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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISIONCASE NO. 08-20574-CRIMINAL-LENARD
UNITED STATES OF AMERICA, Miami, Florida
Plaintiff, January 3, 2011
vs. 4:53 p.m. to 7:10 p.m.
EFRAIM DIVEROLI and AEY, INC.,
Defendants. Pages 1 to 70______________________________________________________________
SENTENCING HEARINGHELD BEFORE THE HONORABLE JOAN A. LENARD,
UNITED STATES DISTRICT JUDGE
APPEARANCES:
FOR THE GOVERNMENT: ELOISA FERNANDEZ, ESQ., andFRANK TAMEN, ESQ.ASSISTANT UNITED STATES ATTORNEYS
99 Northeast Fourth StreetMiami, Florida 33132
FOR THE DEFENDANT HOWARD SREBNICK, ESQ.,EFRAIM DIVEROLI: BLACK, SREBNICK, KORNSPAN & STUMPF, PA
201 South Biscayne BoulevardSuite 1300Miami, Florida 33131
-and-CYNTHIA HAWKINS, ESQ.150 North Orange Avenue, Suite 414Orlando, Florida 32801
FOR THE DEFENDANT HY SHAPIRO, ESQ., andAEY, INC.: MARKO CERENKO, ESQ.
HOGAN, GREER & SHAPIRO2400 South Dixie HighwaySuite 200Miami, Florida 33133
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FOR US PROBATION: SARA GARCIA
REPORTED BY: LISA EDWARDS, CRR, RMROfficial Court Reporter400 North Miami AvenueTwelfth FloorMiami, Florida 33128(305) 523-5499
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THE COURT: Good afternoon. You may be seated.
United States of America versus AEY Inc., and Efraim
Diveroli, Case No. 08-20574.
Good afternoon, counsel and Probation.
State your appearances, please, for the record.
MS. FERNANDEZ: Good afternoon, your Honor.
Eloisa Fernandez and Frank Tamen on behalf of the
United States, along with Special Agent Bob Koons.
THE COURT: Good afternoon.
MR. SREBNICK: Good afternoon, Judge.
Howard Srebnick on behalf of Efraim Diveroli; Hy
Shapiro on behalf of AEY, Inc. Also with us, Attorney Marko
Cerenko, Attorney Cynthia Hawkins, who represented Mr. Diveroli
in the Orlando matter.
THE COURT: Good afternoon.
MR. SHAPIRO: Good afternoon.
THE COURT: Mr. Diveroli is present.
THE PROBATION OFFICER: Good afternoon, your Honor.
Sara Garcia with probation.
THE COURT: Good afternoon. And Happy New Year to
everyone.
We are here for the sentencing of both the corporation
AEY, Inc. -- and does Mr. Diveroli also represent the
corporation, Mr. Shapiro? --
MR. SHAPIRO: Yes, your Honor.
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Probation Office not to grant the --
THE COURT: All right. Well, I'm going to let
Mr. Srebnick make his argument in regard to acceptance of
responsibility.
Mr. Srebnick, go ahead.
MR. SREBNICK: Good afternoon, Judge.
I'd like to present for the Court's consideration
Mr. Diveroli himself; his psychologist, Dr. Strumwasser; Rabbi
Sholom Lipsker; and his uncle, Rabbi Shmuley Boteach, to
comment on Mr. Diveroli's acceptance of responsibility not only
for the crime for which he stands before you, but for the
lifestyle that he has chosen to live up to today.
And if we could begin, then, by having Mr. Diveroli
himself address the Court, if that would be acceptable to your
Honor, and he approach the podium.
THE COURT: He can stay right there.
MR. SREBNICK: As you wish.
Would you like him to stand, Judge?
THE COURT: No. That's fine. He can remain seated.
THE DEFENDANT: With your permission, I'm going to
read from my notes.
Your Honor, thank you very much for allowing me to
speak for a few moments.
I can quite honestly say that, after five months of
incarceration, they've been very eye-opening for me. I can
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finally begin to appreciate the devastating effect that my
selfish actions have caused upon me and my family.
My young brothers, my sister, who looked up to me so
much, I now realize that, instead of the big brother taking
them bowling or out to eat, they'll be forced to visit me in a
federal prison.
And my beautiful mother, my biggest fan, my father and
the rest of my extended family -- there are no good words to
express how truly and deeply sorry I am for dragging them
through the hell that has been my life the last three years.
And to think it was all for a little bit of money, which I
didn't deserve or need, is even more shameful.
It is clear to me that, in prison, you are nobody.
And whatever material success I may have enjoyed on the
outside, it is completely meaningless in here.
In here, I'm just another convict, a number, an
embarrassment to my family and my community, so much so that,
when the occasional prison guard looks at my paperwork and
says, "Wow, how did you get such a large contract with the
Army?", I have no answer.
But I think about how hard I worked and how devoted I
was to winning that contract, performing on it and not failing,
to prove to myself and my family that I could be a success.
I had choices to make. More than once, more than
twice, I made the wrong choice. I chose to ignore the
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direction of the State Department when I asked about the
legality of shipping Chinese ammo. I chose to take possession
of a firearm in Orlando even though I knew I shouldn't have.
I can blame alcohol. I can blame drugs. I can blame
other additions of mine. But after five months in prison, I
can only blame myself.
I say this because now I've begun to realize that
business success, although once everything to me, doesn't hold
a candle next to me being back with my family, my religion.
I'd like to apologize and, at the same time, say thank
you to Dr. Strumwasser, Rabbi Lipsker and my attorneys, who I
know tried their absolute best to intervene in my life as best
they possibly could in the past few years regardless of how
frustrating and fruitless their efforts may have seemed.
Finally, I would like to apologize to the Court and
the Government for consuming so much of your time and
resources. Although it was never my intention to harm the
US Army financially or otherwise, I certainly could have done
things differently.
Thank you.
MR. SREBNICK: Your Honor, I'd like to turn the podium
over for the moment to Mr. Shapiro for some comments he would
like to make on this subject.
MR. SHAPIRO: Your Honor, may I stand at the podium?
THE COURT: Sure.
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MR. SHAPIRO: Thank you, your Honor.
Your Honor, AEY, through its president, Mr. Diveroli,
and Mr. Diveroli individually has fully cooperated with the
Government and, indeed, accepted responsibility for his
actions.
He met on no less than 25 occasions with the agents
from the United States Government who were investigating this
case after he entered his plea.
He spent hundreds of hours with them going over
evidence, going over e-mails, going over information that he
was going to provide and was prepared to provide at the trial
of Mr. Merrill.
He explained how, as a 21-year-old president, he was
able to secure a 300-million-dollar contract and how he gained
employment from the United States Government to help the United
States Government build the Afghan National Army.
He went on fedbizops on a computer and found that the
Government was soliciting bids for this overwhelmingly large
contract.
He told the Government how many hours he worked and
how hard it was to put together all of the munitions that were
needed in order to satisfy this contract and to win it.
He told the Government how he traveled to multiple
countries -- to Albania, to Germany, to France, to the United
Kingdom, to Yugoslavia, to Bulgaria, to Montenegro, to
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Slovakia, to Hungary, to Ukraine, Romania and the Czech
Republic -- in order to secure the ammo that the Government was
seeking in this contract.
He told the Government how he was able to secure the
various task orders that were required. It is Task Order 2,
your Honor, that I've always found to be most amazing in the
two years of my representation of AEY and Mr. Diveroli, where
Mr. Diveroli was asked to secure and to deliver to Afghanistan
over 100 million rounds of AK-47 ammunition, over 550 grenade
launchers with HE impact, over 550,000 HE bounding grenade
launchers, 16,200,000 ball ammunition.
He talked to the Government and he told the Government
how he was able to contact foreign governments and to be able
to secure those arms for delivery.
And he told them how he first found out that the
ammunition that he was sending from Albania was Chinese.
Originally, it was Albanian-manufactured ammunition, but the
Albanians ran out of that ammunition and, instead, he learned
from Mr. Podrizki that the ammunition was Chinese.
He sent e-mails, as your Honor knows, to the State
Department to find out whether or not it was permissible. Your
Honor is aware of the response. They told him it was not.
He had two choices to make: the right one or the
wrong one. And, unfortunately, he chose the wrong one and he
decided to send the Chinese ammunition. He told the Government
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how that came about. And he chose to violate the law, and he
admitted that to the Government.
But Mr. Diveroli did not want to fail. He did not
want to disappoint. He didn't want to fail himself. He didn't
want to fail his friends. He didn't want to fail in being able
to provide what the Government had asked him.
He also told the Government about the involvement of
Co-Defendants Podrizki, Packouz and Mr. Merrill. And, in fact,
your Honor, he was prepared to testify at Mr. Merrill's trial,
despite the arrest in Orlando.
And, your Honor, but for that arrest in Orlando, I
believe we would be standing here discussing what the
appropriate sentence for a 5K1 or a Rule 35 would be.
Instead, Mr. Diveroli made the wrong decision.
Unfortunately, he got arrested again in Orlando. But he was
prepared to cooperate.
So I suggest to you, your Honor, that AEY, its
president, and Mr. Diveroli have cooperated fully and have
accepted responsibility for what he's charged with today.
Thank you.
MR. SREBNICK: And so, your Honor, it is clear that,
with respect to the instant offense for which he stands before
the Court, Mr. Diveroli has acknowledged his responsibility,
pled guilty, cooperated. But for his subsequent arrest and now
his plea in the Orlando case, there would be little doubt that
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he would qualify for acceptance.
And so this is the rare case where we're going to ask
the Court that, notwithstanding a subsequent act which violated
the law, the holding of a gun brought to this meeting in
Orlando by an undercover agent and Mr. Diveroli takes
possession of it and, therefore, violates the law, that the
Court nevertheless award him the acceptance.
And we'd like the Court to hear for a few moments and
we would request that it be at side-bar, if possible, from
Dr. Steve Strumwasser regarding Paragraphs 67 through 81 of the
PSI which documents mental health and substance abuse issues.
It would seem to me that, since the PSI is
confidential and since those matters are deemed confidential,
that we address them at side-bar, of course, with the
Government present. If that would be acceptable to the Court,
I would request permission to approach with Dr. Strumwasser and
the Government counsel.
THE COURT: What's the Government's position?
MS. FERNANDEZ: Your Honor, with respect to these
paragraphs, I thought most of this became part of the public
hearing before Judge Turnoff on the Defendant's prior violation
of conditions of release, unless it's something specifically
new.
MR. SREBNICK: There are some family issues that we
think are best addressed in private, Judge.
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THE COURT: Well, how does this all relate to
acceptance of responsibility?
MR. SREBNICK: I think Dr. Strumwasser, who worked
with Mr. Diveroli for two-plus years, could explain to the
Court, in his professional opinion and that of the other
doctors he's collaborated with, the kind of struggle that
Mr. Diveroli day in and day out has to overcome to accept
responsibility for his own addictions and his own mental health
issues and how it makes it infinitely more challenging for
someone with his condition to manage his own conduct and
behavior.
And it's certainly Mr. Diveroli's failure to manage
his behavior while out on bond that will be the linchpin in
depriving Mr. Diveroli of the acceptance-of-responsibility
adjustment, and it is for that reason that I would ask that the
Court hear from Dr. Strumwasser, for what it's worth, as to his
view of the Mr. Diveroli that sits before the Court today in
2011 versus the Mr. Diveroli he's been working with for over
two and a half years to try to help Mr. Diveroli manage these
very difficult circumstances in terms of addiction and mental
health issues.
THE COURT: I will grant the request to have this
matter heard in a sealed portion of this hearing.
I don't want to do it side-bar. It really makes it
much too difficult for Lisa on an extended basis for her to be
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able to get everything down. It's just not the ideal way.
So I'm going to order the courtroom to be sealed at
this time except for the Defendant, his counsel and the
Government counsel and the witness.
MR. SREBNICK: I think with that --
THE COURT: The courtroom is now sealed.
(Whereupon, certain sealed proceedings were held and
have been filed under separate cover.)
(Whereupon, the courtroom was duly unsealed and the
follow proceedings were had in open court:)
THE COURT: Yes, Mr. Srebnick. Go ahead.
MR. SREBNICK: Judge, I think the question posed
regarding why Mr. Diveroli, while on bond, would put his bond
at risk and sentence at risk is the question. I agree.
I'd like to just have Ms. Hawkins, who represented him
in Orlando, address the Court very briefly right from there
just so she can answer a question or two and address the Court.
MS. HAWKINS: May it please the Court: My name is
Cynthia Hawkins. I'm a criminal defense lawyer in Orlando.
Before that, I was an AUSA for 20 years plus in the
Orlando office in the Middle District.
I represent Mr. Diveroli in the case that occurred in
the Middle District, and I think I have some information that
would assist the Court in this -- in the determination of the
acceptance of responsibility issue as to what happened there
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and why he would be involved in an offense while he was out on
bond.
In that case, it was an undercover sting case and
there were many recordings made. I've listened to every minute
of every one of them.
And during the case, as it unfolded, the undercover
agent asked Mr. Diveroli to do several things which
Mr. Diveroli declined to do. This was an ongoing situation for
a couple of months.
For instance, he asked Mr. Diveroli to import
something which might be an ITAR violation. Mr. Diveroli
declined to do that.
What Mr. Diveroli was trying to do was to sell
magazines for weapons, not -- ammunition, not weapons, but a
magazine, which is -- which would be legal for him to do
because it's not a federal firearm.
He says on the tapes to the undercover agent many,
many times, "I don't have a license. I don't want to do
anything illegal. I've been arrested at gunpoint and I never
want to go through that again. I want to do everything
100 percent right. It's not worth it. I don't want to risk
it."
Eventually -- but the calls were continuous.
Eventually, Mr. Diveroli agreed to come up to Orlando. But
before that, on the phone, on the tapes -- and I have excerpts
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of it, if anybody would -- wants to hear them.
But as an officer of the Court, I tell the Court that
he says on there, "I cannot leave. I can't go further north
than Ft. Pierce. I'm circumscribed by matters in the Southern
District."
And the agent said, "If you don't come up here" --
this is a 10-million-dollar deal -- you're not going to get the
deal."
He's tried to abide by the bond, your Honor, but he
was persuaded to leave. That was wrong and he knew it was
wrong. But he did leave after being encouraged to do so by the
agent.
Now, he also says, when he comes to the Middle
District, the night before he had a conversation with the
undercover agent who said, "Why don't you bring some guns," you
know, "Bring some guns, some ammunition."
And Mr. Diveroli says, "I'm coming up there to do this
business deal about the magazines. I'm not coming up here to
play with toys."
And he comes to the Middle District and the agent says
to him, "Did you bring any guns?"
And Mr. Diveroli says, "No, I didn't." And he didn't.
The agent said, "Oh, no problem. I did."
So Mr. Diveroli also had his -- one of the guys that
worked for him bring some ammunition and then they purchased
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some more ammunition that day.
Mr. Diveroli was trying to do the deal with the
magazines. That was his primary mission. But he did bring
ammunition to play with the toys, to shoot the guns, because
that's what he thought the agent wanted him to do.
So he did -- as I explained, he did take
responsibility because he did possess the ammunition. But that
wasn't what he was trying to do, your Honor. He was not trying
to sell ammunition to the undercover officer.
He had set up a corporation after consulting with
attorneys, which I've verified, and they told him that he would
be able to be a consultant, but that he could not really
control the business.
And that's where he crossed the line. He did have
control over the business that had the ammunition. That's why
he pled guilty.
But I just wanted the Court to know that he was trying
to do a legal deal. And he did do something illegal, and he
accepted responsibility for it. But that wasn't his primary
mission.
And it took a couple of months to get him to come up
there and do it. And he did pick up two of the weapons and
look at them and put them down and walk away from them. But he
would have fired them, I think.
So he's accepted responsibility for that.
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He sat down with the agents and ATF. He has
cooperated with them. He's cooperated with them, to some
extent, in a way that could be dangerous for him as to other
inmates, et cetera, that were violent.
He's given any information that they want. He's
agreed to forfeit ammunition that has been seized by the
Government, and I've been in negotiations with them to do that.
From the minute that we sat down with the Government,
he agreed to plead. He pled to an information because he said,
"No. You don't even need to indict me." He waived indictment.
So, your Honor, I think that -- when the doctor said
"easily lured," I kind of wrote that down on my pad. He was
not entrapped. There was not an entrapment. It's a strict
liability offense.
But he was manipulated and he did the wrong thing. He
had already -- took responsibility for that. I just wanted the
Court to know that it wasn't something he set out to do.
MR. SREBNICK: With that context and understanding
that -- from a personal level, I did everything I could to
encourage Mr. Diveroli while he was out on bond to change his
focus, because his focus has always been on how to make a buck,
always trying to prove that he could be a success; and he
didn't define success the way he should have.
On that point, someone who can speak to that much
better than I can is his spiritual advisor, Rabbi Lipsker, who
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has talked to Efraim about regret, remorse, what the definition
of "success" is.
I would invite him to come forward, if the Court would
hear from him, to comment on the evolving Efraim Diveroli.
THE COURT: I will hear from the Rabbi.
RABBI LIPSKER: Good afternoon.
THE COURT: Good afternoon, Rabbi.
RABBI LIPSKER: It's always a very awesome
responsibility to be in this environment.
I find, usually, that to really find a balance between
the spiritual, moral, human elements sometimes and the legal
obligations that are thrust upon us in a positive manner is not
always the easiest thing.
Just to give you some clarity about my relationship
with Mr. Diveroli, I've met with him on many occasions, regular
meetings, and have actually sent some of our rabbis to work
with him regularly for approximately two and a half years.
In the almost 30 years of working in the prison
environment with men and women that are facing these
difficulties, it's the first time I said to a defendant, "You
need to go to jail," because for multiple reasons of his own
environment, his own background, he chose a path that was
driven by other than the most noble causes.
You might have some kind of an excuse where you define
insanity in a certain fashion. Most geniuses have some element
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of that, out-of-the-box feelings and thinking.
Efraim is one of those. Brilliant person. A mind
that far exceeded his maturity and extroversion that came from
a deep sense of lack of security, deep sense of insecurity, of
lack of personal pride. He had to prove himself, had to always
be the loudest voice, the biggest partier, the flashiest guy.
It came easy to him.
The evil factors that dwell in our animal souls and
our animal instincts many times are much more powerful than the
spiritual factors that have to come to us through a lot of work
in exercising that extraordinary human concept of intellect,
being able to have control over emotions.
And the basic foundations of cognitive psychology and
thinking, that tape recorder that continues to play in our
inner beings, that starts playing from the time we were born
and maybe before that, we often just react to it like an
autonomous system without knowing that we can change the tape.
He didn't think he could change the tape. He didn't
even think about it.
THE COURT: He probably didn't want to change the
tape.
RABBI LIPSKER: It's true. He didn't want to change
the tape. He was having too much fun, and luck was going his
way. He always was just on the other side of the unlucky
moment.
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Mr. Diveroli has enormous capacity. He's a man with a
great heart, a great soul, and corrupt behavior.
The worst thing in his life -- I don't know if I
should be so blunt, but I told Mr. Diveroli that I will -- he
told me one day, "You know, Rabbi, if you could keep me out of
jail, I'll give you a million dollars."
I said, "You know, Efraim, just for saying that, I
want you to go to jail because you've got it all wrong. It's
not about that. It's about life. It's about being productive.
God gave you a gift. Use it in the right way."
THE COURT: Let me ask you a question, Rabbi.
You have seen him since he's been in jail?
RABBI LIPSKER: Yes.
THE COURT: And what have you observed as far as a
change or a lack of change in Mr. Diveroli?
RABBI LIPSKER: Three elements that I find to be
extremely fundamental in the human behavior patterns is
arrogance, selfishness, hedonistic pleasure principles, power,
jealousy and always thinking, "The other guy's wrong. I'll
make it happen. I can get it done. I can throw enough money
at him," et cetera, or her or whatever.
What I was looking for throughout the two and a half
years, I finally saw it. And I said to him -- the first time I
saw him in jail, I said, "I'm not going to go talk on your
behalf." I said, "This is an extremely honorable and
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well-intentioned judge who knows the work of Aleph. I'm not
going to jeopardize her credibility because of someone like
you. Unless I see some change, I'm not going to come and do
anything for you."
We talked for a while. I said, "Talk is not enough.
I want you to write me a letter."
He wrote me a letter, and I saw him again. For the
first time in two and a half years, I saw three things:
acknowledgement, real acknowledgement.
Everybody comes in here and says "I'm sorry" because,
if you don't say "I'm sorry," you're going to get hit a lot
harder than if you do say "I'm sorry." Everybody knows that.
So he was going to come in and say "I'm sorry."
I said, "That's not enough."
I saw the fact that he was cognizant, he was aware, of
the destruction. More than what he brought upon his family,
it's what he brought upon himself.
Sometimes when God gives you a gift and you not only
squander it, but continue to destroy it -- I said, "What right
do you have to have a good mind? You should be some kind of an
idiot and put away somewhere because your good mind can be used
to better society or to destroy society. You can be a
Tubalcain that creates armaments for destruction or you can be
his brother that becomes a shepherd of history."
I believe he can. So the first thing was
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acknowledgement.
The second thing I saw was humility. I told his
attorney when he came out -- I said, "You know, I think he
still thinks he can fool some people, but he was humble." He
felt a sense that he's not that all-powerful person.
And the third thing was a serious commitment, in my
eyes, of change.
Now, the reason I'm speaking on his behalf -- and I
know these five months to him was worse than purgatory. It was
going to be the worst thing.
My son was one of my assistants whom I assigned to
work with Mr. Diveroli and went to visit him in Orlando. He
came back, my son. He said, "Ta," he said, "I didn't believe
what I saw. This is a broken person."
To him, prison was the ultimate negative. Trapped.
Captured like a common criminal, which he was, and is. He did
wrong things.
When I saw the fact that he had a serious desire for
change -- and I made a list in Hebrew. It'll only take me a
minute because I'll just translate it quickly.
Five levels of remorse and repentance:
acknowledgement to know that you did it, just to acknowledge
that you did it. Remorse. Acceptance of responsibility. A
commitment never to do it again. And to be confronted with the
same circumstances and not to do it. Those are the five
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levels.
I said it must be domination of your negative forces.
The answer is "no." The heart says "yes." The head says
"Don't do it." It's like the Jewish myths of tefillin. That's
why we put on tefillin, because the head should control the
heart.
Transformation, where the mind controls the heart.
Naturally, our natural instinct is, "Give me, give me, I want"
from the time a child is born. I said, "You're no different
than anyone."
And when that is not answered in a healthy way, which,
in some instances -- I suppose it was discussed earlier; it may
not have been -- the physical desires become enormous and
overwhelming.
When they start to be fed, it's not drug addiction.
It's not alcohol addiction. It's not sex addiction. It's not
food addiction. It's just addiction for everything. You just
need more and more and it's never satisfactory.
The capacity to know that you can change, that you
have the potential to be good, requires a tremendous effort, an
effort that sometimes it's easier to be in prison than to put
forth that effort. I've had that experience as well.
I believe that we can save this person. I'm a rabbi,
but we're not talking about saving the Jew for Jewishness.
We're talking about saving a person for humanity.
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I think he needs to spend a little bit more time in
prison. But five years? There is a diminishing return, in my
experience. After a certain period of time, instead of the
benefits, you start becoming a prison person. You start
wanting to excel in that environment.
You know, he got tested. There were sting programs.
We say every morning in our prayer, "Lord, our God, do not
bring me to test. Don't test me."
It's said that a repented person who had a problem
with morality should not walk down a street of prostitution
because you don't want to awaken those factors until the person
is healthy enough.
I would ask your Honor, in understanding these
elements from many perspectives -- the last time I was in this
court I talked on behalf of a person with a diminished mental
capacity.
Today we talk about a person with a diminished
disciplinary capacity, enormous mental capacity. He should
spend some more time in prison.
I think it should be to the extent where he can -- I'm
sorry. I should not -- I don't know if I can or should. But
it should be -- in my opinion, if a person spends a couple of
years in jail -- for him, that could transform him.
Aleph would have our people in the prisons on a
regular basis, working with them. Because we're working -- we
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work across the country, not only in New York, not only in
Florida, but I suppose he would be in Florida.
And when he comes out, to impose a very serious,
strong period of probation -- parole, probation that would
include enormous responsibilities, house arrest, halfway house
where he can be productive, the various types of counseling
elements that we would participate in.
I believe -- and I would not say this by
decredibilizing Aleph for myself -- and I will tell you we
didn't get a million dollars from him nor would we accept it.
It's not within that range. It's about human beings.
I believe that we can come back here in five years
from now with an example and say we saved this person, this
productive person of society.
If I can be of any help or my organization can be of
any help, we're here to do so.
Thank you very much.
THE COURT: Thank you, Rabbi.
MR. SREBNICK: Judge, the last person that I'd ask to
address the Court is another rabbi who is his family member,
Shmuley Boteach.
I'd ask him to come forward.
He can tell you a little bit about himself. But he's
the brother of Efraim 's mother. He's Efraim's mother's
brother.
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THE COURT REPORTER: Pleas spell your name for the
record.
RABBI BOTEACH: Rabbi Shmuley, S-h-m-u-l-e-y. Second
name B-o-t-e-a-c-h.
Thank you, your Honor, for allowing me to take a few
precious moments of the Court.
And with your permission, if you would not mind, I
would like to thank Rabbi Lipsker, who began to influence me
when I was a boy of 8, after my parents divorced.
In my own state of brokenness, he used to mesmerize me
with stories of great men and noble action and, but for the
grace of God, where I might have been had I not been exposed to
the incredible work of Chabad in this city, which I later
joined.
You're a true hero of the Jewish people, showing love
to those who others and society rejects, and I salute you.
Your Honor, I come before you today with pain and
humility, pain in seeing my own nephew in such a fallen and
disgraced state, humility because I am someone who, since my
own parents divorced, has devoted himself to attempting to
rescue families in crisis.
I broadcast a national show trying to help families
who are in pain. I -- and radio. I've written many books on
relationships. And, therefore, humility and acknowledging my
own impotence and my own failure at having helped a member of
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my own family.
Indeed, many loving professional and personal
counselors have advised me not to be here today, saying it
would damage my credibility.
But Efraim is my nephew. He's my flesh and blood. I
love him and I will never abandon him because, above all else,
I believe in family and I believe in values.
There have been several victims to Efraim's crime.
Foremost among them is the American military, which is
particularly excruciating, because I have trained my kids to
walk over to every person wearing the uniform and thank them
for their service.
I'm the father of six daughters and three sons. I was
raised by a single mother. I have two sisters that are single
mothers. And to see the work of the military in Afghanistan,
especially, the theater of war with which this case is
involved, and to see how these -- how Afghani women are saved
by the brave men and women of the military from being
brutalized by men is, in my opinion, God's work. And the fact
that my nephew could have deceived the military is particularly
shameful.
But there's another victim that has been overlooked, I
believe, and that is my sister and her children. We are five
kids. My mother raised us after she divorced. My father was
3,000 miles away. My sister was always the most selfless and
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noble of the entire family.
She is known as a saint in the community here in Miami
Beach. On February the 6th, she will be honored by AMIT, an
organization that raises money for orphan children in Israel.
Three or four times a week she goes to take care of an
elderly couple that live a block away from her who are
childless. The man has Alzheimer's and often does not
recognize his own wife. She has to go and stop them from
fighting. She cooks for them. She cleans for them. She takes
them to their hospital appointments.
When Efraim started making money, she was contemptuous
of his success. All she ever wanted was for him to be, in her
words, a mensch. She wanted him to honor the Sabbath. She
wanted him to be respectful to his elders. She wanted him to
lead a religious and spiritual life.
She has been devastated beyond description by his
actions. I cannot tell you about the infinite phone calls she
made to me to try to influence my nephew and all the people
around, which begs the question: In such a moral environment
where we were raised by my mother, who is here today, to
always -- to never be greedy, to always live righteously, to
love our Judaism and to love God and to love all of God's
children, whatever color, whatever ethnicity, each and every
one of us still today has 30 or 40 guests for the Sabbath
dinner -- how could Efraim have done this? That's the
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question.
I can't claim to be able to answer that, but I do
believe my response and any insight I could offer has a
directed bearing on the decision you will make today, your
Honor.
When my sister and Efraim's father married, Efraim's
father found it very difficult to support his family. He went
through perhaps 20 jobs in 10 years.
So when my brother finally offered him a job in
Government contracts in order to give him a life of dignity and
allow him to support his family in dignity and Efraim later
joined and started showing a phenomenal business acumen, I
believe that -- and I do not wish to be critical -- that, to an
extent, his father and perhaps others began to live vicariously
through his success.
No one stopped his excess. His mother used to badger
him and berate him constantly to be better. She never cared
for any of his success.
But he was allowed to get away with it, to an extent,
and given very little guidance when he was 16, 17. He was a
millionaire by 18. No one cared about his success. He had a
rocket strapped to his back with absolutely zero moral
guidance.
When some of us tried to correct him and tell him, as
Rabbi Lipsker expressed so nobly and as even Efraim's dedicated
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lawyers, like Howard, just said, that success must be defined
by other things, he looked down at us who were less successful
than him as people who could not offer him moral guidance. He
was smarter than everyone.
This is why I believe, your Honor, if I can plead
before you for leniency, this is the key that has changed.
There's a famous Jewish expression that says that the
difference between the wise man and the clever man is that the
clever man can extricate himself from situations into which the
wise man would never have gotten himself into.
My nephew has discovered today that he is neither
clever nor wise, certainly not wise. He never discerned the
consequences of his actions. But he always believed he could
get out of anything he got into.
He always believed, if he threw enough money at a
problem, his army of lawyers, very dedicated to him, who were
even like father figures to him, that they would rescue him.
And today here we sit. All the king's horses and men cannot
save him from the sentence you will impose.
I have never seen him as broken. I do not see the
criminal justice system as anything today, sincerely stated,
but angels of mercy who have saved my nephew from
self-annihilation.
But I fear, your Honor, that this moment that we've
been waiting for for him to really get it -- and I saw a man
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broken to the core yesterday.
He spoke to me very movingly about how in jail he now
sees that life doesn't go anywhere, it's utterly stagnant, that
one must relinquish ambition, you become utterly anonymous. He
wanted to make himself something and he went the exact opposite
direction.
I fear that, if the sentence -- and please forgive me,
because I'm not accustomed to these situations. But if it's
excessive, your Honor, we will snuff out the light of a bright
soul who might, as Rabbi Lipsker said, be able to truly
contribute. He's very bright. He's very smart.
He will come back to a family that is extremely
close-knit. I have nine children. They are praying for him,
saying psalms right now. They know that I'm speaking before
you.
My son is 17 and studying to be a rabbi in Germany. I
have two daughters in Israel, studying at seminaries. They
love him. All his cousins love him. His mother is one of the
most moral people around. His father prays at Rabbi Lipsker's
synagogue.
He will come into a moral environment with an open
heart so we can really begin to influence him. He has
stonewalled us until now.
And I'm not saying that we're not also responsible.
There are things that my family must begin to address. And I
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say it to all of them gathered here today. We are very moral
people, but we must discipline our children.
If you'll forgive me, your Honor, there's one thing I
discovered in marital counseling, that very often -- and my
sister really is a saint. I say that sincerely, having watched
her actions throughout my life.
But I've seen that, when a woman is in a very lonely
and unloving marriage, she finds it difficult to be as tough as
she should with her own children because they become her source
of affection. They become the only thing that she has left,
and she's afraid to bite the hand that feeds her. I think that
existed early in Efraim's life.
I also ask you to please consider, your Honor, the
extreme youth. At the time that this was committed, I believe,
21 when he started with the contract, he was barely allowed to
buy a beer. He was doing contracts none of us even knew. This
is startling, that at that age he was doing business this big.
He had a rocket strapped to his back with absolutely no
guidance system.
And, finally, I'm asking you to please consider my
nephews and nieces, Efraim's siblings. The one thing that
Efraim always was a loving brother. He always showed
tremendous affection to his younger siblings.
There were other acts of kindness that just came to my
attention. Outside a man walked over to me and said to me, "I
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needed a job. I couldn't support my family and Efraim came and
offered me a job."
There is goodness in him. He has an open heart. I
don't want my sister to be -- life to be destroyed by him
sitting for so many years where the entire family is revolving
around going to prison visits.
We'd like to teach him the beauty of the Jewish faith,
of Jewish values. Yes. He was raised with it. Yes. He
rejected it. That is all true.
Unfortunately, he needed to hit rock bottom. He
cannot sink any lower. He has lost everything he has. He has
shamed us. He has disgraced himself. He has lost all of his
money. He has lost his very freedom.
Thank you for considering my petition for leniency,
your Honor.
May God bless you.
MR. SREBNICK: Your Honor, that is all the testimony
on the issue of acceptance.
I know it's a bit novel of an approach we've taken.
But I think you've heard not only from Efraim, the acceptance
of responsibility from him, but, frankly, I think the entire
community is trying to do everything they can to help Efraim
reach that awakening that is so important.
And I will say that, on this point, your Honor said
something today that I can't help but being reminded of. It
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would have been the best thing that happened to Efraim had he
gone to jail right when he got arrested the first time.
And Mr. Shapiro and I advised him that that would be
the best course for him. But, of course, as his counsel, we
take -- we can't tell our client to go to jail and ask the
Court to take him to jail if that's not his request.
And I think he knows, sitting here today, that he'd
have been much better off. He would have been able to
successfully complete his cooperation. He would be here today
on a 5K, not on a quarrel over two points for acceptance of
responsibility.
Having said that, Judge, I do believe in this unusual
circumstance, given his mental health issues, substance abuse
issues, the other issues that you've heard from the fact that
he's pled in both cases, that whatever punishment is coming to
him in Orlando will be meted out by the Judge there.
I do think that today, January 3rd, 2011, that
Mr. Diveroli, after five months in prison, has reached that
point of awakening of acknowledgement, of acceptance, not only
for responsibility for the crimes he stands committed, but for
a wasted existence.
And I've told him that. And he knows that. And we've
met in prison very recently. And he knows he's been a total
waste. His ability to finally acknowledge that, in my view,
deserves some adjustment.
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Unless Mr. Shapiro wants to add to my comments, I
think that's all we have on this point.
THE COURT: Let me hear from the Government.
MS. FERNANDEZ: Your Honor, with respect to the
acceptance of responsibility, we ask the Court to focus on two
primary issues.
First of all, in looking back, from the time that this
Defendant was released on bond, there's a pattern of continuous
violations of his conditions of release.
Even after those conditions were modified back in
October of '09 in front of Judge Turnoff, this Defendant once
again stood in front of that Court and said, "I recognize what
the conditions of my release are. I will not make another
mistake. I will abide by the law."
And even as he was --
THE COURT: What had happened before Judge Turnoff?
Remind me.
MS. FERNANDEZ: Your Honor, before Judge Turnoff,
there had been a positive testing of cocaine in September of
'09 by the Defendant. There had been a number of failure to
reports.
And so, while the Defendant again -- and he had the
assistance of a number of these experts and clinical
psychologists all throughout who came forward and said, "If we
give the Defendant another chance and have an opportunity to
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increase the number of psychiatric visits, the number of
Alcoholics Anonymous visits, we believe we can help him."
He was given a chance then. And without the
Government even knowing, as he was meeting with the Government,
he was violating conditions of his release.
I bring that to the Court's attention because, in
looking back, it appears as a total disregard for the law. And
that has been the pattern that we have seen from Mr. Diveroli.
He's had the assistance of many professionals, many
loved ones, oftentimes to deal with the same issues that many
of the Defendants that this Court sentences has to deal with:
Substance abuse issues, mental health issues and broken homes.
There's nothing unusual about any of that.
But what is striking is that there's a continuous
pattern to disregard the law.
And I guess the climax of that is, again, this
Orlando, the new offense, which the Court, I'm sure, has seen
the description in the PSI as well as we moved to revoke his
bond, illustrates the number -- the continuous phone calls,
engaging -- and the Defendant finally admitting and knowing
that he had no way he could have been involved in that kind of
conduct. He had to find other ways to evade the law.
And that's been the pattern that we've seen.
I submit to you that, under 3E1.1 and the notes that
accompanied that acceptance of responsibility section, there's
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two bases for not granting that acceptance, number one, the
failure to voluntarily terminate or withdraw from criminal
conduct.
And I would submit that the rehabilitative efforts
that many have tried to provide for the last two and a half
years to this Defendant have not been successful to that end
because there's continuous evasion and disregard for the law.
THE COURT: What was the second provision? You
mentioned, one --
MS. FERNANDEZ: Post-rehabilitative efforts.
THE COURT: Oh, okay.
Well, I will tell you that, while the Doctor was
testifying in the sealed hearing, Mr. Srebnick referred to it,
the one thing that I stated, which was exactly what Rabbi
Lipsker said: He had to go to jail. He needed to go to jail.
He had to be in jail.
It's unfortunate. First of all, it's unfortunate that
he was involved in all this, unfortunate that, while he was out
on bond, he was not able to realize either the seriousness of
the conduct that he had been involved in or have the ability to
make some change in his life and accept responsibility at that
time.
And as Mr. Srebnick said, it is unfortunate that
Mr. Diveroli now stands before the Court to be sentenced
without giving himself the opportunity for -- I don't believe
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the Government intends to bring forth a motion for substantial
assistance, while, in fact, that had been contemplated.
I know he was on the witness list and they made some
changes in the presentation of their case twice, two times, in
the case against Ralph Merrill.
But having heard from the psychologist who testified
and the rabbis who have been involved with Mr. Diveroli and
spiritually advised him and the statements that Mr. Diveroli
has now stated, which -- I think he himself said, "I'm in jail
now. I have so limited my existence. I am in denial of
everything." That's what jail is. We deny everything.
Under 3E1.1, the Court is to determine whether a
defendant qualifies under Subsection (a), which is clear
demonstration of acceptance of responsibility.
And there are appropriate considerations that the
Court is to consider, including, but not limited to -- and some
of that is voluntary termination or withdrawal from criminal
conduct.
As far as post-offense rehabilitation and counseling,
I think it's been made very clear from everybody who has spoken
here today that Mr. Diveroli was not able to see himself for
what he was until he was in jail. As sad as that is, he had to
be there. He's not the first Defendant that I've seen stand
before me who had to be there.
In fact, I recently got a holiday card from a
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defendant who I put in jail who said to me, "Thank you. Thank
you so much for putting me in jail" -- it's the most unusual
holiday card I have ever received -- "because you changed my
life. I changed my life because of what you did."
And I think now that Mr. Diveroli, now that he is in
jail, is accepting responsibility.
So in the exercise of my discretion, in considering
all of the factors under 3E1.1, I am going to grant him the two
levels for acceptance of responsibility.
I would say that he chose a very difficult road to
receive these two levels. But I do believe that, given his
mental health status and given the way he was and the way he
now is in jail, that being in prison has forced him to really
look at himself for maybe the first time in his life.
And I do believe that people can change and they can
realize things about themselves for the better and become
better people.
Now, that is not to say that I am not going to
exercise my duty and punish Mr. Diveroli for the acts he
committed.
But I do believe and I do find that he is entitled to
the two levels off for acceptance of responsibility because, as
now sits before me, I find that he has accepted responsibility.
So I will order that the advisory presentence
investigation report be modified to reflect two levels off for
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acceptance of responsibility under 3E1.1.
Is that the only objection that you have,
Mr. Srebnick?
MR. SREBNICK: One moment. I need to consult with
Mr. Shapiro.
THE COURT: The corporation received two levels.
MR. SREBNICK: I was just consulting with the
Government because, frankly, I confess ignorance on the
application of that third level.
THE COURT: That's the Government's choice.
MR. SREBNICK: And I understand from them that we
won't be receiving their motion on that.
THE COURT: One cannot be surprised.
MR. SREBNICK: So with that, Judge, we understand that
the guideline would be reduced by two levels.
THE COURT: Right.
Are there any other objections? I'm going to review
everything with you. Any other objections?
MR. SREBNICK: No other objections for the guidelines.
THE COURT: The Court will adopt the factual findings
and guideline applications as contained in the revised advisory
presentence investigation report as modified at this hearing.
Before going further, I would ask counsel to review
with me, with the assistance of Probation, the major
calculations contained in the advisory presentence
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investigation report as modified.
The offense level is now a 24; the criminal history
category remains at Roman numeral I; the advisory guideline
range is now 51 to 60 months.
THE PROBATION OFFICER: Yes, your Honor.
THE COURT: Because the statutory maximum is
60 months. The advisory guideline range is actually 51 to 63.
But the statutory maximum is 60.
The supervised release period is still two to three
years.
How does the potential fine change?
THE PROBATION OFFICER: The fine range is now 10,000
to 100,000, your Honor.
THE COURT: 10,000 to 100,000-dollar fine.
Restitution in the amount of $149,279.28. And
$100 special assessment.
Is that correct in its totality as it relates to
Efraim Diveroli?
MR. SREBNICK: I believe that's a correct computation,
Judge.
THE COURT: Do you agree, Ms. Fernandez?
MS. FERNANDEZ: Yes, your Honor.
THE COURT: Mr. Diveroli, you are in court today to
receive your sentence. Before that happens, I must ask you if
there's any legal cause as to why the sentence of the law
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should not be pronounced upon you.
THE DEFENDANT: No, your Honor.
THE COURT: No legal cause having been shown, the
Court will consider whatever you may wish to say in mitigation.
Mr. Srebnick?
MR. SREBNICK: Thank you, Judge. One moment.
Judge, I need to address one housekeeping matter
because that might affect the final sentence.
I did discuss this with the Government.
The Court, because Mr. Diveroli violated his bond,
ultimately revoked his bond in December. It's Docket
Entries 1001, 1002. And according to the docket sheet, it was
on December 7 of 2010.
Because Mr. Diveroli was on bond, my concern is that
we clarify whether Mr. Diveroli will get credit for time served
from the point of his arrest, August 19, 2010, when he was
incarcerated in Orlando.
And so that it is clear, if the Court were to make the
order of December 7, 2010, nunc pro tunc to the date of his
arrest, meaning it's effective as of the date of his arrest,
then I'm confident that, in computing his time, the Bureau of
Prisons would give him credit for all the time beginning on the
day of his arrest, August 19, 2010, in the Orlando matter.
Failing that, there may be significant confusion over
whether or not he gets credit for that time served because,
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technically, he was on bond in your case until your Honor
entered the revocation.
So that's a concern I have. I don't know if it's
going to affect your decision in terms of how much more time
you had in your mind to give him.
But the request I would make -- I think there's no
objection -- is that the Court make that order of revocation
effective -- I think the Latin phrase nunc pro tunc --
THE COURT: I'm familiar with the phrase.
MR. SREBNICK: I know that. I thought the audience
might not be and they think I'm speaking in gibberish here. I
have a few people listening in behind me.
THE COURT: What's the Government's position?
MS. FERNANDEZ: Your Honor, we have no objection.
We would typically just have Bureau of Prisons
calculate time for -- credit for time served. He's been
incarcerated since the arrest in Orlando.
THE COURT: Normally, they do -- the Bureau of Prisons
calculates that.
I will amend -- what are the docket entries, please,
again?
MR. SREBNICK: By my record, it's 1001. And I see
another one, 1002.
Thank you, Judge.
THE COURT: Let me make sure.
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MR. SREBNICK: Judge, I just spoke to Ms. Fernandez.
If the Court would prefer, we can conclude the sentencing and
then clarify that, making sure we reference the correct --
THE COURT: I'm almost there. Just wait a minute.
They are Docket Entries 1001 and 1002, granting the
motions -- Docket Entries 953 and 954, motions to revoke bond.
I will make them nunc pro tunc.
What was the date of the arrest in Orlando?
August 19th?
MR. SHAPIRO: Yes.
THE COURT: August 19th.
MR. SREBNICK: Ms. Fernandez notes Docket Entry 1040,
I believe, the arrest warrant, to the extent that that's
relevant. I'm not sure.
THE COURT: I'm not going to make any changes in the
arrest warrant. I will make my orders nunc pro tunc to
August 19th.
MR. SREBNICK: Thank you.
THE COURT: We'll enter a docket entry as to that.
MR. SREBNICK: Thank you, Judge.
So where we stand now, Judge, given the Court's
finding, under the findings of the Court, the guideline range
would be 51 to 60.
Had Mr. Diveroli not found himself in trouble in
Orlando and gotten the full credit for acceptance, he would be
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at 46 months, which is one level lower.
Under the plea agreement, counsel is not allowed to
request any departures or variances. Nevertheless, I would
like the Court to hear from Mr. Diveroli's mom, who would like
to address the Court.
At this time I would introduce Ateret Diveroli.
THE COURT REPORTER: And please spell your first name
for the record.
MS. DIVEROLI: A-t-e-r-e-t.
THE COURT REPORTER: Thank you.
MS. DIVEROLI: Hi, Judge Lenard. My name is Ateret
Diveroli. I'm Efraim's mother.
And Efraim -- you know, ever since Efraim was young, I
always taught him to be an upstanding citizen. To me, that was
the most important thing. And he knows better than anyone that
his mother and his family were all upstanding citizens of the
community for many years.
In fact, I've worked downtown, the Seybold Building,
which is two blocks from here, for over -- almost 30 years
already. We have a very good name, a good reputation. We are
a very close-knit family. And Efraim knows that that was the
most important thing.
And when Efraim got these Government contracts, they
never meant anything to us in the family. We didn't even know
what kind of money he's making. The family never benefited
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from anything.
And not only that, but I also -- Efraim was -- I knew
he was doing alcohol, drugs, gambling. I even called your
office once because I'm not familiar with -- you know, nobody
in our family has ever gone to prison. I wasn't familiar with
the ropes. So I called your office because he was gambling and
drinking and I needed help.
I wanted him to go to jail. And I know every time I
say that he hates me for saying it, but I love my son more than
anything in the world. And he needed to go to jail. Okay? I
felt like a lucky person. I can sleep at night because I know
I have my son with me and he's okay.
And I just want to say that, you know, I took him
to -- many times, I was in and out of the courthouse so many
times for his alcohol and drug use.
And my sister went with me to the Hard Rock to pull
him out. You don't know what it was to pull him out of Hard
Rock one night. I went back the next day and made him sign his
name to not gamble anymore.
Your Honor, you know, like, I understand the
Government's point of view. Efraim did something illegal he
shouldn't have done. You're 100 percent right. But when they
say he got counseling, he really didn't get what he needed.
You know, he was still in the same neighborhood with
the same friends, the same -- nothing really changed. He
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needed to go away for at least a year, 18 months.
He had so many alcohol and drug and gambling issues,
he couldn't be where he was, you know. And then he got
involved with his lawyers and the case and he couldn't leave in
the middle.
And he never got what he needed, believe me. He never
got it. And that's why he got back to Orlando, because Efraim
never -- his issues were never addressed. They weren't
addressed correctly.
And believe me, I tried. I was hoping the Marchman
Act would put him in jail, but it didn't. They kept giving him
another chance, another chance. And, believe me, like I said,
I feel lucky that my son -- that I have my son.
But on the other hand, your Honor, I see how Efraim --
when I go to visit him now, how he's talking differently, how
he sees things differently. He's finally able to be out,
looking in. He wasn't able to do that before.
And he finally realized all those people which he gave
up his family for are not really his friends. Okay? Not one
of them have come to visit him since he's been in jail. His
family are the only ones. And thank God for my family, who
have been there to support me through all this.
And I just think that, as little as -- you can be
lenient with his prison time because Efraim really is a good
boy with a good heart and he really needs another chance. I
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know, with another chance, he can -- he could really be a good
member of society.
He comes -- you know, I believe in the old cliche:
The apple doesn't fall far from the tree. Efraim has a very
nice, upstanding family, and I know he can be the same way. I
know that, if he's given the chance, he has the opportunity to
be that way.
Thank you.
MR. SREBNICK: Having to follow Rabbis Lipsker and
Boteach is not easy as a lawyer, and certainly having to hear
the heartache of his mother.
I remember when Efraim got arrested in August and
there were all these "I told you so's" going on because we all
were worried about him.
And, finally, his mom called me and -- and, of course,
you heard the suffering in this woman's voice. And over the
telephone, we had a conversation. She was just distraught.
And I said to Ateret -- I said, "Let me ask you,
Ateret. Tonight is August 19th. Your son has been arrested.
Tell me, if I had the power to get him out tonight, would you
want him to come home tonight?"
And a mother who can say to me, "No. No. I'd rather
just tonight that my son spend the night in jail," not because
she's angry at him or -- it's because she loves him and she
knew that he needed the brakes put on him.
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And Ateret and I struck a deal. I said, "Let's talk
once a week. Next week I'm going to ask you the same
question."
And each week we've had the conversation: "Is Efraim
ready to come home? Has he gotten to the point where it's time
to come home?"
And so now we're having that conversation in January
of 2011, and we all know today's not the day that Efraim is
going to come home. We know that.
We don't think he's going to come home in 2011. But
as Rabbi Lipsker pointed out, there comes a point of
diminishing returns, when another day in jail becomes a wasted
day in jail, a waste for him as an individual and a waste for
us as taxpayers.
And so we leave it to your wisdom, Judge. You've got
much more experience than any of us, more than Rabbis Lipsker
and Boteach, more than Hy Shapiro, who's got a lot of
experience and a few more gray hairs than I do.
And he knows I say that with a lot of love.
But we ask you to find: Where is that point where
hope turns into despair? Where is the sentence where it goes
from Efraim looking forward to going back to his family with
hope versus looking at life with despair?
And given what you've heard about him, the potential
he has, we ask you to find that point for us so that his life
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will be better and so that we can have Efraim back with clarity
of thought, healthy and productive.
Thank you, Judge.
THE COURT: Mr. Diveroli, is there something you wish
to say, sir?
THE DEFENDANT: I think I've already said my piece,
your Honor.
The last thing I would say is that some people in my
position, you know, who've had the experience that I've had --
and I, also, for my short life have had many. I mean, I've
probably done more things than most people would dream of -- I
would have done it differently. I really would have done it
differently.
I would have just -- the money, the -- almost
notoriety in my industry and the good times -- and there were
some -- were not -- no way could ever be worth the suffering
that I've endured and that my family has endured as a result of
my actions.
And I have nothing else to say.
Thank you.
THE COURT: What does the Government say?
MS. FERNANDEZ: Your Honor, we ask that the Court
consider the seriousness of this offense and sentence the
Defendant within the revised advisory guideline range.
THE COURT: If you would, stand with your client.
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Come March of this year, I will have sat on this bench
for 15 years. From day one until that day, and going forward,
sentencing has always been the hardest part of my job. Today
is no different.
I certainly did hear the anguish of an uncle, who sees
his flesh and blood acting in a way that he knew was wrong and
would not consider his guidance or his love.
And I did hear the anguish of a mother who, in fact,
in a conversation with her attorney -- her son's attorney,
said, "Today was an okay day, a good day, for my son to be in
jail."
Sentencing is always very sad because there are so
many victims. Certainly the family of Efraim Diveroli are
victims here. As his uncle stated, certainly the United States
Army and its assistance to the Afghani National Army and Police
is a victim. And certainly the fact that this Defendant was
willing to put all of those persons in the theater of war in
peril for his own greed: They were victims, also.
And putting aside for the moment, as it is not my duty
today to sentence Mr. Diveroli on the basis of any outrage or
concern that all of us, as citizens, must have in the
Department of Defense granting a 290-million-dollar contract to
a 19-year-old -- or 20-year-old, who in a contract -- and I've
heard this case twice; so, I'm very familiar with the facts of
this case -- in a contract in which the compelling
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determination for the granting of such contract was prior
experience, where Mr. Diveroli and others lied to obtain that
contract -- they lied about their prior experience. They lied
about their references. They lied about AEY. But that is for
another day and for