By letter dated September 3, 1999, counsel for defendant
indicated that it was only objecting to the obstruction of
justice adjustment. By a series of letters, counsel for defendant
has also objected to the adjustments and departures not included
in the PSR that have been noticed by the Government and the
Court. Finally, on September 13, 1999, the defendant moved for a
downward departure based on the defendant's diminished mental
The evidence at trial overwhelmingly established the following.
In 1993, Cusack was working as a paralegal at the law firm
founded by his father, Cusack & Stiles, and was earning between
$25,000 and $35,000 a year. His wages at the firm were being
garnished because of a number of judgments obtained against him
by creditors. Months earlier, Cusack had met John Reznikoff, a
dealer in autographs and stamps, and had learned how valuable the
autographs of famous people could be. Cusack told Reznikoff that
he had found documents in his father's files that contained the
writing and signatures of President John F. Kennedy, Marilyn
Monroe, and Robert F. Kennedy (the "Cusack Documents"). According
to Cusack, his father, Lawrence Cusack Sr. ("Cusack Sr."), had
for years been a secret adviser and confidant to President
According to Cusack and as "corroborated" by the Cusack
Documents, Cusack Sr. assisted President Kennedy with a number of
intrigues that included (1) the payment of hush money to Marilyn
Monroe to cover up an extramarital affair; (2) the cover-up of a
supposed secret marriage and subsequent secret divorce prior to
Kennedy's marriage with Jacqueline Kennedy; (3) the cover-up of
Kennedy's interactions with organized crime figures; (4)
Kennedy's attempts to prevent J. Edgar Hoover, the former
director of the FBI, from blackmailing him; and (5) Kennedy's
addiction to pain killers. The documents depicted prominent
figures in the Catholic Church, including Cardinal Spellman, as
facilitators of these intrigues.
Cusack represented himself to Reznikoff as a lawyer and as a
decorated former Navy lieutenant commander who had served in
Vietnam and Cambodia. In one of their early meetings, Cusack wore
a bomber jacket with a three-leaf colonel's cluster. The two
eventually traveled to Annapolis together where Cusack appeared
in full military dress and exchanged salutes with naval officers.
On this occasion, Cusack wore a number of awards on his chest,
including a Navy cross, one of the military's highest honors. As
their friendship developed, Cusack began to share the documents
with Reznikoff, and the two eventually entered into an agreement
whereby Reznikoff would act as Cusack's agent. Cusack and
Reznikoff then enlisted Thomas Cloud, a dealer in rare documents
with access to rich clients, to sell the documents. The three
believed that the Cusack Documents could be privately placed with
investors and later resold in an auction after they were made
public through a book or movie. To attain the high prices for the
documents that they sought, the three located a number of
collectors of Kennedy memorabilia to "authenticate" the Cusack
Documents. In the ensuing years, the three sold between 250 and
275 documents for a total of approximately $7 million. Cusack
earned approximately $5 million from the sales, which he invested
in a life of luxury.
In time, Cusack came into contact with journalists who were
interested in the Cusack Documents. Pulitzer prize-winning author
Seymour Hersh wanted to include the Cusack Documents in his new
book on the Kennedy presidency. The television network ABC and a
producer named Mark Obenhaus wanted to do a documentary on the
documents. Once these efforts intensified in 1997, however, the
journalists discovered that the documents were forgeries and
refused to proceed. In the process, the Cusack Documents were
exposed to the public as fakes and Cusack, Reznikoff,
and Cloud were forced to cease selling the documents. In 1997,
the scheme came to a close.
The evidence at trial conclusively demonstrated that all of the
Cusack Documents are indeed fakes and were authored by Cusack. As
a paralegal at Cusack & Stiles, Cusack stole documents from his
father's files, the files of Cusack & Stiles, the Surrogate's
Court, and the Archdiocese of New York. Cusack altered and
embellished these documents with the forged handwriting of
President Kennedy and others and sold them as the Cusack
Several different types of proof supported these conclusions.
First, many of the documents are highly implausible on their
face. For example, an index card containing a citation to a tax
practitioner's article was altered to suggest that Cusack Sr. and
President Kennedy shared a grin over how the article could help
them foil Hoover. Second, several of the documents contain zip
codes which were not in use until after President Kennedy's
death. Third, expert analysis revealed that the typefaces used in
many of the documents did not exist at the time the documents
were supposedly authored. Fourth, additional expert analysis
concluded that the handwriting on the documents did not belong to
President Kennedy and was likely a forgery made by Cusack.
Finally, evidence showed that only Cusack had the ability and
opportunity to carry out the fraud.
The evidence at trial also established that the stories Cusack
invented about himself and others were false. Cusack Sr. had
never had any relationship, professional or otherwise, with
President Kennedy. Cusack himself was not a lawyer and had never
served in the military.
I. Objections Related to Adjustments
A. Obstruction of Justice — Section 3C1.1
The Government argues that an obstruction of justice adjustment
is appropriate on either of two grounds: (1) the defendant's
disguising of his handwriting in exemplars provided to the
Government in response to a subpoena, and (2) the filing of a
pair of civil suits by the defendant against potential witnesses.
Cusack disputes that the handwriting exemplars show he intended
to obstruct justice. With respect to the filing of civil suits,
Cusack argues that there is no evidence of threats by him against
any witness and that the record is insufficient to support a
finding of specific intent to obstruct justice.
Section 3C1.1 of the Sentencing Guidelines authorizes a
If the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration
of justice during the investigation, prosecution, or
sentencing of the instant offense. . . .
U.S.S.G. § 3C1.1.*fn1 In November 1998, in order to clarify the
relationship between the obstruction and the offense, language
was added to require explicitly that "the obstructive conduct
related to (i) the defendant's offense of conviction and any
relevant conduct; or (ii) a closely related offense. . . ."
U.S.S.G. § 3C1.1 (1998). See also United States v. McKay,
183 F.3d 89, 95 (2d Cir. 1999).
The willfulness requirement in the text of Section 3C1.1
requires that "the defendant consciously act with the purpose
of obstructing justice." United States v. Case, 180 F.3d 464,
467 (2d Cir. 1999) (internal quotation omitted) (emphasis in
original). See also United States v. Reed, 49 F.3d 895, 900 (2d
Cir. 1995). In order to impose an adjustment for obstruction of
justice, a "specific finding of intent" must be made by the
sentencing court where the defendant raises the issue of his
state of mind. United States v. Bradbury, 189 F.3d 200, 204 (2d
Cir. 1999) (internal quotation omitted). This finding of intent
may be based on circumstantial evidence. United States v.
Sisti, 91 F.3d 305, 313 (2d Cir. 1996).
Application Note 3 contains a "non-exhaustive list of examples"
of obstruction that includes the following:
(a) threatening, intimidating, or otherwise
unlawfully influencing a co-defendant, witness, or
juror, directly or indirectly, or attempting to do
(b) committing, suborning, or attempting to suborn
(c) producing or attempting to produce a false,
altered, or counterfeit document or record during an
official investigation or judicial proceeding;
(f) providing materially false information to a judge
(g) providing a materially false statement to a law
enforcement officer that significantly obstructed or
impeded the official investigation or prosecution of
the instant offense. . . .
Where the basis for the adjustment is false testimony, the
sentencing court is required to make findings that the witness
made false statements regarding a matter material to the instant
action with the willful intent to provide materially false
testimony. United States v. Zagari, 111 F.3d 307, 328-29 (2d
Cir. 1997). In addition, "an unsworn denial of guilt — even a
false and material unsworn denial — cannot become the predicate
for an obstruction of justice adjustment." United States v.