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UNITED STATES v. CONCEPCION

December 11, 1992

UNITED STATES OF AMERICA
v.
MARTHA CONCEPCION, a/k/a MARTHA MARTINEZ, a/k/a MARTHA MORALES, a/k/a JULIANNA SANCHEZ, a/k/a SONIA SERRANO, a/k/a GLADYS TORRES, Defendant. UNITED STATES OF AMERICA v. VIRGINIA FIGUEROA, a/k/a PATRIS GORDON, a/k/a LILLIAN NAVARRO, a/k/a JUANA MARTINEZ, a/k/a RITA PAGAN, a/k/a MARY PUIG, a/k/a ROSA RIVERA, Defendant. UNITED STATES OF AMERICA v. THERESA AMELIA ROMAN, a/k/a GLADYS ARIAS, a/k/a PAMELA GONZALES, a/k/a SANDRA ORTEGA, a/k/a MIRNA PEREZ, Defendant. UNITED STATES OF AMERICA v. DELORES VARGAS, a/k/a OLGA ALMONDOVAR, a/k/a NELLY GARCIA, a/k/a ROSARIO LOPEZ, a/k/a GLADYS TAVERAS, Defendant. UNITED STATES OF AMERICA v. BERTHA ESCOBAR, a/k/a MARINA MARRERO, Defendant. UNITED STATES OF AMERICA v. ALISON POLANCO, a/k/a ANDREA GARCIA, Defendant. UNITED STATES OF AMERICA v. MARIA VARGAS, a/k/a BETTY HERNANDEZ, a/k/a CARIDAD NUNEZ, a/k/a DELIA VALENTIN, a/k/a ESTHER VARGAS, Defendant. UNITED STATES OF AMERICA v. ROMULA REAL, a/k/a NANCY CEPERO, a/k/a BRENDA DIAZ, a/k/a MARINA DIAZ, a/k/a ALEXANDRA GOMEZ, Defendant. UNITED STATES OF AMERICA v. VICTOR HEREDIA, a/k/a JUAN COLON, a/k/a VICTOR DELGADO, Defendant. UNITED STATES OF AMERICA v. JACQUELINE PEREZ, a/k/a MIGUELINA CORDERO, a/k/a YAQUELIN PEREZ, Defendant. UNITED STATES OF AMERICA v. MIRIAM SOSA, a/k/a IVETTE CLEMENTE, a/k/a MARIA MOJICA, Defendant. UNITED STATES OF AMERICA v. ELENA GARCIA RAMOS, a/k/a ELENA GONZALES, a/k/a LIGIA RAMOS, a/k/a ANA SERANO, Defendant. UNITED STATES OF AMERICA v. ELEUTERIA FERNANDEZ, a/k/a MITILDE FIGUEROA, a/k/a CARMEN PAGAN, a/k/a MYRNA SANTIAGO, Defendant. UNITED STATES OF AMERICA v. ONFALIA RAMOS, a/k/a LISETTE CARRILLO, a/k/a RUTH GONZALES, Defendant. UNITED STATES OF AMERICA v. LUCIA TRINIDAD, a/k/a AZECUNA ECHEVARRIA, a/k/a CARIDAD SOTO, Defendant. UNITED STATES OF AMERICA v. CRUZ PENA, a/k/a ANTONIA PACHECO, a/k/a ELENA VELEZ, Defendant. UNITED STATES OF AMERICA v. MERCEDES DIAZ, a/k/a SANDRA ACOSTA, a/k/a LISETTE CARILLO, a/k/a ZIAMARA COLON, a/k/a EVA DIAZ, a/k/a IDALIA ESCOBAR, a/k/a JOSEPHINE OJEDA, a/k/a BERNICE ORTIZ, a/k/a LADISLOA SANCHEZ, Defendant. UNITED STATES OF AMERICA v. MARIA BURDIE, a/k/a ANTONIA GONZALES, a/k/a CECILIA LOPEZ, a/k/a FRANCIA MARTINEZ, a/k/a ZAIDA MENDEZ, a/k/a MARIA OVALLE, a/k/a MILAGROS RIVERA, AMARILIS RODRIGUEZ, a/k/a EVARISTA SANTANA, a/k/a MARIA SANTANA, a/k/a LOLA SANTOS, a/k/a LUCIA TEJEDA, a/k/a VICTORIA VALDES, Defendant. UNITED STATES OF AMERICA v. DINORAH DOMINGUEZ, a/k/a VANESSA ARANGO, a/k/a RAISA MEJA, a/k/a MINERVA PEREZ, a/k/a ALTAGRACIA RAMOS, a/k/a JUANA REYES, a/k/a ADA RODRIGUEZ, a/k/a KAREN TORRES, Defendant. UNITED STATES OF AMERICA v. GLORIA MARTINEZ DELGADO, a/k/a CATALINA ARROYO, a/k/a AURA GARIA, a/k/a VICTORIA IRIZARRY, a/k/a MERCEDES MENDEZ, Defendant.



The opinion of the court was delivered by: JACK B. WEINSTEIN

Sentencing Memorandum and Order

 WEINSTEIN, J.:

 I. INTRODUCTION

 These 20 defendants are the second group of approximately 55 who are being prosecuted in this court for fraudulently obtaining assistance from the Aid to Families with Dependent Children, Food Stamp and Medicaid programs for the poor. The group now before the court consists primarily of Dominican women who bought, sold and used false identity documents and who bribed government employees to obtain government funds.

 This court's memorandum in United States v. Concepcion, 795 F. Supp. 1262 (E.D.N.Y. 1992), explains the law governing sentencing for these crimes, as well as the common problems presented by the sentencing of these particular defendants. The Concepcion memorandum is deemed a part of this memorandum and order. This memorandum and order may be referred to as Concepcion II.

 Discussion of individual sentences follows. As with those defendants sentenced in Concepcion, problems can be expected to arise in the execution of some of these sentences. The court's ruling in Concepcion governing the continuing obligations of the Probation Department, id. at 1306-07, applies with equal force in these cases.

 Almost a score more defendants will be sentenced in early 1993 according to the pattern applied in this order and in Concepcion I.

 II. INDIVIDUAL SENTENCES

 A. Virginia Figueroa, CR 91-1165

 Ms. Figueroa was born in the Dominican Republic. She is 33 years old. She is a citizen of that country and a resident alien in the United States. She defrauded the government of $ 84,413 using six aliases. She bought and then sold fraudulent documents to others. Six other defendants in this and related cases used these documents to defraud the government of an additional $ 161,565. Defendant also bribed two Human Resources Administration (HRA) employees.

 The Guidelines call for a sentence of 15 to 21 months in prison followed by two to three years of supervised release. The government describes defendant as one of the most valuable cooperators in these cases; it has moved for a downward departure based upon her substantial assistance in the investigation and prosecution of these offenses. She has been ready to testify and has convinced some defendants, including her sister and a cousin, to surrender even after receiving substantial threats, including the breaking down of her door.

 Defendant was raised in the Dominican Republic, the second of seven children. After completing the equivalent of seventh grade, defendant left school to help the family by working washing hair and selling used clothes. Four years later, defendant paid to be smuggled to Puerto Rico where she cleaned houses to support herself. There she met and married, in April 1982, a Bronx native. Ten months later she gave birth to a son. She acquired permanent residency status in the United States. In 1984, defendant and her spouse separated and she moved to New York. They were then divorced.

 Defendant has been residing for eight years with her son in a five-room apartment in upper Manhattan. The apartment is clean and comfortably furnished, in large part through the proceeds of defendant's crimes. The bulk of the remaining proceeds of defendant's crimes was used to purchase clothes for the family, pay dental and phone bills, and support relatives in the Dominican Republic.

 Defendant is in good health. She has supported herself through the years through a combination of unskilled jobs and public assistance. For the past year or so, she has sold pocket books to friends and acquaintances out of her apartment, yielding about $ 100 per week. She is employable and is about to commence a job with a cleaning service.

 Following her arrest, defendant sent her nine-year-old son to stay with defendant's mother in the Dominican Republic because of threats made against her; he has since returned to this country and attends school now. Her ex-husband now resides in New York, is employed as an automobile mechanic, and maintains regular contact with his son.

 Prolonged separation of defendant from her son is likely to harm the child. For deterrence reasons, some confinement is in order due to defendant's fraud and bribes, and her facilitation of the fraud of others. This consideration is mitigated by defendant's substantial cooperation with the government and her remorse.

 Defendant is sentenced to five years probation with eight months of house arrest. During the period of home confinement, she may leave home only to work, for medical treatment, for religious services or as permitted by Probation. A $ 50 assessment is imposed. Restitution of $ 83,912 is ordered, payable as Probation directs. The sentence imposed is required by statute in the court's informed discretion. If the Guidelines are held to be controlling, a downward departure has been ordered to protect the child and for other reasons set forth in this memorandum. The primary purpose of this sentence is general deterrence; one year of incarceration is sufficient for this purpose.

 Probation shall arrange for the restitution payments so as to permit sufficient income for the family. During the period of probation defendant shall provide 36 hours per week of community service, up to a maximum of 1,000 hours, unless otherwise directed by Probation because it is unduly burdensome in a particular period. If defendant is gainfully employed earning income for at least 36 hours per week such employment shall count as community service. In addition, for every hour of such employment defendant is to receive a credit of $ 10 towards the bill for restitution. These provisions are designed to encourage gainful employment. While the court has no power to order that she not be given welfare, food stamps, Medicaid or other assistance, Probation shall take appropriate steps to ensure that such payments are minimized or eliminated as a result of gainful employment. Probation shall attempt to obtain support for the child from the father.

 B. Theresa Amelia Roman, CR 91-1253

 The Guidelines call for six to twelve months in prison followed by supervised release of two to three years. Alternatively, the court may impose a term of three months imprisonment followed by supervised release with a special condition requiring three months community confinement or home detention. The Guidelines also provide for a sentence of one to five years probation with intermittent or community confinement or home detention for six months. The government moves for downward departure since defendant has been a helpful cooperator who has offered to testify and provide further information at the government's request.

 Defendant's family immigrated to the United States in 1970, when she was three years old. Her parents settled, with defendant and defendant's three siblings, in the southwest Bronx. The family subsisted on the father's income as a factory worker and the mother's income from a series of jobs until the two were divorced in 1985. The mother is now employed by ITT Corporation and resides in New Jersey. One of defendant's siblings has moved to Pennsylvania and the other two live with the father in the Bronx.

 Defendant married in 1987. She and her husband separated in 1990. They have two children, a girl aged three and a boy aged 18 months. The father, a chauffeur, never paid any support; he has now ceased all contact with the family. The children live with defendant and appear to be well cared for.

 Defendant now lives in a modestly furnished apartment in a drug-infested neighborhood of the southwest Bronx. She has been unemployed and on public assistance since September of 1990. Defendant became enmeshed in this case in an effort to pay off a loan shark from whom she had borrowed $ 2000 to fund her daughter's baptismal rite. The note quickly ballooned and defendant used much of the proceeds of her fraud to pay off the loan shark and various other debts associated with this ceremony. The remainder went to clothes for the family and to those who assisted her in initiating her fraudulent claims.

 Defendant is in good health and has a high school education. She is employable. She is a full-time student at Bronx Community College. She intends to seek a college degree. Separating her from her children would be punitive and destructive both to her and the children. Defendant turned herself in, is remorseful and has cooperated with the government. Employment of defendant and support of the children by her and the father are priorities.

 Defendant is sentenced to five years probation and ordered to pay restitution of $ 22,398.65 and a $ 50 assessment. She is required to serve the first six months of this period in home confinement. She may leave home only to work, go to school, for medical treatment, for religious services or as permitted by Probation. The sentence imposed is required by statute in the court's informed discretion. If the Guidelines are held to be controlling, the sentence is consistent with the Guidelines.

 Probation shall arrange for the restitution payments so as to permit sufficient income for the family. During the period of probation defendant shall provide 36 hours per week of community service, up to a maximum of 1,000 hours, unless otherwise directed by Probation because it is unduly burdensome in a particular period. If defendant is gainfully employed earning income for at least 36 hours per week or attending school for 10 full hours per week, such employment or school shall count as community service. In addition, for every hour of such employment defendant is to receive a credit of $ 10 towards the bill for restitution. Satisfactory completion of a credit of school work shall entitle defendant to a $ 100 credit toward restitution. These provisions are designed to encourage gainful employment. While the court has no power to order that she not be given welfare, food stamps, Medicaid or other assistance, Probation shall take appropriate steps to ensure that such payments are minimized or eliminated as a result of gainful employment. Probation shall attempt to obtain support from the father.

 C. Delores Vargas, CR 91-1266

 Ms. Vargas was born in the Dominican Republic. She is 37 years old and a resident alien in the United States. Defendant was a major participant in the fraud perpetrated here, netting $ 510,266.15. $ 148,607.15 of this she stole directly from the AFDC and food stamp programs through the use of six aliases. The remaining $ 361,659 represents the proceeds of her sales of fraudulent documents to other participants in the scheme. False documents were the essential tool in the success of the fraud in these cases.

 The Guidelines call for a sentence of 21 to 27 months in prison followed by two to three years of supervised release. The government describes defendant as one of the two cooperators most instrumental in making these cases and moves for a downward departure based upon this substantial assistance. She provided information on more than 30 defendants and was responsible for the convictions of a number of them. The government wishes her continued help which can best be obtained while she is not incarcerated.

 Defendant was raised in a middle-class family in Santo Domingo and came to the United States illegally in 1976. In 1977, she began dating a Dominican man and they had two children, now aged nine and thirteen. He returned to the Dominican Republic with the children and she has not supported them since, though she does maintain contact. They returned to New York earlier this month, but she does not have effective custody of the children.

 Defendant has collected public assistance and failed to work for all of the 15 years she has remained in the United States. She is in good health and has an eighth-grade education. She now lives with her sister and brother-in-law and their children in a nicely furnished two-bedroom apartment in the Bronx. Defendant claims to have spent the proceeds of her crimes on clothes and furnishings.

 Despite defendant's cooperation with the government, her crimes were among the most serious in all these cases. She stole a great deal and facilitated the theft of much more. Defendant's long repudiation of her family obligations removes her children as considerations in her case. While she ought to help support her children in the Dominican Republic, there is little the court can do about that. Moreover, there has been no consistent effort by defendant to support herself by non-governmental welfare assistance.

 Defendant is sentenced to five years probation, the first twelve months to be served in a community treatment facility. The sentence imposed is required by statute in the court's informed discretion. If the Guidelines are held to be controlling, a downward departure is required because of defendant's cooperation and for reasons set forth in this memorandum.

 A $ 50 assessment is imposed. Restitution of $ 148,607.15 is ordered, payable as Probation directs. During the period of probation defendant shall provide 36 hours per week of community service, up to a maximum of 1,000 hours, unless otherwise directed by Probation because it is unduly burdensome in a particular period. If defendant is gainfully employed earning income for at least 36 hours per week, such employment shall count as community service. In addition, for every hour of such employment defendant is to receive a credit of $ 10 towards the bill for restitution. These provisions are designed to encourage gainful employment. While the court has no power to order that she not be given welfare, food stamps, Medicaid or other assistance, Probation shall take appropriate steps to ensure that such payments are minimized or eliminated as a result of gainful employment.

 D. Bertha Escobar, CR 91-1299

 Defendant was introduced to this source of income by co-worker and co-defendant Anna Vega, whom this court has sentenced to prison for three years for her own bribe-taking. See United States v. Concepcion, 795 F. Supp. 1262, 1290-91 (E.D.N.Y. 1992). Defendant has cooperated extensively with the government and her assistance has yielded many arrests. She helped lead the government to a bail-jumping codefendant.

 The Guidelines, as computed by Probation and with no objection from either party, call for imprisonment of 10 to 16 months followed by supervised release of two to three years. Alternatively, the court may impose a sentence of five months imprisonment followed by a term of supervised release with a special condition requiring community confinement or home detention for five months. The government moves for a downward departure based upon defendant's substantial assistance in the investigation and prosecution of these offenses.

 Defendant was raised in poverty in Columbia in a family in which the father physically abused the mother. Defendant had a daughter, now 18, out of wedlock and then came to the United States, with the child and defendant's mother, in November 1975. Her decision to come to the United States largely resulted from the scorn she was subjected to as an unwed mother, which caused her to lose her job as a schoolteacher in Columbia. Defendant's four siblings remained in Columbia and have led successful lives there.

 Defendant and her mother lived with a friend in Queens until defendant was married in 1976 to a soldier in the United States Army stationed in Kentucky. Defendant subsequently obtained permanent residency in the United States. Her mother did not and has returned to Columbia. Defendant then moved to Kentucky to live with her husband and gave birth there to her second daughter, now 14 years old.

 The husband was an alcoholic and drug addict who physically abused her. They separated in 1978 and defendant returned to New York with her daughter. The couple was divorced in 1981 and he is now dead.

 In 1983, defendant met her second husband and they were married in Queens in 1984. He was also an alcoholic and also abused her. Separation followed in 1986 and divorce in 1990. He has remarried and resides in Queens.

 Defendant now lives in a two-bedroom apartment in Whitestone, Queens with her two daughters, ages 18 and 14. The older daughter is attending college and both work part-time. The home is well-maintained and comfortably furnished. Defendant suffers from and takes medication for hypertension, which took the lives of both her mother and father. She has a college degree obtained in Columbia and a business school certificate in clerical business machines. She is working toward a master's degree at Hunter College. She earned $ 21,600 per year at her job with the HRA from 1982 until her arrest. Defendant declared personal bankruptcy in 1989 and now has considerable new debts. She is now working as a counselor-coordinator at Spanish Speaking Elderly Counseling of Brooklyn, earning $ 25,000 per year.

 Defendant abused her position as a public servant and her crimes are among the more serious in these cases. Incarceration away from home will adversely affect the children. The children's respective fathers have long since left the picture and defendant's family all live in Columbia. No one is available to care for defendant's children in her absence. Nevertheless, deterrence requires some period of incarceration for this defendant.

 Defendant is sentenced to ten months in prison followed by three years of supervised release. A longer term would cause unnecessary deterioration to both defendant and her family. The sentence imposed is required by statute in the court's informed discretion. If the Guidelines are held to be controlling, the sentence is at the low end of the Guidelines. This sentence is sufficient. Any harsher sentence would adversely affect defendant's daughters. The execution of the sentence is stayed for three months to permit further cooperation.

 A mandatory assessment of $ 50 is imposed. Defendant is ordered to pay restitution of $ 49,070.25. Probation shall arrange for the restitution payments so as to permit sufficient income for the family. It shall also attempt to obtain support from the remaining father for his child. In view of the prison sentence, no provision for community service is needed. If defendant's family in Columbia can care for the children while defendant is incarcerated, Probation shall attempt to facilitate this or another form of appropriate custody.

 E. Alison Polanco, CR 91-1374

 Ms. Polanco was born in Manhattan and is a United States citizen. She is 23 years old. Defendant stole $ 30,855.05 from the AFDC and food stamps programs with the use of one name between 1988 and 1991.

 The Guidelines call for imprisonment of six to twelve months. The court may impose a term of supervised release of two to three years following imprisonment. As an alternative, the court may impose a term of three months in prison followed by a term of supervised release with a special condition requiring three months of community confinement or home detention. Defendant is also eligible for probation under the Guidelines of one to five years, provided the court imposes a condition requiring intermittent or community confinement or home detention for six months. Because of her cooperation, the government moves for a downward departure.

 Defendant had a stable upbringing in an intact family, though her parents are now divorced and the father lives in the Dominican Republic with his second wife. He owns a food distribution chain at which defendant's brother is employed.

 Defendant now lives in the Bronx with her fiance. She is working at A & S as a salesperson and in a cafe owned by her fiance and his mother in New Jersey.

 Defendant is in good health. She obtained a high school education in the Dominican Republic in 1986 and a General Equivalency Diploma in New York in 1987. Defendant has taken numerous courses at the Borough of Manhattan College, but has stopped attending because of financial pressures. She worked as an apprentice secretary from 1987 to 1988, when she was terminated because she was unreliable. Defendant was then employed by Macy's as a sales associate until November 1991. She is now indebted to Macy's, the Internal Revenue Service, and others in an amount exceeding $ 4,000. She pays rent of $ 510 per month.

 Defendant is placed on five years probation. She is required to serve the first six months of the probation period in home detention. She may leave home only to work, for school, for medical treatment, for religious services or as permitted by Probation. Home detention is practicable in this case because of the absence of children. The cost to taxpayers of detention in a community treatment center would be $ 991 per month whereas probation and home confinement costs only $ 115 per month. The sentence imposed is required by statute in the court's informed discretion. If the Guidelines are held to be controlling, the sentence is within the Guidelines range.

 In addition, defendant is ordered to make restitution of $ 30,855.05 and to pay an assessment of $ 50. During the period of probation defendant shall provide 36 hours per week of community service, up to a maximum of 1,000 hours, unless otherwise directed by Probation because it is unduly burdensome in a particular period. If the defendant is gainfully employed earning income for at least 36 hours per week, such employment shall count as community service. In addition, for every hour of such employment defendant is to receive a credit of $ 10 towards the bill for restitution. For each credit earned at school she will receive a credit of $ 100 toward the restitution. These provisions are designed to encourage gainful employment. Defendant is capable of supporting herself and should work. While the court has no power to ...


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