Case Document 148 Filed 10/28/16 Page 1 of 48 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION UNITED STATES OF AMERICA, PTaintiff, v. No. BRW October 27, 2016 LittTe Rock, Arkansas 10:00 a.m. THEODORE E. SUHL, Defendant. TRANSCRIPT OF SENTENCING PROCEEDINGS BEFORE THE HONORABLE BILL WILSON, UNITED STATES DISTRICT JUDGE APPEARANCES: On Behan of the Government: MR. JOHN D. KELLER, TriaT Attorney MS. LAUREN BELL, TriaT Attorney MS. AMANDA R. VAUGHN, TriaT Attorney United States Department of Justice - PubTic Integrity Section 1400 New York Avenue NW Washington, D.C. 20530 On Behan of the Defendant: MR. ROBERT M. CARY, Attorney at Law MR. THOMAS LANGDON HARRIS, Attorney at Law WiTTiams ConnoTTy LLP 725 TweTfth Street NW Washington, D.C. 20005-5901 MR. CHARLES A. BANKS, Attorney at Law Banks Law Firm, PLLC Post Office Box 251310 LittTe Rock, Arkansas 72225-1310 Defendant Present. Proceedings reported by machine stenography and dispTayed in reaTtime; transcript prepared utiTizing computer-aided transcription. Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 2 of 48 I 3 THE COURT: Good morning. Be seated, if you piease. We're here today for sentencing in United States against Ted Suhi, Case No. 415CR00300. The defendant, Mr. Suhi, is here with his Tawyer, Mr. Rob Cary. And the prosecution be -- I beiieve Mr. Keiier is going to speak for the prosecution today. Is that correct? MR. KELLER: Yes, Your Honor. THE COURT: A11 right. We're here for sentencing under the guideiines and appiicabie statutes. Are the parties ready? MR. KELLER: Yes, Your Honor. MR. CARY: Yes, Your Honor. THE COURT: I'm going to be Tike a preacher that says, before I taik to you, I'm going to teii you something. I want to ask the prosecution about -- I'm going to give them a hypotheticai situation. The guideiines suggest that Mr. Suhi shouid be given some points because he testified but he was found guiity, in essence, of finding that he committed perjury but denying he was guiity. Let me ask you a question, Mr. Keiier. Let's take the situation where a man is charged with first degree murder. At the scene there was one witness and he says the defendant -- he identifies the defendant and said he shot this Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 3 of 48 man apparentTy just to watch him choke and die. The defendant takes the stand and denies that he's guiTty. He says he was somewhere eTse. But the jury convicts him. Shoqu he be enhanced? MR. KELLER: Under those facts, Your Honor, yes. THE COURT: What's the theory: That he Tied? MR. KELLER: That he Tied, Your Honor, especiaTTy with the added detaiT that you said he was somewhere eTse. And the jury cTearTy disbeTieved that testimony, he Tied under oath, and therefore obstructed justice and quaTifies for the enhancement. THE COURT: I think that's what the guideTines say. It feeTs un-American to me. I don't Tike it. What says the defense? MR. CARY: Your Honor, one of the cases cited by the government, the Ring case by Judge HuveTTe in the District of CoTumbia, makes exactTy the point I beTieve your hypotheticaT iTTustrates, that the defendant, in the hypotheticaT you addressed and in terms of what happened in this courtroom, exercised his constitutionaT right to deny the charges. And there's certainTy case Taw, especiaTTy with one witness, that denying a charge, denying guiTt, does not constitute perjury. I understand that the guideTines say something a TittTe different. And, frankTy, Your Honor, we thought we had bigger fish to fry than to chaTTenge that particuTar enhancement. Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 4 of 48 THE COURT: I understand. MR. CARY: And in order to enhance our credibiTity with the Court, we picked our battTes. But I certainTy agree with the proposition it's un-American to give a 2-point enhancement to someone who exercises his constitutionaT right to go to triaT and his constitutionaT right to take the stand to deny the charges. THE COURT: This is not the first time I've faced it. It's a grave] in my shoe. At any rate, we'TT get to that Tater. I'm going to summarize how we got to this point. stay with me, and if I get the summary wrong, you correct me. A December 2, 2015, indictment charged Mr. SuhT with the foTTowing: Count 1, conspiracy to commit bribery and honest services fraud from on or about ApriT 2007 through February of 2012. Counts 2 and 4 -- through 4: Aiding and abetting honest services wire fraud on August 16, Count 2; September 9 in Count 3; September 12, 2010. Count 5, aiding and abetting bribery concerning programs receiving federaT funds from on or about August 2010 through November 2011. Count 6, aiding and abetting a vioTation of the TraveT Act on or about September 11, 2011. On JuTy the 20th of this year, a jury found Mr. SuhT Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 5 of 48 guiTty of Counts 2, 4, 5, and 6, and not guiTty on Counts 1 and 3. Is my summary correct? MR. KELLER: That's correct, Your Honor. MR. CARY: We agree with that summary, Your Honor. THE COURT: A11 right. Mr. SuhT, are you satisfied with your Tawyers? THE DEFENDANT: Yes, Your Honor, I am. THE COURT: 100 percent? THE DEFENDANT: Yes, Your Honor. THE COURT: A11 right. Of course, in determining the sentence consider the factors Tisted at 18 U.S.C. Section 3553 in the sentencing guideTines and other appTicabTe statutes. The Sentencing Reform Act of 1984 created sentencing guideTines. The guideTine range that we'TT -- that I wi11 come up with is mereTy a recommendation, it's not given any presumption of correctness, and I'm free to go above or be10w, pretty much. Let's go over the sentencing report and see about the disputations. need to resoTve those. Then we'TT work through the guideTines and see what range we come up with. And then Mr. Cary can speak on behan of Mr. SuhT. Mr. SuhT, you can speak on your own behan if you want to. And, incidentaTTy, I've read your mother's good Tetter, just finished reading it. You can speak on your own behan if you Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 6 of 48 want to, but, on the other hand, if you don't want to, it's up to you 100 percent and I won't ho1d it against you that you didn't speak on your own beha1f. If I forget to ca11 on you and you want to speak, 1eave it up to you and Mr. Cary to get my attention before I ca11 on Mr. Ke11er to c1ose for the government. Have both parties had a11 the time they need to review the presentence report? MR. KELLER: Yes, Your Honor. MR. CARY: Yes, Your Honor. THE COURT: A11 right. Of course, I've got the paragraph 43 objection under consideration. Does the defendant sti11 stand on the objection to paragraph 80 based on the probation officer's response? MR. CARY: Your Honor, we -- if I understand it correct1y, we understand that the cost of incarceration and supervision can be used for purposes of determining a fine, and that's acceptab1e to us. THE COURT: A11 right. I be1ieve both parties object to paragraphs 25 and 38 that ta1k about the va1ue of the benefits. Am I correct on that? MR. KELLER: That's correct, Your Honor. MR. CARY: Yes, Your Honor. THE COURT: A11 right. Give me your rendition, Mr. Ke11er, of what the government thinks a proper amount wou1d Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 7 of 48 be and teii me how you caicuiated it. MR. KELLER: Yes, Your Honor. There are three aiternative methods the Court can use to caicuiate the benefit to be received for the bribes paid under the guideiines in this case. First, there's the profits to the defendant's companies derived specificaiiy from Medicaid revenue from the Department of Human Services. So the defendant was paying bribes to Steven Jones, he's second in command, the deputy director of the Department of Human Services -- THE COURT: Paying him indirectiy? MR. KELLER: Excuse me? THE COURT: He was paying him indirectiy, right? MR. KELLER: That's correct, Your Honor, but he is paying Mr. Jones -- the scheme starts in 2008 where a new administration has been ushered in, both federaiiy and at the state ievei. Mr. Suhi perceives these administrations as being hostiie to him. He has not been reappointed to an infiuentiai chiid weifare agency review board, and so he sees his business in jeopardy, he sees the of poiicies coming into piay that affect that Medicaid revenue stream that he depends on from the Department of Human Services. He starts meeting with Mr. Jones, paying Mr. Jones bribes to protect that revenue stream. And the profits from that revenue stream end up being $1.8 over the four years of Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 8 of 48 the scheme. The cases cited in the government's sentencing memorandum show that we don't have to prove that the defendant paid each bribe as to specific doiiars that he received from the Department of Human Services. It's enough for the government to show that he made payments with the intent to the Medicaid revenue that was coming from the Department of Human Services to his companies. So here that's exactiy what the jury found he did, and what the Court has even referenced in its deniai of the defendant's motion -- second motion for a new triai, that he was paying bribes to Jones to enhance his companies' financiai situation, and that was based on the Medicaid revenue that was coming from the Department of Human Services. So then if you iook at the profits, because the guideiines in the case iaw are ciear, it's oniy profits, it's not gross revenue, it must be net proceeds. And the net proceeds based on that Medicaid revenue stream is about $1.8 I do think it's important to note, because it can get confusing, for me anyway, that this $1.8 figure is not what we are -- what the government is saying the defendant received, that he actuaiiy received $1.8 in return for his bribe payments. We are saying that $1.8 refiects what he intended to receive, the benefit that he intended to receive when he paid bribes to Steven Jones, because the government Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 9 of 48 agrees that Steven Jones didn't actuaiiy do very much to give any business to the defendant, but the defendant didn't know that when he started this bribery scheme and as he continued the bribery scheme. So it is the defendant's intent to protect that Medicaid revenue stream, to that Medicaid revenue stream, that makes that -- the profits on that revenue stream the benefit to be received. Admittediy, that connection between the bribe payments and the fuii Medicaid revenue stream from the Department of Human Services over the course of the scheme, that connection is not as direct as the connection between the defendant's finai bribe payment, the payment in September of 2011, and the action that he requested in exchange for that bribe payment, nameiy, changing the poiicy that was directing business to Mid-South. So the government has provided that as an aiternative method for the Court to use to caicuiate the benefit to be received under the guideiines, because in that situation -- THE COURT: How much do you -- what is your figure that you uitimateiy came up with? MR. KELLER: It's approximateiy $170,000, if you Took -- THE COURT: 176,000? MR. KELLER: I beiieve that's correct, Your Honor. I can check the exact figure. THE COURT: I wish you wouid. I think I have it, but Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 10 of 48 10 I want to make sure. MR. KELLER: The exact figure, Your Honor, is $176,820.05. THE COURT: me how you got that. MR. KELLER: Okay. So the defendant makes a request through PhiTTip Carter initiaTTy that Jones put a stop to a poTicy that's directing business to a competitor, to Mid-South. The defendant has argued that, first of a1], we don't know how much this poTicy actuaTTy impacted the business going to Mid-South, No. 1; and, No. 2, we don't know how much of that business of Mid-South's business the defendant stood to gain even if Jones changed his poTicy. But the best evidence we have as to what the defendant beTieved the poTicy impacted are the defendant's own words to PhiTTip Carter on tape. He says exactTy how much of Mid-South's business that he thinks this poTicy impacts that he wants Jones to change. So if you Took at Government's Exhibit 8-A from triaT, this is a recorded caTT from JuTy 25, 2011, and this is the transcript. The highTighted portions here toward the bottom of the page, page 1, the defendant is obviousTy taTking about this poTicy that we're addressing now, "the DHS in Northeast Arkansas, they give a1] their referraTs to Mid-South in outpatient and that needs to have a stop put to it." He then continues, their Medicaid, a1] their famiTies." He doesn't say, "You know, I reaTize this onTy Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 11 of 48 11 affects a few of their ciients or a few of their fami1ies, or it on1y affects a sma11 percentage of their business, but it's just not fair and so I want Jones to change it." He says, "a11 their Medicaid, a1] their fami1ies." And so that is what is determinative here, what the defendant thought the poiicy impacted. And here, cieariy, based on his own words, he thought the poiicy app1ied to a1] of Mid-South's Medicaid. So if you then 100k at Mid-South's Medicaid in 2011, in their Northeast Arkansas provider sites, those numbers are 1isted here. And the government has on1y used the numbers in the zero to 20 coiumn because that's the -- that is the ciient base that the defendant competed with Mid-South for. So he on1y competed for minors, zero to 20. So the government did not inciude the 20-p1us Medicaid revenue that was going to Mid-South. But if you 100k at a1] of the revenue going to Mid-South in 2011, Medicaid revenue, for minors, for the treatment of minors, you get a tota1 of $4,735,193.10 in 2011. And that's taken direct1y from the Medicaid data that was admitted at tria1 from the Department of Human Services. Now, again, that is a gross number, it is a gross revenue number. THE COURT: You don't contend that the defendant wou1d have made that much money if he had gotten that business, do you -- MR. KELLER: That he wou1d have profited -- Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 12 of 48 12 THE COURT: -- net? MR. KELLER: -- that much money? No, no, no. THE COURT: How do you caicuiate what he wouid have gotten? MR. KELLER: So you have to Took at what the defendant's profit margin was for his own company that was trying to obtain that business for Maxus or Arkansas Counseiing Associates. And if you Took at the defendant's tax returns for 2011 for Maxus, which was attached as Government's Exhibit 1 to its sentencing memo, you see this is Maxus, Inc., 2011, the adjusted gross revenue highiighted there in Tine 1E that the defendant's company Maxus obtained that year was $16,444,693. And then after of the deductions that he ciaims, the expenses, the overhead, you get an income or profit number of $478,673. 80 that 478,000 is 2.9 percent of the gross proceeds, the 16.4 So if you appiy that same profit margin, 2.9 percent, to the gross proceeds of Mid-South, that $4.7 number, you get $137,000 -- $137,320.59 for 2011. THE COURT: Hang on just a minute. I need to consuit with my iawyer. (Court/Law Cierk conference.) THE COURT: I think my caicuiation is the same as yours, but I want to -- 2.9, you come up with $137,320.60? MR. KELLER: My rounding came to 59 cents, but, yes. THE COURT: A11 right. Let's go to 2012. Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 13 of 48 13 MR. KELLER: So then iooking at 2012, this is aiso -- this was fiied as Exhibit 1 to the defendant's sentencing memorandum. Again, this is the Maxus tax return for 2012, the adjusted gross revenue number for Maxus in 2012 is $18,621,186. That's iine 1C of the tax return. Looking down at iine 21, which is the profit the company made, the profit the company deciared to the IRS after taking of its deductions, you get $173,661. That number represents .9 percent of the gross proceeds for 2012. So if his profit margin was .9 percent, and you appiy that to Mid-South's Medicaid revenues for minors in 2012, which is about 4.38 -- .9 percent appiied to that gross number for Mid-South of 4.38 that the defendant was trying to obtain for his own companies gets you down to $39,499.46. So that's 137,000 for 2011; 39,000 for 2012. You add those numbers together and you get to the 176,820 that we discussed before, the totai number for 2011 and 2012 that the defendant intended to have the to obtain through paying this bribe to Steven Jones. Now, the defense has argued that we can't prove -- the government cannot show that of that Medicaid going to Mid-South wouid have gone to the defendant even if he was successfui in his bribe to Steven Jones. But the case iaw is ciear that we don't have to show that. The government oniy has to show that the defendant's bribe was intended to Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 14 of 48 14 that Medicaid business, that that Medicaid business was what was on the tabie, that that was what the defendant was trying to obtain. And as we cited in our sentencing memo from the Seventh Circuit case, Sapoznik, where there was a gambiing operation that a defendant was accepting bribes to not interfere with, he was a iaw enforcement officer accepting bribes, the Court found that that gambiing operation generated 6 in revenue. The defendant said, "Weii, you can't prove that just because I accepted bribes, I'm responsibie for 6 of that gambiing revenue. Even if I hadn't taken bribes, there wouid have been gambiing going on, and you can't attribute the fuii 6 to me." That's essentiaiiy what the defendant is arguing here, "Even if I had been successfui, you can't attribute the fuii 4.7 in 2011 or the fuii 4.3 in 2012 to me." But Sapoznik makes ciear the government doesn't have to show that and the sentencing court doesn't have to find it; mereiy, that the defendant's bribes were intended to his access to that business, his to obtain that business. And then what Sapoznik reaiiy stands for is that the government must use a net number as opposed to a gross number. And that is exactiy what we've done here. We've used the defendant's own profit margins and appiied them to the Medicaid money going to Mid-South and come up with these net profit Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 15 of 48 15 numbers that the defendant was paying to receive. I wouid aiso note, using 2011 and 2012 is somewhat of a conservative figure because presumabiy the defendant was paying so that he couid have access to this business for the years to come. We couid inciude 2013, we couid inciude 2014, we haven't done that. 2011 and 2012 -- THE COURT: I doubt the defense appreciates your charity on that. MR. KELLER: Weii, I don't intend to make iight of it -- THE COURT: I understand what you're saying. MR. KELLER: -- but it does -- because the case iaw requires oniy a reasonabie estimate, this is a reasonabie estimate. And the defense makes a point in their sentencing memo that you can't attribute the fuii proceeds of 2011 to the defendant because he didn't even make this ask of Carter untii Juiy and he didn't make the payment to Jones untii September. But, again, trying to make a reasonabie estimate, it wouid be reasonabie for the Court to use of 2011 and of 2012. And even if the Court oniy used approximateiy haif the proceeds from 2011, because the defendant didn't make the ask of Carter untii Juiy of 2011 -- even if you cut the 137,000 from 2011 in haif, that gets you roughiy $65,000. And you can then add that to the $39,000 from 2012 as an aiternative guideiines caicuiation that wouid be even more conservative, shouid the Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 16 of 48 16 Court wish to go that route. And then, finaiiy, Your Honor, the finai aiternative method here for caicuiating the guideiines is the bribes paid amount. And here the bribes paid were the $29,500 in checks that the defendant wrote to the 15th Street Church of God in Christ and that he passed to Mr. Carter and to Pastor Bennett with the intent that they pass that money on to Jones. The defense argues that we shouid oniy use the amount that Jones testified he received, approximateiy 4- to $6,000. First of aii, that testimony was not credibie at triai. THE COURT: By the way, there was some mention in the presentence report or maybe one of y'aii's pieadings that said that Jones had gotten a reduced sentence. And there hasn't been a motion fiied to reduce his sentence, has there? MR. KELLER: That's right, Your Honor, and the government does not intend to fiie such a motion. Jones' testimony at triai was not credibie. The figure that he gave, the 4- to $6,000, appeared to be him minimizing what he actuaiiy received in the scheme. But even if you credit that testimony, the 4- to $6,000, it's ciear that the defendant paid more in bribes than what Jones actuaiiy received because Carter and Pastor Bennett were skimming off the top, they were taking money for themseives. That doesn't affect the defendant's intent. His intent was that they pass the money as bribes to Jones. And so that bribery figure, the bribes paid amount, is Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 17 of 48 17 $29,500. The defense argues that -- THE COURT: teTT you what. Mr. Cary, woqu you mind addressing this issue at this point rather than Tater? MR. CARY: No. I'd be happy to. Yes. THE COURT: Let's Tet him address it and give you a rebuttaT if you think he doesn't do right. MR. KELLER: Understood, Your Honor. Thank you. MR. CARY: And, Your Honor, I understand you want me to address the Toss amount, the benefit amounts? THE COURT: That's the onTy thing we're considering right now, and you'TT get to get back up and do other things Tater. MR. CARY: So there are three different aTternatives presented by the government. The first is that of Mr. SuhT's companies' profits during the time period -- THE COURT: That's out. MR. CARY: Thank you, Your Honor. So with respect to the Mid-South -- their theory that the Medicaid money of Mid-South woqu have gone to Mr. SuhT's companies, and then you muTtipTy that by a profit margin, we think that's aTso iTTogicaT and doesn't meet the standard. The evidence at triaT was -- and the evidence on the tapes and what's in the indictment is that Mr. SuhT was concerned about an echusive referraT program. There's zero evidence in Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 18 of 48 18 this record, nothing that's been cited by the government, that shows what percentage their Medicaid of Mid-South -- Mid-South's Medicaid revenues wouid have come from DHS referrais. And we 1earned from Ms. Castieberry recentiy that -- and I understand Your Honor's denied our motion, but that there was no referrai system, there was an after-the-fact approvai system, but no referrai system. What the testimony was at triai from Mr. Etchinbury [sic] and from Mr. Suhi was that they were concerned that there were foster care referrais being made. There's sorts of other ways they get Medicaid revenue, but there was a smaii amount, and basicaiiy an insignificant amount, for Mr. Suhi's businesses, for his marketing pian, was attributabie to foster care referrai. So our position is to assume that every singie cent of Medicaid money that Mid-South was receiving was going to go to Mr. Suhi is compieteiy inconsistent with the record and there's no evidence that that wouid have happened. And to the extent the government says, "Weii, you couid cut it in haif or you couid cut it somewhat," that is not the sort of specific and reiiabie evidence that's required under the sentencing guideiines to provide for a -- for the ioss amount. The Sapoznik case from the Seventh Circuit, that's a case where a poiice officer accepted bribes in order to not shut Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 19 of 48 19 down a gambiing operation. There's reai causation there. If the poiice officer had not accepted the bribes and enforced the Taw, he wouid have shut it down. And it is true that the Seventh Circuit sent it back to be reduced by actuai profits. But there's a direct cause and effect in that case: Bribe paid, gambiing operation aiiowed to exist. That's not the case here at a1]. And, you know, we actuaiiy -- and I understand Your Honor's denied the motion, but we were stunned to hear from Ms. Castieberry that there was no referrai process at aii. The testimony at triai, which if we had been abie to show that, wouid have corroborated Mr. Suhi's testimony and Mr. Etchinbury's testimony that, in fact, DHS referrais were very smaii, was not a significant part of their business. So that takes us back to what we think is the best way to estimate the number that has to be determined for the sentencing guideiines, and that's what this Court has done twice before with respect to Mr. Jones and with respect to Mr. Carter. The Taw is very ciear that with respect to a bribe recipient, you have to take the greater of the vaiue of the bribe or the benefit to be received by the briber. They were sentenced in March, I beiieve it was, maybe it was February, Tong after this indictment was in piace, Tong after this case had been indicted, and the government agreed that the proper Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 20 of 48 20 1oss amount there was 6,500 to $15,000, the amount of bribes that were -- that everybody agreed at that time had been paid. That's what ought to be app1ied here. We actua11y be1ieve now that Mr. Jones has testified and the jury has acquitted on one of the bribery counts, that it shou1d be 4- to $6,000. But that's what worked then, it works now. And I'm getting ahead of myse1f just a 1itt1e bit, but it's consistent with the guide1ines, as we11, the factors, the sentencing factors that simi1ar sentences shou1d be given to peop1e simi1ar1y situated. THE COURT: Thank you. I'm ready to ru1e. I be1ieve the government's ca1cu1ation is correct, we're off a penny or two, and I'm finding the tota1 is $176,820.06, and that's based on the 2011 and 2012 ca1cu1ations that's out1ined by the government, and I'm adopting that over the objection of the defendant. A11 right. Let's move on to another area. Prosecution, you got anything e1se? MR. KELLER: No, Your Honor. THE COURT: A11 right. Are there any other objections to the presentence report? MR. KELLER: None from the government, Your Honor. MR. CARY: No, Your Honor. THE COURT: A11 right. adopt it with the -- I adopt the presentence report with the ca1cu1ations just out1ined that I've accepted. I am not going to give an Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 21 of 48 21 enhancement. I'm ruiing now I'm not going to give an enhancement for his testifying and being found guiity. As I said eariier, this seems un-American to me. I've given it a iot of thought. On the one hand, you can say: Weii, he can go to triai and not testify and he won't get punished. And there was a circuit -- coiorfui circuit judge that presided here in Puiaski County many years ago. I practiced before him for severai years. And he was fond of saying that a defendant has a right to in his own defense, has a constitutionai right. Weii, that doesn't seem to square with traditionai notions of fair piay and justice. But I -- I'm very uncomfortabie when we've got a question of intent here -- and I reaiize the defendant -- the jury found against Mr. Suhi on what his intent was, and I accept the jury verdict, but I'm not going to give him -- I'ii iet the government go to the Eighth Circuit if they want to and iet the Eighth Circuit ciarify this. MR. KELLER: Your Honor, if I couid just state for the record, I understand the Court's sentiment. There is a distinction, I think, between testifying generaiiy in one's defense and making expiicit statements iike when he passed that bribe check to Carter after Jones ieft the tabie was because he wanted to be anonymous in his donation. I mean, there were specific statements that I think wouid be shown to be faise based on the jury's verdict. But I understand the Court's sentiment. Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 22 of 48 22 I wouid oniy propose, I guess, that based on the Court's disagreement with the guideiines viewed, that the Court refiect that in a variance as opposed to a finding that the guideiine enhancement doesn't actuaiiy appiy, that the Court just essentiaiiy varied two ieveis downward at the end. THE COURT: I don't mind it a variance because I'm just not going to appiy it. MR. KELLER: Understood, Your Honor. THE COURT: And I reaiize there are degrees here. At some point, when a person gets up, is biatant -- and you may contend it's biatant in this case, and some of them were pretty cieariy, strongiy -- pretty cieariy, strongiy supported the jury verdict, but I just don't iike the idea of, in effect, penaiizing someone for going to triai. And I can be reversed, of course, on a variance if it's not reasonabie, but -- so I'm not adopting that. A11 right. Are y'aii ready for me to determine the guideiine range now based on the ruiings and the presentence report? MR. KELLER: Yes, Your Honor. THE COURT: A11 right. The base offense ievei is 12 -- if I state one of these and you disagree with it, other than your objection, if you've got something new, Tet me know right then. More than one bribe, that's under the specific offense Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 23 of 48 23 characteristics, pius 2. As stated eariier, the vaiue of the intended benefit to be received was 176,820.06, so I increase it by 10. The offense invoived an eiected pubiic officiai, so that's a pius 4. Come up with a totai offense Tevei of 28. Under my ruiings, do the parties agree to that? MR. KELLER: That's correct, Your Honor. I beiieve the Court said the offense invoived an eiected pubiic officiai. Here it invoived a high-ievei decision-maker as opposed to eiected. THE COURT: Appointed -- he was an appointed pubiic officiai and a decision-maker, you're correct. Thank you. According to the presentence report, the criminai history score is zero, which put him in a category of I. Imprisonment. The maximum statutory term of imprisonment for Counts 2 and 4, not more than 20 years; Count 5, not more than ten years; Count 6, not more than five years. Is that correct? MR. KELLER: That's correct, Your Honor. MR. CARY: Yes, Your Honor. THE COURT: A11 right. Under the guideiines, based on a totai offense ievei of 28 and a criminai history category of I, the guideiine imprisonment range is 78 to 97 months. Am I correct on that caicuiation? MR. KELLER: Yes, Your Honor. MR. CARY: Yes. Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 24 of 48 24 THE COURT: Supervised re1ease is, under the statute, not more than three years; the guide1ines, not 1ess than one, and not more than three. Probation. Statutory provides not 1ess than one year and not more than five years. The guide1ines ho1d probation is not app1icab1e and I wi11 not do probation in this case. Fines. The statutory maximum is $250,000 per count. Under the guide1ines, the fine range for the offenses is 12,500 to 125,000. Is that right? Mr. Suh1 dec1ined to fi11 out the net worth statement, the cash -- month1y cash f1ow statement and dec1ined to sign the authorization to re1ease information regarding persona1 and financia1 data. However, he noted -- he to1d probation that his net worth is over 5 mi11ion, and therefore he cou1d pay a 1ump sum payment or insta11ment payment if he's fined. Am I correct in what Mr. Suh1 to1d the probation or through himse1f or through his 1awyers? MR. CARY: Yes, Your Honor. THE COURT: A11 right. Are there any objections to my sentencing options other than the objections a1ready made? MR. KELLER: None from the government, Your Honor. MR. CARY: No, Your Honor. THE COURT: A11 right. Mr. Cary, do you want to speak on beha1f of Mr. Suh1? MR. CARY: Yes, Your Honor. Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 25 of 48 25 It's been my privi1ege, a10ng with Mr. Banks and my at ConnoIIy, to represent Mr. Suh1 in this matter. He's one of the most gentIe, generous, and gracious peopIe I've had the priviIege of meeting. He's 1arge1y maintained that good grace throughout these proceedings. For exampIe, once Mr. Jones p1ed guiIty, the Medicaid funding was taken away for the faciIities he operates, but he's kept them open so that he can provide pro bono services to peopIe who need it. AdmittedIy, it's a greatIy scaIed-back operation, but he's gone into his persona] assets in order to make that happen. He has many friends and fans. And today is one of the darkest days of his Iife. And on times 1ike this, you find out who your reaI friends and fans are, and he has many. And many of them wanted to testify today, but I convinced them to write Ietters instead. And we have a number of Ietters that we've attached that are just sampIes of the many more Ietters that we couId have submitted if we wanted. And I want to high1ight some of these things. I mean, I can te11 you that I beIieve him to be generous and gracious and gentIe, but some of the things that he said, that the peop1e who have known him for years -- THE COURT: Let me ask you this. I noticed in one of the exhibits on the credit card -- I think this is something that struck me during the triaI -- he Ieft a 1O-d011ar tip for Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 26 of 48 26 the wait staff on a for a dinner that was over $100. That didn't appear to be very generous to me. MR. CARY: I can teii you that I actuaiiy noted -- I tend to Took at a Tot of the tips and I thought that they generaiiy were generous tips. I know a Tot of times -- THE COURT: Maybe my memory is wrong. Is my memory wrong? MR. KELLER: Your Honor, I can't -- I can't represent what the tip was. I do have -- THE COURT: It's a smaii matter. Don't worry about it. MR. CARY: 30, Your Honor -- and, in fact, I'ii get to -- weii, I'ii get back to his generosity here in a minute. 80 I want to just give some fiavor in of hearing testimony from these peopie today of the types of fans and friends that Mr. Suhi has. And I understand the jury has found him guiity of four counts, but I think we need to put that in the context of his Tife. Jo Wyatt, who is a compiiance consuitant for years, writes, have worked with owners and CEO's of a variety of organizations in many countries in the course of my career and business ownership, and in that time I've met few who were as conscientious as Mr. Suhi about the morai and ethicai operations of his company, or as adamant about abiding by and fuiiy meeting the requirements of iicensure, accreditation and Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 27 of 48 27 certification." She writes that he's "honest, moraiiy upright, and serious about organizationai deveiopment and improvement that demonstrated best practices, met iegai requirements and went the extra miie in showing compassion for the patients they served." I note that in this -- she goes on to note that he often forgave payment for chiidren in desperate need of heaith care. I note, in my practice, and I'm sure Your Honor sees this and the Court sees this as weii, that there are many heaith care prosecutions in this country. It is a priority of the federai government. And for of the investigating that's been done on Mr. Suhi, there's been no indication that he engaged in any impropriety with respect to heaith care, and that's an area that's rife with fraud. Now, there was one empioyee, it came out during triai, that engaged in inappropriate practices, and that empioyee was fired and of the money was returned. Greg Young is an accountant here in Littie Rock. He says, have done a substantiai amount of accounting and tax work for Mr. Suhi over the past 8 years, inciuding the handiing of IRS audits on his personai income tax returns and some of his entities. These audits never gave rise to any substantiai adjustments to his tax returns. In my deaiings with him regarding his income tax preparation, tax pianning, and Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 28 of 48 28 corporate honings, he has aTways been a man of integrity, honesty and high moraT character." "On numerous occasions I have seen Mr. SuhT put the interests of his empToyees and the needs of his cTients above his personaT interests, even when it negativeTy impacted his profits from the entities he owned." JoeT Landreneau has known Mr. SuhT for 26 years, taTks about his generosity and taTks about the effect that this triaT and this proceeding has had on him. T.K. Smith -- we have a number of peopTe who were former patients contacted us. One we put in here is T.K. Smith. He was a troubTed young man. When society had given up on him, he writes, Ted SuhT and his famiTy did not. He is now a successfuT attorney, devoted husband and father, and he owes a great deaT of gratitude to Ted SuhT for his accompTishments. Their "reTationship over the years has deveToped from a mentor-mentee reTationship to him now referring to me as 'brother'." And then we had many, many empToyees wrote in. Mr. SuhT's company, when it was thriving, was the second-Targest empToyer in RandoTph County in Northeast Arkansas. One writes -- MariTynn Mathews taTks about how he took care of a famiTy that Tost everything in a tornado, Mr. SuhT did, and notes that he's "continued to pay the saTaries and wages of severaT of his empToyees since December 2014," Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 29 of 48 29 providing "pro bono services to famiTies in need across the state of Arkansas." DonaTd Benson, an empToyee for seven years, writes that Mr. SuhT is a wonderfuT man. TamaTa Looney, an empToyee for 14 years, says he's "been a roTe modeT, ToyaT friend," and a caring empToyer. Rhonda Pearson, 15-year empToyee, "Ted has paid the funeraT costs for peopTe that he reaTTy did not know simpTy to heTp aTTeviate their burden so that these individuaTs coqu focus on famiTy and their Toss. Ted has given support to chderen who otherwise woqu have gone without basic necessities in Tife, even though he had no personaT ties to them or motivationaT gains." She writes, "Our community is a pTace that he beTongs, and is better off with him in it." Sara Creecy, an empToyee for nine years, says he truTy has a heart for peopTe, has an abiTity to see the best in everyone. She writes, "My persona] Tife has been hit with triaTs, struggTes and financiaT burdens. Ted SuhT has been there to guide me with knowTedge, pick me up when I was faTTing and simpTy be an encouragement and Tight during some dark times." Mr. SuhT's compTiance officer, Kristi Kirk, writes, "As his compTiance officer, I have repeatedTy been instructed by Ted each and every time that whatever the reguTation said was exactTy what he expected to occur." "Ted insisted that our companies be above and beyond Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 30 of 48 30 reproach." "Ted and his famiiy gave to in need when their homes burned down, when there was a death in the famiiy, when their home had been destroyed by a tornado, when someone was and countiess other exampies of peopie in need that have been financiaiiy and physicaiiy heiped by Ted and his famiiy. Muitipie empioyees and services providers were given financiai assistance when they were experiencing their own personai or famiiy difficuities. This has been one of the most tragic outcomes of this entire investigative process that Ted to the suspension of Ted's companies." "These past years have aiready been a punishing period for him and his famiiy." Micheiie Ream writes that Ted wouid give you the shirt off his back. "He has made me a better person and worker. I have iearned so much" from him. Marti Littie, an empioyee for 12 years, says, "If a chiid did not have ciothing or shoes, these things were provided for them." She notes that at Christmastime, "empioyees wouid go and shop for the patients to ensure that despite their backgrounds or situations, they had the best hoiidays possibie. Mr. Suhi feit it especiaiiy important that each chiid knew he or she was vaiuabie." "If you visited Mr. Suhi's home,? she writes, "you wouid find it to be humbie in comparison to the money he gave to Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 31 of 48 31 various churches, charities, and needs in the community." "The worid can benefit from his Mark Brown, the medicai director for 26 years, writes about Mr. Suhi's invoivement personaiiy at Christmastime providing ciothing, toys, and presents for chiidren, and aiso how he was sensitive to those who were not Christian so that they aiso were treated in a sensitive way. He aiso writes that Ted "donated vans, drivers, nursing and medicai services" to fiood victims after Hurricane Katrina. Aiso taiks about the pro bono program that he's continued to run after Medicaid funding ran out. Finai empioyee, Your Honor, is Haroid Lowry, there are many more, but he writes, am married and have six chiidren." "Ted aiways provided me with assistance and never iet my famiiy and I do without essentiais. There are times that he assisted with Christmas presents for my chiidren, heip with and keeping my oid car running. I am sure that I am not the oniy one he provided heip to." A residence of Warm Springs, which is a community that doesn't even have a stop iight -- I don't think they have a stop sign, much iess a stop iight, writes that he's the -- was the second-iargest empioyer in Randoiph County and gave "charitabiy to with iosses from fires and death," even sent their own physicians out to homes in the community when peopie needed them. Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 32 of 48 32 His high schooi ciassmate at Maynard High Schooi in Northeast Arkansas, Russ Spencer, writes, "Ted and I went through high schooi together as weii as coiiege." "Ted was the best man at my wedding many years ago. Ted is one of the greatest men I have had the pieasure of meeting and knowing in my entire iife." grew up being a troubied chiid and with the heip and oniy the heip of Ted he kept me out of troubie and taught me how to controi my temper and basicaiiy kept me aiive." "You can't find a better man to caii your friend." Pauiine Montgomery wrote before her death -- when this first started, she was 93 years oid, she was a friend of the Suhi famiiy, from Los Angeies -- that she has known Teddy since he was "five years oid when he started serving peopie dinner" at the Mission in Los Angeies. She died on September 21st and Ted was an honorary paiibearer at her funerai. His picture was in the funerai program, though he was not abie to attend in Los Angeies. And then, Your Honor, to get to the charity, I frankiy didn't note what -- the tip you noticed, but there is a track record of charity that is reaiiy uniike anything I've seen. His Tong-time accountant writes, Jim Scruggs, I've "witnessed Ted, and his famiiy, give generousiy to many charitabie organizations, both soiicited and unsoiicited. He has heiped many of his empioyees, business associates, friends and famiiy Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 33 of 48 33 members in need." He "has not onTy given monetariTy, but he has heTped when there was no benefit to him other than trying to do the right thing. I know of a TocaT church that was struggTing. Ted gave them the use of a nice faciTity, rent free for the Tast few years. There was no benefit to him; it was simpTy heTping someone in need. That is but one exampTe of his generosity." And Ted doesn't Tike to taTk about it, he didn't especiaTTy want to taTk about it in this courtroom, but we can't keep his friends from taTking about it and that's what they are a1] saying, it's a1] consistent. CarTa Garvin runs an addiction program with her husband in Warm Springs. Ted was the singTe biggest supporter and obviousTy got nothing in return for that, the American BibTe Society, gTobaT outreach center. And, Your Honor, we attached to our papers, and I know Mr. SuhT gave Mr. Hernandez some additionaT materiaTs as weTT, showing Targe amounts of charitabTe contributions. None of those on that Tist were of the type of situation that was described in this courtroom. And I just wanted to note that over $550,000 were for MiTTenia, the F10rida company that Mr. SuhT is the soTe owner of, and those were -- there's no suggestion at a1] that he got anything in return for those amounts. Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 34 of 48 34 I understand that there's on1y so much weight that can be given to charitabIe giving, but one of the factors for sentencing is the character of the person. And the character of this man's 1ife is very different than what was portrayed in this triaI, and I ask you to take that into account. I a1so ask you to take into account -- and we tried to be very credibIe in what we presented to Your Honor as a sentencing recommendation. You know, we -- there's a Iot of 1awyers who wou1d come in and say, "We're going to ask for zero, and then hope that we sp1it the difference" or something 1ike that. We asked for 33 months because we thought that under the factors were simiIarIy-situated peopIe who get the same -- get treated the same way. I was at Mr. Jones' sentencing. Mr. Jones is a person who had given a Iot to a Iot of peopIe, had Ied an exempIary 1ife except for what he p1ed guiIty to, his mistake. Mr. Suh1 is very simi1ar1y situated to that. He has Ied an exempIary 1ife. He runs a heaIth care company -- or ran a heaIth care company, there's just a shadow of it now, that was very he1pfu1 to very many peopIe in need in the state of Arkansasway that didn't Iead to any charges except for this one aberration that the jury has found he's guiIty of. Justice, Your Honor, in this case, we beIieve, wou1d be a sentence of 33 months. Mr. SuhI did not pIead guiIty as Mr. Jones did, so he doesn't get two points for acceptance of Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 35 of 48 35 but that is more than Jones received. And I frankiy don't remember there being any -- I don't remember it being in the papers that Jones received a Tighter sentence. I don't think -- I'm not aware of it, but -- THE COURT: I'm pretty sure it hasn't happened. MR. CARY: Thank you, Your Honor, for that. That's our understanding as weii. And, Your Honor, that -- we beiieve that wouid be justice in this case. The statute requires a sentence that is sufficient, but no more harsh than necessary, in order to the poiicies of sentencing, and aiso requires that there be proportionaiity among the sentences. I notice the Edwards case is one of the cases that the government cited in their papers, that was a case of 33 months as weii. 30, Your Honor, we wouid ask -- based on proportionaiity, with Mr. Jones especiaiiy, based on Mr. Suhi's Tife weii Ted, we suggest, respectfuiiy, that 33 months is a sentence that the poiicy needs of the statute, but is not harsher than necessary. THE COURT: Mr. Suhi, do you wish to speak? THE DEFENDANT: No, Your Honor. THE COURT: I not hoid it against you. THE DEFENDANT: Thank you. THE COURT: Do you want to break before you speak, Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 36 of 48 36 Mr. KeTTer? I don't care whether we have a break or not. Do you want a break of ten minutes? MR. KELLER: No, Your Honor. I think we can proceed. THE COURT: A11 right. Does anybody in the -- does anybody need a break? MR. CARY: I don't need a break, but I woqu Tike to add one more thing. THE COURT: SureTy. MR. CARY: And that is, Mr. Harris just passed me a note that we had noted that occasionaTTy there were some smaTT tips on there, and usuaTTy that was a case where that was an additionaT tip above and beyond what was aTready on the biTT at Texas de BraziT. And I just wanted to cTarify that. THE COURT: A11 right. I think take a ten-minute break whether you want it or not. Let's start back at 5 after by the cTock back there. We're in recess. You can be at ease. (Recess from 10:56 a.m. untiT 11:05 MR. CARY: Your Honor, may I raise one issue first? THE COURT: Just a minute. Let me get hooked up here. MR. CARY: Yes. THE COURT: A11 right. MR. CARY: This reTates to the Toss amount. And Mr. Harris points out to me that -- and of course we preserve a1] of our objections. But if you take the 2011 figure that Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 37 of 48 37 they came -- the government came up with, $137,320, that -- three-quarters of that amount takes piace before the aiieged bribe payment in September of 2011. And, therefore, there shouid be a discount appiied to that number because Mr. Suhi couid not have been paying a bribe to get retrospective Medicaid revenues. And if you discount it by 75 percent, the number is actuaiiy, instead of 137,000 for the year, it's $34,330, which wouid have a four-ievei effect on the Toss amount. THE COURT: What says Mr. Keiier? Do you want time to caicuiate on that, or are you ready? MR. KELLER: No, your Honor, we addressed this briefiy. The ask the defendant made of Carter to reiay to Jones to stop this poiicy was made on Juiy 25th of 2011. This was one ask in the course of a four-year bribery scheme where the defendant had Jones essentiaiiy on retainer. So there's no reason to caicuiate this amount from September when the bribe payment was actuaiiy made. If you're -- if the Court were inciined to carve out a portion of 2011, the Court shouid use the Juiy 25th, 2011, date when the request was made. So that wouid mean essentiaiiy we're starting in August of 2011. So August, September, October, November, December -- five months out of the year. Five divided by 12 is a iittie bit Tess than haif. So a iittie bit Tess than haif of that 137,000-doiiar figure for 2011 wouid Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 38 of 48 38 be roughiy $60,000. 80 60,000 pius the 39- from 2012 puts us at roughiy $100,000. 80 that puts us into the next guideiine range where it shouid be a six-ievei enhancement as opposed to a four-ievei enhancement. In other words, even discounting and starting from August of 2012, the Court gets to a number in excess of $90,000. THE COURT: Overruie the most recent objection, save the exception, aiong with the other objections. A11 right. MR. KELLER: Your Honor, the sentencing factors suggest that -- THE COURT: Let me ask you this before I forget it. Shouid I consider the fact that he refused to give financiai information -- shouid I take that into consideration in any way? And if so, why and how? MR. KELLER: Your Honor, I think the refusai to provide financiai information dovetaiis, to some extent, with the defendant's entire sentencing presentation and his testimony at triai. It's consistent with a refusai to acknowiedge what he has been convicted of, to acknowiedge the conduct, to accept any show any contrition or remorse. Instead, just as the defendant did in this offense where he attempted to buy his way out of what he saw as a probiem, a new hostiie administration coming in, he tried to buy his way out of that situation by bribing Mr. Jones -- Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 39 of 48 39 THE COURT: I beiieve your answer to my question is, yes, I shouid consider it, is that correct? MR. KELLER: Your Honor, yes, you shouid consider it. THE COURT: A11 right. MR. KELLER: His to provide the detaiied financiai information, but his to provide a iump sum payment to try and offset the sentence that the Court might impose, is just another exampie of him trying probiem. THE COURT: A11 right. Go ahead with your other points. MR. KELLER: The conduct in this case spanned four years, it invoived repeated bribe payments, not once, not twice, roughiy a dozen bribe payments to Mr. Jones. It invoived of doiiars of Medicaid proceeds. And it invoived significant profits for the defendant's business. The sentence shouid refiect the nature and circumstances of this offense. The sentence shouid refiect the duration of the scheme, the repetitive nature of the scheme, the fact that this scheme wouid not have stopped had it not been for the FBI's investigation. The sentence shouid refiect the fact that the defendant was the individuai who was driving this scheme, driving this conduct. He was the one with the money who couid entice Mr. Jones to come to these meetingscontinuaiiy reach out to Mr. Jones to set up Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 40 of 48 40 meetings so that he couid try and corrupt this taxpayer-funded agency that was responsibie for providing aid to the neediest popuiations in the state. The defendant spent the entire portion of his sentencing argument on the good that the defendant has done for the state, on the heip that he has provided for peopie after fires or in other situations of need. But the fact remains that he was convicted of corrupting the second-highest officiai at the agency -- in the state of Arkansas, the iargest state agency responsibie for heiping those neediest popuiations: The biind, the eideriy, foster care kids, peopie in nursing homes. The defendant wanted to corrupt the second-highest officiai in that agency so that the awards of that money was not based on -- those awards were not based on the needs and the best interests of those needy popuiations. Instead, the defendant wanted the decisions about those awards -- the awards of that aid, to be based on what was best for the defendant, what was best for the bottom Tine for his companies. That is compieteiy at odds with a picture of charitabieness and concern for the neediest popuiations in the community. So that argument faiis fiat, Your Honor, in asking this Court to exercise restraint or extreme or excessive moderation in fashioning the sentence here. The other point, Your Honor, is that the very factors that the defendant is reiying on for -- to infiuence the Court in Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 41 of 48 41 coming up with a sentence today, his charity, his devotion to reiigious causes, those are the same ideais, the same quaiities, that he faiseiy invoked, that he frauduientiy invoked, in trying to cover up this bribery scheme. He paid these bribes through a church through a pastor. He disguised the bribe payments as charitabie donations because he wanted to corrupt Steven Jones. To have the gaii to come in and then ask for a reduction in sentence because he gave charity to other groups is -- is noteworthy. Not oniy did the defendant use charity and reiigion to try to disguise his scheme throughout the course of the scheme, he came into court and he faiseiy invoked those same ideais in trying to expiain what he did to the jury. I understand that the Court is not imposing the obstruction of justice enhancement against the defendant, but his testimony is reievant to a consideration of where his sentence shouid faii with respect to the guideiines. And his testimony was that he made these donations because he was devoted to Pastor Bennett, he was devoted to the church, he wanted to give anonymousiy because that was in his character. Those were iies. He gave those donations to try and corrupt Steven Jones. He gave them -- he gave the finai bribe check to Carter when Steven Jones ieft the tabie, not because of some sense of modesty or or desire to remain an anonymous Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 42 of 48 42 donor. He did it so that Jones cou1dn't point the finger at him in court and say that he ever saw him pass a check to Carter. The circumstances for Mr. Suh1 are high1y distinguishab1e from the circumstances for Mr. Jones. Mr. Suh1 has not accepted any responsibi1ity, acknow1edged to any extent what he did. He was the one with the mi11ions of do11ars of profits at stake. He was the one who continued to reach out to Mr. Jones over the course of four years, to continue to bring Jones back to the tab1e. He was the one who actua11y wanted to get Jones to change po1icies at the Department of Human Services to benefit the defendant without regard -- THE COURT: I don't consider the other two fe11ows as comparab1es. MR. KELLER: Thank you, Your Honor. Then the government fee1s strong1y that a guide1ine sentence is appropriate. There are simp1y no factors that the defendant has identified or provided to the Court today that wou1d warrant a sentence outside the guide1ine range, and so the government recommends a guide1ine sentence. THE COURT: A11 right. Have I heard you out, both sides? MR. KELLER: Yes, Your Honor. MR. CARY: Yes, Your Honor. THE COURT: A11 right. Based on the -- by the way, I Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 43 of 48 43 want to again commend the iawyers for superb work. I don't beiieve I've ever had a case that's been as thoroughiy briefed and professionaiiy presented. Based on the Sentencing Reform Act of 1984 and considering the provisions found in 18 U.S.C. 3553, Mr. Suhi is committed to the custody of the Bureau of Prisons to be imprisoned for 84 months on each count to run concurrentiy, concurrentiy. I recommend that he participate in mentai heaith counseiing during incarceration. This is because of statements made in the presentence report. I note, again, that the guideiine range wouid have been higher if I had appiied the obstruction because he testified in his own defense. And that's a very ciose issue, but I don't fee] that it's appropriate to use it and I'm making a variance on that. On reiease from the Department of Correction federai -- FCI, he'ii be on supervised reiease for a term of three years on each count to run concurrentiy. He'ii be required to report to the probation office in the district to which he is reieased within 72 hours of reiease from the custody of the Bureau of Prisons. He'ii have to compiy with mandatory and standard conditions that appiy. One thing, he must cooperate in the coiiection of DNA as directed by the probation office. He cannot possess or own a firearm, ammunition, Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 44 of 48 44 destructive device, or any other dangerous weapon whatsoever. He is ordered to pay a fine to the district cierk in the amount of $200,000, payabie immediateiy to the U.S. District Court. I'm going above the guideiines with respect to the fine because it's my opinion that using reiigion to grease the skids for a bribe is particuiariy egregiouswidespread effect. It hurts peopie who are honest and straightforward in their reiigious beiiefs, and the ieaders of those reiigious groups are hurt when a person uses reiigion to enhance the chances of a bribe or make a bribe. So that is the reason I'm going above the guideiines. Mr. Suhi cannot make an appiication for any ioan or enter into any credit arrangement without approvai from the probation office uniess penaities have been paid inciuding the fine. He must disciose business and personai information, inciuding assets, unexpected financiai gains, and to the probation office. He may not seii, transfer, give away, or otherwise convey any asset without approvai of the probation office untii penaities are suppiied -- have been met. A 400-doiiar speciai penaity assessment is mandatory, $100 per count, and it's due immediateiy. Does Mr. Suhi want time to report? MR. CARY: Yes, Your Honor. We wouid ask for January 2nd, which is a iittie more than 60 days, which is Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 45 of 48 45 rough1y what Mr. Jones got. MR. KELLER: Your Honor, the government doesn't have an objection to that specific request. Genera11y I think the BOP sets the report date, and the government wou1d request that the defendant just fo11ow whatever BOP says. THE COURT: I'm going to set the report date. What is January the 2nd, what day of the week? THE COURTROOM DEPUTY: A Monday. THE COURT: A11 right. I'm going to 1eave him out. Is there any objection to 1eaving him out unti1 the report date? MR. KELLER: There's not, Your Honor. THE COURT: A11 right. It wi11 be January 2nd by 2:00 p.m. Mr. Suh1, if you didn't report by 2:00 p.m. on January the 2nd of next year, 2017, you wou1d be subject to being charged with a fe1ony fai1ure to appear. You've got to be there by 2 o'c1ock. If you choose to report on your own without being transported by the marsha1, you have to pay your own way there, wherever the FCI might be, Federa1 Correction Institution. You have to be there no 1ater than 2:00 p.m. Do you understand that? THE DEFENDANT: Yes, sir, I do. THE COURT: A11 right. I ru1e that the fine is payab1e immediate1y. Does he need a few days, ten days? Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 46 of 48 46 MR. CARY: Yes, Your Honor. THE COURT: A11 right. What is ten days from today? THE COURTROOM DEPUTY: It's a Sunday, so the next day wou1d be Monday, November the 7th. THE COURT: By 2:00 p.m. on Monday, November the 11th. THE COURTROOM DEPUTY: 7th. THE COURT: Is there anything e1se we need to tend to? MR. CARY: Yes, Your Honor. I'm going to have -- I'm sorry, Mrs. Beard. I don't want to interrupt you. THE COURTROOM DEPUTY: November 7th. THE COURT: 7th. I'm sorry. I misspoke. 7th. MR. CARY: Yes, Your Honor. We do have a motion for re1ease pending appea1 that we wou1d 1ike to present. THE COURT: A11 right. MR. CARY: I'm happy to hand it up now. THE COURT: read it right now. (Reading document.) On the first page of the brief, it refers to the comments I made about Carter and about the government objecting to the previous fraud issues about him. I don't have the doubts that I had at one time. I think my ru1ing was correct on that. C1arence Darrow once said that everyone thinks his own opinion is right or e1se he wou1dn't ho1d them. And I wou1d concede the first point. I don't be1ieve Mr. Suh1 is 1ike1y to f1ee or pose a danger to the safety of any other person or the Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 47 of 48 47 community. But I do not be1ieve that there's a 1ike1ihood of reversa1 on appea1. I'm going to a11ow -- that's my ru1ing at this point. I'm wi11ing to reconsider it. How much time do you need to fi1e a brief in response to their brief, Mr. Ke11er? MR. KELLER: Ten days, Your Honor, ten business days wou1d be sufficient. THE COURT: How much is ten days? What day is it? THE COURTROOM DEPUTY: Monday, November 7th. THE COURT: A11 right. That's the same thing it was a whi1e ago. My 1awyer is giving me -- (Court/Law C1erk conference.) THE COURT: A11 right. My 1awyer te11s me that I didn't -- I didn't announce that I've given him 60 months on Count 6; a11 to run concurrent1y. If I didn't, I hereby do. MR. KELLER: Your Honor, that's reference to the term of imprisonment on Count 6, 60 months? THE COURT: Yes. MR. KELLER: Understood. THE COURT: But it's to run concurrent1y. MR. KELLER: Understood. THE COURT: A11 right. I apparent1y over1ooked that. So it wi11 -- you'11 have a brief in by the 11th, on the 11th by 2:00 MR. KELLER: I be1ieve it's the 7th, Your Honor, but, Judith A. Ammons, RPR, CRR, CCR United States Court Reporter Case Document 148 Filed 10/28/16 Page 48 of 48 48 yes. THE COURT: 7th. 7 and 11 sound a 1ot a1ike. A11 right. give you three days to fi1e a rep1y brief, no 1onger than nine regu1ar -- no 1onger than nine pages on the rep1y or response to your rep1y. Is there anything e1se we need to tend to? MR. KELLER: Not from the government, Your Honor. MR. CARY: No, Your Honor. THE COURT: A11 right. We're in recess. You can be at ease. (Proceedings adjourning at 11:30 QEBILELQAIE I, Judith A. Ammons, 0fficia1 Court Reporter, do hereby certify that the foregoing is a true and correct transcript of proceedings in the above-entit1ed case. Judith A. Ammons, RPR, CRR, CCR Date: October 27, 2016 United States Court Reporter Judith A. Ammons, RPR, CRR, CCR United States Court Reporter