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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
14 Cr. 117 (VEC)
_____________________________________
UNITED STATES OF AMERICA
- against
MARVIN JEMAL Defendant.
_____________________________________
SENTENCING MEMORANDUM ON BEHALF OF MARVIN JEMAL
BRAFMAN & ASSOCIATES, P.C. By: Benjamin Brafman, Esq.
Joshua D. Kirshner, Esq. Attorneys for Marvin Jemal 767 3rd
Avenue, 26th FL New York, NY 10017 Tel: (212) 750-7800 Fax: (212)
750-3906
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
14 Cr. 117 (VEC)
UNITED STATES OF AMERICA
-against-
MARVIN JEMAL,
Defendant.
PRE-SENTENCE MEMORANDUM ON BEHALF OF MARVIN JEMAL
Preliminary Statement
On June 7, 2014, Defendant Marvin Jemal pleaded guilty before
this Court to a single
count of bank fraud, in violation of 18 U.S.C. 1344 and 2.
Through counsel, Mr. Jemal now
respectfully submits this memorandum to assist the Court in
determining an appropriate
sentence.
I. INTRODUCTION
Marvin Jemal respectfully requests the Court to sentence him to
a punishment well below
the advisory Guidelines range. A non-custodial sentence is
appropriate in this case because of
Mr. Jemals lifetime of good works and service to his community,
his support for his family, the
lack of risk of recidivism, and his acceptance of responsibility
for the conduct that brought him
before the Court.
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Mr. Jemal is a man of generosity, loyalty, humility and, most
notably, unwavering
devotion to his family. He is a pillar of strength and support
to his mother, wife, four daughters,
their husbands, and seven grandchildren. His generosity and
selflessness are readily apparent to
all who know him. These characteristics, not the conduct now
before the Court, define
Mr. Jemal.
Mr. Jemal knows he did not live up to the standards and values
that he learned from his
parents or that he and his wife taught their children. Mr. Jemal
submitted false invoices to a
bank in order to draw down on a credit agreement. Mr. Jemal used
those funds to keep his
business open and his employees working. At the time, Mr. Jemal
knew his actions were
unlawful. Mr. Jemal is ashamed of his conduct, which is
inconsistent with his personal history
and all other facets of his life. He has accepted complete
responsibility for his actions and
acknowledged his wrongdoing in Court, to his family and to his
community. He is remorseful
and regrets the pain and disappointment his actions have caused
those closest to him.
Mr. Jemal does not seek to minimize his actions or his
responsibility. He does not make
excuses. Through this memorandum, Mr. Jemal will provide the
Court with the necessary
information about his background and characteristics to permit
the Court to sentence him in
accordance with the law.
As the Court is aware, in determining the appropriate sentence
for any defendant, a
sentencing court must make an individualized assessment based on
the facts presented, which
includes a broad command to consider the nature and
circumstances of the offense and the
history and characteristics of the defendant. Gall v. United
States, 552 U.S. 38, 50 & n.6
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(2007). In the final analysis, the sentence imposed must be
predicated upon the factors of 18
U.S.C. 3553(a) and 3661.
An individualized assessment of Mr. Jemal and his offense should
result in a
below-Guidelines, non-custodial sentence. Though he makes no
excuse for his conduct, it is
notable that Mr. Jemals acts resulted from an attempt to save
his business and the jobs of his
employees. Although Mr. Jemal knew what he was doing was wrong,
he hoped to be able to
repay the bank when his financial circumstances improved. His
good faith is demonstrated by
the fact that he has never hidden from his debt and was actively
attempting to negotiate a civil
resolution with the bank up until weeks before his arrest.
Mr. Jemal will spend the rest of his life regretting and paying
for the decision to take an
ill-advised and illegal shortcut. In fact, his punishment has
already begun. His conduct has
resulted in a personal and financial collapse from which he may
never recover.
An individualized assessment of Mr. Jemal should lead this Court
to impose a
non-Guidelines sentence based on disagreement with the
[Sentencing] Commission's views[.]
Peugh v. United States, 133 S.Ct. 2072, 2080 (2013) (citing
Pepper v. United States,131 S.Ct.
1229, 1247 (2011)). A sentence below the applicable Guidelines
range with no incarceration is
appropriate i.e., it is a sentence that is sufficient, but not
greater than necessary to accomplish
the goals of sentencing. Kimbrough v. United States, 552 U.S.
85, 101 (2007).
Mr. Jemals application for a below-Guidelines, non-custodial
sentence is not a request
for sympathy, but rather an appeal to reason and understanding.
Mr. Jemal seeks a sentence
that balances the crime he committed with the extraordinary good
he has accomplished as a
businessman, as a community member, as a family member, and as a
mentor to others he has
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spent a lifetime volunteering his experience and advice to
strangers and family alike. It is Mr.
Jemals hope that, given the entirety of his life, all that he
has accomplished, and the persons
whom he has so positively influenced, incarceration is neither a
necessary nor an appropriate
penalty. Rather, an alternative to incarceration would also
provide a sufficiently punitive
sentence that serves all of the goals of sentencing. See Gall,
552 U.S. at 49-50.
II.
A. Upbringing and Career
PERSONAL HISTORY
Marvin Jemal is a decent and honorable man who through hard work
rose from modest
beginnings to extraordinary success. The letters submitted to
the Court by Mr. Jemals family,
friends, colleagues, fellow congregants and community members
describe these features of
Marvins life and illustrate his true nature.
Mr. Jemal was born on September 23, 1953 in Brooklyn, New York,
one of eight
children born to Norman and Sally Jemal (nee Chera). Mr. Jemal
was raised in a humble and
close-knit home. Norman Jemal, an Egyptian immigrant, came to
the United States when he
was 14 years old and served as a cook during World War I. Norman
subsequently became an
entrepreneur who operated retail and wholesale businesses. Mr.
Jemals father had an
incredibly positive influence on Marvin and his siblings. He
taught all of them the value of
hard work and the importance of friends and family.
Unfortunately, Mr. Jemals father passed
away in 1983.
Mr. Jemals mother is 96 years old. Mr. Jemal regularly cares for
his mother, at her
home in Deal, New Jersey, and talks to her by phone on days he
is unable to see her in person.
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Mr. Jemal is very close to his mother and losing him as a
primary care-giver would be a hardship
on her and the Jemal family.
Mr. Jemals siblings, Joseph (age 73), Douglas (71), Ronald (70),
Lawrence (68),
Francine (63), Jacqueline (62) and Stephen (58), have all
remained supportive of him during this
trying time. Douglas explains their support and devotion for
their brother, Anyone who knows
Marvin only from this case does not really know him. . . We are
truly fortunate to have someone
as devoted and dedicated to our entire extended family as Marvin
has always been and will
always be. (Ex. 19, Letter of Douglas Jemal)
Mr. Jemals hard work and dedication to his entrepreneurial
ventures began at an early
age. When he was six years old, he pumped gas at the local
filling station near his parents
summer home in New Jersey. When he was l1, his brother operated
a store in Seaside Heights,
New Jersey, and Mr. Jemal helped in the store during summer
months.
In high school, Mr. Jemal worked part-time at the Sutton Record
Company, a record
distributor in Brooklyn, where he learned the distribution and
wholesale trade. Later in high
school, Mr. Jemal worked at electronics wholesale business in
Manhattan.
When he was 17, Mr. Jemals brothers, Douglas, Lawrence, and
Stephen opened a new
business Jmart Discount Department Store in Spanish Harlem. Mr.
Jemal left high school to
help his brothers in their new endeavor and began to develop his
own retail acumen. During
these years as Mr. Jemal was building this business, he
personally hired and trained hundreds of
employees, the vast majority of whom came from local,
socioeconomically depressed
neighborhoods. Marvin took the time to visit local chapters of
the YMCA, churches and
shelters to assist young people in these areas with finding
employment and bettering themselves
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through the good values and the hard work ethic Mr. Jemal
imparted upon them. A few years
later, the business began focusing on music and electronics
stores and operated several stores
under various names in the Bronx, Queens and New Jersey. Mr.
Jemal and his familys core
business principles were to treat customers fairly and provide
them tremendous value.
In 1976, Mr. Jemals father identified a retail location
available on Fulton Street in
Brooklyn, where Marvin and his brothers opened an electronics
specialty store. The Jemals
expanded this business by opening additional stores and
ultimately creating a national chain
known as Nobody Beats the Wiz.
Beyond his professional responsibilities as founder and officer
of this remarkable
company, Mr. Jemal founded the Wiz University a curriculum
devoted to the recruitment and
training of underprivileged local folks to work at Nobody Beats
the Wiz and rise up to
management positions or go on to other successful ventures in
their own lives. Mr. Jemal
established a Wiz University in each of the five boroughs of New
York City and was repeatedly
recognized by the Consumer Electronics Association for his
leadership in this area. Marvin
also played a large role in ensuring that all of the local
athletes which sponsored Nobody Beats
the Wiz promoted and donated to the charities and youth
organizations that were part of Mr.
Jemals legacy.
At its peak, in 1996-97, the company operated 63 stores with
$1.4 billion in annual sales.
Unfortunately, however, the Jemals expanded the chain too
rapidly and into too many markets.
By 1998, with debts mounting, the company was sold to
Cablevision a big psychological
blow to Marvin. PSR 58.
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Over the next several years, Mr. Jemal operated Tecno Zone
Enterprises, an electronics
accessories business that sold to major retailers and employed
approximately 12 people. In
2004, Mr. Jemal returned to the retail business and opened
several electronics stores called The
Zone in Brooklyn. However, Mr. Jemal was unable to rekindle his
previous successes and
closed those stores in 2006.
In 2007, Mr. Jemal went back to the wholesale industry and
started a company called the
ENE Group. The company imported mobile phone cases, luggage,
business bags, backpacks
and other accessories. Mr. Jemal obtained a multi-year licensing
agreement with the Sharper
Image for which he personally paid an approximate $400,000
royalty. Due to the Sharper
Images subsequent financial difficulties, the agreement was
rescinded, and Mr. Jemal lost the
license altogether in 2009. The loss of the licensing agreement,
the ancillary legal fallout, and
the downturn in the economy led Mr. Jemal to make the mistakes
that bring him now before the
Court, and ultimately forced him to liquidate the ENE Group.
From 2010 until his arrest in February 2014, Mr. Jemal operated
the Underground Group,
a company that bundled iPads and iPods with accessories and sold
them to retailers. As a result
of his indictment, Mr. Jemal lost his financing and that
business closed.
Throughout his career, Mr. Jemal leveraged his businesses to
help those less fortunate
than himself. He opened many of his stores in struggling
neighborhoods that other companies
ignored. He gave employment opportunities, mentorship and
guidance to minorities and those
less privileged than himself. He always sought to share his
success with the people and
communities that helped make it possible.
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B. Generosity and Good Works
Mr. Jemal is a giver it is his defining trait. As his brother,
Stephen, stated, Marvin
Louis Jemal was born unto this earth and created by God to do
good and to help the needy and sick
children of Gods earth. I was fortunate enough to bear witness
to his myriad of great deeds and
witnessed first-hand his true and fine character and know that
given the chance and opportunity he
will only add to his lifelong resume of magnificent
philanthropic accomplishments. (Ex. 25,
Letter of Stephen Jemal)
A friend, Alan Melah, recounts:
In 2006, the Angel Fund is born. Imagine an organization that
helps people build upon an existing business or create a new
business. Imagine that besides for interest free loans, we get you
volunteers in the SAME industry to advise you and guide you. People
thought we were crazy. The idea couldnt and wouldnt work. Who in
their right mind would help create their own competition? The
volunteers would be impossible to find.
Along came Marvin Jemal, of course the first one on board. Not
only did Marvin support us emotionally, spiritually, and
financially. He was also our first volunteer. He paved the way for
others to learn from him. He believed in the Lord and that the Lord
would give you what was yours. He believed helping others would
have no impact on his own business. Marvin was a natural. Based on
his own life experiences, he was able to help so many clients from
retail to wholesale, to internet. He was able to cover so many
industries. All our clients were promised confidentiality, and
Marvin always kept his lips sealed. He became the go-to guy time
and time again. I felt like Marvin was so proud after his meetings.
He knew he was really succeeding in helping others. He touched so
many people. One of our biggest challenges in the organization was
getting the clients to follow our advice, however, this was no
problem for Marvin. Not only is he a business genius, but he is the
warmest person you will ever meet. You instantly fall in love with
his warmth and genuine approach because he truly cared.
(Ex. 26, Letter of Alan Melah)
His brother Douglas writes about his years at Nobody Beats the
Wiz with Mr. Jemal:
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But Marvin was more than just a successful executive, he was
always well grounded in his community and focused on giving back to
others in need. He was the primary driver behind the numerous
charitable fundraising activities sponsored by Nobody Beats the
WIZ. Police associations, Fire and Rescue Departments, Girls and
Boys Clubs, these were many New York and New Jersey groups (and
individuals) that were beneficiaries of Marvins big heart. He was
not about money, success and fame, he remained a humble person who
was passionate about giving back to the communities that helped the
WIZ achieve its great success.
(Ex. 19, Letter of Douglas Jemal)
A former employee of Mr. Jemals at Nobody Beats the Wiz, Charles
Semah,
remembers:
I was fortunate to work close with Marvin Jemal. I would meet
him about twice a month to review the charity account at which time
he would review all request and would authorize to fund them. He
was very sentimental to all requests. Not only did he donate
generously but he felt the pain of the individuals and
organizations that were in desperate need of funds. There were many
times where Marvin Jemal would take money out of his own pocket in
order not to disappoint the people or organizations. He truly had a
great love and compassion for the needy.
(Ex. 35, Letter of Charles Semah)
His friend, Joseph I. Douek, recalls:
I met Marvin around 2000, although the exact date escapes me, I
remember the place and the circumstances vividly. Marvins office
was a block away from mine and we parked in the same parking lot.
One evening I offered my friend a ride home and he met me at the
parking lot, sure enough Marvin came to get his car at the same
time and my friend happened to be a mutual friend of Marvins and we
all struck up a conversation. I was organizing a lunch for the
benefit of the charity that provides underprivileged children with
free after school services and I asked Marvin if he could come to
the event. What happened next is typical Marvin, he insisted that
he host the event for such a great cause and wouldnt relent until I
accepted. Thats Marvin for you; he didnt know me, he didnt know the
charity, but yet thought the cause just and jumped in head first to
help.
(Ex. 10, Letter of Joseph I. Douek)
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Mr. Jemal not only gives freely from his wallet, but also is
generous with his time. Rabbi
Azriel Mansour, a dear friend of Mr. Jemals recollects, Over the
course of my many meetings
with Marvin, I saw more and more of his special, noble soul
which resides within him. He often
shows me the appeals he receives from people in desperate need
of help, who write him letters
explaining their troubles to him. (Ex. 28, Letter of Rabbi
Azriel Mansour). Rabbi Mansour
continues:
I was present on more than one occasion when people in need of
help came to Marvin to explain to him their problems. I noticed the
look of sorrow on his face and how his eyes welled up with tears,
and the feelings of compassion in his heart went on full display on
his face. He then granted them assistance. I was amazed each and
every time I witnessed this scene, and came away inspired and more
determined to work to help people in need.
(id.)
His brother-in-law, Raymond Betesh writes:
Marvin is a genuine friend, and I will never forget his
sincerity and heartfelt caring while my father was struggling with
Alzheimers disease. Towards the end, every day with my father felt
like another battle, and there were many times where I would be
feeling nothing but frustration and hopelessness. Marvin was always
there. Always. He knew I needed support, and he knew exactly how to
help. Whether he was visiting or calling, his presence was always
felt and the comfort he provided was truly remarkable. It felt like
he was right alongside us in our struggle, and we knew he cared for
us in a completely selfless manner.
(Ex. 5, Letter of Raymond Betesh)
Jack C. Benun recalls, a time when [Marvin] was working for me
that he saw a blind
person walking in the street that was lost. He gave up his lunch
to go and help this person get to
their destination. (Ex. 3, Letter of Jack C. Benun). Mr. Benun
continues, Another kindness that
always sticks in my mind was that when Marvin was single [and]
living with his brother, I visited
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and found out that daily Marvin was feeding a homeless person
who lived 2 blocks from the
apartment. Id.
Samuel Morano details an instance that occurred after Marvins
arrest:
Recently, in May of 2014 my father passed away. The morning
services of the funeral were attended by hundred[s] of community
members, relative[s] and close friends. Following the services my
family and I went to the cemetery to bury the coffin, as is the
Jewish tradition. The tradition also dictates that 10 men accompany
the mourners to the burial site. Out of the hundreds of people at
my fathers funeral, Marvin was one of ten men who stood shoulder to
shoulder-to-shoulder with me as we lifted shovels to bury my
father. Marvins act of selfless kindness at the time of my fathers
passing is an instance I will always be grateful for and never
forget.
(Ex. 33, Letter of Samuel Morano)
These and other anecdotes in the letters submitted to the Court
reveal Mr. Jemals true
character, as a generous and giving man.
C. Family Life
In 1981, Mr. Jemal married Robin Jemal (nee Gindi), and their
marriage is as strong as
ever. Robin is Mr. Jemals best friend and soul mate (PSR 42) and
has remained extremely
supportive of Mr. Jemal throughout the proceedings before this
Court. She describes Mr. Jemal:
Hes been a loving, giving, gentle partner in life. Hes always
been the person I lean on, my rock when times are tough. He is the
most optimistic and positive person, holding me and everyone else
together. No matter the stress he was under, his first priority was
always me and our family.
(Ex. 24, Letter of Robin Jemal)
Together with Robin, Mr. Jemal has four daughters: Sally,
Lorraine, Allyson, and
Jennifer. Mr. Jemal is extremely close with his daughters and
his seven grandchildren.
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Jerry Harary observes:
Being a neighbor for many years, I have observed his family life
and was always impressed by the interaction, love and sacrifices he
made for his children and grandchildren and I hope along with
everything else, you will take that in consideration.
(Ex. 18, Letter of Jerry Harary)
Rabbi Azriel Mansour writes:
As our friendship continued to develop, I came to know the
entire family and a very close bond was formed. They include me in
all family matters, and I serve as a rabbi and counselor. Whenever
I travel to the U.S., I visit Marvins home and meet him and his
beautiful family. His paternal love and warmth is easily
discernible, as is his strong desire to raise his family to become
outstanding people and role models for his entire community, and to
show them the kind of love and affection that ought to be felt
among family members.
(Ex. 28, Letter of Rabbi Azriel Mansour)
Paulette Jemal, Mr. Jemals sister-in-law, recalls:
Marvin is well liked, and has many, many friends, His most
cherished role, I believe, is that of husband and father. He is
adored by his wife, children and grandchildren and takes an active
part in their lives. Marvin is a responsible parent and has
rightfully earned their admiration and respect.
(Ex. 23, Letter of Paulette Jemal)
Jack Cohen, his son-in law, writes:
Marvin is a caring family man. One time we were visiting him in
his summer home. My son, at the time was 3, and may have been the
youngest member of the fire department in the world. When we got
there that cloudy Sunday afternoon, my son asked his Papa to take
him to the fire station. Marvin, grabbed him strapped him in the
car, and drove off to the fire station, getting the fire fighters
to give them a tour of the station house. While my mother in law
waited to go out to lunch with him. When my son came back all I
heard about for weeks was how great it was to go to the fire
house.
(Ex. 8, Letter of Jack Cohen)
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Lawrence Jemal, Mr. Jemals older brother, tells the Court:
Marvin is a dedicated husband, father and grandfather and patron
to his direct family and his extended family. He has been most
generous to all of them with his time and his belongings. He has
also extended his time, energy and money to people in need.
Marvin is truly needed by his wife, his children and
grandchildren as well as by his mother who g_d bless is ninety six
(96) years old now.
(Ex. 21, Letter of Lawrence Jemal)
Of Mr. Jemals love for his family and their love of him, Jack
Marcus states:
Marvin built a successful business, but he built something
bigger and better. A family. He has a lovely wife Robin, four
daughters, three son-in-laws and countless grandchildren. To see
the love they have for each other is truly something very
special.
(Ex. 29, Letter of Jack Marcus)
Douglas Jemal observes:
I have known this man his whole life and I know him to be a
good, compassionate man and a loving brother, husband, father and
grandfather. He was extremely respectful to my father when he was
alive. Even to this day he calls his mother every night, he washes
her car every weekend. We are truly fortunate to have someone as
devoted and dedicated to our entire extended family as Marvin has
always been and will always be.
(Ex. 19, Letter of Douglas Jemal)
Mr. Jemals nephew, Joseph Betesh, comments:
Although I affectionately call him Uncle Marv, I consider him
more like a second father than he is an uncle. My close bond with
Marvin started when I was 4 years old while suffering a
life-threatening reaction to eating peanuts (due to an allergic
reaction). I was in the hospital for 10 days and I have never
forgotten how Uncle Marv was at my bedside day and night. It was
then that our life-long bond was formed. He left his office &
family to spend the time with me, as he knew that my young parents
were shocked and emotional. We talked for hours about life, family,
religion, business, sports, hobbies and his beloved Yankees. I will
never forget the way Marvin dropped everything to support me during
that terrifying time. From
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then, our bond just grew & grew. Marvin became a mentor,
friend and confidante during my formative years. Marvin was a huge
influence in my life and taught me many lessons, that I live by
today.
(Ex. 6, Letter of Joseph Betesh)
Lorraine Cohen, his second oldest daughter, adds:
My father is a very special man and I would like you to know
that no matter what I write in this letter it will never come close
to expressing the kind of man he is!...No matter how busy, he
always had time for his girls and his family. I knew he was never
more than a phone call awayHe was always there to encourage me,
even if the odds were stacked against me.
(Ex. 9, Letter of Lorraine Cohen)
Ms. Cohen also reflects on how loving her father treats her
children. She writes:
I have 3 children, my first son is almost 6, my daughter is 4,
and my youngest, Marvin, is 2 . They are my fathers pride and joy
and he makes sure my kids know that if they come home with anything
exciting the first thing they say to me is can we call Papa and
tell him. My father never stops thinking of his grandchildren, and
my kids and sisters kids know it. I remember last year he was with
my mother somewhere in the Manhattan, he know my son is obsessed
with fire trucks, he saw a vintage fire truck and decided my son
had to have it. There was no occasion it was just because he knew
it would make him happy.
Id.
Jennifer Jemal, Mr. Jemals daughter, writes:
When my family and I get together every Friday night, my fathers
face light up. Nothing makes him happier than seeing all of us
daughters, son in laws, and grand children together. Family is the
most important thing in his life.
He always taught us all to follow our dreams, he insisted that
there is no limit to what we can achieve. He gave all of his
daughters, son in laws, and wife, the confidence in ourselves and
made sure we knew we can accomplish anything we set our minds
to.
(Ex. 20, Letter of Jennifer Jemal)
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Mark Benun writes:
Uncle Marvin is the most wonderful and special family man I have
ever saw. He is a loving and devoted husband to my aunt Robin hes a
wonderful father to his children and the best grandfather to his
grandchildrenUncle Marvin is the first one at family events and
always obligates himself to the toughest task; running the grill
the barbeque. He takes pride in making sure every family member
gets exactly what they wanted to eat the way they like it; rare,
well done, as you can imagine with the family as large as ours
people can be very demanding uncle Marvin takes every request from
the simplest to the toughest with a smile and always says yes. I
never remember him saying no to me or to anyone for anything he is
always the go to person as you know he is willing to help.
(Ex.4 , Letter of Mark Benun)
Furthermore, Mark Benun recalls a time Mr. Jemal was there for
him in the
hospital:
Last November I was in the hospital for 10 days there was not a
day that went by that my uncle Marvin did not visit me. Even when I
was fast asleep because the nights sleeping in the hospital are
very tough I would open my eyes and see him there. I can't tell you
how meaningful and loving and important his visits were for me
getting my health back. In January I was finally strong enough to
do the operation but I didn't do it alone I had all my family
around me and my uncle Marvin a daily source of strength always
asking me what I needed and what he could do for me. That's my
uncle Marvin always asking someone what he can do for them never
asking in return what anyone can do for him.
Id.
Mr. Jemal treats his sons-in-law as if they were his own
children. Robert Grossman writes:
At around the time when my father left and moved away from our
family, without even sending a forwarding address, I met my future
wife and her family. Marvin took a keen interest in me and helped
me build my confidence during what I would perceive as the most
critical time in my life. Marvin did not have any biological sons,
and at first became a father figure in my life. I can distinctly
remember the first Yankees game that I attended with Marvin, and
while most people would be excited to be at a Yankees game I was
just happy to have Marvin around to talk to about all kinds of
subjects. For me, I never had an adult male in my life to talk to
and gain their perspective on things.
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Needless to say, our relationship developed and Marvin
transitioned from being a father figure to being my father. Marvin
was there for me like any father would be for their son.
(Ex. 16, Letter of Robert Grossman)
Solomon Fallas writes:
Im married to Marvin Jemals daughter Allyson. My close
relationship with Marvin began in 2007 about 2 years before I got
married. I first met Marvin while picking up Allyson to go on our
first date. While I felt anxious and nervous as I walked up to the
house, Marvin opened the door and welcomed me into his home with a
warm smile and greeted me as if one of his closest friends just
came through the door. Right away I was comforted and felt that
Marvin was someone who I can relate to, even though I had just met
him.
(Ex. 13, Letter of Solomon Fallas)
Later in his letter to the Court, Solomon recounts:
Later in 2009, only a few months after Allyson and I got
married, the financial situation of the company was getting
substantially worse . . . . I once again experienced his true
generosity and selflessness. He contacted an acquaintance and set
up an interview for me to get back on my feet, all while he still
had to deal with the mounting financial stress of his own.
(id.)
Mr. Jemal is a devoted son to his mother, Sally Jemal. His
sister, Francine Benun, writes:
Marvin is a devoted and doting son to our mom, Sally Jemal. Our
mom is ninety six years old. He visits often. They enjoy long
drives together and sharing stories about the old times and current
happenings.
(Ex. 2, Letter of Francine Benun)
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Mark Benun adds:
One of my uncles greatest deeds is simply as a son to my
wonderful grandmother Sally Jemal who is 96 years old. My
grandmother would truly be lost without uncle Marvins daily phone
calls and weekly visits. My grandmother looks forward to speaking
with Marvin every day and visiting with him every week he is truly
the apple of her eye.
(Ex. 4, Letter of Mark Benun)
Samuel Morano remarks:
I recall growing up that my parents would always remark how
Marvin took such special care of his elderly mother Mrs. Jemal,
throughout her life. This quality of Marvins has always stayed with
me as an example of how important it is to respect and care for the
elderly and for my parents.
(Ex.33 , Letter of Samuel Morano)
Bonnie Morano, another friend of Mr. Jemal, writes:
Growing up I recall many times when Marvin visited my elderly
grandmother. His visits would bring so much happiness to my
grandmother because Marvin would reminisce about family memories
and relatives which my grandmother enjoyed. His display of patience
and kindness was always so warm and sincere. He enjoyed meals with
my grandmother and proved to be a special part of her life.
(Ex. 31, Letter of Bonnie Morano)
D. Remorse, Regret and Acceptance of Responsibility
Mr. Jemal makes no excuses for his conduct. In their letters to
the Court, many of
his friends and family noted Mr. Jemals nearly overwhelming
expressions of regret and
remorse for his actions.
His wife, Robin Jemal, writes:
For the past nine months I have watched him reflect on the
mistakes he has made and he has truly repented and has searched his
soul, reflecting on his past, trying to really understand how he
has come to this point. He has become close to god praying and
going to temple everydayHe has spent many nights crying about
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how he hurt me and the family. He is broken and full of regret
for the mistakes he has made.
(Ex. 24, Letter of Robin Jemal)
Mr. Jemals daughter, Allyson Fallas, writes:
Every downfall is an opportunity to grow. I have watched my dad
pick up the pieces of himself and begin to put them together again.
I have seen his guilt, his humiliation, he feels he has let down
himself and his family and he cannot forgive himself. But he has
not lain in bed in a dark room like I imagine some would. He has
sought to heal. He has grown. He has truly repented.
(Ex. 12, Letter of Allyson Fallas)
Jennifer Jemal observes:
I know my father has made some mistakes, but I honestly feel
that in the past few months, he has acknowledged what he did and
really repented on behalf of it. He is a different person than he
was when this all began. Although he is strong in front of us, I
know how much this has affected him. I know that he cries most
nights because he feels bad that we have to go through this. He has
gotten so much closer to god and has influenced all of us to do so
as well.
(Ex.20 , Letter of Jennifer Jemal)
Solomon Fallas writes:
Over the last 8 months, while expressing true remorse for what
has happened and taking full responsibility he has kept our family
together, reminded us to pray and hope for the best possible
outcome.
(Ex. 13, Letter of Solomon M. Fallas)
Mark Benun writes:
Lately things have been very hard for my uncle his wife and the
children. He is very remorseful for the mistakes he made and wishes
he could turn back the clock and take it all back it was truly a
momentary lapse in judgment.
(Ex. 4, Letter of Mark Benun)
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Michael Jemal writes:
I have seen his genuine remorse and regret for what he has done.
It appears he has reconciled to change his ways as demonstrated by
his more frequent visits to Synagogue and a general attitude of
humility.
(Ex. 22, Letter of Michael Jemal)
Lawrence Jemal writes:
Marvin has been torn apart by his past actions and is truly
remorseful for all that occurred as was evidenced by his confession
to your honor in court.
(Ex.21 , Letter of Lawrence Jemal)
Douglas Jemal writes:
I am extremely remorseful for the choices my brother has made
and where he stands today. But no one is more remorseful than
Marvin himself. I know that if he could undo the bad decisions he
has made, he would. But rest assured that he has learned from them
and he is suffering for them. And I know that he will never repeat
them.
(Ex. 19, Letter of Douglas Jemal)
Raymond Betesh writes:
Marvin will never be able to get over how he let his family
down. He is completely humbled and remorseful by what he did. His
body language and mannerisms have changed. Ive seen the glow drain
from Marvins face. He remains strong for his family, and when his
children and grandchildren run to him like they always do, he is
there to comfort them because he understands they are suffering
along with him.
(Ex. 5, Letter of Raymond Betesh)
Rabbi Joseph Beyda has come to know Mr. Jemal well over the
years, frequently
seeing him seated with his family in synagogue. Rabbi Beyda
acknowledges that being
associated with words like fraud and crime is simply
inconsistent with being a member
of his congregation. (Ex. 7, Rabbi Joseph Beyda). Still, Rabbi
Beyda writes:
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I am pleased to say that the response of both [Marvin and the
congregation] could not have been better. For his part, Marvin has
been incredibly contrite and, in the tradition of Teshuvah (the
Jewish term for repentance), has gone to great lengths to change
his life for the better. He has become one of the steadiest
congregants we have, attending prayers daily and an active
participant of our educational classes. Not content with our
standard offerings, Marvin has sought out private time with myself
and other members of the Rabbinical staff.
Id.
III.
A. Stipulated Guidelines Calculation
SENTENCING ISSUES
As is stated in the plea agreement, Mr. Jemal agrees with the
Probation Offices
calculation of his Sentencing Guideline range in this case.
Pursuant to U.S.S.G. 2B1.1(a)(1),
the base offense level is 7. PSR 20. Sixteen levels are added
pursuant to 2B1.1(b)(1)(I).
PSR 21. An addition two levels are added pursuant to
2B1.1(b)(16)(A). PSR 22.
Three levels are subtracted for acceptance of responsibility
pursuant to 3E1.1. PSR 28-29.
Thus, Mr. Jemals total offense level is 22. PSR 25. Because Mr.
Jemal has no criminal
history, he is assigned Criminal History I, PSR 33, bringing his
Guidelines range to 41-51
months imprisonment.
B. The Federal Sentencing Guidelines Are Advisory and Only One
of Several Factors To Be Considered in Sentencing
Incarcerating Mr. Jemal would not serve the ends of justice in
this case. The
punishment should fit the offender and not merely the crime.
Pepper, 131 S.Ct. at 1240
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(quoting Williams v. New York, 337 U.S. 241, 247 (1949)). Given
the unique circumstances of
this case, the Court should grant a variance from what the
Guidelines otherwise prescribe.
Indeed, since Booker, the Supreme Court has made clear that:
although a sentencing court must give respectful consideration
to the Guidelines, Booker permits the court to tailor the sentence
in light of other statutory concerns as well. Kimbrough v. United
States, 552 U.S. 85, 101 (2007) (internal quotation marks and
citation omitted). Accordingly, although the Guidelines should be
the starting point and the initial benchmark, district courts may
impose sentences within statutory limits based on appropriate
consideration of all of the factors listed in 3553(a), subject to
appellate review for reasonableness. Gall, 552 U.S., at 49-51.
Pepper, 131 S. Ct. at 1241.
A sentencing court must begin the process of determining an
appropriate sentence for a
criminal defendant by calculating the applicable Guidelines
range. However, it should then
consider all of the 3553(a) factors to determine whether they
support the sentence requested by
a party. Gall, 552 U.S. at 49-50; see also Peugh, 133 S. Ct. at
2080 (Under the resulting
scheme, a district court is still required to consult the
Guidelines. But the Guidelines are no
longer binding, and the district court must consider all of the
factors set forth in 3553(a) to
guide its discretion at sentencing. (citations omitted)).
Moreover, the Guidelines are not presumed to be reasonable:
Our cases do not allow a sentencing court to presume that a
sentence within the applicable Guidelines range is reasonable. In
[United States v.] Rita [551 U.S. 338, 351 (2007)] we said as much,
in fairly explicit terms: We repeat that the presumption before us
is an appellate court presumption. . . . [T]he sentencing court
does not enjoy the benefit of a legal presumption that the
Guidelines sentence should apply. And in [Gall] we reiterated that
district judges, in considering how the various statutory
sentencing factors apply to an individual defendant, may not
presume that the Guidelines range is reasonable. . . . . The
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Guidelines are not only not mandatory on sentencing courts; they
are also not to be presumed reasonable.
Nelson v. United States, 555 U.S. 350, 352 (2009) (citations
omitted).
Section 3553(a), as modified by Booker, contains an overarching
provision instructing
district courts to impose a sentence sufficient, but not greater
than necessary to accomplish the
goals of sentencing. Kimbrough, 552 U.S. at 101 (citing the
sentencing goals set forth at 18
U.S.C. 3553(a)(2)(A)-(D)). The statutory factors include the
following:
1. The nature and circumstances of the offense and the history
andcharacteristics of the defendant;
2. The need for the sentence imposed: (A) to reflect the
seriousness of theoffense, to promote respect for the law, and to
provide just punishment forthe offense; (B) to afford adequate
deterrence to criminal conduct; (C) toprotect the public from
further crimes of the defendant; and (D) to providethe defendant
with needed educational or vocational training, medical care,or
other correctional treatment in the most effective manner;
3. The kinds of sentences available;
4. The advisory guideline range;
5. Any pertinent policy statements issued by the Sentencing
Commission;
6. The need to avoid unwarranted sentence disparities; and
7. The need to provide restitution to any victims of the
offense.
18 U.S.C. 3553(a)(1)-(7); see also Booker, 543 U.S. at 224.
Although a court may impose a Guidelines-authorized downward
departure in an
appropriate case, such downward departure is no longer required
in order to justify a
below-Guidelines sentence. After Booker, a sentencing court need
not find that a particular
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Section 3553(a) factor is extraordinary or sufficient to take a
case out of the heartland in order
to justify a below-Guidelines sentence. See Gall, 552 U.S. at
47; Rita, 551 U.S. at 351.
Moreover, even those factors that would not necessarily result
in the granting of a
downward departure or that were expressly prohibited or deemed
irrelevant by the Sentencing
Guidelines must now be considered under the mandate of 3553(a).
See United States v. Jones,
531 F.3d 163, 182 (2d Cir. 2008) ([J]ust as we may not bar a
district court from considering facts
simply because they were also considered by the Commission, the
district court may not presume
the reasonableness of the Commissions Guidelines sentencing
ranges. Rather, in every case, the
district court must make an individualized assessment of the
appropriate sentence based on the
facts presented and the factors detailed in 3553(a). (citations
omitted)); United States v. Smith,
445 F.3d 1, 5 (1st Cir. 2006) (That a factor is discouraged or
forbidden under the Guidelines does
not automatically make it irrelevant when a court is weighing
the statutory factors apart from the
Guidelines. The Guidelinesbeing advisoryare no longer decisive
as to factors any more than as
to results.).
A non-Guidelines sentence is also warranted where a sentencing
judge finds that a
particular Guideline or Guideline range fails to properly
reflect 3553(a) considerations, reflects
unsound judgment or when the case warrants a different sentence
regardless. Rita, 551 U.S.
at 351, 357. The Supreme Court clarified this point:
Even when a particular defendant . . . presents no special
mitigating circumstances, such as no outstanding service to country
or community, no unusually disadvantaged childhood, no overstated
criminal history score, no post-offense rehabilitation, a
sentencing court may vary downward from the advisory guideline
range. . . . The only fact necessary to justify such a variance is
the sentencing courts disagreement with the Guidelines . . . .
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Spears v. United States, 555 U.S. 261, 263-64 (2009) (per
curiam) (quoting United States v.
Spears, 533 F.3d 715, 719 (8th Cir. 2008) (Colloton, J.,
dissenting)); see also Peugh, 133 S. Ct. at
2080 (The district court may not presume that the Guidelines
range is reasonable, and it may in
appropriate cases impose a non-Guidelines sentence based on
disagreement with the [Sentencing]
Commissions views. (citation omitted)).
C. Section 3553(a) Factors
1. Mr. Jemals History and Characteristics
Under Section 3553(a), the court must consider the history and
characteristics of the
defendant when imposing a sentence. 18 U.S.C. 3553(a)(1) (2006).
As Judge Rakoff
explained:
[S]urely, if ever a man is to receive credit for the good he has
done, and his immediate misconduct assessed in the context of his
overall life hitherto, it should be at the moment of his
sentencing, when his very future hangs in the balance. This
elementary principle of weighing the good with the bad, which is
basic to all the great religions, moral philosophies, and systems
of justice, was plainly part of what Congress had in mind when it
directed courts to consider, as a necessary sentencing factor, the
history and characteristics of the defendant.
United States v. Adelson, 441 F. Supp. 2d 506, 513-514 (S.D.N.Y.
2006); accord Gall, 552 U.S.
at 52 (It has been uniform and constant in the federal judicial
tradition for the sentencing judge
to consider every convicted person as an individual and every
case as a unique study in the
human failings that sometimes mitigate, sometimes magnify, the
crime and punishment to
ensue. (quoting Koon v. United States, 518 U.S. 81, 113 (1996));
see also 18 U.S.C. 3661;
U.S.S.G. 1B1.4 (sentencing court not limited with respect to the
information concerning a
defendants background, character and conduct that it may
consider for the purpose of imposing
an appropriate sentence).
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Section 3553(a)(1) permits sentencing courts to consider a
defendants life story when
fashioning a fair and just sentence, and Mr. Jemals background
and history strongly support a
lenient sentence in this case. Mr. Jemal is a hardworking man
who rose from humble roots to
achieve a significant degree of professional accomplishment.
Notwithstanding his professional
success, Mr. Jemal has always cared for and shown great
generosity to his friends, family and
members of the community. These qualities speak to his
fundamental decency and his personal
integrity.
For comparison purposes only, given the restrictions included in
the plea agreement, it is
useful to review other courts reasoning for downward departures
from the Guidelines in cases
involving defendants who have performed exceptional good works.
Indeed, such good works can
also be considered when analyzing a sentence under the 3553
factors. For instance, the
defendant in Canova served six years in the Marine Corps and
seven years as a volunteer
firefighter. United States v. Canova, 412 F.3d 331, 358-59 (2d
Cir. 2005). After noting that the
defendant had saved several people by administering CPR, the
Second Circuit ruled that the
District Court properly relied on the exceptional degree of the
defendants public service and
good works in granting a downward departure. Canova, 412 F.3d at
358-59. In Serafini, the
court affirmed a downward departure where many of the letters
supporting Serafini, an elected
official, contain[ed] substantive descriptions of Serafinis
generosity with his time as well as his
money. United States v. Serafini, 233 F.3d 758, 773 (3d Cir.
2000). Indeed, several
constituents and friends described situations in which Serafini
extended himself to them in unique
and meaningful ways during times of serious need. Id. at 773.
The Third Circuit specifically
noted three letters describing Serafinis good works: (1) a
letter from a friend who sought and
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received from Serafini a $300,000 guarantee to secure treatment
for a family members brain
tumor; (2) a letter from Serafinis constituent who, having
sustained serious injury in an accident
that rendered him incapacitated, was hired by Serafini and who
credits Serafini with turning his
life around; and (3) a letter from a widow who approached
Serafini because she was about to lose
her home and to whom Serafini gave a check for $750 with no
expectation of repayment. Id. at
773-74. Finding that Serafini was an exceptionally giving
person, the Third Circuit upheld the
District Courts downward departure for community and charitable
activities. Id. at 774, 775.
Whether categorized as a downward departure or the basis for a
non-Guidelines variance,
a life of extraordinary good works remains a vital factor for a
sentencing court to consider. See
also United States v. Tomko, 562 F.3d 558, 572 (3d Cir. 2009)
(affirming variance resulting in a
sentence of probation from a recommended range of imprisonment
of between twelve and
eighteen months due largely to the defendants exceptional
charitable acts and good works);
United States v. Thurston, 544 F.3d 22, 26 (1st Cir. 2008)
(affirming a sentence of three months
incarceration and 24 months supervised release from a
recommended guideline sentence of 60
months imprisonment based in part on the defendants charitable
work, community service,
generosity with time, and spiritual support and assistance to
others); United States v. Ali, 508 F.3d
136, 150 & n.19 (3d Cir 2007) (upholding downward departure
where the defendant, inter alia,
helped organize fundraising banquets for the [school where she
worked], contributed her
personal assistance from leading to scrubbing floors, spent
several hours counseling and
comforting a students parent who was struggling to overcome
drug-addiction, and became the
legal guardian to two nieces to ensure that they attended better
schools. (record citation
omitted)); United States v. Cooper, 394 F.3d 172, 177, 178 (3d
Cir. 2005) (noting that
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[d]ownward departures for good works . . . are permissible when
the works are exceptional, and
upholding the departure where the defendants good works included
hands-on personal sacrifices,
which have had a dramatic and positive impact on the lives of
others); United States v. Woods,
159 F.3d 1132, 1136 (8th Cir. 1998) (upholding defendants
downward departure for charitable
activities, which included bringing two troubled young women
into her home and paying for them
to attend a private high school, as well as helping to care for
an elderly friend).
Tellingly, many of the courts that have addressed a defendants
good works have
recognized that a defendants contribution of his time is even
more valuable that his monetary
contributions. See, e.g., Tomko, 562 F.3d at 572 (describing how
the defendants charitable acts
that involved not only money, but also his personal time.);
Cooper, 394 F.3d at 177 (noting that
personal sacrifices are qualitatively different from the
detached donation of money); Serafini,
233 F.3d at 775 (noting that Serafinis contributions werent acts
of just giving money, they were
acts of giving time, of giving ones self). As reflected in the
numerous letters quoted above,
Mr. Jemal possesses these same traits and has positively
affected many lives both through
monetary gifts and the donation of his time and efforts.
Finally, Mr. Jemal pleaded guilty, accepted responsibility for
his actions, and is sincerely
remorseful for his conduct. Throughout this case, neither Mr.
Jemal nor his attorneys have ever
disputed Mr. Jemals guilt to the charge of bank fraud.
Accordingly, we urge the Court to
consider the fact of Mr. Jemal acceptance of responsibility as
well as the heartfelt contrition that
he has repeatedly stated to the Court, to counsel and to others,
when deciding Mr. Jemals
sentence.
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2. The Nature and Circumstances of Mr. Jemals Offense
As noted, 18 U.S.C. 3553(a)(1) requires the Court to consider
the nature and
circumstances of the offense in determining an appropriate
sentence. Without minimizing his
conduct in any way, we respectfully submit that an examination
of Mr. Jemals conduct supports
a lenient sentence.
In 2007, Mr. Jemal founded the ENE Group. He obtained a
valuable, and expensive,
licensing agreement from the Sharper Image. Mr. Jemal personally
paid for the license and for
significant capital costs associated with establishing the
business. He put everything he had
into the company with the hopes of rekindling his previous
retail successes. Initially, the risk
paid off and ENE Group was a success, grossing over $10 million
per year in revenue. The
growth of the ENE Group led the company to hire more than 25
employees and to seek out a
factoring arrangement with a bank well known in Marvins
community, Israel Discount Bank
(IDB). IDB did not hesitate to finance Marvin due to his
standing in the close-knit
community, the licensing agreement with the Sharper Image, and
the early success of the ENE
Group. On August 18, 2008, ENE requested an increase in the
factoring arrangement that IDB
readily granted.
In 2009, as the U.S. economy was reeling, the Sharper Image went
bankrupt and
cancelled the ENE Groups licensing agreement. Business at the
company took a significant
hit. Instead of laying off employees en masse and resorting to
personal and corporate
bankruptcy protections, Mr. Jemal made the biggest mistake of
his life. He drew down on his
credit arrangement based on invoices for products that had not
shipped while aware that
shipment was a requirement of his agreement with the bank. This
conduct was an
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unquestionable and intentional violation the law. However, it is
imperative to understand that
he did so with the unequivocal intention of paying the debt back
once his business improved.
But in the ensuing months business did not improve, the funds
were not repaid, and,
eventually, IDB discovered the shortfalls and confronted Marvin.
What happened next
differentiates Mr. Jemal from many other of the defendants this
Court likely encounters. Up
until his arrest in 2014, Mr. Jemal was in regular contact with
IDB, through his attorneys,
attempting to right his wrongs. These efforts included: 1) Mr.
Jemals cancellation of the credit
agreements $100,000 cap on his own liability resulting in his
personal assumption of the full
amount of the debt (Ex. A); 2) Mr. Jemals arrangement for his
wife and other family members
to make personal guaranties of the debt (Ex. B, C); 3) Mr.
Jemals entry into a Forbearance
Agreement with IDB in which he, among other things, agreed to
collect outstanding receivables,
sell all available inventory, and sell three family homes to
settle the debt (Ex. D); and 4) Mr.
Jemals liquidation of the ENE Groups assets to pay down as much
of the debt as he could. As
part of his plea agreement, Mr. Jemal has agreed to a consent
forfeiture order in the amount of
the remainder of the outstanding debt, which the government has
agreed to recommend be
remitted to IDB as restitution. A sentence of incarceration will
limit significantly his ability to
make that restitution.
Mr. Jemals actions were an aberration in a long business life in
which he has otherwise
always paid his lenders without incident. Before the events that
led to his plea, Mr. Jemal was
always honest with and maintained positive relationships with
his business partners, lenders and
customers. Since 1971, and over the course of his long business
career, he was responsible for
the repayment of hundreds of millions of dollars in lines of
credit, mortgages and other debt
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facilities, all without issue. This history reflects Mr. Jemals
true character, not the acts that
bring him before the Court. Prominent sports attorney and agent,
David Falk, summarizes his
relationship with Marvin:
Over the past twenty-five years, I have maintained an ongoing
business and personal relationship with Marvin. I came to respect
him as an entrepreneur and businessman and had a high regard for
his commitment to his family and his faith.
(Ex. 11, Letter of David Falk) Mr. Jemals criminal conduct in
2009 was brought about by desperation, the threat of ruin
and a desire to keep his business afloat and his workers
employed. Since that conduct, Mr.
Jemal has taken responsibility for his actions and made every
effort to make things right with
IDB. The conduct at issue in this case is a true aberration from
his long-standing positive
relationships and history with multiple financial institutions
across many business endeavors.
In sum, the nature and circumstances of the offense support a
sentence well below the
stipulated Guidelines range, one that does not include a period
of incarceration.
3. The Need to Protect the Public
One of the Section 3553 factors states that a sentencing court
must consider is whether the
sentence imposed protects the public from further crimes of the
defendant. 18 U.S.C.
3553(a)(2)(C). Given his otherwise good character, prior
unblemished history and compliance
with the terms of his pretrial release, Mr. Jemal poses no risk
of recidivism. The public would
be completely protected by a sentence of probation. Mr. Jemal is
not in a position to commit
misconduct again, because: a) it is a virtual certainty that no
bank would loan Mr. Jemal or any
entity with which he is associated any funds due to the his
guilty plea; and b) as his statement of
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contrition demonstrates, he well recognizes the criminal and
wrongful conduct in which he
engaged.
Mr. Jemal is 61 years old, and the Sentencing Guidelines
acknowledge that younger
defendants (defined as those in their early 20s or younger) pose
a far greater risk of recidivism than
older defendants. See U.S.S.G. 4A1.3 cmt. background (2010);
United States v. Lucania, 379
F. Supp. 2d 288, 298 (E.D.N.Y. 2005) (Sifton, J.) (stating that
Section 3553(a)(2)(C) also requires
the Court to specifically consider the need for specific
deterrence, that is to deter these particular
defendants from committing similar offenses in the future.
Post-Booker courts have noted that
recidivism is markedly lower for older defendants. E.g., United
States v. Eberhard, 03 CR. 562,
2005 WL 1384038 [S.D.N.Y. June 9, 2005]; United States v.
Coleman, 370 F. Supp. 2d 661, 681
(S.D. Ohio 2005); Simon v. United States, 361 F. Supp. 2d 35, 48
(E.D.N.Y. 2005); United States
v. Hernandez, 03 CR. 1257, 2005 WL 1242344, at *5 (S.D.N.Y. May
24, 2005); United States v.
Carmona-Rodriguez, 04 CR 667, 2005 WL 840464, at *5 (S.D.N.Y.
Apr. 11, 2005); United States
v. Nellum, 2:04-CR-30, 2005 WL 300073, at *3 (N.D. Ind. Feb. 3,
2005), affirmed in part,
vacated in part and remanded, sub nom., United States v. Cavera,
505 F.3d 216 (2d Cir. 2007),
opinion vacated on rehearing en canc and affirmed, 550 F.3d 180
(2d Cir 2008); see also United
States v. Ward, 814 F. Supp 23 , 24 (E.D. Va. 1993) (the length
of time a person refrains from the
commission of crimes, which is invariably tied to a person's
age, is a factor that is critical to a
court's determination of the sentence it should impose.).
Similarly, any chance of recidivism for the 61-year old Mr.
Jemal, particularly due to the
aberrant nature of his conduct, is non-existent. See United
States v. Carmona-Rodriguez, 2005
WL 840464, at *4 (S.D.N.Y. April 11, 2005) (Sweet, J.) (applying
non-Guidelines sentence to
Case 1:14-cr-00117-VEC Document 19 Filed 10/21/14 Page 32 of
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32
post-Booker sentencing, district court noted that [t]wo recent
courts have declined to impose
Guidelines sentences on defendants who, like Carmona-Rodriguez,
were over the age of forty on
the grounds that such defendants exhibit markedly lower rates of
recidivism in comparison to
younger defendants. See Simon v. United States, 361 F.Supp.2d 35
[E.D.N.Y. 2005] [Sifton, J.]
[imposing a term of incarceration of 240 months on a 43-year-old
defendant where the Guidelines
recommended a minimum of 324 months]; United States v. Nellum,
2005 WL 300073, at *3 [N.D.
Ind. Feb.3, 2005] [imposing a term of incarceration of 108
months on a 57 year-old defendant
where the Guidelines recommended a minimum of 168 months]).
This is a significant consideration. For, as the Court in Pepper
noted, the likelihood that
[a convicted defendant] will engage in future criminal
conduct...[is] a central factor that district
courts must assess when imposing sentence. See also
3553(a)(2)(B)-(C); Gall, 552 U.S. at
59...[.] 131 S.Ct. at 1242. Thus, because Congress has mandated
that a sentencing court shall
impose a sentence sufficient, but not greater than necessary, to
comply with the goals of
sentencing articulated in 18 U.S.C. 3553(a), a balancing of the
equities in this case favors the
imposition of a probationary sentence. See also Pepper, 131
S.Ct. at 1240 (noting that [t]he
Sentencing Commission, moreover, expressly incorporated 3661 in
the Guidelines: In
determining the sentence to impose within the guideline range,
or whether a departure from the
Guidelines is warranted, the court may consider, without
limitation, any information concerning
the background, character and conduct of the defendant, unless
otherwise prohibited by law. See
18 U.S.C. 3661; USSG 1B1.4 (2010)) (emphasis added by the
Supreme Court).
In sum, given the complete lack of any chance of recidivism in
this case or need to protect
the public from Mr. Jemal, leniency at sentencing is
warranted.
Case 1:14-cr-00117-VEC Document 19 Filed 10/21/14 Page 33 of
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4. The Need for General Deterrence
Another 3553(a) factor is the need to afford adequate deterrence
to criminal conduct.
The substantial penalties, punishments and collateral
consequences Mr. Jemal faces under the
plea agreement and as a result of his felony conviction abrogate
the need for deterrence through
incarceration. Mr. Jemal must pay significant restitution to the
victim of this offense. He
faces an array of parallel proceedings that carry substantial
consequence, including his ongoing
bankruptcy proceeding. Due to his criminal conviction, it will
be difficult for Mr. Jemal to earn
a living or travel internationally for work.
A sentence that includes a term of incarceration would not serve
as a deterrent to those
who might contemplate committing a similar crime. A potential
offender need only look at the
financial and reputational punishments already suffered by Mr.
Jemal to be deterred.
Accordingly, a prison term would not serve the goal of general
deterrence.
5. The Need to Avoid Sentencing Disparities
Under 18 U.S.C. 3553(a)(6), courts must consider the need to
avoid unwarranted
sentence disparities among defendants with similar records who
have been found guilty of
similar conduct. A non-custodial sentence for Mr. Jemal would
ensure that he is treated fairly.
As we have discussed throughout this memorandum, Mr. Jemal was
involved in ongoing
negotiations with IDB in the five years subsequent to his
conduct. Had he reached an
agreement with them prior to his arrest, it is highly unlikely
that this case proceeds to the point
we find ourselves at now. Thus, under all of the circumstances,
we respectfully submit a
non-custodial sentence would serve the traditional goals of
sentencing.
Case 1:14-cr-00117-VEC Document 19 Filed 10/21/14 Page 34 of
36
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34
6. Restitution
The need to provide restitution to any victims of the offense,
18 U.S.C. 3553(a)(7),
factor strongly suggests a non-custodial sentence is
appropriate. Mr. Jemal, pursuant to his
agreed-upon forfeiture order, owes IDB more than $2,700,000 in
restitution. A sentence of
incarceration will delay Mr. Jemals efforts to repay the debt he
has been trying to make good on
for many years. A non-custodial sentence will allow him to
immediately begin significant efforts
at repayment of this enormous judgment.
Case 1:14-cr-00117-VEC Document 19 Filed 10/21/14 Page 35 of
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Case 1:14-cr-00117-VEC Document 19 Filed 10/21/14 Page 36 of
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IV. CONCLUSION
Mr. Jemal's record of good works as well as his close family and
community ties all argue
for leniency. The circumstances of his conduct, his age, and his
lack of criminal history preclude
him from relapsing into the same conduct again. The collateral
consequences of his actions and
his plea have already punished Mr. Jemal and his family
immeasurably. Mr. Jemal has already
lost so much due to his mistakes that a non-custodial sentence
is warranted, just and necessary to
punish him appropriately.
Dated: New York, New York October 21, 2014
Respectfully submitted,
By:
BRAFMAN & ASSOCIATES, P.C. Attorneys for Defendant Marvin
Jemal 767 Third Avenue, 26th Floor New York, New York 10017 (212)
750-7800
Benjamin Brafman Joshua D. Kirshner
36
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
14 Cr. 117 (VEC)
_____________________________________
UNITED STATES OF AMERICA
- against
MARVIN JEMAL
Defendant. _____________________________________
SENTENCING MEMORANDUM ON BEHALF OF MARVIN JEMAL
SENTENCING EXHIBITS
A-D BRAFMAN & ASSOCIATES, P.C. By: Benjamin Brafman,
Esq.
Joshua D. Kirshner, Esq. Attorneys for Marvin Jemal
767 3rd Avenue, 26th FL New York, NY 10017 Tel: (212) 750-7800
Fax: (212) 750-3906
Case 1:14-cr-00117-VEC Document 19-1 Filed 10/21/14 Page 1 of
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United States v. Marvin Jemal 14 CR. 117 (VEC) Sentencing
Exhibits: A-D, 1-35
Exhibit A Jemal Amended And Restated Guaranty Exhibit B Sally
Guaranty Exhibit C Jemal Guaranty Exhibit D Jemal Forbearance
Agreement
Exhibit 1 Marvin Jemal Exhibit 2 Francine Benun Exhibit 3 Jack
Benun Exhibit 4 Mark Benun Exhibit 5 Raymond Betesh Exhibit 6
Joseph Betesh Exhibit 7 Rabbi Joseph J. Beyda Exhibit 8 Jack Cohen
Exhibit 9 Lorraine Cohen Exhibit 10 Joseph I. Douek Exhibit 11
David Falk Exhibit 12 Allyson Fallas Exhibit 13 Solomon M. Fallas
Exhibit 14 Laurie Franco Exhibit 15 Ken Graham Exhibit 16 Robert
Grossman Exhibit 17 Ralph Haber Exhibit 18 Jerry Harary Exhibit 19
Douglas Jemal Exhibit 20 Jennifer Jemal Exhibit 21 Lawrence Jemal
Exhibit 22 Michael Jemal Exhibit 23 Paulette Jemal Exhibit 24 Robin
Jemal Exhibit 25 Stephen S. Jemal Exhibit 26 Alan A. Maleh Exhibit
27 Isaac Mann Exhibit 28 Rabbi Azriel Mansour Exhibit 29 Jack
Marcus Exhibit 30 Stewart Mitchell Exhibit 31 Bonnie Morano Exhibit
32 Irving Morano Exhibit 33 Samuel Morano Exhibit 34 Douglas Moss
Exhibit 35 Charles Semah
Case 1:14-cr-00117-VEC Document 19-1 Filed 10/21/14 Page 2 of
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EXHIBIT A
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Case 1:14-cr-00117-VEC Document 19-1 Filed 10/21/14 Page 4 of
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AMENDED AND RESTATED GUARANTY (Individual)
TO: Israel Discount Bank of New York IDB Factors Division 511
Fifth Avenue New York, New York 10017
Re: The ENE Group LLC (the "Client")
Ladies and Gentlemen:
November 25, 2009
Reference is made to a certain Factoring Agreement dated May 15,
2009 and each of the other related agreements, as amended from time
to time (herein the "Agreements") between you and the above-named
Client. The undersigned hereby unconditionally guarantees and
agrees to be liable for the full and indefeasible payment and
performance when due of all now existing and future indebtedness,
obligations and liabilities of the Client to you, howsoever
arising, whether direct or indirect, absolute or contingent,
secured or unsecured, whether arising under any of the Agreements
as now written or as amended or supplemented hereafter, or by
operation of law or otherwise. The undersigned agrees to pay to you
on demand the amount of all expenses (including reasonable
attorneys' fees) incurred by you in collecting or attempting to
. collect any of the Client's obligations to you, whether from
the Client, or from any other obligor, or from the undersigned, or
in realizing upon any collateral; and agrees to pay any interest at
the highest lawful rate on all amounts payable to you under the
Agreements, even if such amount cannot be collected from the
Client. (All of the aforementioned obligations, liabilities,
expenses and interest are hereinafter collectively called the
"Obligations"). To the extent you receive payment on account of the
Obligations guaranteed hereby, which payment is thereafter set
aside or required to be repaid by you in whole or .in part, then,
to the extent of any sum not finally retained by you (regardless of
whether such sum is recovered from you by the Client, its trustee,
or any other party acting for, on behalf of or through the Client
or its representative), the undersigned's obligation to you under
this Guaranty, as amended, modified or supplemented, shall remain
in full force and effect ( oi; be reinstated) until the undersigned
have made payment to you therefor, which payment shall be.due upon
dei:nand.
This Guaranty is executed as an inducement to you to make loans
or advances to the Client or otherwise to extend credit or
financial accommodations to the Client, or to enter into or
continue the Agreements or other financing arrangement with the
Client, and is executed in consideration of your doirig or having
done any of the foregoing. The undersigned agrees that any of the
foregoing shall be done or extended by you in your sole discretion,
and shall be .deemed to _"have been done or extended by you in
consideration of and in reliance upon the execution of this
Guaranty, but that nothing herein shall obligate you to do any of
the foregoing.
1446842.3 1
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Notice of acceptance of this Guaranty, the making of loans or
advances, or the extension of credit to the Client, the purchase or
acquisition of receivables from the Client, the amendment,
execution or termination of any of the Agreements or any other
agreements between you and the Client, and presentment, demand,
protest, notice of protest, notice of non-payment and all other
notices to which the Client or the undersigned may be entitled, and
your reliance on this Guaranty are hereby waived. The undersigned
also waive notice of: changes in terms or extensions of time of
payment, the taking and releasing of collateral or guarantees
(including the release of any of the undersigned) and the
settlement, compromise or release of any Obligations, and agree
that, as to each of the undersigned, the amount of the Obligations
shall not be diminished by any of the foregoing. The undersigned
also agree that you need not attempt to collect any Obligations
from the Client or other obligors or to realize upon any
collateral, but may require the undersigned to make immediate
payment of Obligations to you when due or at any time thereafter.
You shall not be liable for failure to collect Obligations or to
realize upon any collateral or security therefor, or any part
thereof, or for any delay in so doing, nor shall you be under any
obligation to take any action whatsoev~r with regard thereto.
This. Guaranty is absolute, unconditional and continuing,
regardless of the validity, regularity or enforceabi'li'ty of any
of the Obligatiop~ or the fact that a security interest or lien in
aD:y c9Uateral or security therefor may not be enfo~?e.abl, by yo1i
or may othefWise be subject' to equities or defenses or pri0r
claims in favor of 9tbers or may be invalid or defective in any way
and f
-
Case 1:14-cr-00117-VEC Document 19-1 Filed 10/21/14 Page 6 of
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...
. ,-:.. .
the undersigned, or should any of the undersigned dissolve or
cease its business, call a meeting of its creditors, fail to meet
its debts as they mature, commit an act of bankruptcy, have
commenced by or against the undersigned any bankruptcy, insolvency,
arrangement, reorganization, receivership or similar proceeding
under any federal or state law, then the liability of all of the
undersigned for the entire Obligations shall mature even if the
liability of the Client therefor does not.
This Guaranty may be terminated, which termination will be
effective ninety (90) days after actual receipt by one of your
officers of written notice of termination sent by registered or
certified mail; provided, however, that the undersigned so
terminating this Guaranty shall remain bound hereunder, . and this
Guaranty shall continue in full force and effect, with respect to
any and all Obligations created or arising prior to the effective
date of such termination and with respect to any and all
extensions, renewals or modifications of said pre-existing
Obligations. Termination shall not relieve the undersigned from
liability for any post termination collection expenses or interest.
This . is a continuing Guaranty and written notice as above
provided shall be the only means of termination, notwithstanding
the fact that for certain periods of time there may be no
Obligations_ owing to you by the Client.
Your books and recprds;shpwing the account between you and the
Client shall be admissible in evide~ce iri .- .. :
-
Case 1:14-cr-00117-VEC Document 19-1 Filed 10/21/14 Page 7 of
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UNDERSIGNED ON ANY MATTERS WHATSOEVER ARISfNG OUT OF OR fN ANY
WAY CONNECTED WITH THIS GUARANTY OR THE RELATIONSHIP CREA TED
HEREBY.
When used in this Guaranty all pronouns shall, wherever
applicable, be deemed to include the plural as well as the
masculine and feminine gender. This Guaranty shall inure to the
benefit of you, your successors and assigns and any parent,
subsidiary or affiliate of yours, as well as to any concern which
you may now or hereafter factor or finance; shall be. binding
jointly and severally upon the undersigned and upon the respective
heirs, executors, administrators, successors and assigns of each of
the undersigned; and shall pertain to the Client and its successors
and assigns. This Guaranty may be executed in any number of
counterparts, each of which when so executed shall be deemed an
original and such counterparts shall, together, constitute but one
and the same document.
If claim is ever made upon you for repayment or recovery of any
amount or amounts received by you in payment of or on account of
any of the Obligations and you repay all or part of said amount by
reason of (a) any judgment, decree,. or order of any Court or
administrative body having jurisdiction over you or any of your
property, or (b) any settlement or compromise of any such claim
effected by you with any such claimant (including the Client), then
and in such event the undersigned agrees that any such judgment,
decree, order, settlement or compromise shall be binding upon the
undersigned, notwithstanding any revocation or release hereof or
the cancellation of any note or other instrument evidencing any of
the Obligations, or any release of any such Obligations, and the
undersigned shall each be and remain liable to you as if such
amount had never originally been received by you. The provisions of
this paragraph shall survive, and continue in effect,
notwithstanding any termination or release hereof.
Anyone signing this Guaranty shall be bound hereby, whether or
not anyone else signs this Guaranty at any time. The term "you"
includes any agent acting for you. .
This Guaranty amends, restates, 4ersedes and replaces in its
entirety, without a break in continuity, that certain Guaranty
(Indiiv d al) d ted March 27, 2009 executed by the undersigned in
favor of Israel Discount Bank ofj 1 e Yor ~ actors Division, as
heretofore amended, restated, renewed, extended, supplemrt , d
subS! tuted or therwise modified.
1446842.3
I . I l
I
SSN Redacted
ast 5th Street yn, New York.11223
4
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Case 1:14-cr-00117-VEC Document 19-1 Filed 10/21/14 Page 8 of
44
STATE ) )ss:
COUNTY OF )
On the 25th day of November in the year 2009, before me, the
undersigned, a notary public in and for said state, personally
appeared MARVIN JEMAL, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name
is subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and
that by his/her/their signature(s) on the instrument, the
individual(s) , or the person upon behalf of which the
individual(s) acted, executed the instrument.
14468423
~-~I ' "i,
MARTIN SILVERSTEIN P blic State ot New Yo ri\
Notary u No.' 4696011 Qualified ln ~ass~y Co~bt~009
Commission Expires ov. '
5
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Case 1:14-cr-00117-VEC Document 19-1 Filed 10/21/14 Page 9 of
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Cet c:o. S'NCOC002930 ww1,._, 1sc.org
J;: ~9~() \.r..ri?st S1c:wa;dship Cound)
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Case 1:14-cr-00117-VEC Document 19-1 Filed 10/21/14 Page 10 of
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EXHIBITB
-
Case 1:14-cr-00117-VEC Document 19-1 Filed 10/21/14 Page 11 of
44
GUARANTY (Individual)
TO: Israel Discount Bank of New York IDB Factors Division 511
Fifth Avenue New York, New York 10017
Re: The ENE Group LLC (the "Client")
Ladies and Gentlemen:
November 25, 2009
Reference is made to a certain Factorin,g Agreement dated May
15, 2009 and each of the.: ot;her rel~ted . agi;eeme1}ts, as
amended from time to time (herein the "Agreements") hetWeen you and
the abov:e-named Cl:ient. The undersigned hereby.unC0uditioually
guarantees and .~gree.s,, t0 be lfa:~.ie fqr ~4e full and
indefeasibl~ payment and perform~nce when due of all rtow exi'sting
1
, .
. . ' .. -
-
Case 1:14-cr-00117-VEC Document 19-1 Filed 10/21/14 Page 12 of
44
Notice of acceptance of this Guaranty, the making of loans or
advances, or the extension of credit to the Client, the purchase or
acquisition of receivables from the Client, the amendment,
execution or tennination of any of the Agreements or any other
agreements between you and the Client, and presentment, demand,
protest, notice of protest, notice of non-payment and all other
notices to which the Client or the undersigned may be entitled, and
your reliance on this Guaranty are hereby waived. The undersigned
also waive notice of: changes in terms or extensions of time of
payment, the taking and releasing of collateral or guarantees
(including the release of any of the undersigned) and the
settlement, compromise or release of any Obligations, and agree
that, as to each of the undersigned, the amount of the Obligations
shall not be diminished by any of the foregoing. The undersigned
also agree that you need not attempt to collect any Obligations
from the Client or other obligors or to realize upon any
collateral, but may require the undersigned to make immediate
payment of Obligations to you when due or at any time thereafter.
You shall not be liable for failure to collect Obligations or to
realize upon any collateral or security therefor, or any part
thereof, or for any delay in so doing, nor shall you be under any
obligation to take any action whatsoever with regard thereto.
This Guaranty is absolute, unconditional and continuing,
regardless of the validity, regularity or enforceability of any of
the Obligations or the fact that a security interest or lien in any
collateral or security therefor may not be enforceable by you or
may otherwise be subject to equities or defenses or prior claims in
favor of others or may be invalid or defective in any way and for
any reason, i~cludihg any action, 'or failure to act, on your part.
The liability of the undersigned under this Guaranty shall be
unaffected by the death of any of the undersigned. Payment by
the-undersigned shall be made to you at your office from time to
time on demand as Obligations become due, and one or more
successive or concurrent actions may be brought hereon against the
undersigned either in the same action in which the Client is sued
or in separate actions. In the event any claim or action, or action
on any judgment, based on this Guaranty, is made or brought against
the undersigned, the undersigned agrees not to assert against you
any
set~off or counterclaim which the Client may have, and further
the undersigned agrees not to deduct, set-off, or seek to
counterclaim for or recoup, any amounts which are or may be owed by
you to the undersigned, or for any loss of contribution from any
other gt.iarantor.
Furthermore, in any litigation based on the Guaranty in which
you and the undersigned shall be adverse parties, the undersigned
hereby waives the right to interpose any defense based upon any
Statute of Limitations or any claim of laches and waive the
performance of each and every condition precedent to which the
undersigned might otherwise be entitled by law.
( All sums at any time to the credit of the undersigned and any
property of the
undersigned on which you at any time have a lien or security
interest, or of which you at any time have possession, shall secure
payment and performance of all Obligations and any and all other
obligations of the undersigned to you however arising. The
undersigned shall have no right of subrogation, indemnification or
recourse to any Obligations or collateral or guarantees therefor,
or to any assets of the Client.
In the event of any breach of, default under or termination of
any of the Agreements between you and the Client, or in the everi.t
that the undersigned shall fail to observe or perforin any
agreements, warranties, or covenants contained herein, or on the
death of any of
1446859.3 2 I
r
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Case 1:14-cr-00117-VEC Document 19-1 Filed 10/21/14 Page 13 of
44
the undersigned, or should any of the undersigned dissolve or
cease its business, call a meeting of its creditors, fail to meet
its debts as they mature, commit an act of bankruptcy, have
commenced by or against the undersigned any bankruptcy, insolvency,
arrangement, reorganization, receivership or similar proceeding
under any federal or state law, then the liability of all of the
undersigned for the entire Obligations shall mature even if the
liability of the Client therefor does not.
This Guaranty may be terminated, which termination will be
effective ninety (90) days after actual receipt by one of your
officers of written notice of termination sent by registered or
certified mail; provided, however, that the undersigned so
terminating this Guaranty shall remain bound hereunder, and this
Guaranty shall continue in full force and effect, with respect to
any and all Obligations created or arising prior to the effective
date of such termination and with respect to any and all
extensions, renewals or modifications of said pre-existing
Obligations. Termination shall not relieve the undersigned from
liability for any post termination collection expenses or interest.
This is a continuing Guaranty and written notice as above provided
shall be the only means of termination, notwithstanding the fact
that for certain periods of time there may be no Obligations owing
to you by the Client.
Your books and records showing the account between you and the.
Client shall be admis~ible _in .ev.idece in ariy action or
proceeding as prima facie proof of the items therein set forth. .
Your monthly.' s:t~t~~eo..ts reJJ.dered to the Client shall be
binding upon the undersigned
' - !, - ,1 (whether 0r no't _the undetsigrie
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44
UNDERSIGNED ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THIS GUARANTY OR THE . R