United States District Court, S.D. New York
May 3, 2004.
UNITED STATES OF AMERICA, -against- DENISE O' CONNOR, Defendant
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendant Denise O'Connor ("O'Connor") pled guilty on February 5,
2004 to one count of Mail Fraud, in violation of 18 U.S.C. § 1341,
and one count of Theft of Government Funds, in violation of
18 U.S.C. § 641. From approximately May 2003 through
approximately August 2003, O'Connor engaged in a scheme to defraud the
Lower Manhattan Development Corporation (the "LMDC") and the United
States Department of Housing and Urban Development ("HUD") of grant
money by making false representations in a grant application that she
was renting and residing in an apartment on Catherine Street in
Manhattan on or before September 11, 2001 and that she intended to
reside at that address for two years commencing June 1, 2002. As a
result, the LMDC mailed checks totaling $2,228.50 to O'Connor, constituting
grant money from HUD to which she knew she was not entitled. O'Connor
will be sentenced to time served to run concurrently with the sentence
imposed in New York County Supreme Court (Ind. 4561-2003), to be
followed by three years of supervised release. Restitution in the amount of $2,228.50 is ordered, and a
special assessment fee of $200 is mandatory.
This statement of facts draws on the Presentence Investigation Report
prepared by the U.S. Probation Office.
O' Connor was born in New York, New York on October 26, 1960, and is
one of five children born to the union of John and Theresa O'Connor.
O'Connor reported that she was raised in middle-class conditions in
Manhattan and described her childhood and upbringing as "beautiful." She
also reported that her mother died in 1998 after suffering from emphysema
and her father died in 2002 after a battle with cancer.
O'Connor reported that she graduated from the Saint Alphonse School in
lower Manhattan in 1978, and that after high school she completed a
training program in the care and transport of disabled persons.
O'Connor advised that she has been married once and has no children.
She married Gerard Hepsen in Arizona approximately four years ago. She believes her husband to be dead but is not
In or about 1992, according to O'Connor, she was struck by a car and
suffered debilitating injuries to her back and head which resulted in her
being hospitalized for approximately one month. She advised that,
presently, she is unable to sit or stand for long periods of time, and
she has been unable to work since her accident. The accident reportedly
occurred while O'Connor was working for the Jolo Bus Company as an escort
for disabled individuals, a company for which she had worked since
O'Connor stated that after the death of her mother in 1998 she began
suffering from anxiety and hyperactivity. She further stated that, as a
result of one of her prior convictions, she was ordered to undergo weekly
mental health treatment. She also advised that she takes an anti-anxiety
medication, which she says makes her feel calmer. She added that she
feels the counseling and medication are helpful.
O'Connor also reportedly takes glucose medication daily. According to a
presentence report prepared in 2003 by the New York City Department of
Probation, O'Connor had been using heroin for about one year and had also
been participating in a methadone program. O'Connor reported no significant assets or liabilities, and a credit
check revealed no open credit accounts and two collection accounts
totaling $330. She reported that as a result of her injuries in 1992, she
has been sustained by workmen's compensation benefits in the amount of
$80 per week, as well as by her family.
O'Connor has three prior convictions. In 1998 O'Connor was arrested and
subsequently convicted of Criminal Possession of a Controlled Substance
in the Seventh Degree. According to the presentence report prepared for
that offense, O'Connor was arrested after she sold a quantity of
methadone to an undercover officer in exchange for $30. On July 29, 1998,
O'Connor was sentenced to three years' probation for the offense, and she
was discharged from probation supervision on April 20, 2001.
In September of 2000, O'Connor was arrested and later convicted of
Reckless Endangerment in the First Degree. According to the presentence
report prepared for the offense, O'Connor was observed by a firefighter
setting a shirt on fire with matches and placing it inside a vehicle.
After the firefighter extinguished the shirt, O'Connor reportedly grabbed
the shirt, set it on fire again, and placed it in a dumpster. On March
15, 2001, O'Connor was sentenced to six months' imprisonment and five
years' probation, but she was discharged from supervision on December
9, 2003 as a result of a third arrest and conviction in 2003. In August 2003, O'Connor was arrested and subsequently convicted of
Attempted Burglary in the Second Degree, an offense for which she was
sentenced to three years' imprisonment on November 26, 2003. According to
the presentence report for that offense, on August 5, 2003, O'Connor and
an unapprehended man were observed walking out of an apartment, the owner
of which later informed the police that her apartment was burglarized and
a credit card was missing. On August 8, 2003, O'Connor was arrested for
shoplifting. At the time of that arrest, the aforementioned credit card
was recovered from O'Connor's purse.
According to the indictment, from approximately May 2003 through
approximately August 200, O'Connor engaged in a scheme to defraud the
LMDC and HUD of grant money by making false representations in a grant
application that she was renting and residing in an apartment on
Catherine Street in Manhattan on or before September 11, 2001 and that
she intended to reside at that address for two years commencing June 1,
2002. These representations caused the LMDC to mail checks totaling
$2,228.50 to O'Connor.
The apartment in question, according to an investigator for the LMDC,
is actually occupied by O'Connor's 90-year-old aunt, who has resided
there for approximately 60 years. O'Connor had reportedly moved in with
her but did not pay rent. In order to receive the LMDC grants, O'Connor reportedly forged required
documents, such as a lease agreement and rent statements, "and submitted
them to the LMDC. O'Connor's aunt discovered that O'Connor had been
receiving grant money only after she had O'Connor removed from the
apartment because O'Connor was stealing from her. She later noticed that
O'Connor was receiving checks from the LMDC, which were subsequently
turned over to investigators.
A two-count indictment charging O'Connor with Mail Fraud and Theft of
Government Funds was filed on December 9, 2003, and O'Connor pled guilty
to the charges without the benefit of a plea agreement on February 5,
The victim in this case is the LMDC, which suffered a loss totaling
In a letter to the court dated April 20, 2004, O'Connor expressed her
extreme remorsefulness and regret for what occurred in the instant
offense and her strong desire to "turn [her] life around."
The November 1, 2002 edition of the United States Sentencing
Commission Guidelines Manual has been used in this case, in
accordance with § 1Bl.ll(b)(1). Pursuant to § 3D1.2(d), all offenses covered by § 2B1.1 are
grouped together. Accordingly, O'Connor's sentencing range is determined
by grouping the offenses charged in each of the two counts into a single
group or offense.
The guideline for a violation of 18 U.S.C. § 1341 is found in §
2B1.1, which provides for a base offense level of 6.
Because the loss presently known to the Government is less than $5,000,
the offense level is not increased under the offense-characteristic table
set forth in § 2B1.1 (b).
Based on O'Connor's plea allocution and her recognition of
responsibility for the offense, the offense level is reduced by two
levels pursuant to § 3E1.1 (a)
The resulting applicable offense level is 4.
The criminal convictions set forth above result in a subtotal criminal
history score of six, pursuant to §§ 4Al.l(a), 4Al.l(b) and 4Al.l(c).
At the time the instant offense was committed, O'Connor was on probation.
Accordingly, two points are added pursuant to § 4Al.l(d), bringing
the total of the criminal history points to 8. The sentencing table in
Chapter 5, Part A, provides that 8 criminal history points establishes a
Criminal History Category of IV. Based on these calculations, the guideline range for imprisonment is
two to eight months. The statutory maximum term for Count One is twenty
years, pursuant to 18 U.S.C. § 1341, and the maximum term of
imprisonment for Count Two is ten years, pursuant to 18 U.S.C. § 641.
Pursuant to § 5G1.3(c) (Policy Statement), the sentence for the
instant offense may be imposed to run concurrently, partially
concurrently, or consecutively to the prior undischarged term of
imprisonment to achieve a reasonable punishment for the instant offense.
The minimum term of imprisonment, under the Guidelines, may be
satisfied by (1) a sentence of imprisonment; (2) a sentence of
imprisonment that includes a term of supervised release with a condition
that substitutes community confinement or home detention, provided that at
least one month is satisfied by imprisonment, pursuant to § 5Cl.l(c);
or (3) a sentence of probation that includes a condition or combination
of conditions that substitute intermittent confinement, community
confinement, or home detention for imprisonment.
On each count, if a sentence of imprisonment is imposed, a term of
supervised release of not more than three years may also be imposed,
pursuant to 18 U.S.C. § 3583 (b)(2). Such terms are to run
concurrently, pursuant to 18 U.S.C. § 3624 (e). The guideline range
for a term of supervised release is at least two years but not more than
three years, pursuant to § 5D1.2(a)(2). If a sentence of imprisonment of one year or less is imposed, a term of
supervised release is not required but is optional, pursuant to §
5Dl.l(b). Supervised release is required if a term of imprisonment of
more than one year is imposed or when required by statute, pursuant to
O'Connor is eligible for not less than one nor more than five years'
probation by statute on each count, pursuant to
18 U.S.C. § 3561(c)(1). Because the offense is a felony, pursuant to
18 U.S.C. § 3563 (a)(2) one of the following must be imposed as a condition of
probation unless extraordinary circumstances exist: a fine, restitution,
or community service.
Under the Guidelines, because the applicable guideline range
is in Zone B of the Sentencing Table, O'Connor is eligible for probation
provided that the court imposes a condition that substitutes intermittent
confinement, community confinement, or home detention for at least two
months, pursuant to § 5Bl.l(a)(2). If the court imposes probation,
the term must be at least one year but not more than five years because
the offense level for the instant offense is 4, pursuant to §
The statutory maximum fine for each Count is $250,000, pursuant to
18 U.S.C. § 3571. The guideline fine range for the instant offense is
from $250 to $5,000, pursuant to §§ 5E1.2(c)(3)-(A) and 5E1.2 (c)
(4). Subject to O'Connor's ability to pay, the expected costs to the
government of any imprisonment, probation, or supervised release shall be
considered in imposing a fine, pursuant to § 5E1.2(d)(7). The most
recent advisory from the Administrative Office of the United States
Courts suggests a monthly cost of $1,876.61 to be used for imprisonment,
a monthly cost of $283.23 for supervision, and a monthly cost of
$1,475.67 for community confinement.
A special assessment of $100 per Count, for a total of $200, is
mandatory, pursuant to 18 U.S.C. § 3013.
Full restitution to the victim is required under 18 U.S.C. § 3663A
and 3664. Pursuant to § 5El.l(a)(1), where there is an identifible
victim, a restitution order shall be entered for the full amount of the
victim's loss if such order is authorized under 18 U.S.C. § 3663A.
Here, restitution in the amount of $2,228.50 is owed to the LMDC.
Pursuant to the Violent Crime Control and Law Enforcement Act of 1994,
all offenders on probation, parole or supervised release for offenses
committed after September 13, 1994, are required to submit to one drug
test within fifteen days of commencement of probation, parole or
supervised release and at least two drug tests thereafter for use of a
controlled substance, unless ameliorated or suspended by the court due to
its determination that the defendant poses a low risk of future substance abuse as provided
in 18 U.S.C. § 3563(a)(5) and 3583(d).
O'Connor is sentenced to time served to run concurrently with the
sentence imposed in New York County Supreme Court (Ind. 4561-2003), to be
followed by three years of supervised release. A special assessment fee
of $200 payable to the United States is mandatory and due immediately.
O'Connor shall make restitution in the amount of $2,228.50, payable to
the Clerk, U.S. District Court, for disbursement to the LMDC. Payments
should be forwarded to the LMDC at the following address: Lower Manhattan
Development Corporation, 1 Liberty Plaza-20th Floor, New York, New York
10006, Att: Diana Lee. The restitution shall be paid in full not later
than 90 days prior to the expiration of the term of supervised release.
The factors in 18 U.S.C. § 3664(f)(2) were considered in formulating
the payment schedule.
O'Connor shall notify the United States Attorney for the Southern
District of New York within 30 days of any change of mailing or residence
address that occurs while any portion of the restitution remains unpaid. O'Connor shall report to the nearest Probation Office within 72 hours
of her release from custody, and supervision shall be in the district of
As mandatory conditions of supervised release, O'Connor 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
In addition, the mandatory drug testing condition is suspended due to
imposition of a special condition requiring drug treatment and testing.
O'Connor shall participate in a program approved by the U.S. Probation
Office, which program may include testing to determine whether O'Connor
has reverted to using drugs or alcohol. The release of available drug
treatment evaluations and reports to the substance abuse treatment
provider, as approved by the Probation Officer, is hereby authorized.
O'Connor will be required to contribute to the costs of services rendered
(copayment), in an amount determined by the Probation Officer, based on
ability to pay or availability of third-party payment.
O'Connor shall also participate in a mental health program approved by
the United States Probation Office. She shall continue to take any
prescribed medications unless otherwise instructed by the health care
provider. She shall contribute to the costs of services rendered not covered by third-party payment,
if she has the ability to pay. The release of available psychological
and psychiatric evaluations and reports to the health care provider is
This sentence is subject to modification at the sentencing hearing
now set for May 24, 2004.
It is so ordered.
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