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United States District Court, Southern District of New York

March 27, 2003


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge.


Defendant David Weisz ("Weisz") pled guilty on August 7, 2002 to conspiring to steal the property of a healtheare benefit program in violation of 18 U.S.C. § 371, and stealing checks payable to healtheare providers, in violation of 18 U.S.C. § 669, valued at over $800,000. For the reasons set forth below, Weisz will be sentenced to 27 months on each count, to be served concurrently, to be followed by 3 years' supervised release on each count, to be served concurrently. He will also be fined $10,000, and pursuant to 18 U.S.C. § 3013, a special assessment fee of $200 is mandatory.

The Defendant

As verified by the New York State Office of Vital Records, Weisz he was born on March 4, 1971 in Brooklyn, New York and was one of five children born to Edith Weisz and Aryeh Weisz. Weisz's mother is 50 years old and does not work, and his father is in his mid-50's and owns and operates a long distance bus company. His parents reside in Brooklyn, NY.

Weisz reports that his family's financial circumstances were poor, and his father was often at work. There was also tension at home because Weisz's eldest brother rebelled against the family's orthodox Jewish beliefs. Weisz's parents sent Weisz, from the ages of 15 through 19, and his other siblings to Israel to separate them from this rebellious brother. There, Weisz studied and lived at a yeshiva. Weisz speaks fluent Hebrew.

After his education at the yeshiva in Israel, Weisz reports to have graduated from Bobover Yeshiva in Brooklyn, New York in the early 1990's. He also reports attending classes in New York City to become a licensed insurance broker, but his name could not be located in a New York State Department Licensing Services database.

Weisz married Raizy Weisz on February 6, 1991, in Brooklyn, New York, when he was 20 years old. Following infertility problems, the couple had fraternal twins, and they are trying to have more children.

Weisz currently owns a transportation company, called North Star Transportation. He reports having 15 buses and a contract with New York City, belonging to his father, to transport school children. He also leases the buses out to groups. He stated that the business is worth approximately $50,000. According to a New York City probation report written in 2000, Weisz stated his earnings as $30,000 annually. Aside from North Star Transportation, Weisz is associated with a domestic business named Sea Communications, Inc., which is currently inactive.

Weisz denies ever using a controlled substance and reports only drinking alcohol for religious occasions.

The Offense

Weisz, along with co-defendants Michael Smith and Michael Francis, participated in a scheme in which checks issued by Empire BlueCross BlueShield were stolen. The three defendants planned to cash the stolen checks and split the proceeds. Weisz was responsible for cashing the stolen checks. The investigation revealed that $816,049.61 in checks was stolen, although none of the checks were ever cashed and there was, therefore, no monetary loss.

The Guidelines

Section 3D1.2 (d) of the 2002 United States Sentencing Guidelines provides that Weisz's two counts of conspiring and theft are grouped when the offense level is determined largely on the basis of the total amount of harm or loss. The guideline for a conspiracy violation of 18 U.S.C. § 371 (Count One) is found in § 2X1.1 which refers to the base offense level of the substantive offense. The guideline for theft (the substantive offense) is found in § 2B1.1. In addition, the guideline for a violation of 18 U.S.C. § 669 (Count Two) is found in § 2B1.1. This section provides for a base offense level of six, pursuant to § 2B1.1 (a)

Section 2B1.1(b)(1)(H) provides for incremental increases based upon loss. Because the offense involved an intended loss of more than $400,000 but less than $1,000,000, fourteen levels are added. Based on acceptance of responsibility, three levels are subtracted, resulting in an adjusted offense level of 17.

Weisz committed the instant offense while on probation for a July 10, 2000 conviction of grand larceny. Weisz thus has three criminal points. According to the sentencing table at Chapter 5, Part A, three points establish a Criminal History Category of II.

An offense level of 17 and a Criminal History Category of II yields a Sentencing Guidelines range of 27 to 33 months. In addition, the Court may impose a fine pursuant to U.S.S.G. § 5E1.2. The applicable fine range is $5,000 to $50,000.

The Sentence

Weisz will be sentenced to 27 months on each count, to be served concurrently, and three years' of supervised release on each nearest probation Office within 72 hours of his release from custody, and supervision shall be in the district of residence. As mandatory conditions of supervised release, Weisz shall (1) abide by the standard terms of supervised release (1-13); (2) not commit another federal, state, or local crime; (3) not illegally possess a controlled substance; and (4) not possess a firearm or destructive devise.

Weisz is subject to a fine of $10,000 to be paid at the rate of 15% of his gross monthly income. If Weisz is engaged in a BOP, non-UNICOR program, he shall pay $25 per quarter toward the criminal financial penalties. However, if he participates in the BOP's UNICOR program as a grade 1 through 4, he shall pay 50% of his monthly UNICOR earnings toward the criminal financial penalties, consistent with BOP regulations at 28 C.F.R. § 545/11.

A special assessment fee of $200 is mandatory and is due immediately.

This sentence is subject to modification at the sentencing hearing now set for April 15, 2003.

It is so ordered.


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