Free Motion to Withdraw Document - District Court of California - California

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1 KERRY L. STEIGERWALT CA SBN: 116264 2 STEIGERWALT AND ASSOCIATES, A.P.L.C. 3555 Fourth Avenue 3 San Diego, California 92103 Phone (619) 297-2800 Fax (619) 908-3836 4 Attorney for Defendants 5 DENNIS STATHOULIS (1) VASILIOS TSIAMIS (2) 6 7 8 9 10 11 12 UNITED STATES OF AMERICA 13 14 15 DENNIS STATHOULIS (1) 16 VASILIOS TSIAMIS (2) 17 18 19 TO: 20 21 The defendants DENNIS STATHOULIS and VASILIOS TSIAMIS (hereinafter Mr. Stathoulis and 22 Mr. Tsiamis), by and through their counsel, KERRY L. STEIGERWALT, and pursuant to Second Revised 23 General Order No. 350, hereby file the following request for departures. 24 /// 25 /// 26 /// 27 /// 28 /// KAREN P. HEWITT, UNITED STATES ATTORNEY; MELANIE PIERSON, ASSISTANT UNITED STATES ATTORNEY; AND MATTHEW J. HOLDEN OF THE UNITED STATES PROBATION OFFICE: Defendant. v. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 07-CR-2850-JLS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE MARILYN L. HUFF)

DEFENDANTS' REQUEST FOR DEPARTURES

DATE: January 24, 2008 TIME: 9:00 a.m.

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I. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2STATEMENT OF FACTS Defendants Stathoulis and Tsiamis respectfully request this Court adopt the Statement of Facts in defendant's Probation Report without objection. II. DEPARTURES Under 18 U.S.C. Section 3553(b), a sentencing court may depart below the guidelines to impose a sentence outside the range established by the applicable guideline if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." The Commission noted at section 5K2.0 that, "circumstances that may warrant departure from the guidelines pursuant to this provision cannot, by their very nature, be comprehensively listed an analyzed in advance." Consequently, when the sentencing court determines that according to the particular

circumstances of the instant case, it may depart accordingly from the applicable guidelines. III. BASE OFFENSE LEVEL Defendants agree with the probation officer and the prosecution that the base offense level is 14 pursuant to USSG §2J1.12. That is the base offense level for Witness Tampering, in violation of 18 U.S.C. §§1512(d)(4). IV. CRIMINAL HISTORY Mr. Stathoulis and Mr. Tsiamis recognize that the Probation Department has awarded a three level (3) adjustment under criminal history points due to a prior misdemeanor conviction for violation of California Vehicle Code 4461(c), unlawful use of a handicapped placard (+1 point). The fact that the instant offense was committed during Mr. Stathoulis' and Mr. Tsiamis' probation upon the prior offense adds two points (+2) resulting in a total criminal history score of 3, placing the defendants in Criminal History Category II.

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V. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3DEFENDANTS' CRIME CONSTITUTED ABERRANT BEHAVIOR The fraudulent billing perpetrated by defendants Stathoulis and Tsiamis typifies "a single criminal occurrence or single criminal transaction that was committed without significant planning, was of limited duration and represented a marked deviation from an otherwise law abiding life" under the criteria set forth by USSG 5K2.20 (See Attached Personal Information regarding Dennis Stathoulis). The defendants' offense does not involve narcotics, firearms or exorbitant sums of money. As demonstrated by attached documentation, prior to the instant offense, Mr. Stathoulis was a business and philanthropic role model for many first generation immigrant Americans. In 1988 the San Diego Tribune printed an article detailing the background of Mr. Stathoulis' journey to the United States as well as the accomplishment of creating his successful restaurant Georgia's (named for Mr. Stathoulis' wife). Years later, the San Diego Tribune printed another article describing the amazing food at the popular eatery (See Attached Union Tribune Articles). Mr. Stathoulis is also a prominent member of the San Diego Greek community. In 1999, Mr. Stathoulis donated over $20,000 to the St. Spyridon Greek Orthodox Church in order to offset the cost of painting the church, hall and education building (See Attached Letter from St. Spyridon Greek Orthodox Church). The Stathoulis' family's involvement with the San Diego commuity does not stop with Dennis Stathoulis. His daughter Alexandra was a Charger Girl several years ago and is now a special events coordinator at Sea World. She also sang the National Anthem at a Padres game several years ago at Qualcomm Stadium (See Attached Photographs). While Mr. Stathoulis and Tsiamis were previously cited for improper use of a handicapped placard on October 25, 2004, (and committed the instant offense while on probation for improper use of the placard) at the time, Mr. Tsiamis (a passenger in the vehicle driven by Mr. Stathoulis) had submitted application for and been granted approval for his own handicapped placard (See Placard Identification Card D817950). As the vehicle driven that day belonged to Mr. Stathoulis, rather than Mr. Tsiamis, Mr. Tsiamis neither had his placard with him nor on display. In short, defendants were cited because Mr. Stathoulis was driving, intending to find a parking suitable for his handicapped brother-in-law to join them at the Charger game. The placard displayed within Mr. Stathoulis' vehicle legitimately belonged to his brother-in-law, however, when

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pulled over with the placard on display, Mr. Stathoulis' brother-in-law was not in the vehicle, thereby 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4triggering strict liability for the offense. Mr. Tsiamis was a passenger in the vehicle and was also cited, though a legitimately issued handicapped placard belonged to Mr. Tsiamis (See Attached Medical Records and Handicapped Placard D817950 issued to Vasilios Tsiamis). VI. DEFENDANTS' CRIMINAL HISTORY OVERSTATES PROPENSITY TO COMMIT CRIMES (ie: To Award a Three Level Adjustment for this Deminimus Offense is an Over representation of Criminal Conduct) Though their prior offense elevates defendants to a criminal history score of three (3), this prior offense, considered in context, should not prevent the Court from a finding that over the course of their respective sixty-six and fifty-three years, defendants Stathoulis and Tsiamis have not accumulated a significant criminal history. Were it not for a misunderstanding between Mr. Stathoulis, Mr. Tsiamis and their former attorney, which ultimately resulted in a delay in filing, the prior California Vehicle Code 4461(c) offense would have already been reduced to an infraction by way of motion. Specifically, on the Misdemeanor Judgment Minutes relating to the California Vehicle Code 4461(c) offense, the Court states "After 18 months successful probation, defendants may withdraw plea to count 3 and enter a plea to VC 22507.8 infraction." Mr. Stathoulis and Mr. Tsiamis were both of the belief that their former attorney had submitted the necessary filings in April of 2006 ­ after 18 months of probation and at such a time that the conviction was to be reduced to a misdemeanor. As it were however, this was not the case, and their former attorney of record had not proceeded with the necessary filing. Without the execution of this perfunctory motion, Mr. Stathoulis and Mr. Tsiamis are now potentially faced with increased liability due to the offense (under a strict adherence to Federal Sentencing Guidelines). Nonetheless, it is the position of counsel for the defendants that despite this incident, the instant offense overstates defendants' propensity to commit crimes when considered in the entire context of Mr. Stathoulis' and Mr. Tsiamis' lifetimes. It is the prayer of Defendants' Stathoulis and Tsiamis that the Court exercise its discretion to deviate from federal sentencing guidelines. Though the California Vehicle Code 4461(c) offense gives rise to an increase in defendants' criminal history score, it is the position of defendants and counsel that this minor conviction, which could have been reduced to an infraction, should

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not be used as a basis to impose custody. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Correctional Health Care, Addressing the Needs of Elderly, Chronically Ill, and Terminally Ill Inmates, U.S. Dept. of Justice, National Institute of Corrections, 2004 Edition, pp 9 and 10. -51

VI. DEFENDANTS' HEALTH Defendants' Stathoulis and Tsiamis respectfully requests that the court grant them a 2 level departure for poor health. Aged 53 and 66 years, Mr. Stathoulis and Mr. Tsiamis suffer from serious medical hardships that medical facilities at the Bureau of Prisons are ill-equipped to handle. Mr. Tsiamis' heart is currently operating at approximately 30% capacity. He already has a stint in his aortal valve, and currently takes six pills daily for cholesterol, to thin his blood, and to regulate his blood sugar (See Attached Medical Information). Ironically, Mr. Tsiamis was qualified to possess, and had undertaken the necessary application process to obtain, a handicapped placard on December 18, 2004 (the date he was cited for VC 4461(c)) however, he had not yet picked up the placard at that time (See Attached Letter from Dr. Seenu Reddy December 15, 2004). Though Mr. Tsiamis was cited for improperly displaying a placard, and was strictly liable for this offense, by way of affirmative defense/mitigation Mr. Tsiamis was legally disabled and qualified to display a registered handicapped placard, which he was issued days later. With respect to Mr. Stathoulis, at age sixty-six, the prospect of custody does not bode well for a senior citizen afflicted with high blood pressure, an enlarged prostate, bells palsy and diabetes, all of which require medical treatment. Mr. Stathoulis is ill-suited for the rigors of custody (See Attached Medical Letter), and an allowance of Mr. Stathouls' health should be reflected by downward departure. VII. DEFENDANTS STATHOULIS AND TSIAMIS ARE ELDERLY "Management problems with elderly inmates,...are intensified in the prison setting and include: vulnerability to abuse and predation, difficulty in establishing social relationships with younger inmates, need for special physical accommodations in a relatively inflexible environment."1 All too often, first time offenders (especially the aged) become easy prey for more experienced predatory inmates. Mr. Tsiamis and Mr. Stathoulis are fifty-three and sixty-six years of age, respectively. Their physical condition, age, and total unfamiliarity with the penitentiary system would ensure their status as easy prey for violent predatory inmates.

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Defendants' Stathoulis and Tsiamis respectfully requests that the court grant them a 2 level departure as 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6/s/Kerry L. Steigerwalt KERRY L. STEIGERWALT, Attorney for Defendants DENNIS STATHOULIS (1) VASILIOS TSIAMIS (2) Dated: January 11, 2008 Respectfully Submitted, CONCLUSION AND SENTENCING RECOMMENDATION For all the reasons stated above, defendants Stathoulis and Tsiamis ask this Court to compute the adjusted base offense level and depart downward as follows: (1) Defendants' base offense level is to be computed at 14; (2) Defendants' receive a two level reduction for Acceptance of Responsibility (2) Defendants' request a two level reconsideration of criminal history score; (3) Defendants' request a two level reduction for poor health; (4) Defendants' request a two level reduction as elderly; The resulting offense level (6) and criminal history category I affords the Court the discretion to withhold entirely custodial imposition of sentence. Defendants' Stathoulis and Tsiamis will be punished by way of their future inability to receive government contracts. Defendants' request that the court grant all downward departures requested, determine the resulting offense level to be 6, and a criminal history category I, and either withhold custodial imposition of sentence, or allow defendants to fulfill any custody through brief home confinement which provides an equitable and less costly alternative than incarceration. By removing the possibility of Kim's Construction from pursuing future governmental contracts, the government has achieved its objective to protect against a similar incident from defendants. Custodial imposition of sentence will be an undue hardship and provide no measurable benefit compared with the costs of incarceration. elderly defendants.

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PROOF OF SERVICE.
In RE: Criminal Case 07-CR-00690-002 I, Kerry L. Steigerwalt, do hereby state: I am a citizen of the United States, over the age of 18 years, and not a party to the within action. My business address is 3555 Fourth Ave., San Diego, California, 92103. On January 11, 2008, I electronically served Melanie Pierson, Assistant United States Attorney REQUEST FOR DEPARTURES, for my clients DENNIS STATHOULIS and VASILIOS TSIAMIS, Criminal Case No. 07cr 0690LAB. I declare under penalty of perjury, that the foregoing is true and correct. Executed on January 11, 2008, at San Diego, California. /s/ Kerry L. Steigerwalt

Kerry L. Steigerwalt, Attorney for 13 DENNIS STATHOULIS (1) VASILIOS TSIAMIS 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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