Free Trial Memo - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA v. RENALDO M. ROSE : : : : : Crim. No. 3:03CR33(EBB)

July 12, 2005

GOVERNMENT'S MEMORANDUM CONCERNING WHETHER THE DISTRICT COURT SHOULD RESENTENCE RENALDO ROSE Beginning in approximately September 2003, Renaldo Rose (the "defendant") developed, organized, and implemented a plan to kidnap and extort money from a wealthy Connecticut resident as a means to solve the defendant's desperate financial situation. that end, the defendant used the Internet to identify suitable individuals and, after identifying Edward Lampert ("Lampert") as a potential target, to research Lampert's background, business interests, personal history, and associates. The defendant To

purchased a shotgun and other equipment, such as masks, plastic flexible restraints, tape recorders, voice-distortion equipment, and bullet proof vests, to facilitate the kidnapping. The

defendant also recruited others to help him, staging an armed robbery of a UPS truck approximately two weeks before the kidnapping as a means to test two recruits and training one of the new recruits, a seventeen year old, to use a shotgun. Finally, the defendant and three others kidnapped Lampert and held him bound and blindfolded in a motel bathroom for three days before releasing him unharmed in exchange for Lampert's agreement

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to pay $40,000 five days after his release. On May 17, 2004, the defendant was sentenced. The district

court imposed concurrent sentences of 121 months on Counts One, Two, Four, and Five of the Superseding Indictment and a sentence of 60 months on Count Three, to run consecutively to the other sentences imposed, resulting in a total effective sentence of 181 months. The district court also imposed a term of supervised

release of two years and a total special assessment of $500. On May 25, 2004, Rose filed a timely notice of appeal.1 On

May 18, 2005, the United States Court of Appeals for the Second Circuit remanded the defendant's appeal in light of United States v. Booker, 125 S. Ct. 738 (2005) and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). The Government respectfully submits this memorandum to assist the District Court in determining whether it should resentence the defendant. In sum, given the information before

the court at sentencing concerning the defendant's criminal conduct, the Court should not impose a non-trivially different sentence on remand.

On appeal, the defendant argued, among other things, that the district court's decision to do apply a role enhancement for his use of a minor during the crimes and his leadership role during the armed robbery was error.

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I.

PROCEDURAL HISTORY On January 13, 2003, United States Magistrate Judge Holly B.

Fitzsimmons issued an arrest warrant based on a complaint against the defendant. On January 18, 2004, the defendant was arrested

in Toronto, Canada for violating Canadian immigration laws and subsequently was returned to the United States, where he was presented in United States District Court for the Western District of New York on the federal arrest warrant. On February 7, 2003, the defendant was presented in United

States District Court for the District of Connecticut and was detained pending trial. On February 18, 2003, a federal grand

jury returned a two-count indictment against the defendant. On April 8, 2003, the grand jury returned a five-count Superseding Indictment against the defendant. It alleged

multiple violations of the Hobbs Act, 18 U.S.C. § 1951(a) (Counts One, Two, Four, and Five; conspiring to interfere with interstate commerce and interfering with interstate commerce by extortion), and a violation of 18 U.S.C. § 924(c)(Count Three; use and carrying of a firearm during and in relation to a crime of violence) stemming from the defendant's participation on December 24, 2002 in an armed robbery of a United Parcel Service truck in New Haven, Connecticut and his participation in the scheme to extort Edward Lampert, a Greenwich, Connecticut financier. On June 30, 2003, the defendant moved to suppress evidence

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seized from his residence and to sever the trial of certain counts. On January 9, 2004, the Court denied the motions.

On January 27, 2004, the defendant pleaded guilty to each count of the Superseding Indictment. On May 17, 2004, the defendant was sentenced. II. LAW In Crosby, the Second Circuit determined that it would remand most pending appeals involving challenges to sentences imposed prior to Booker "not for the purpose of a required resentencing, but only for the more limited purpose of permitting the sentencing judge to determine whether to resentence, now fully informed of the new sentencing regime, and if so, to resentence." Crosby, 397 F.2d at 117. In this respect, the

Court of Appeals explained that a remand would be necessary to learn "whether a sentencing judge would have imposed a materially different sentence, under the circumstances existing at the time of the original sentence, if the judge had discharged his or her obligations under the post-Booker/Fanfan regime and counsel had availed themselves of their new opportunities to present relevant considerations." Id. "In making that threshold determination,

the District Court should obtain the views of counsel, at least in writing, but `need not' require the presence of the Defendant . . . ." Id. at 120. . The defendant should, however, have an

"opportunity .

. to avoid resentencing by promptly notifying

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the district judge that resentencing will not be sought."

Id. at

118. "Upon reaching its decision (with or without a hearing) whether to resentence, the District Court should either place on the record a decision not to resentence, with an appropriate explanation, or vacate the sentence and, with the Defendant present, resentence in conformity with the [Sentencing Reform Act], Booker/Fanfan, and this opinion, including an appropriate explanation, see § 3553(c)." II. FACTS OF THE OFFENSE The facts outlined below are recounted in the Offense Conduct section of the Presentence Report ("PSR"), to which the defendant did not object at his original sentencing. 6-34; see Sent. Tr. dated 5/17/04, at 3.)2
2

Id. at 120.

(See PSR ¶¶

These facts well-

The defendant did not object to the factual statements contained in the Offense Conduct section of the PSR and the district court thus was entitled to rely upon those facts in determining whether the enhancement applied. See Fed. R. Crim P. 52(b); United States v. Helmsley, 941 F.2d 71, 98 (2d Cir.1991) ("[I]f a defendant fails to object to certain information in the presentence report, she is barred from contesting the sentencing 5

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supported the Court's sentence and strongly suggest that the Court should not consider imposing a non-trivially different sentence on remand. During the summer of 2002, the defendant discharged from the United States Marine Corps and returned to Hamden, Connecticut. See PSR ¶ 8. While there, he renewed a friendship with Shemone After returning to Connecticut, the

Gordon ("Gordon"). Id.

defendant experienced serious financial problems and appears to have become interested in kidnapping for ransom a prominent individual as a means to solve his financial problems. Id. A

forensic review of computer records seized from the defendant's Hamden residence reflected that in late September 2002 the computer was used to search for information about the kidnapping and ransom of two prominent Mexican citizens. Id.3 In approximately October 2002, the defendant approached

court's reliance on that information, unless such reliance was plain error."). On January 15, 2004, federal and local law enforcement officers executed a search warrant at the defendant's residence. While there, the officers seized a computer, which a subsequent forensic analysis determined contained information concerning Lampert and ESL Investments, among other things, and other materials, including: (1) scraps of paper bearing the names and addresses of other individuals, some of whom were prominent residents of Connecticut; (2) a notebook outlining a series of steps consistent with a plan to abduct a person; (3) a rental agreement for a van rented by the defendant; (4) a map of Greenwich; and (5) a document containing the name of another corporate officer of ESL Investments.
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Gordon about whether he was interested in kidnapping someone for money. Id. ¶ 9. After doing so, the defendant began searching

for information on the Internet about wealthy residents of Connecticut and Massachusetts. Id. While doing so, he compiled

a list of individuals as potential targets for abduction and identified Lampert as a target to abduct. Id. He learned that

Lampert resided in Greenwich, was in his 40s (and thus likely to have children) and had an estimated worth of $800 million. Id.

The defendant also learned that Lampert operated ESL Investments, a Greenwich-based closed investment fund. Id. The defendant subsequently focused his search on Lampert, using the Internet to obtain information about him, ESL Investments, his business dealings, and his colleagues. Id. Initially, the defendant

wanted to identify and kidnap a child, believing that Lampert would be more likely to pay a ransom quickly and without involving the police. Id. This initial plan, however, gave way Id.

to kidnapping Lampert himself.

To facilitate the kidnapping, the defendant purchased from a Connecticut gun store an air pistol and, later, on December 2, a Mossberg shotgun. Id. ¶ 10. The defendant and Gordon also

approached one of Gordon's former girlfriends, who worked as a desk clerk at a Holiday Inn Express in East Haven, Connecticut, to obtain credit card account numbers. Id. ¶ 11. The two

explained to her that they were planning on kidnapping a

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millionaire from Greenwich and needed credit card numbers to help purchase items necessary for the kidnapping. Id. They eventually

obtained the credit card account numbers and registration information of hotel guests and used the credit card account numbers to purchase via the Internet bullet proof vests, flexible plastic handcuffs, masks, and services from fee-based computer search companies. Id. 2002. Id. This activity occurred in early December

Additionally, in mid-December 2002, Gordon and the defendant approached another individual to determine his interest in participating in the kidnapping. Id. ¶ 12. According to that

individual, he knew Gordon from jail and Gordon telephoned him and asked to meet. was present. Id. Id. When he met with Gordon, the defendant

Both the defendant and Gordon described a plan Id. While in

to kidnap a millionaire from Greenwich for ransom.

the defendant's car, the individual opened a folder lying on the back seat and observed hotel documents bearing credit card account information. Id. Recognizing the foolhardiness of the Id.

scheme, he declined to participate in it.

Sometime in December 2002, Gordon met Devon Harris ("Harris") and Lorenzo Jones ("Jones") as a result of their mutual involvement in drug trafficking. Id. ¶ 13. became friends. On December 24, 2002, the defendant, Gordon, Harris, and The three

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Jones, who at the time was seventeen years old, drove together around the area of New Haven, Connecticut, in the defendant's Chrysler 300M. Id. ¶ 14. While doing so, they scouted the area Id.

to find a United Parcel Service delivery truck to rob.

Harris carried a .22 caliber revolver in the Chrysler M300 while searching for the UPS truck to rob and intended to use it to help in robbing the truck. Id. Eventually, the group located a United

Parcel Service truck which they believed was a suitable target to rob. Id. Before leaving the car, Harris gave the firearm to Id. Gordon,

Jones so that he could use it during the robbery.

Harris, and Jones then left the Chrysler M300 and entered the United Parcel Service truck with the intent to hijack the truck, drive it away, and then steal its cargo. Id.

While in the truck, Jones pointed the revolver at the UPS employee driving the truck and demanded the keys to the truck. Id. ¶ 15. Further, they bound the UPS employee using a flexible

plastic restraint and placed a hood over his head to block his sight. Id. They also forced the UPS employee onto his stomach Id.

in the cargo area of the truck.

Because the truck's keys could not be located, the truck was not stolen as originally planned. Id. ¶ 17. Instead, the three

stole money from the driver and four packages from the cargo area and returned to the Chrysler, where the defendant was waiting for them. Id. The defendant then drove Gordon, Harris, and Jones

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from the scene of the robbery to Gordon's residence.

Id.

There,

the four opened the packages and discovered that they had stolen a bag of peanuts, a telephone, a T-shirt and baseball hat bearing the Corona beer label, and an Alpine compact-disc changer. Id.

In part, the robbery was designed to test Harris and Jones and their suitability for participating in the Lampert's kidnapping. Id. ¶ 17. Shortly after the armed robbery, the

defendant and Gordon asked Harris whether he wanted to get $90,000 by helping them kidnap a person. Id. The defendant also

asked Jones whether he was interested in participating in the kidnapping scheme, telling him that he liked how Jones handled himself with the gun during the robbery. Id.

The defendant and Gordon twice practiced firing the shotgun in East Rock Park in New Haven. those occasions. Id. ¶ 10. Jones joined them on one of

On December 27 and December 30, the defendant rented minivans from a New Haven-area rental company to facilitate Lampert's kidnapping. Id. ¶ 19. The defendant traveled to

Greenwich, Connecticut on several occasions, including December 27 and December 30, to surveil the offices of ESL Investments and to locate Lampert's residence and to obtain information about it. Id. ¶ 18. Gordon, Jones, and Harris accompanied Rose on these Id. On at least one occasion before

trips at various times.

January 10, the defendant, Gordon, and Jones traveled to

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Greenwich intending to abduct Lampert, but the plan was aborted when Lampert left the office accompanied by another individual. Id. In preparation for kidnapping Lampert on that occasion, the Id.

defendant rented a minivan and tinted its windows.

On January 10, 2003, the defendant, Gordon, Harris, and Jones drove to a car rental agency and the defendant rented a Ford Expedition. Id. ¶ 20. Later that day, they drove to

Greenwich, Connecticut in the Ford Expedition intending to abduct Lampert. Id. The car contained flexible plastic restraints,

masks, a shotgun, two-way radios, and an air-pistol, among other items. Id. The defendant was driving the Expedition. Id.

After arriving in Greenwich, the defendant parked the Ford Expedition in the parking lot of the office building in which ESL was located. Id. ¶ 21. Gordon and Jones left the Expedition

and hid in a small room in the parking lot to wait for Lampert to walk to his car, which was parked nearby. carrying the shotgun and the air-pistol. Id. Id. They were Harris remained in

the Expedition with the defendant, who gave Harris a photograph of Lampert and told him to look for Lampert among the individuals walking into the parking lot. Id.

After waiting for several hours, the defendant saw Lampert walking to his car and told Gordon and Jones via two-way radio to get him. Id. ¶ 22. Gordon and Jones, whose faces were concealed

by masks, left the spot where they were hiding, walked up to

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Lampert, pointed the shotgun and air-pistol at him, and forced him into the rear of the Ford Expedition. Id. Lampert was then

handcuffed with the plastic restraints and had his face covered to block his sight. Id.

The group left the parking lot to return to the New Haven area. Id. ¶ 23. While driving, the defendant told the others to Id.

remove personal items from Lampert and to throw them away. They did so. Id.

During the drive, Gordon told Lampert that

they were hired to kill him for $1 million as a result of Lampert's business dealings and then demanded $5 million from him to let him go unharmed. Id. Lampert told his kidnappers that

his money was tied up in his business and that he could not pay them $5 million without drawing attention. Id. In response, Id.

Lampert was told that he would have to be killed him.

The defendant, Gordon, Harris, and Jones returned to the New Haven area and eventually obtained a motel room in Hamden, Connecticut. Id. ¶ 24. Lampert in it. from Lampert. They rented the room in order to hold

Gordon paid for the motel room using money taken Id. Once the room was rented, the defendant

backed the Expedition to the motel room door and Lampert was pushed from the Expedition into the motel room. Id. Once

inside, Lampert was taken to the bathroom, where he was held handcuffed and blindfolded. Id.

Harris left the motel room shortly after Lampert was put in

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the bathroom. credit cards.

Id. ¶ 25. Before leaving, he took one of Lampert's Id. He did not return to the motel room until Id.

after Lampert's release on January 12, 2003.

While Lampert was held in the motel room, the defendant and Gordon at various times spoke to him about getting money for his release. Id. ¶ 26. During those discussions, the amount The defendant also

demanded generally was $1 million. Id.

recorded a message from Lampert to his wife and then drove to New York with Jones. Id. While in New York, the defendant

telephoned Lampert's residence from a public telephone, played the recorded message to Lampert's wife, and then briefly spoke. Id. The defendant and Jones then returned to the motel. Id.

On January 11, 2003, the defendant and Gordon became aware that Harris had taken at least one of Lampert's credit cards when he left the motel. Id. ¶ 27. Consequently, the two drove to Id. When the defendant and

Harris's residence to retrieve it.

Gordon arrived at Harris's residence, the police were present at the house and were interviewing people. Id.

The defendant and Gordon subsequently returned to the motel. Id. ¶ 28. Once there, the defendant and Gordon disagreed about whether to release Lampert or to continue to hold him. Id.

Gordon wanted to release him, while the defendant wanted to continue to hold him. Id. During this time, the defendant told

Lampert that the defendant "was having a bad day" because the

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police were now involved.

Id.

Lampert subsequently identified

one abductor-­ the defendant­-as the "bad day guy" and a second individual-­Gordon­as the "let him go guy."4 Id. During this

period, the defendant and Gordon continued to negotiate with Lampert the amount of money Lampert could pay as ransom. Id.

Either late in the evening on January 11 or in the early morning of January 12, the defendant accepted Lampert's offer to pay approximately $40,000 within five days to secure Lampert's release for his release. Id. ¶ 29. They further agreed that the

money would be placed in a garbage can in a restroom at a Wendy's restaurant in Greenwich. Id. The defendant, Gordon, and Jones

subsequently drove Lampert to Greenwich and released him unharmed once there. Id. The three then returned to the motel. Id.

Sometime during January 12, the defendant, Gordon and Jones separated. Id. ¶ 30. Gordon and Jones eventually met with Harris Id. During the evening of

and the three returned to the motel.

January 12, Gordon, Harris, and Jones were arrested at the motel. Id. The police subsequently searched the motel room and recovered flexible plastic handcuffs, a mask, and the shotgun, among other things. Id.

The defendant appears to have fled to Canada soon after releasing Lampert. Id. ¶ 31. While fleeing, he telephoned at

At sentencing, the defendant falsely claimed that he was the "let him go guy." 14

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least one individual in New Haven to request that the individual help him obtain the $40,000 which he believed would be left at the Wendy's. Id. The individual declined to do so. Id.

On January 18, 2003, Rose was detained in Toronto, Canada for violating Canadian immigration laws. Id. ¶ 33. Canadian

law enforcement officers also discovered his car with its license plates removed. Id. Pursuant to a request from the United States

Government, Canadian law enforcement officers obtained a search warrant for the car. Id. The search of the car revealed flexible

plastic handcuffs, at least one credit card receipt stolen from the East Haven Holiday Inn, rental car documents, a baseball hat bearing a Corona beer logo, an Alpine compact-disc changer, and an electronic voice distortion device, among other things. IV. SENTENCING The PSR calculated the defendant's total effective Sentencing Guideline range to be 181 to 211 months imprisonment See Id. ¶ 102. In calculating the defendant's Sentencing Guideline range, the PSR grouped Counts One and Two of the Superseding Indictment together and Counts Four and Five together. Id. ¶ 43. It Id.

calculated the defendant's adjusted offense level for Group One as follows: Base offense level (U.S.S.G. § 2B3.2(a) ) . . . . . . . . . Express Threat of Death (U.S.S.G.§ 2B3.2(b)(1)) . . . . . . . 18 +2

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Amount of Money Demanded-$1 Million (U.S.S.G. §§ 2B3.2(b)(2), 2B3.1(b)(7)(E). . . . . . . . . . . . . . . . . . . . . . . . Abduction of Victim During Offense (U.S.S.G. § 2B3.2(b)(5)) . Organizer, Leader, Manager of Offense (U.S.S.G. § 3B1.1(c)) . Use of Minor (U.S.S.G. § 3B1.4) . . . . . . . . . . . . . . . Adjusted Offense Level . . . . . . . . . . . . . . . . . . . +4 +4 +2 +2 32

See PSR ¶¶ 45-53. The PSR calculated the defendant's adjusted offense level for Group Two as follows: Base offense level (U.S.S.G. § 2B3.1(a) ) . . . . . . . . . Firearm Brandished (U.S.S.G.§ 2B3.1(b)(2)(C)) . . . . . . . . Victim Physically Restrained During Offense (U.S.S.G. § 2B3.1(b)(4)(B). . . . . . . . . . . . . . . . . . . . . +2 20 +5

Offense Involved Carjacking (U.S.S.G. § 2B3.1(b)(5)) . . . . . +2 Organizer, Leader, Manager of Offense (U.S.S.G. § 3B1.1(c)) . Use of Minor (U.S.S.G. § 3B1.4) . . . . . . . . . . . . .. Adjusted Offense Level See PSR ¶¶ 54-62. Pursuant to U.S.S.G. § 3D1.4, the PSR added two units to the highest adjusted offense level, in this case the adjusted offense level for Group Two, and concluded that the combined adjusted offense level was 35. See PSR ¶ 62. The PSR then reduced the . . . . . . . . . . . . . . . . . . . +2 +2 33

combined adjusted offense level three points for acceptance of

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responsibility and concluded that the total offense level was 32. See PSR ¶ 63. The PSR also concluded that the defendant did not possess any criminal history points, corresponding to Criminal History Category I. See PSR ¶ 66.

The PSR noted that the defendant's conviction for use and carrying of a firearm in connection with Counts One and Two

pursuant to 18 U.S.C. § 924(c) required imposition of a consecutive 5-year term of imprisonment.5 The Court ultimately sentenced the defendant to 181 months imprisonment. V. CONCLUSION In short, given the nature of the defendant's criminal conduct, the level of planning and preparation that the defendant conducted by the defendant, the defendant's role in the offenses, the significant risk of injury to the victims of the offenses, and the lasting trauma to those victims, the Government respectfully suggests that the Court should not impose a non-

The PSR correctly noted that the defendant potentially was subject to a seven-year mandatory minimum because he brandished a firearm during and in relation to the commission of a crime of violence. In the plea agreement and during the plea allocution, however, the defendant was advised that he was facing a five-year mandatory minimum rather than a seven-year term. The Government therefore requested that the district court impose the five-year mandatory minimum, which the district court did. 17

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trivially different sentence on the defendant. Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY BY: /s/ CHRISTOPHER W. SCHMEISSER ASSISTANT UNITED STATES ATTORNEY Federal Bar No. ct14806

FOR: JAMES J. FINNERTY ASSISTANT UNITED STATES ATTORNEY United States Attorney's Office United States Courthouse 915 Lafayette Boulevard Bridgeport, CT 06604 Tel: (203) 696-3000 Federal Bar No. ct15203 CERTIFICATE OF SERVICE I hereby certify that on this 12th day of July, 2005, a true and correct copy of the foregoing motion was served by firstclass mail, postage prepaid, upon: William T. Koch, Jr. 151 Brush Hill Road Lyme, Connecticut 06371 Special Agent Donald Kleber Special Agent Michael Syrax Federal Bureau of Investigation 1000 Lafayette Boulevard Bridgeport, Connecticut 06604 Carlo Jo Wagenstein-Vega United States Probation Officer United States Probation Office 915 Lafayette Boulevard Bridgeport, Connecticut 06608 /s/ BY: CHRISTOPHER W. SCHMEISSER ASSISTANT UNITED STATES ATTORNEY FOR: JAMES J. FINNERTY ASSISTANT UNITED STATES ATTORNEY

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