Free Reply/Response Misc - District Court of Connecticut - Connecticut

i Case 3:00-cr-00217-EBB Document 923 Filed 05/17/2005 Page 1 of 4 g

UNITED STATES DISTRICT COURT
nisriucr or connecticut ( F |‘j-_-t=__ {Q [I
UNITED STATES OF AMERICA Crim. No. 3:00-CR-217 IL}
V. idltli hi it ·‘`-· UC I il;·i¥ii*‘i
BEN F. ANDREWS May 17, 2005
UNITED STATES’ RESPONSE T0 H
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On May 16, 2005, defendant Andrews submitted to this Court a letter with voluminous
attachments, "seek[ing] to clarify questions arising at sentencing and in the presentence report
concerning Mr. Andrews’ financial condition.” As explained below, the defendant’s submission
establishes primarily (I) that he is initiating litigation to recover approximately $325,000 from
Brown Capital, and (2) that he has provided no accounting whatsoever for thousands of dollars
withdrawn from his bank accounts since his indictment in late 2000. In light of these two facts,
the Government respectfully submits that the record amply supports the defendant’s ability to pay
a substantial monetary fine.
First, the defendant has submitted a letter dated May 10, 2005, from Attorney Raymond J.
Devlin. In that letter, Attorney Devlin states that the defendant has now instructed him to take
action to collect “amounts which have been withheld from him" under the Brown Capital
contract. According to Attorney Devlin, the defendant believes that he is entitled to another year
of a “performance fee" based on the "gross management fees received by Brown Capital.” l
According to Attorney Donovan’s May 16 Letter, these performance fees "have ranged from
about $240,000 to $3 00,000 per year" depending on the Brown Capital fund’s performance.
Although the precise figure allegedly owed is unknown, the defendant himself has estimated the
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amount in dispute to be $325,000. See Letter of Attorney Donovan at 2 n.3 (citing Financial
Affidavit filed by defendant Andrews). Accordingly, based on the defendant’s own
representation that he is entitled to recover hundreds of thousands of dollars in the future, there is
a factual basis for the Court to find that he will have a future ability to pay a substantial monetary
fine. See, e. g., United States v. Salorne/1, 261 F.3d 271, 276 (2d Cir. 2001) ("court may consider
both defendant’s present financial resources and those that may become available in the future");
United Stores v. Thompson, 227 F.3d 43, 45 (2d Cir. 2000) (future financial resources include i
earnings after the def`endant’s release from prison); United States v. Wong, 40 F.3d 1347, 1383
(2d Cir. 1994) (same). Moreover, based on the defendant’s impressive prior earning history,
there is every reason to believe that upon his release from prison, he will retain an ability to earn
substantial sums.
Second, the defendant has attached a sheaf of bank statements, covering much of 2001
and some of 2002 and 2003, without any indexing or explanation of what those statements are
supposed to demonstrate. The May 16 Letter states that these statements are offered in response
to the Court’s question of “Where did the money go?” Far from answering that question, the
statements only injectmore uncertainty. For example, a cursory examination of the statements
covering 2001 reveal the following checks made payable either to “Cash" or to "Ben Andrews,"
without any indication of where the money went.
Check date Payee Amount
4/16/01 Cash $85,000 R
6/ 1 1/01 Ben Andrews $2,000
6/25/01 Ben Andrews $1,500
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i Case 3:00-cr—00217-EBB Document 923 Filed 05/17/2005 Page 3 of 4
8/15/01 Ben Andrews $5,000
8/ 19/01 Ben Andrews $5,000
8/22/01 Ben Andrews $2,500 f
8/27/01 Ben Andrews $3,000 E
9/6/01 Ben Andrews $1,500
9/ 14/01 Ben Andrews $7,000
10/1/01 Ben Andrews $2,000 I
l0/16/01 Cash $3,000 `
11/19/Ol Ben Andrews $5,000 E
12/5/01 Cash $19,250 i
12/6/01 Cash $3 ,000
TOTAL $144,750
(This list is far from comprehensive; for present illustrative purposes, the Government has
omitted checks payable to cash or to the defendant which have some notation in the "mem0"
section which at least hint at —— but do not prove —— how those funds may have been spent.) In
short, the incomplete bank records offered by the defendant himself reveal that he has not
accounted for a substantial amount of his earnings which have been drawn off in the form of cash
since his indictment in October 2000. Accordingly, the defendant has not satisfied his burden of
proving an inability to pay a fine, see Salame/1, 261 F.3d at 276.
In light of the foregoing, it would be entirely appropriate for this Court to impose a
substantial fine, designed so that the defendant must disgorge the full $250,000 he received in
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i _ _ Case 3:00-cr-00217-EBB Document 923 Filed 05/17/2005 Page 4 of 4
bogus "consuIting” payments from the Landmark scheme. See 18 U.S.C. § 3572(a)(5) (requiring
court to consider, inter alia, "the need to deprive the defendant of illegally obtained gains from
the offense").
Respectfully submitted,
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JOHN H. DURHAM i
ACTING UNITED STATES ATTORNEY I
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DAVID A. Rmc l
ASSISTANT UNITED STATES ATTORNEY
Fed. Bar N0. ctl4362 {
W/497%;.
WILLIAM J. NARDINI
ASSISTANT UNITED STATES ATTORNEY
Fed. Bar No. ctl6012
157 Church Street, 23'd Floor i
New Haven, CT 06510 i
Tel.: (203) 821-3748 i
Fax: (203) 773-5377 (
willia1n.nardini@usdoj . gov (
CERTIFICATION OF SERVICE
This is to certify that a copy of this Response was sent by mail this 17th of May 2005 to:
Jeremiah Donovan, Esquire
Law Offices Q
123 Elm Street, Unit 400
Old Saybrook, Connecticut 06475
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N '{ E
WILLIAM . AR 1 l
ASSISTANT UNITED STATES ATTORNEY l
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