defendant’s objections to the presentence investigation...

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA ) ) No. 08 CR 888

v. ) ) Judge James B. Zagel

WILLIAM CELLINI ) )

DEFENDANT’S OBJECTIONS TO THE PRESENTENCE INVESTIGATION REPORT

The Presentence Investigation Report (“PSR”) prepared in this case is inaccurate because

the Probation Office (“Probation”) failed to account for the facts developed at trial and

misinterpreted the applicable law. First, Probation erroneously concluded that profit generated

from Capri’s receipt of the $220 million TRS allocation should be used as the “benefit” of the

“extortion plot.” This finding resulted in 12 levels being improperly tacked onto the base offense

level pursuant to § 2B1.1(1)(G). Second, Probation inaccurately determined that Stuart Levine

had “substantial influence” over the TRS decision-making process, resulting in an additional 4-

level increase under § 2C1.1(b)(3). Third, Probation recognized that the circumstances of the

offense justified application of the minimal/minor role guideline reduction in § 3B1.2 but

overstated the extent of Cellini’s role in the offense conduct and incorrectly concluded that

Cellini should receive only a 2-level “minor” participant reduction under § 3B1.2(b), rather than

a 4-level “minimal” participant reduction under § 3B1.2(a).

Each of these errors in Probation’s advisory guideline computation will be discussed in

detail below. Attached as Exhibit A hereto are certain additional errors in the PSR and in the

Government’s Sentencing Memorandum (separately listed) that do not affect the advisory

guideline computation.

Case: 1:08-cr-00888 Document #: 990 Filed: 07/23/12 of 24 PageID #:10208

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The advisory guideline calculation set forth in the Government’s Sentencing

Memorandum is even more draconian in that it argues that Cellini is not entitled even to a 2-level

minor role adjustment. The fundamental problem with the government’s guidelines calculation

(and sentencing recommendation) is that it is based on the case that it charged in its indictment –

not the case that remains after the jury verdict.

The jury rejected the government’s contention in Count I that Cellini entered into an

“accommodation” or any other kind of agreement to interfere with the functioning of the TRS

Board. The jury also rejected the government’s contention that Cellini was a self-seeking insider

who sought to profit from his dealings with TRS. Further, the jury rejected the government’s

assertion in Count III that Cellini attempted to extort Tom Rosenberg. Instead, the jury found

that after Levine, Tony Rezko, and Chris Kelly (not Cellini) attempted to extort Rosenberg, and

after Rosenberg refused to be extorted, Cellini engaged with Levine, Rezko, Kelly, and

Rosenberg over the course of a week to control fallout that might result from Rosenberg’s

perception that he was being extorted by Levine, Rezko, and Kelly.1 Once the jury verdict is

properly understood, and not whitewashed out of the case as advocated by the government, it

becomes abundantly clear that Cellini should not be sentenced to imprisonment. He should be

sentenced to probation.

It is little wonder that the government clings so fiercely to the counts it lost at trial. After

all, these counts were the meat of the government’s case, the drama, the intrigue, and the sound

bites. The counts rejected by the jury are the basis for the government to make claims (as it

persists in doing in its Sentencing Memorandum) that this case involved Cellini’s “indifference

1 This is the only inference that can be drawn from the jury’s acquittal on Count III (attempted extortion) but conviction on Count II (conspiracy to commit extortion) and Count IV (aiding and abetting Levine’s solicitation of a bribe).


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to the public” or his “using TRS clout to enrich himself” or his “corrupting the investment

processes at TRS” or “placing hundreds of millions of dollars at risk.” These are the concepts

that the government tries to revive following the jury’s verdict in its attempt to justify its plea for

meaningful prison time for Cellini.

The obvious infirmity in the government’s tactics is that the jury rejected the

overwhelming majority of the government’s evidence and found that Cellini did not engage in

the conduct the government describes. And rather than take an honest look at the post-trial

landscape and evaluate what might be a just and equitable sentence for the 77-year-old Cellini,

the government shrouds itself in bombastic drama about things Cellini did not do and describes a

man that he is not. The Court should honor the efforts and conclusions of the jury by refusing to

perpetuate these inaccuracies.

The government also takes aim at Cellini by charging him with refusal to accept

responsibility for his actions based on his attorneys setting forth a version of the trial evidence

that varied from the government’s view of the evidence. These allegations are unfair. Cellini

has not argued for a three-point sentence reduction based on the acceptance of responsibility.

Cellini went to trial and succeeded in defeating the most substantial charges that the government

leveled against him. It is neither appropriate nor warranted for the government to expect Cellini

to now sign onto its failed view of its case.

ARGUMENT

I. Probation Incorrectly Imposes a 12-Level Adjustment for Harm from the Offense Under § 2C1.1(b)(2)

The starting point for proper application of the § 2C1.1(b)(2) guideline is the text of the

guideline section. See United States v. Hill, 645 F.3d 900, 907 (7th Cir. 2011) (interpreting the

guidelines begins “with the text of the provision and the plain meaning of the words in the text).


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§ 2C1.1(b)(2) offers four potential measurements of harm that can be used to apply an upward

increase in the base offense level in cases involving, inter alia, bribery or extortion: (1) “the

value of the payment”; (2) “the benefit received or to be received in return for the payment”; (3)

“the value of anything obtained or to be obtained by a public official or others acting with a

public official”; or (4) “the loss to the government from the offense.” Probation and the

government recognize that “the value of the payment” and the “the value of anything obtained or

to be obtained by a public official or others acting with a public official” do not apply in this case

because Cellini never knew about any bribe amounts intended by Levine or the other

conspirators. The government concedes that Cellini was unaware of Levine’s plan to extract a

bribe from Rosenberg in the form of a finder’s fee and of any specific amount of a campaign

contribution that Levine, Rezko, and Kelly sought to obtain from Rosenberg. Probation and the

government also agree that there is no loss to the government, so that potential measurement of

harm likewise is inapplicable.

Thus, in calculating harm, Probation and the government rely on the supposed “benefit

received or to be received in return for the payment,” which they consider to be the purported

amount of profit – $278,359 in the form of acquisition fees earned from TRS – that might have

been (but was not) lost by Capri had Capri not received the $220 million allocation. (PSR at

14:384-85.) Probation reasons that the $278,359 was the harm that the conspiracy “could have

caused the victim.” This is an incorrect application of the § 2C1.1(b)(2) guideline. First, the

government has not established that Capri was ever actually going to be deprived of the $220

million allocation. Second, Capri’s receipt of that allocation was not a harmful or illegitimate

result, but rather a proper result of legitimate TRS decision-making procedures. Third, Cellini

was not involved in the extortion aspect of the conspiracy and should not suffer guideline


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enhancements for conduct (i.e., the attempt to withhold the $220 million allocation from Capri)

in which he did not participate. Fourth, the supposed $278,359 profit earned by Capri was not

foreseeable to Cellini and thus cannot be charged to him for purposes of sentencing.

A. Capri Was Always Going To Receive the $220 Million Allocation

At trial, the government alleged that Levine tried to use Capri’s legitimate, forthcoming

$220 million TRS allocation to collect a bribe from Rosenberg. Levine’s plan, as described by

the government, was to threaten Rosenberg that if he (Rosenberg) did not pay a $2 million

“finder’s fee” or make a $1.5 million campaign contribution to Blagojevich, the allocation would

not go through. Levine’s intent, even under the government’s theory, was to permit Capri to

receive its allocation after Rosenberg agreed to pay a bribe. Thus, whether Levine succeeded or

failed in his extortion scheme, TRS would award Capri its allocation.

Probation’s calculations rest on the assumption that if Rosenberg refused to participate in

Levine’s extortion scheme, Capri would not have received the allocation. But that is not

supported by the evidence. Indeed, FBI Agent Dan Cain told Probation, “whether or not the

schemers would have been successful in preventing Capri from receiving the allocation in the

long run . . . is not known, as they would have needed to provide the Board a legitimate reason

[for why TRS should not approve the allocation].” (PSR at 11:299-302.) Agent Cain further

stated that Rosenberg was “confident he could stop” Rezko and Kelly from preventing Capri’s

allocation from being approved. (PSR at 11:305-306.) When the government’s own investigator

admits that Capri may well have obtained its allocation regardless of any attempted extortion,

any profit supposedly constituting a “benefit to be withheld” as a part of that attempted extortion

it is not a sentencing factor that has been established by a preponderance of the evidence. Thus,

the evidence shows that Capri’s purported profit on the allocation has not been established

sufficiently as a “benefit” to be received in return for payment; the evidence shows that profit


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was a benefit that would be received regardless of whether payment was made, and thus it is not

a “benefit” at all for purposes of § 2C1.1(b)(2) and cannot be used to enhance the guideline

calculation.

B. The Proper Award of Capri’s Allocation Does Not Constitute Harm or Illicit Activity

It is illogical and contrary to the intention of § 2C1.1(b) that Cellini’s sentence should be

increased based on the legitimate profit Capri earned from its TRS allocation. Simply put, the

bribe Levine sought from Rosenberg was the only illegal aspect of the discussions involving

Cellini concerning Capri’s allocation; the Capri allocation itself was entirely legal and

legitimate.2 In finding that Capri’s properly awarded allocation was an illicit “benefit” that

should enhance Cellini’s sentence, Probation misapplied § 2C1.1(b)(2).

Courts interpreting § 2C1.1(b)(2) are cautious to separate costs that flow from legal

activity from costs that flow from illegal activity, allowing only the latter to be used to increase a

defendant’s sentence. In United States v. Griffin, 324 F.3d 330, 366 (5th Cir. 2003), for

example, the Court reversed and remanded the case for resentencing based on its concern that the

trial court’s sentencing determination included consideration of money earned on land sales that

were disconnected from any bribes. In addition, the Court held that neither salary nor bonus

payments to bribe scheme participants could be included in the § 2C1.1(b)(2) calculation when

they were “negotiated before the bribe scheme came into being.” Griffin, 324 F.3d at 367.

Likewise, in United States v. Pena, 268 F.3d 215, 220 (3d Cir. 2001), the Court interpreted §

2C1.1(b)(2) as counseling courts to “deduct the value legitimately and actually given from the

2 There is no dispute but that Capri’s $220 million allocation was the subject of the proper functioning of TRS’s internal decision-making process without corrupt intervention by Levine, Rezko, Kelly, or anyone else. (See Defense Version of the Offense at 35-36.) As Mike Bartletti testified at trial, the $220 million allocation to Capri was based on good historical five-, three-, and one-year rates of return. (Tr. 2060.)


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value received” and as “netting out the portion that was not received as a result of the bribe but

rather in return for the product’s intrinsic value.”

In these cases, the courts recognized that § 2C1.1(b)(2) is meant to quantify and punish

the amount of illegal benefit intended by the defendant. It was not meant, as Probation and the

government recommend, to measure benefit legitimately conferred on a party based on the

regular operation of governmental processes. In this case, the profit Capri earned on its TRS-

approved allocation does not reflect the harm that resulted or was intended to result from the

offense because Capri’s receipt of the allocation is not illegal and does not constitute intended

harm under the guidelines.

As a policy matter, the government may contend that it needs to be able to punish

intended harm in the unusual case in which the benefit was to be withheld rather than conferred.

However, in the vast majority of cases of that nature, the value of the payment offered as a bribe

would be an appropriate measurement of intended harm. This case presents the unique situation

in which the defendant being sentenced for the intended bribe was altogether unaware of any

specific bribe amount. That fact counsels that the defendant should be punished less severely,

not that the government and Probation should engage in mental gymnastics to manufacture some

alternative measurement of intended harm. As the Seventh Circuit observed in United States v.

Schneider, defendants do not go “scot free” when the government cannot establish intended harm

(or loss) to the victim: “The statutes under which (defendants) were convicted do not require a

minimum loss to the victim. It is simply that the Guidelines award bonus punishment points for

different levels of proven loss beginning with $2,000. The government did not earn a bonus in

this case.” 930 F.2d 555, 559 (7th Cir. 1991).


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C. The Jury Verdict and Guideline Section § 1B1.3 Counsel that Cellini Not be Punished for the Value of the Purported Benefit to be Withheld as a Part of the Attempted Extortion Because He Did Not Participate in That Attempted Extortion

According to advisory guideline § 1B1.3(a)(1)(B), in cases involving allegations of

conspiracy or other jointly undertaken criminal activity, defendants are to be sentenced on “the

scope of the criminal activity the particular defendant agreed to undertake (i.e., the scope of the

specific conduct and objectives embraced by the defendant’s agreement).” App. Note 2, §

1B1.3. Cellini cannot and should not be punished for a part of the conspiracy in which he did

not participate. As clearly reflected by the jury’s verdict, Cellini was not involved in holding up

or threatening to hold up Capri’s allocation.3 The only way to interpret the jury’s verdict is to

find that Cellini did not participate in the aspect of the conspiracy involving attempted extortion;

he participated (if at all) in the aspect of the conspiracy involving detection avoidance.

Therefore, he should not be punished for the benefit Capri could have lost in the form of the

profits Capri eventually earned on the acquisition fees from its TRS allocation.

According to the government, on May 7, 2004, in an unrecorded call between Rosenberg

and Cellini, Cellini delivered an extortion message to Rosenberg. Because there is no recording

of the call, the only testimony as to what transpired on this call was from Rosenberg. Contrary to

the government’s assertion (and consistent with the jury’s verdict acquitting Cellini of attempted

extortion), Rosenberg’s testimony did not establish any attempt at extortion by Cellini. To the

contrary, Rosenberg testified:

Q: . . . Bill Cellini never told you that you should give a political contribution did he?

3 Indeed, quite the opposite was the case, as it was Cellini who was responsible for clearing the Capri allocation to go through in March 2004 when Levine first started to make problems for Rosenberg and Capri and when Rosenberg first sought Cellini’s help. (Defense Version at 8-9.)


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A: He never did.

Q: And he never told you that it was him that was telling you that it was held up because you didn’t make a political contribution. He was telling you he learned that Rezko and Kelly said that.

A: That’s right . . . .

Q: Okay he never told you, Tom, give a political contribution.

A: Never.

Q: Ever.

A: Never.

Q: At any conversation.

A: Never ever in 30 years I don’t think.

(Tr. 1855.) Rosenberg’s testimony supports the conclusion that Cellini was only repeating to

Rosenberg what he had learned from Levine because Rosenberg asked Cellini to find out what

he could about the Capri allocation.

The recorded May 7, 2004 call between Cellini and Levine contained no words

establishing that Cellini had delivered an extortionate message to Rosenberg. Thus, neither

Rosenberg’s testimony nor the May 7, 2004 wire intercept of Cellini’s call with Levine

contained evidence of Cellini participating in Levine’s extortion scheme. The government relied

entirely on Levine’s testimony that Cellini informed him that Cellini had delivered the message

to Rosenberg that Rosenberg had to contribute to Blagojevich if he wanted Capri to receive its

allocation. (Tr. 1434-35.) Given Levine’s track record of lies and deceptions, it is unsurprising

that the jury rejected Levine’s testimony. Cellini cannot be sentenced for attempting to extort

Rosenberg because he did not do it. The government did not prove that Cellini was involved in

attempting to harm Rosenberg – in fact, the evidence is exactly the opposite – and, accordingly,

the government is entitled to no loss amount for such attempted harm.


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D. Capri’s Net Profit from Acquisition Fees Related to the $220 Million Allocation Was Not Foreseeable to Cellini

The government advocated and Probation adopted a calculation of $278,359 as supposed

net profit earned by Capri from acquisition fees paid by TRS in connection with the $220 million

TRS allocation. Probation concluded that this amount of TRS profit was “reasonably foreseeable

to the defendant because he was in the same business as Capri . . . and would be familiar with the

type of profits which a company could be expected to make when investing for TRS.” (PSR at

14:379-381.) The Government Version similarly concluded that Cellini “was well aware of how

TRS paid its real estate management companies” because Commonwealth supposedly “was paid

the same way as Capri.” (Government Version at 19.)

Neither Probation nor the government correctly analyzes § 1B1.3, which requires in cases

involving jointly undertaken criminal activity that the only applicable offense characteristics are

those that were reasonably foreseeable to the defendant. As discussed in detail in Section I.C.

above, Cellini should not bear any responsibility for the benefit that Capri could have (but did

not) lose because he was not, based on the jury verdict and trial evidence, a participant in the

extortion attempt. In addition, Probation has failed to explain how Cellini’s general knowledge

(of which there is no evidence, just assumptions made by the government) about the manner in

which TRS paid Capri would have yielded him any information whatsoever as to whether Capri

would earn acquisition fees from TRS, and how much profit Capri would profit from those fees.

As the trial evidence established, there is no guarantee that an investment company is

ever going to actually receive a penny of their allocation or acquisition fees from TRS. Rather,

as described at trial by Mike Bartletti, TRS has a comprehensive vetting process that must be

satisfied before an asset managers is permitted to invest any portion of an allocation (and thereby

earn acquisition fees). (Tr. 2057.) Mr. Bartletti testified that each time a TRS asset manager


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proposed to make an investment, TRS real estate investment policy required the managed to

provide TRS staff with detailed information describing the proposed investment.4 (Tr. 2057-58.)

Only if the proposal satisfied a laundry list of criteria and met various hurdles for rates of return

would the investment firm be permitted to proceed. (Tr. 2058.) Even then, the firm needed to

obtain an appraisal in line with what it intended to pay for any building it intended to purchase.

(Tr. 2059.) Also, as part of the approval process required for the investment of an allocation,

TRS had to generate a decision memorandum approved by the TRS Chief Investment Officer, as

well as the Executive Director, and, possibly, also approved by TRS outside consultants Callan

& Associates. (Tr. 2059.) Only after satisfying all of those prerequisites would a manager

receive an acquisition fee, and such prerequisites had to be satisfied for each proposed

investment of a portion of an allocation. Thus, there is no information by which to reliably

conclude what acquisition fees, if any, Cellini might have foreseen in 2004 that Capri was going

to receive between 2004 and 2011. In addition, in changing real estate markets, TRS had the

right and had been known to reduce amounts previously allocated to investment firms if that was

perceived to be in the best interest of TRS, meaning that it was entirely possible Capri’s

allocation would be reduced. In fact, as Cellini knew, TRS had reduced Commonwealth

allocations in the past (prior to 2004).

Probation argues that Capri’s net profit from acquisition fees related to the $220 million

allocation was foreseeable to Cellini in 2004 because “This is not a case in which the benefit was

not actually received and approximation has to be made as to what the net benefit could have

been. The benefit, the allocation, was received and invested, to the actual net gain from the

4 This information included research concerning the area in which the building was to be located, vacancy and absorption rates for the building, information as to existing leases and tenants, information about the ownership of the building and the reasons for the sale, projections as to how long the investment advisor would hold the building and its exit plan, and what it expected to receive in income and appreciation over time. (Tr. 2057-58.)


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investment is the appropriate figure to use.” (PSR at 13-14:375-78.) In other words, Cellini

should have known in 2004 that Capri was going to be able to invest the entirety of its $220

million allocation and thus earn in excess of $278,000 in profit through acquisition fees on that

allocation because in 2012 we know that Capri was able to invest the entirety of its $220 million

allocation and earn in excess of $278,000 in profit through acquisition fees on that allocation.

That reasoning cannot withstand serious scrutiny.

Finally, the government and Probation have failed to establish that Cellini had any idea

how Capri was paid and what expenses it bore between 2004 and 2011, instead simply taking

that for granted. Without some actual evidence on that issue, the government cannot meet its

burden to establish a loss amount chargeable to Cellini.

E. The § 2X1.1 Conspiracy and Solicitation Guideline Overlay on § 2C1.1 Adjustments Specifically Provides that Speculative Adjustments are Not Proper

Probation’s position about the supposed harm amount also runs contrary to § 2X1.1 and

its Application Notes. Specifically, § 2X1.1(a) provides that for conspiracy and solicitation

convictions, the base-level offense for the substantive offense is to be applied, “plus any

adjustments from such guideline for any intended offense conduct that can be established with

reasonable certainty.” (emphasis added). Application Note 2 to § 2X1.1 clarifies that this

provision is aimed at eliminating any adjustments that are speculative, providing in pertinent

part:

But the only specific offense characteristics from the guideline for the substantive offense that apply are those that are determined to have been specifically intended or actually occurred. Speculative specific offense characteristics will not be applied.

(emphasis added). The Application Note goes on to provide the example of a defendant arrested

in the conspiratorial phase of a bank robbery, explaining such a defendant should not have


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receive an enhancement for possible injury to others during the robbery, or the eventual robbery

of a large sum of money, since those eventualities would be speculative.

This provision lends further support to the fact that, as discussed above, no value of

payment, benefit to be received, or loss can properly be applied to Cellini’s advisory sentencing

guideline computation under § 2C1.1(b)(2). As discussed in Section I.A. above, the government

has not established that any injury to Capri was ever going to occur. Also, there is no evidence

that Cellini ever intended for Capri to lose its $220 million allocation and the profits that

allocation might generate. The only evidence of Cellini taking any action in connection with that

allocation was in February 2004, when he intervened at Rosenberg’s request to allow the

allocation to go through as planned, foiling Levine’s first attempt to hold up the allocation and

extort Rosenberg. That the jury found Cellini engaged in discussions aimed at damage control

after the fact does not establish that he intended for Capri to lose its allocation. Indeed, when all

of the wire intercept conversations are taken in context, it is clear that even in the damage control

phase, Cellini’s role was to cool down Levine and Rosenberg, which ultimately led to the

allocation going through as planned. In addition, Cellini would have had no idea what

acquisition fees, if any, Capri’s allocation might generate, or how profitable those fees might be.

Based on all of these facts, it cannot be established that Cellini “specifically intended” a

$278,359 lost benefit to Capri. In this circumstance, any adjustment based on such figures would

be speculation and conjecture. That is exactly the type of “speculative specific offense

characteristic[s]” that Application Note 2 to § 2X1.1 forbids.

II. Probation Incorrectly Imposes a 4-Level Adjustment for Involvement of a Public Official in a High-Level Decision-Making or Sensitive Position Pursuant to § 2C1.1(b)(3)

Probation erroneously concluded that a § 2C1.1(b)(3) adjustment is applicable in this

case based on confusion about the extent of Levine’s influence over the TRS Board during the


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relevant time period.5 While recognizing that because Levine was only one of 11 TRS board

members, he did not have any direct decision-making authority at TRS, Probation nonetheless

concluded that the § 2C1.1(b)(3) adjustment should apply based on its determination that Levine

“had substantial influence over the decision-making process of the Board via his influence with

the executive director and the government appointees.” (PSR at 14:393-397.) In reaching its

conclusion, Probation disregards the trial evidence.

In early May 2004, the time that the Capri allocation was being held up, Levine did not

have the ability to control the TRS Board. Nor did he have “substantial influence” over the

decision-making process of the TRS Board. In fact, he was in the minority on the TRS Board

and even had concerns that he was not going to be reappointed to an additional term as a trustee,

which he discussed with Rezko and Cellini. (Tr. 873-877.) Furthermore, Levine testified that he

needed Rezko’s help in putting the Capri allocation on hold after Cellini had trumped Levine’s

extortion plan in March 2004 – in other words, Levine was incapable of holding up Carpi’s

allocation on his own. (Tr. 1322-23.)

As of early May 2004, the TRS Board had two voting blocs. One was composed of

elected teachers and consisted of five votes. (Tr. 1681.) The other bloc, consisting of Levine

and other governor’s appointees, had four votes. (Id.) This 5-4 split meant that Levine’s bloc

did not have voting control over the TRS Board. Indeed, Levine testified that even as of April

2003 (when he enjoyed a better position than he did in May 2004 by virtue of a more favorable

5-5 Board composition), he “could not control the decision-making of the TRS Board.” (Tr.

5 Probation at least resists the confusion invited by the Government’s Version of the Offense, which alleges that Levine had substantial influence over the TRS decision-making process during the relevant time period (in May 2004) by citing to events from 2001 supposedly showing Levine’s influence at that earlier time. (Government Version at 23.)


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1679.) Between April 2003 and May 2004, one of the governor’s appointees resigned, further

weakening the appointee bloc and Levine’s power. (Tr. 1679.) As Levine testified at trial:

Q: So in April 2004, were there more, actually more teachers who were elected . . . then there were people who either voted with the governor’s people or who were part of the governor’s people?

A: Yes.

(Tr. 872.) Thus, as of April and May 2004, the relevant time period, Levine could not control

TRS Board decisions. This should end the inquiry as to the applicability of the § 2C1.1(b)(3)

adjustment, as Levine’s inability to control TRS voting means he lacked “substantial influence

over the decision-making process” as required by § 2C1.1(b)(3).

Probation goes on to suggest, however, that Levine had other, less formal means to

influence the TRS Board by virtue of his supposed influence with TRS executive director Jon

Bauman and the appointee Board members, his position as an evaluator of Bauman, and his

“corrupt influence with Rezko, Kelly, and Cellini who influenced government appointees.”6

(PSR at 14:396-400.) For its part, the government suggests that “in practice,” Levine had more

influence over the TRS Board then his fellow trustees because of his close relationship with

Bauman and other supposed “Cellini allies” on the Board. (Government Version at 23.)

The only meaningful allegations as to Levine’s informal influence concerns his supposed

power over Bauman. These allegations might have been relevant had they been accurate in May

2004 when the charged offense took place. However, as they were demonstrably false at that

time, they have no place in the Court’s consideration of the applicability of the § 2C1.1(b)(3)

adjustment.

6 Cellini was acquitted of Count I, which charged him with having a corrupt relationship with TRS, Rezko, and Kelly. Because Probation has failed to explain the basis for this erroneous statement, Cellini objects to its inclusion in the PSR. (See Ex. A.)


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Based on the trial testimony of Levine, as of the spring of 2004, TRS executive director

Bauman was “becoming difficult” and “not as cooperative as he had been.”7 (Tr. 813.) Levine

testified that by the spring of 2004, Bauman was interested in leaving TRS to obtain a job at the

University of Illinois in Champaign-Urbana. So difficult had Levine found his relationship with

Bauman to have become by that time, Levine testified that he wanted Bauman to be replaced as

Executive Director of TRS. (Tr. 813.) A case in point was a proposal Bauman had put forth in

May 2004 to change the fees TRS paid to its real estate managers. (Tr. 829.) Of this initiative,

Levine testified, “Bauman will do what Bauman wants.” (Tr. 841.)

The April 12, 2004 recorded call between Levine and Bill Cavanaugh, then fiduciary

counsel to the TRS Board is further evidence of the disintegration of whatever influence Levine

might have once had with Bauman. Levine told Cavanaugh that Bauman “was like he was

digging in his heels and nothin’ was gonna happen and, and things should happen.” Levine

continued that Bauman was “like an old lady” who “starts screaming” to let off pressure and that

he “needed to be moved.” Levine and Cavanagh discussed their opinion that Bauman was

“arrogant” and “stupid.” Levine concluded the call by telling Cavanagh that after Bauman was

moved, “[I]t’s gonna be an entirely different world.” Thus, the facts are that as of April 2004,

Levine could not tolerate dealing with Bauman, could not control Bauman, disparaged and

ridiculed Bauman to others, and preferred that Bauman left TRS.

As of early April-May 2004, Levine was not in actual or effective control of the decision-

making of the TRS Board. He had no ability to control the vote of the Board. He had a poor

relationship with Bauman and wanted Bauman to leave TRS, and he was concerned about his

7 Indeed, in the Government’s Sentencing Memorandum, it makes the point that by May 2004, Bauman “had begun to grow more independent because of his own relationship with Chris Kelly.” (Government Sentencing Memorandum at 13.)


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own position on the TRS Board. Probation omitted discussion of all of these facts. Instead,

Probation based its conclusion that a 4-level adjustment of Cellini’s sentence was called for

under § 2C1.1(b)(3) by citing influence with Bauman that did not exist in the relevant time

period and the suggestion of improper influence on other unnamed TRS Board members, without

providing factual detail to support those assertions. Based on this evidence, and the evidence

that Levine did not control the TRS Board vote at the time of the offense conduct, there is no

viable basis for imposition of the 4-level § 2C1.1(b)(3) adjustment.

III. Cellini is Entitled to a 4-Level Role Reduction Pursuant to § 3B1.2(a)

Probation recited a number of facts that demonstrate Cellini’s minimal role in the offense

of conviction but then failed to apply the full 4-level role reduction for minimal involvement in

the criminal conduct. Probation recognized that Levine was the instigator of the extortion

scheme; that Levine brought the scheme to Rezko, his partner in various illegalities; that Cellini

was “not present” and “not informed” of Levine’s determination to ask Rosenberg for a $2

million kickback or a $1.5 million political contribution; that Cellini did not stand to “make any

money from the scheme”; that if Rosenberg had not contacted Cellini, “it is not clear that the

other participants would have involved [Cellini] in the scheme;” and that the scheme instigators

believed that “the extortion or bribe request could be communicated through Davis,” rather than

Cellini. (PSR at 15:441-55.)

These facts clearly establish that Cellini should receive the 4-level role reduction

provided by § 3B1.2(a). The Application Notes to § 3B1.2(a) provide that the minimal role

adjustment should properly be applied, after a fact-specific inquiry, when the defendant (1) is

among the least culpable in the group; and (2) lacks knowledge of the scope of the scheme and of

the activities of others. As demonstrated by the undisputed facts at trial, Cellini precisely fulfills


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both of these requirements and should receive the 4-level minimum role reduction provided for

in § 3B1.2(a).

A. Cellini Was Indisputably the Least Culpable Participant in the Extortion Scheme

Application Note 4 provides that the 4-level minimal role reduction “is intended to cover

defendants who are plainly among the least culpable of those involved in the conduct of a

group.” Even under the government’s view of the evidence, there is no dispute that Cellini was

not merely among the least, but was the very least culpable in the group. Moreover, Cellini was

acquitted of attempting to extort Rosenberg. The only way to view the jury’s verdict of acquittal

of attempted extortion but guilty of conspiracy to commit extortion is to find that Cellini was

involved not in the attempted extortion of Rosenberg, but only in trying to facilitate a resolution

of a problem Levine created (and only after the extortion victim – Rosenberg – came to Cellini

for help).

Levine, who was clearly the instigator of the extortion scheme, had been working to

advance his own corrupt agenda since at least February 2004. At that time, Levine had

approached Bauman and provided a pretext for stopping Capri’s allocation in the form of rumors

of a possible sale of Capri and inadequate disclosures on that point to the TRS Board. (Tr. 911.)

Levine’s ploy worked for a time, until Rosenberg requested assistance from Cellini. After

Cellini discovered that the supposed problem with Capri’s allocation was a rumor regarding the

sale of Capri, Cellini was able to assist Rosenberg in resolving the problem Levine had created.

(Tr. 915, 1790.) As Levine conceded at trial, Cellini’s actions “trumped” Levine and “lifted the

brick” Levine had been able to place on the Capri allocation. (Tr. 1309.)

Cellini’s efforts on Rosenberg’s behalf necessitated that Levine involve Rezko in his

extortion scheme, which he did on April 14, 2004, when Levine and Rezko discussed a possible


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extortion of Rosenberg and Capri as one of a laundry list of kickbacks they planned to pursue.

(Tr. 1312-1313, 1322.) Cellini was not involved in that discussion. A couple of weeks later,

Kelly was brought into the scheme in a meeting in Rezko’s office. (Tr. 1367.) Cellini was not

present at that meeting. There, the conspirators discussed what they would seek from Rosenberg

(the $2 million “finder’s fee” Levine really wanted or the unrealistic $1.5 million campaign

contribution) and how they could take in and distribute the $2 million “finder’s fee” kickback to

themselves. The conspirators further discussed that Levine was to be the conduit for the

extortionate message to Rosenberg about the payments they expected in exchange for the release

of Capri’s allocation. Cellini was to have no role in discussing any payments of any amount

from Rosenberg, since according to the undisputed facts at trial, Cellini was not a participant in

that part of the scheme. (Tr. 1419.)

When Cellini did speak with Rosenberg in early May 2004 (after Rosenberg again

reached out to Cellini for his assistance), Cellini truthfully reported to Rosenberg what Cellini

had been told was the problem with the Capri allocation. Cellini’s report, together with what

Rosenberg divined to be Levine’s attempt to turn the tables by using Rezko’s report of the

Allison Davis contact against him, drew Rosenberg’s considerable ire and threat to inform the

authorities. The five wire intercepts from May 8 to May 12 involve discussions between Levine

and Cellini as to how to resolve what had become the Rosenberg situation. Even then, although

the jury plainly faulted Cellini for his role in these discussions in trying to diffuse tensions

between Rosenberg and Levine, Levine was clearly the party advancing the corrupt agenda.

Levine, Rezko, and Kelly devised the scheme, planned it, and stood to profit from it. Indeed, by

Levine’s report, even Ed Vrdolyak, who has never even been charged in the scheme, is arguably

more culpable than Cellini, as he was to be the conduit for the corrupt $2 million “finder’s fee.”


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(Tr. 1284-9.) In fact, according to Levine’s testimony at the Rezko trial, during a meeting at

Vrdolyak’s offices in early 2004, Rosenberg discussed with Levine and Vrdolyak that he

(Rosenberg) would be willing to pay a bribe to Levine, through Vrdolyak, potentially in

connection with Capri’s forthcoming $220 million TRS allocation, and Levine only decided to

stop the $220 million allocation after Rosenberg subsequently failed to follow up with Vrdolyak

concerning that possible bribe. Levine admitted he never told Cellini about those events.

Under these facts, it is difficult to imagine a case that better meets the criteria set forth in

Application Note 4 to § 3B1.2(a), that the defendant is “plainly among the least culpable of those

involved in the conduct of a group” such that the 4-level reduction for minimal role should be

applied.

B. Cellini Indisputably Lacked Knowledge and Understanding of the Scope of the Conspiracy and of the Activities of Others

Application Note 4 to § 3B1.2(a) provides that a factor suggesting that the 4-level role

reduction adjustment should apply is “the defendant’s lack of knowledge or understanding of the

scope and structure of the enterprise and of the activities of others.” Even under the

government’s view of the evidence, there is no dispute that Cellini lacked knowledge of critical

aspects of the charged conspiracy as well as of the activities of the participants.

First, Cellini had no information about Levine’s plan to ask Rosenberg for a finder’s fee.

Second, Cellini had no information about the amount of the campaign contribution that Levine

was going to seek from Rosenberg. Third, Cellini had no idea about the participation of

Vrdolyak or Rezko in sharing in the take from their intended extortion of Rosenberg. Fourth,

Cellini had no idea that part of Rezko’s and Levine’s plan was to try to get Allison Davis to get

Rosenberg to talk to Levine so that Levine could deliver his extortionate message. (Tr. 1403-

06.) Fifth, Cellini had no idea about the April 14, 2004 meeting between Rezko and Levine at


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the Standard Club at which Levine sought Rezko’s help in holding up the Capri allocation.

Sixth, Cellini had no knowledge of the meeting among Levine, Rezko, and Kelly in which they

discussed the specific demands they intended to make of Rosenberg and the manner in which

they intended to advance their corrupt agenda. Seventh, Cellini had no knowledge of the breadth

and depth of the personal corruption being engaged in by Levine, Rezko, Kelly, and others with

whom they associated. He was unaware, for example, of Levine’s plan to steal $20 million from

the public coffers to enrich himself, Rezko’s corrupt participation in Levine’s schemes, and

Levine’s double life of drug dealing and drug abuse. Eighth, Cellini had no information about

the dispute between Levine and Rosenberg in 2001 relating to (depending on whose version one

accepts) Rosenberg’s refusal to pay a bribe he had promised to Levine (according to Levine) or

Levine’s unsuccessful attempt to extort Rosenberg. These events, of which Cellini knew

nothing, provided an important backdrop to the manner in which both Levine and Rosenberg

understood each other’s actions, as told to each other through using Cellini as an uninformed

intermediary.

Each of these gaps in Cellini’s knowledge of both the scope of the conspiracy and of the

actions of Levine, Rezko, and Kelly, present a powerful argument for application of the 4-level

role reduction provided for in § 3B1.2(a).

Probation argues that Cellini is ineligible for the full 4-level role reduction because he:

(1) contacted the victim and delivered a supposed extortionate demand; and (2) participated in

discussions about how to prevent Rosenberg from exposing the scheme. (PSR at 15:447-450.)

As discussed in section I.B. above, the jury verdict and Rosenberg’s testimony resolutely

indicate that Cellini did not attempt to extort Rosenberg, but was only engaged in finding a

solution to the problem Levine had created. Probation’s overstatement of Cellini’s role in the


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conspiracy, one that runs contrary to the trial evidence and jury verdict, is responsible for its

underestimation of the proper adjustment for role in the offense.

As the Application Notes to § 3B1.2 specifically provide, the Court can properly consider

Cellini’s minimal participation in and knowledge of the offense both in calculating the amount of

loss or benefit for which he is responsible (as argued in Section I.B. above) and in a downward

adjustment for role in the offense. When properly understood, Cellini’s actual role in Levine’s

conspiracy, characterized as it was by an undisputed lack of knowledge and a lack of culpability,

is perfectly suited for the 4-level role reduction provided for in § 3B1.2(a).8

ADVISORY GUIDELINE CALCULATION

The correct advisory guideline calculation, based on the above, for Counts II and IV is:

Base offense level under § 2C1.1(a)(2): 12

Minimal role adjustment under §3B1.2(a) -4

Total: 8

Sentencing Range: 0 – 6 months

8 In addition to the reductions described above, specifically as to Count II, Cellini is entitled to a three-level reduction under § 2X1.1(b)(2), which provides that in the case of conspiracies, there should be a three-level reduction from the substantive offense level, “unless the defendant or a coconspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense or the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.” U.S.S.G. § 2X1.1(b)(2). To complete the substantive offense of extortion under color of official right, an essential element is that the defendant obtained money or property from the victim (18 U.S.C. § 1951(b)(2); McCormick v. United States, 500 U.S. 257, 267-73 & n.5 (1991)). To obtain money from Rosenberg in this case, the alleged plan as described by Levine was for Cellini to steer Rosenberg to Levine, and for Levine to then provide Rosenberg a two-pronged choice of paying either a $2 million finder’s fee to Levine through Vrdolyak or a $1.5 million political contribution to Blagojevich. (Tr. at 965.) But after Cellini had certain conversations with Rosenberg, the alleged plan dissolved. Levine and Rosenberg never spoke, and Levine never offered Rosenberg the two-pronged choice. Consequently, the alleged coconspirators did not complete all of the acts believed necessary on their part for the successful completion of the substantive offense (the alleged extortion), and Cellini is entitled to the three-level reduction. Because that reduction applies only to Count II, which is grouped with Count IV, the reduction presently does not affect the guideline calculation but would in the event that the conviction on Count IV was thrown out.


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CONCLUSION

Probation’s advisory guideline computation incorrectly imposes a 12-level upward

adjustment pursuant to § 2C1.1(b)(2) and a 4-level upward adjustment pursuant to § 2C1.1(b)(3),

and fails to adequately adjust downward 4 levels for Cellini’s minimal role in the offense

pursuant to § 3B1.2(a). The jury’s verdict did not reflect the type of full-fledged participation in

Levine’s scheme as advocated by the government and accepted by Probation. An appropriate

analysis of the facts and evidence as established at trial, as well as careful consideration of the

purpose and application of the advisory sentencing guidelines, yields the conclusion that

Cellini’s guideline level is 8, which corresponds to 0-6 months of imprisonment, and that a

probationary sentence would be a just result in this case.

Dated: July 23, 2012 Respectfully submitted, /s/ Thomas L. Kirsch Dan K. Webb ([email protected]) Thomas L. Kirsch ([email protected]) Winston & Strawn LLP 35 West Wacker Drive Chicago, Illinois 60601 (312) 558-5600 (312) 558-5700 (facsimile)


CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that the following document:

DEFENDANT’S OBJECTIONS TO THE PRESENTENCE INVESTIGATION REPORT

was served on July 23, 2012, in accordance with FED. R. CRIM. P. 49, FED. R. CIV. P. 5, LR 5.5, and the General Order on Electronic Case Filing (“ECF”) pursuant to the district court’s system as to ECF filers.

/s/ Thomas L. Kirsch Thomas L. Kirsch


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EXHIBIT A: ERRORS IN THE PRESENTENCE INVESTIGATION REPORT AND GOVERNMENT

SENTENCING MEMORANDUM THAT DO NOT AFFECT THE ADVISORY GUIDELINE

CALCULATION

I. Errors in the Presentence Investigation Report

1. Probation identifies Rod Blagojevich, Chris Kelly, Lon Monk, John Harris, and Robert Blagojevich as “codefendants” of Cellini (2), and summarizes the facts of the Blagojevich case. (6:69-79.) In fact, the government moved for a severance of the Blagojevich case from Cellini’s case, recognizing that the cases were not substantially related and were required, under the law, to be tried separately. See Dkt. No. 202. Probation’s discussion of the Blagojevich case should be deleted from the PSR.

2. Probation writes, “On advice of counsel, defendant declined to discuss the offense in presentence interviews.” (5:67-68.) In fact, the defense informed the probation office that in lieu of having Cellini answer questions about the offense during his interviews with the probation office, counsel would submit on his behalf a detailed position paper describing Cellini’s version of events. The defense made that submission on May 4, 2012.

3. Probation describes the conduct charged in Count I of the indictment. The jury acquitted Cellini of that charge, yet Probation describes such conduct as if it were proved. (7:112-141; 8:153-68.) Probation should remove this discussion from the PSR or make note of the jury’s rejection of the government’s allegations.

4. Probation includes an opinion from Agent Cain that “as members of Defendant Blagojevich’s inner circle, Rezko and Kelly had the ability to stop a TRS allocation, although it had to appear to be for a legitimate reason.” (9:193-95.) That statement reflects merely the personal opinion of a government agent and is unsupported by the evidence at trial. It should be removed entirely from the PSR.

5. Probation includes an opinion from Agent Cain about Rosenberg’s mindset with regard to Cellini’s involvement in Levine’s extortion scheme. (9:205-09.) Rosenberg did not testify to this information, and it should be deleted from the PSR.

6. Probation states that Levine increased his TRS influence “through his corrupt relationships with Rezko, Kelly and Cellini.” (14:399-400.) The jury acquitted Cellini of the charge in Count I of the indictment, which charged Cellini’s supposed corrupt influence at TRS. Thus, the statement as it concerns Cellini is unsupported by the verdict and the evidence, and Cellini’s name should be removed from this statement in the PSR.

7. Probation claims on numerous occasions that it did not receive from Cellini information regarding his health and that certain health information in the PSR is “unverified.” (19-20:578-629.) To the contrary, Probation was provided as early as May 4, 2012 with six detailed letters from Cellini’s treating physicians, which described and verified all of the medical information Cellini and his counsel provided. The error has been brought to the probation officer’s attention, and the defense believes that Probation will, by the time of sentencing, produce a supplemental medical report correcting the error and adding pertinent information regarding Cellini’s change

Case: 1:08-cr-00888 Document #: 990-1 Filed: 07/23/12 Page 1 of 4 PageID #:10232

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in health condition after the completion of the PSR, including his recent heart attack and unresolved pulmonary embolism.

II. Errors in the Government’s Sentencing Memorandum

1. With regard to the quoted language in the Introduction of the government’s sentencing memorandum, the government takes that language out of context and omits that Cellini merely was saying to Levine what Rosenberg had asked him to say.

2. The government’s statement that Cellini put at risk hundreds of millions of dollars in taxpayer funds and the retirement savings of thousands of Illinois teachers (4) has no evidentiary support. In fact, the company that Cellini was affiliated with, Commonwealth Realty Advisors, earned and distributed back to TRS in excess of $1 billion in investment returns.

3. Contrary to the government’s assertion, Cellini was not convicted of attempting to extort a political contribution from Rosenberg. (4.) He was acquitted of that charge.

4. The government accuses Cellini of lacking remorse based on two examples in the Defendant’s Version that the government contends do not adequately reflect the trial evidence. The government’s accusation lack merit, and as an aside, Cellini was careful to cite the trial transcripts in his Version of the Offense – something the government fails to do while making its own unsupported characterizations of the facts. First, the government alleges that there is no support for the assertion in the Defendant’s Version that Cellini suggested TRS award a partial allocation to Capri as part of a strategy to get Capri its full $220 million allocation. There was indeed support for that assertion. Cellini said to Levine during a May 10, 2004 recorded call that maybe Levine should award a partial allocation to Capri “and ask for a letter before . . . .” It is a fair reading of that statement that Cellini was suggesting TRS provide a partial allocation and ask for a letter further clarifying the Capri ownership issue, which Levine disputed during that same call, before providing Capri its full allocation. Second, the government takes issue with the assertion in the Defendant’s Version that Cellini was uncomfortable with the fundraising methods of Rezko and Kelly. But that is fact demonstrated by Cellini’s statements during the May 8, 2004 recorded call with Levine, during which Cellini discussed rumors of Rezko and Kelly’s fundraising. In that call, Cellini and Levine discussed that Satch Pecori withdrew from a fundraiser for Blagojevich because Pecori had heard from other road builders about “matrices” showing a correlation between political fundraising for Blagojevich and the award of state road-building contracts. Cellini told Levine that Rezko and Kelly were awarding contracts to companies in close proximity to receiving political contributions from those companies, which was something that past administrations known to Cellini had been sure to avoid. Quite clearly, as the Defense Version suggests, Cellini was expressing his discomfort with Kelly and Rezko’s fundraising efforts.

5. The government argues there is no credible evidence that Rosenberg sent Davis to Rezko. (6.) But there is credible evidence. That is exactly what Levine told Cellini repeatedly during the recorded calls that formed the basis for the government’s entire case against Cellini.

6. The government claims that the decision to help Rezko and Kelly obtain a political contribution from Rosenberg was consistent with Cellini’s prior dealings with TRS. (7.) There


3

is no evidence to support that assertion, and Cellini was specifically acquitted of the TRS bribery scheme charged in Count I, and there is no evidence Cellini ever asked anyone directly or indirectly associated with TRS for a campaign contribution.

7. The government argues that Cellini personally raised $400,000 for Blagojevich during a September 2002 fundraising event. (9.) In fact, Cellini was merely employed by one of several sponsors of that event. Furthermore, the government’s argument is inconsistent with its own evidence, including the testimony of Kelly Glynn, and was directly refuted by defense witnesses.

8. The government claims that Cellini pressed Bozarth to promote Bauman to TRS Chief Investment Officer and Jim Bruner as head of the TRS investment committee. (11.) There is no evidence to support those assertions. After the government filed it’s Sentencing Memorandum, Bruner told The State Journal-Resister in Springfield that the government’s allegation that Cellini engineered Bruner’s re-appointment as a TRS Trustee in 2002 was a “crock.” See “Former TRS Member Challenges Prosecutors On Cellini's Role” The State Journal-Register, July 16, 2012. Bruner added that Cellini “never asked me to do anything for him.” Id.

9. The government states that Cellini learned of TRS’s plan to alter its method for paying asset managers and argues Cellini took various corrupt steps to prevent it. (13.) There is no evidence to support the government’s assertions about the supposed steps taken by Cellini. Cellini did not attempt to prevent the alteration; he merely suggested there be a hearing concerning the alteration. Further, he did not try to have Bauman removed. In fact, Levine clearly explained in a recorded call that Bauman himself was attempting to leave TRS and move home to Champaign.

10. The government states that Cellini could and did direct Bauman to dispose of the $220 Capri allocation in various ways. (13.) There is no evidence to support that assertion.

11. The government argues that Cellini urged Bauman to increase Commonwealth’s allocation so it could invest in Senior Lifestyles. (16.) The evidence does not support this assertion. In fact, Commonwealth rejected the investment – touted by Levine and Steve Loren – after careful consideration.

12. The government argues that Cellini participated in some kind of uncharged corruption related to the Carlyle Group. (17-18.) The government’s contentions are false and have no evidentiary support. In fact, the government has been informed by Bob Kjellander and other witnesses that Cellini had nothing to do with events surrounding the Carlyle Group and there was no connection between the Carlyle Group and the dental HMO.

13. The government states that Cellini helped Pecori’s firm obtain a state road-building contract by arranging with Kelly that Pecori would host a fundraiser for Blagojevich. (18) In fact, had Pecori been permitted to testify, he would have confirmed that his firm obtained the contract before any discussion of the fundraiser, and that there was no relation between the contract and his commitment to fundraise. The government further argues that Levine and Cellini’s discussion about the Pecori situation and about Blagojevich fundraising generally revealed that Cellini engaged in political corruption for years. (19-20.) The government’s argument is a wild extrapolation unsupported by the evidence. Cellini explained in the May 8,


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2004 recorded call that Pecori asked him to make an introduction to the Blagojevich people, and at Cellini’s request, Kelly agreed for Pecori to participate as a sponsor to a Blagojevich fundraising luncheon. Pecori later informed Cellini that he and his partners did not want to participate in the fundraiser because they had heard of a potential suspicious connection between fundraising for Blagojevich and the award of state contracts. Cellini told Levine that this anecdote about Pecori was an example of the “climate,” explaining that the apparent fundraising approach of the Blagojevich people was different from Cellini’s, and that administrations associated with Cellini made sure there was no link between fundraising and the award of state contracts.


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