212) 750-3906 BENJAMIN BRAFMAN MARK M, BAKER Of counsel LOURDES OLVERA, Legal Assistant Assisting on the Memorandum Preliminary Stat ent 1 I I. Background 2 A. The Personal History and Character of Simon Momel I . 2 1. Defendant's Loss of His Father and 2 2. The Moshiashvili Family Emigrates to Israel 3 3. Simon Moshd Starts a New Life in Amuica 4 4. Simon Moshel is an Extraordinary Devoted Family Member 7 5. Simon Moshel is a Compassionate and I Generous Member of His Community 10 6. Simon Moshel's Extraordinary Contribution Toward Building the Synagogue ofthe Congregation of Georgian Jews 16 7. Simon Moshel's Conduct in this case is Uncharacteristic - oftheWellRespeeted andAdmiredPersonWhom Everyone Knows Him to be 19 8. Simon Moshel is Overwhelmed with Shame and Remorseas aResultofhisCriminal Conductand 21 . B. Defendant Simon Moshel's Plea of Guilty 24 C. Defendant Simon Moshel's "Full Cooperation" with the Vicdm Cigarette Company 24 H. Defendant's Legal Challenges to the Pre-Sentence Report Compel the Determination that The Probation Department Has Assigned an Offense Level that is Not Supportable 26 A. A Two Point Downward Adjustment for a Global Plea Is Proper 27 B. The Proposed Upward Adjustments by the Probation Department, Aside irom Being Extremely Diflicult to Determine, are Inappropriate 28 1. The Extremely Compleat Issue of Valuation Is Probably Not Capable of Being Determined Beyond a Reasonable Doubt; In any Event, if it i to Be Detmmined At All, Such Must be Based on the Minimal Value of the Inferior Quality "In'd?inging" Items 29 . a) Applicable Legal Principl 30 b) Discussion 32 1) The First Three Deliveries 34 2) 'I`he Fomth Delivery 36 3) The Fifth Delivay 44 c) Totals 45 2. There Was No Demonstrable Risk of Injury to Potential Customers 46 IH. Defe.ndant's Adjusted O&`ense Level Should be Far Less than that by the Probation 47 IV. Defendant is Well Deserving of Downward Departures, and a Non-Inearceratory Sentence, on Two Distinct Grounds 47 A. Defendant Has Provided Substantial and Non-Obligatory Assistance to the Cigarette Company Victims 47 B. Defendant's Extraordinary Good Works and Acts of Charity in the Community Have Repeatedly Gone FarBeyondWhatis NormallyexpectedofaFamily Member, Friend Or Neighbor, Thereby Meriting an Additional Downward Departme 49 V. Aiter Considering the Guidelines, 'I'he Court Should - Impose a Non-Guidelines Sentence in Conformity With 18 U.S.C. ?3553(a) 50 Conclusion Sl -5- i UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 03 Cr. 328 (RJD) . UNITED STATES OF AMERICA -agolnst- SIMON MOSHEL, et al., Defendants. PRE-SENTENCE MEMORANDUM ON This memorandum is respectfully submitted on behalf of Defendant Simon Moshe], in furtherance of his anticipated sentencing, upon his earlier entered plea of guilty, which is now scheduled forMarch 15, 2005, at 11:00 Portions ofthis memorandum are extracted from those materials which had been earlier submitted to the United States Attorney and the Department of Probation. -1- I- A. The Personal History and I 1. Defendant's Loss of His Father and Simon Moshe1wasbornonOctober7, 1950 inthe Republic ofGeorgiainthe former Soviet Union. He was the eldest son of four children born to Eliahu Moshiashvili and Nina Moshiashvili. Simon's sister, Nora, was born in 1948; sister Leah was bom in 1953; and brother Michael was bom in 1955. Bliahu and Nina Moshiaahvili were two young Georgian Russians who suffued the hardships of World War H. The Moshiashvili family was under the control ofthe communist Soviet Govermnent and the accompanying rampant anti-Semiti that permeated that society. Simon's father worked in a cognac factory and his mother was a registered muse. Together, they tried to provide their four children with the best life possible. However, in 1963, Simon's father was arrested because of his involvement in Jewish movements in their community. For almost two years, the Moshiashvilis did not know whether Eliahuwas dead oralive. No fort1?ial. Owingto what they later leamedto have been the imposing of an eightyearsentence on Eliahu, Nina sold the family home and eventually moved to Tbilisi where the whole family shared a one bedroom Y- . Simon was only 14 years old when his father was arrested. However, as the oldest son he took it upon himself to help his mother make ends meet. Simon started earning extra money for his family on night shifts at a factory, while attending school dtning the day. He worked at the factory for fom years. Nina was actually opposed to this, because she did not wanthim to forfeit his -2- education. However, as she explains, Simon insisted, and compelled her eventual acqui >>