Case: 1:12-cr-00842 Document #: 267 Filed: 11/13/14 Page 1 of 25 PageID #:1766

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
v.
STEVEN MANDELL

)
)
)
)
)

No. 12 CR 842-1
Judge Amy J. St. Eve

DEFENDANT STEVEN MANDELLS SENTENCING MEMORANDUM

Defendant Steven Mandell, through his counsel, Francis C. Lipuma, herein submits to this
Honorable Court his Sentencing Memorandum through which he presents his objections and
positions relevant to the issue of reasonable punishment. First, Mandell must address several factual
misstatements and unfounded allegations contained within the Presentence Investigation Report
(PSR), and respectfully requests that they be corrected or be stricken from the PSR. Second,
Mandell presents his objections to the probation offices scoring calculations and sentencing range
under the advisory Federal Sentencing Guidelines. While Mandell maintains his actual innocence
in this case, he recognizes that the mechanical operation of the guidelines produces an advisory
sentencing range of 87-108 months imprisonment on counts one through three, five and six, based
on an offense level of 29 and a criminal history category of I.1 Finally, Mandell addresses certain
mandatory factors under 18 U.S.C. 3553(a) and other considerations in support of imposition of
a term of incarceration below the prospective guideline range.
I. There are Several Incorrect and Inflammatory Statements in the PSR
The PSR contains a number of factually inaccurate and unfounded statements. Mandell
submits that the PSR should be amended to reflect the corrections and stricken language.

Mandell recognizes that, by operation of law, a consecutive sentence of five years must
be imposed on count four. 18 U.S.C. 924(c)(1)(A)(i).

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First, at page 20, paragraph 89, Other Criminal Conduct, the PSR states that the
government intercepted mail written by the defendant that included threats to physically harm
George Michael[.] The paragraph further states that the defendant allegedly tried to solicit help
from a gang member in his plan to murder Michael. The government chose not to provide further
information about these allegations. (PSR at 20, par. 89).
Paragraph 89 should be stricken from the PSR entirely. First, the contents of the mail the
government intercepted which are not provided and are not otherwise identified in any manner
cannot reasonably be interpreted to include threats to physically harm Michael. Second, the alleged
solicitation of a gang member to murder Michael is unsubstantiated. Third, the fact that the
government is unwilling to provide further information about these allegations is telling, and the
government cannot be permitted to rely on unfounded allegations in support of the purported Other
Criminal Conduct.
It must be noted that the defense requested from the government the underlying materials
including discovery relating to any purported threats and solicitations the government submitted
to its Attorney General in support of its request for implementation of the Special Administrative
Measures (SAMs). The government flatly refused to provided any such information and
documentation. Consequently, Mandell is unable to effectively challenge the governments
allegations given the governments creation of a straw man and its subsequent refusal to tender any
discovery in support. These governmental actions operate to violate Mandells due process rights
under the fifth amendment as well as his notice, confrontation and effective assistance of counsel
rights under the sixth amendment. U.S. Const. amend. V, amend. VI.

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Further, while the Court may consider any information in the sentencing context, the
information must have a sufficient indicia of reliability to support its probable accuracy. USSG
6A1.3(a); United States v. Watts, 519 U.S. 148, 157 (1997); United States v. Taylor, 72 F.3d 533,
543 (7th Cir. 1995). Sentencing determinations must be based on accurate, reliable, and trustworthy
information. United States v. Henderson, 58 F.3d 1145, 1152 (7th Cir. 1995). The insistence on
reliability is based, in part, on the due process concern that a defendant be sentenced on the basis of
accurate information. United States v. Campbell, 985 F.2d 341, 348 (7th Cir. 1993). Corroboration
is a step toward establishing reliability. United States v. Linnear, 40 F.3d 215, 219 (7th Cir. 1994).
The applicable legal principles do not support the false and unsupported accusations charged in the
PSR.
Second, at pages 24-25, paragraph 95, the PSR provides a lengthy recitation of alleged
offense conduct . . . gleaned from the Official Statement of Facts prepared by Assistant States
Attorney, Patrick J. Quinn, and various court filings in relation to the case styled, People v. Steven
Manning, No. 92 CR 480601. All of the information contained in paragraph 95 should be stricken
from the PSR entirely.
In 1998, after ASA Quinns submission of the Official Statement of Facts, the Illinois
Supreme Court vacated Mandells conviction in case number 92 CR 480601, and remanded the case
to the trial court for a new trial. People v. Manning, 182 Ill.2d 193, 695 N.E.2d 423 (1998). The
reasons for the Supreme Courts decision laid the groundwork ultimately leading to judicial findings
of prosecutorial misconduct. When the case was remanded to the trial court for a new trial, the
States Attorneys Office decided to not retry Mandell, but rather decided to dismiss all charges
against him. The vacation of the conviction and the dismissal of the indictment caused by the
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misconduct of the prosecution team together demonstrate that there is no valid reason why
prosecutor Quinns Official Statement of Facts and various [unidentified] court filings should
be in this PSR. Consequently, the final three full paragraphs on page 24 of the PSR as well as the
top three paragraphs (including the block quote attributed to Quinn) on page 25 of the PSR should
be stricken.
Further, the cited paragraphs are replete with unsubstantiated and inflammatory allegations
by Quinn and his fellow prosecutors that Mandell murdered five identified individuals. Of course,
Mandell has never been charged with, let alone convicted of murdering four of the identified
individuals; and, following the decision of the Illinois Supreme Court, Quinn and his colleagues
dismissed the murder charge they earlier brought against Mandell of the fifth individual. The truth
of the matter is Mandell has not been constitutionally convicted of murdering anybody, and that fact
must be respected.
Although there never was any physical evidence to tie Mandell to that murder, there was
plenty of prosecutorial misconduct to go around. It started with the false claims of a notorious
jailhouse informant which were further tuned up by the misconduct of certain FBI agents. The
prosecutors took it to another level.
A story in the Chicago Tribune, dated January 24, 2000, sheds light on prosecutor Quinns
propensity to engage in unprofessional conduct as well as to make unsubstantiated claims:
On January 18, Steve Manning became the latest Death Row inmate to have
charges against him dropped.
In 1993, Manning stood trial in Cook County for the murder of a suburban
trucking firm owner. Assistant States Attorneys Patrick J. Quinn and William
Gamboney secured a conviction with the testimony of Tommy Dye, a jailhouse
informant with a history of spinning lies. Dye claimed Manning confessed to him
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while they shared a jail cell, but secret tape recordings of their conversations revealed
no such admission.
Mannings appellate attorney, Raymond J. Smith, alleged in court papers that
the prosecutors committed misconduct by allowing Dye to provide testimony they
knew, or should have known, was false. The states attorneys office dropped the
charges against Manning on the day that a hearing on those allegations was
scheduled.
[A spokesman for the states attorneys office] said the states attorneys
office has concluded prosecutors did nothing improper and plans no further review
of their conduct.
In a different case tried one year after Mannings, Quinn was found by the
Illinois Appellate Court to have committed the same kind of misconduct alleged in
Mannings case, according to court records. Quinn helped prosecute and win a
conviction against Umberto Perkins, a former Cook County Jail guard accused of
official misconduct for helping an inmate escape.
In 1997, the Illinois Appellate Court reversed Perkins convictions, saying
two prosecution witnesses, both inmates when the escape occurred, did not tell the
truth when they denied receiving any benefits for testifying. By not correcting
testimony that was either substantially misleading or outright false, the court wrote,
Quinn and his trial partner knowingly used perjured testimony to secure Perkins
convictions.
The appellate court has also reversed the convictions of at least two other
defendants because Quinn employed improper trial tactics, court records show. In
one case Quinn unfairly presented evidence suggesting the defendant committed
other crimes, and in the other Quinn engaged in improper cross-examination and
final argument, according to court records.
Quinn, who did not return calls seeking comment, is now a judge on the
Illinois Appellate Court, the same court that issued the rebukes in cases he
prosecuted.
Ken Armstrong and Steve Mills, Flawed Murder Cases Prompt Calls For Probe, Chicago Tribune,
January 24, 2000.
Clearly, the source of the allegations contained in paragraph 95 of the PSR is suspect. Given
Mandells history and these real concerns about the source, it is clear that the information provided
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about Manning is itself suspect. Unreliable information has no place in a PSR. Consequently, the
offending language on pages 24 and 25 should be stricken.
Finally, no discovery of any kind has been produced to the defense in connection with the
murders of the five individuals identified. There is no way the defense can challenge the assertions
and suggestions in the PSR without having an opportunity to investigate the allegations, and that
begins with production of discovery so that we may challenge these scurrilous and unfounded claims.
II. Certain Calculations Under the Sentencing Guidelines are Erroneous
The PSR calculates the total offense level for the counts of conviction (excluding count four)
at 43. (PSR at 36, par. 147). With a criminal history category of I, the probation office has concluded
that the applicable guideline imprisonment range is life. (Id.). Mandell objects to this calculation of
the total offense level, and submits that the proper level is 29 by operation of the applicable
provisions of the Federal Sentencing Guidelines. With a criminal history category of I, it is
Mandells position that without waiving his claim of actual innocence the applicable sentencing
range is 87 to 108 months on those counts.
With respect to the guideline calculations on count one, Mandell concurs that the guidelines
operate, under 2X1.1(a), to require a calculation under 2A4.1. However, Mandell objects to the
probation offices determination that Application Note 4 to 2A4.1 requires reference to 2A1.1(a)
(First Degree Murder), resulting in a base offense level of 43.
The applicable language of Application Note 4 reads as follows: Therefore, for example,
if an offense involved conspiracy to kidnap for the purpose of committing murder, subsection (b)(7)
would reference first degree murder (resulting in an offense level of 43, subject to a possible 3-level
reduction under 2X1.1(b). USSG 2A4.1, comment. (n. 4). Subsection (b)(7) reads as follows:
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If the victim was kidnapped, abducted, or unlawfully restrained during the commission of, or in
connection with, another offense or escape therefrom; or if another offense was committed during
the kidnapping, abduction, or unlawful restraint, increase to [the corresponding level]. USSG
2A4.1(b)(7).
In this instance these guidelines establish that reference to 2A1.1 (First Degree Murder) is
misguided. Consider the language of the subject guidelines. Application Note 4 specifically identifies
the sole purpose of the kidnapping as one accomplished for the purpose of murder. Further,
subsection (b)(7) assumes application only where the victim actually was kidnapped, abducted or
unlawfully restrained, or where another offense was committed during that kidnapping, abduction
or unlawful restraint. The evidence in this case does not fall within the language of those provisions
because there was no such actual offense conduct taken on the alleged victim.
Consider too the specific charging language in count one of the superseding indictment. The
substantive charging language in the count tracked the statutory language: Mandell did conspire
with Gary Engel to knowingly and unlawfully seize, confine, kidnap, abduct, carry away and hold
for ransom and reward and otherwise another person, namely victim 1[.] (R. 38 at 1). Mandells
purpose in purportedly attempting to kidnap the victim was not for the purpose of murder, as the
governments charging language reveals. None of the purposes or objects of the charged conspiracy
in that allegation reflects that it was to be done for murder. While there are references to murder in
subsequent allegations made as further part of the conspiracy, neither the grand jury nor the trial
jury charged or found murder as the purpose of the conspiracy. Consequently, there should be no
reference to the first degree murder guideline.

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Moreover, Mandell disagrees with the probation offices conclusion to not decrease the
offense level by 3, under 2X1.1(b)(2), because the co-conspirators did not complete all of the acts
they believed were necessary on their part to successfully complete the substantive offense. (PSR
at 12, par. 39). Even accepting the jurys verdict (as we are compelled to do for sentencing purposes),
the governments evidence at trial fell short of establishing that Mandell and co-defendant Gary
Engel completed all the acts they believed necessary on their part for the successful completion
of the substantive offense[.] USSG 2X1.1(b)(2). Further, the circumstances did not demonstrate
that they were about to complete all such acts but for apprehension or interruption by some similar
event beyond their control. Id. Consequently, the base offense level of 32 should be reduced 3 levels
to level 29.
Next, the government seeks, and the probation office agrees that a 2 level upward adjustment
is required because of Mandells use of a purported special skill in facilitating the crime. (PSR at
13, par. 41). Mandell objects to this adjustment.
Under 3B1.3 of the guidelines, an upward adjustment of 2 levels is mandated where a
defendant used a special skill in a manner that significantly facilitated the commission or
concealment of the offense. USSG 3B1.3. Special skill refers to a skill not possessed by
members of the general public and usually requiring substantial education, training or licensing.
Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts.
USSG 3B1.3, comment. (n. 4). While the list is not exhaustive, conspicuously absent is any
reference to police officers, particularly those 30-plus years removed from that job.
Mandell was employed as an officer of the Chicago Police Department from 1973 to 1983.
(PSR at 31, par. 130). Mandells employment as a police officer some 30-40 years ago hardly
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qualifies as a special skill. The length of time between the job and the offense is reason enough
to deny the government the enhancement. Additionally, the police-related props, conduct and jargon
can easily be obtained and learned from any of the dozens of police-related television shows or
research on the internet about police tactics.
Recently, Robert Panozzo and others were arrested and charged in the Circuit Court of Cook
County with racketeering conspiracy, among other offenses. People v. Panozzo, No. 14 CR 14577.
The indictment alleges that Panozzo and his co-defendants used police-related props and were set
up to pose as police officers while committing various crimes. Panozzo and his co-defendants do not
have backgrounds in law enforcement, but it was quite simple for them to obtain police-type props
and pose as law enforcement because, in our daily lives, we are often exposed to how police officers
tackle their jobs. These facts compel a conclusion that Mandells employment as a police officer 3040 years ago hardly qualifies as a special skill in this instance.
Additionally, the guideline provision expressly conditions the adjustment on a finding that
the special skill significantly facilitated the commission of the offense. USSG 3B1.3. The
government has presented no evidence demonstrating how Mandells employment decades ago
signficantly facilitated this offense. Rather, what is evident here is the government piling on the
already lengthy advisory sentence with an inapplicable add-on enhancement.
The government merely has argued that Mandells law enforcement training facilitated the
commission of the offense. (Gov. Vers. at 9). However, the government has not provided any
information or evidence as to the law enforcement training Mandell actually received. Nor has the
government described how any actual training translated into a significant facilitation of the offense.

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Finally, the government has cited three cases in its Version of the Offense to purportedly
support application of the adjustment. (Gov. Vers. at 9). None of the cases are controlling and they
are easily distinguishable as set forth below.
In United States v. Turner, the defendants were actively employed as Detroit police officers
when they committed the charged crimes. 272 F.3d 380, 382-83, 390 (6th Cir. 2001). Three officers
planned the robbery of man who ran an illegal lottery business and had a large amount of cash
stashed at his home. Important to the Sixth Circuit in Turner was the sentencing courts specific
finding that the police officers intended to use their status and training and education as police
officers to effect the robbery. Id. at 390. A significant point missed by probation and the
government in the appellate courts analysis was the active component of the police officers status,
namely, their employment with the Detroit Police Department. Not only was Mandell not employed
as a police officer at the time of the charged offenses, he had not been one for over 30 years.
United States v. Young is a summary order without a published opinion. 213 F.3d 627, 2000
U.S. App. Lexis 11916 (2d Cir. 2000) (rules of the Second Circuit may limit citation to it). Young,
a retired police officer, ordered retail items by telephone from Hall and advanced the $2,100 in costs
for shipping. 2000 U.S. App. Lexis 11916 *3. Hall failed to deliver the merchandise. Young was
angry and wanted to locate Hall to get his money back. Young used his contacts at law enforcement
agencies to learn that Hall had a criminal record through which he found Hall in Florida. Id.
But first Young located and befriended Halls girlfriend Jarnagin, who informed Young
sometime later that she and Hall would be visiting New York. Young and Jarnagin discussed a plan
to arrest Hall at the hotel when they arrived. Jarnagin forwarded pictures of herself and Hall to
Young so that he could make the identification when they entered the hotel. Id.
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Young paid Turnipseed for assistance to scare Hall. Young packed police hats, police
badges, and a pair of guns. At the hotel, they told Hall he was under arrest, handcuffed him, and
placed him in the backseat of Youngs car. They brought him to the warehouse that was supposed
to house the goods Young had ordered. They wrapped Hall in duct tape from head to toe, tied him
to a forklift and left. Hall escaped and alerted the police, and Youngs arrest followed. Id.
The Second Circuit observed that the sentencing court imposed the enhancement because
Young used the special skills he had obtained during his thirty-one years as a police officer to
commit the offense. 2000 U.S. App. Lexis 11916 *17. Important to the sentencing courts finding
and the Second Circuits affirmance was the fact that Young used standard police investigative
techniques and facilities to track down Hall. Id. The appellate court also noted further support in
the record through Youngs use of a police hat, police badge, and police procedures and techniques
to affect a realistic arrest of Hall. Id.
Of course, Mandell had no contacts in law enforcement at the time of the charged offenses,
and thus he did not use those contacts and did not obtain information from those contacts to facilitate
an offense. Also, unlike Mandell, there was an actual arrest in Young in which the defendant, a 31year veteran of the police department, actually used his acquired experience in the execution of the
plan to kidnap Hall. Mandell had no such experience to draw on. The staleness of Mandells
connection to law enforcement cannot be ignored.
United States v. Slaughter is a memorandum opinion that is quite short and bereft of facts
and analysis. 83 Fed. Appx. 179 (9th Cir. 2003) (rules of the Ninth Circuit may limit citation to
unpublished opinions). The sentencing court there found that the defendant, a police officer, used

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a special skill in the commission of a drug offense where he had substantial training in how to
conduct Terry stops, including procedures designed to promote officer safety[.] Id. at 179-80.
Here, again, unlike Slaughter, who was a police officer at the time of the charged offenses,
Mandell had been removed from any official involvement with law enforcement for over three
decades. Moreover, unlike Slaughter, there has been no proof of any training Mandell received from
the Chicago Police Department at all. The attenuation ultimately is fatal to the governments
argument, and it is respectfully requested that the Court decline to extend the reach of 3B1.3.
Next, the government sought, and the probation office applied a 2 level increase, under
3C1.1, based on the governments contention that Mandell obstructed justice when he testified under
oath in his own defense. (PSR at 11, par. 31-32; PSR at 13, par. 42). The probation office based the
adjustment on claims made by the defendant in his court filings and those that were specifically
communicated by the government and/or Special Agent Tipton to the probation office. (PSR at 11,
par. 31-32). The probation office does not then cite to any claims made by the defendant in his court
filings for application of this adjustment, but rather relies on the proffered statements of government
personnel. (Id.).
As far as the statements proffered by the prosecutor and the case agent, Mandell maintains
his position that he is actually innocent and that his testimony at trial was true and accurate. Further,
3C1.1 is inapplicable because Mandell did not willfully obstruct[] or impede[], or attempt[] to
obstruct or impede the administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction[.] USSG 3C1.1 (emphasis added). This guideline
cautions: In applying this provision in respect to alleged false testimony or statements by the
defendant, the court should be cognizant that inaccurate testimony or statements sometimes may
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result from confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or
statements necessarily reflect a willful attempt to obstruct justice. USSG 3C1.1, comment. (n. 2).
In fact, a defendant must act with the specific intent to obstruct justice. United States v. Ewing, 129
F.3d 430, 434 (7th Cir. 1997).
Mandell did not testify at trial with the willful intent to provide false testimony about material
matters. To the extent his testimony differed from the governments proffered claims, it was not false
and, even if it was (for the sake of argument) incorrect in some way, it should be considered the
result of confusion, mistake, or faulty memory. Conflicting testimony does not necessarily amount
to perjury. United States v. Miller, 159 F.3d 1106, 1112 (7th Cir. 1998).
Not every instance of false testimony justifies the enhancement. It is limited to circumstances
where a defendant gives false testimony concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confusion, mistake or faulty memory. United States
v. Carrera, 259 F.3d 818, 830 (7th Cir. 2001). The enhancement is not meant to be applied just
because a defendant testified and was found guilty. United States v. Agostino, 132 F.3d 1183, 1199
(7th Cir. 1997). Close cases should be resolved in favor of the defendant. See United States v. Hach,
162 F.3d 937, 949 (7th Cir. 1998). For these reasons, it is respectfully submitted the Court should
decline to apply the adjustment. Consequently, the adjusted offense level on count one is 29.
With respect to the guideline calculations on count two, Mandell agrees that the guidelines
operate, under 2X1.1(a), to apply 2B3.2. (PSR at 13-14, par. 44). However, Mandell objects to
the probation offices determination that the cross reference at 2B3.2(c)(1) is applicable because
the murder of Mr. Campbell was within the scope of the conspiratorial agreement and conduct that

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the defendant intended to occur. Said Cross Reference provides that in such a case 2A1.1 is to be
applied, which has a base offense level of 43 and no specific offense characteristics. (Id.).
The plain language of the cross reference establishes the inapplicability of 2A1.1. The cross
reference states: If a victim was killed under circumstances that would constitute murder under 18
U.S.C. 1111 had such killing taken place within the territorial or maritime jurisdiction of the
United States, apply 2A1.1 (First Degree Murder). USSG 2B3.2(c)(1) (emphasis added). In this
case it is very clear that nobody was physically harmed, let alone killed. Thus, the cross reference
is inapplicable and the guideline to be consulted is 2B3.2. The base offense level is 18. USSG
2B3.2.
Mandell further objects to the probation offices failure to reduce the offense level by 3 under
2X1.1(b)(2). (PSR at 14, par. 45). Mandell has stated his position on this matter in his objection
to the guideline calculations for count one, and incorporates the argument here. Consequently, with
an appropriate decrease of 3 levels, the total offense level on count two is 15.
Mandell also objects to the probation offices upward adjustment by 2 levels for obstruction
of justice, under 3C1.1, on the basis that he committed perjury while testifying at trial. (PSR at 14,
par. 48). Mandell has argued why this adjustment is inapplicable in his objections to the guideline
calculations on count one, and incorporates the argument here as his objection to the same
application on count two. Thus, the adjusted offense level on count two is 15.
With respect to the guideline calculations on count three, Mandell acknowledges that the
guidelines operate, under 2X1.1(a), to apply 2B3.2. (PSR at 14, par. 50). However, Mandell
again objects to the probation offices determination that the cross reference at 2B3.2(c)(1) is
applicable because the murder of Mr. Campbell was within the scope of the conspiratorial
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agreement and conduct that defendant intended to occur. (Id.). For the same reasons stated in the
guideline objections to count two, 2A1.1 (First Degree Murder) is inapplicable. The plain language
of the cross reference requires a victim to be killed prior to application of the provision. Of course,
that did not occur in this case as nobody died and nobody was even physically harmed.
Similar to count two, Mandell submits that the base offense level on count three is 18.
2B3.2. Moreover, for the reasons previously stated, Mandell objects to the probation offices
conclusion to not decrease the offense level by 3, under 2X1.1(b)(1). Such a decrease should be
made because the defendant did not complete all of the acts he believed were necessary for
successful completion of the substantive extortion offense. The circumstances further demonstrate
that the defendant was not about to complete all such acts but for apprehension or interruption by
some similar event beyond the defendants control. USSG 2X1.1(b)(1). Consequently, a reduction
of 3 levels is appropriate.
Like the prior calculations, Mandell again must object to the probation offices determination
to apply a 2 level increase based on his purported false testimony at trial. (PSR at 15, par. 54).
Mandell incorporates his arguments from the prior calculation of counts in urging the Court to not
apply the enhancement. Consequently, the adjusted offense level on count three is 15.
With respect to the guideline calculations on count five, Mandell concurs that the guidelines
operate, under 2K2.1 and 2K2.1(c)(1)(A), to refer to the provisions of 2X1.1. (PSR at 15, par.
56). This operation of the guidelines is based on the jurys verdict that Mandell constructively
possessed the Ruger. Mandell is bound to accept this application of the guidelines based on the
verdict, but does not retreat from his claim that any purported possession of the firearm was innocent
as stated at trial.
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In any event, Mandell objects to the conclusion that the base offense level is 43 based on
2X1.1(a). (Id.). The probation office does not clearly state what underlying offense is to be
considered in calculating the offense conduct in count five, but it appears that the office is relying
on and connecting the firearm to count one. This is in error. Count one relates to a purported
conspiracy to kidnap Steven Campbell. As the proofs at trial established, neither Mandell nor Engel
possessed the firearm at the time of their arrests. Importantly, the governments theory was that the
men were arrested just prior to the point of kidnapping Campbell. The undisputed fact that neither
Mandell nor Engel actually possessed the Ruger at that particular time is telling, and refutes the
connection between count one and count five.
If the gun must be connected to an offense, it makes more sense to consider it in connection
with the conspiracy to commit extortion (count two) or the attempt to commit extortion (count three).
As the base offense level for those counts are 18, the proper starting point is level 18. Again,
Mandell objects to the probation offices determination to not decrease the offense level by 3 under
2X1.1(b)(1), (PSR at 14, par. 51), and he incorporates his previous arguments herein. With an
appropriate adjustment of 3 levels, the adjusted offense level on count five is 15. Again, no
adjustment under 3C1.1 should be applied for the reasons already stated.
With respect to the guideline calculations for count six, Mandell is in agreement with the
operation of the guidelines under 2X1.1, 2J1.2, 2J1.2(c)(1), and 2X3.1. (PSR at 16, par. 61).
However, because of the erroneous application of the guidelines in the calculation of count one,
Mandell objects to the probation offices conclusion that the base offense level is 30. Under 2X3.1,
the base offense level should be 6 levels lower than the offense level for the underlying offense.
USSG 2X3.1(a)(1). Based on Mandells calculations on count one, 6 levels below level 29 is 23.
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Again, the probation office applied a 2 level upward adjustment based on Mandells purported false
testimony at trial, (PSR at 16, par. 66), to which Mandell again objects. Mandell incorporates herein
his prior arguments on this across-the-board adjustment. Therefore, the adjusted offense level on
count six is 23.
Following the grouping rules on multiple counts, the combined total offense level is 29,
contrary to the probation offices conclusion that it is 43. (PSR at 17, par. 72). A total offense level
of 29 considered with a criminal history category of I results in an advisory sentencing range of 87
to 108 months imprisonment.
III. A Sentence Below The Advisory Range Produces A Reasonable Sentence
It is respectfully submitted that the Court should impose a term of incarceration below the
advisory guidelines range. Mandell will be 64 years old at the time of the sentencing hearing. A
sentence within the advisory range plus five consecutive years on count four effectively may result
in a life sentence. The government and the probation office concluded that the applicable range is
life plus five years. However the court comes out on the disputed guideline calculations, we hope
the Court will consider imposition of a sentence that gives Mandell a glimmer of hope that he will
be free one day at an old age.
Since the Supreme Court deemed the Federal Sentencing Guidelines advisory in United
States v. Booker, 543 U.S. 220 (2005), the Court has repeatedly described the enormous discretion
sentencing courts possess in determining an appropriate sentence. Pepper v. United States, 131 S.Ct.
1229, 1249 (2011). Additionally, after calculating a defendantss applicable guideline range, the
district court must consider the factors set forth in 18 U.S.C. 3553(a) to arrive at a sentence that
is reasonable under those factors. Gall v. United States, 552 U.S. 38, 50 (2007).
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A sentence of imprisonment below the advisory range, based on the factors promulgated in
3553(a), is appropriate because any sentence close to that range given all the circumstances of this
case would be unreasonable and greater than necessary. See Kimbrough v. United States, 552 U.S.
85 (2007) (district courts judgment that a particular sentence is sufficient, but not greater than
necessary is entitled to great deference). As is now well-established, the Court simply must
consider the guidelines and make sure that the sentence [she] gives is within the statutory range and
consistent with the sentencing factors listed in 18 U.S.C. 3553(a). United States v. Demaree, 459
F.3d 791, 795 (7th Cir. 2006). [Her] choice of sentence, whether inside or outside the guideline
range, is discretionary and subject therefore to only light appellate review. Id. The applicable
guideline nudges [her] toward the sentencing range, but [her] freedom to impose a reasonable
sentence outside the range is unfettered. Id. Pursuant to the factors stated in 3553(a), a below
guideline sentence would appropriately recognize the facts of the offense, the characteristics of the
offender, and the need to impose a sentence sufficient, but not greater than necessary, to
accomplish the sentencing and societal goals of punishment, deterrence and rehabilitation. 18 U.S.C.
3553(a).
Section 3553(a) recognizes that among the most important factors to be considered in
fashioning an appropriate sentence include the history and characteristics of the individual
defendant. 18 U.S.C. 3553(a)(1). Mandell cannot be defined simply by reference to his criminal
conduct. Rather, he must be sentenced with the benefit of considering the full measure of the man,
including his positive contributions to society and his difficult life story.
The analysis must begin with 3553(a)(1)s mandate that the Court consider Mandells
historical background. We ask the Court to kindly consider the fact that Mandell served in the United
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States Army from 1969 to 1971. (PSR at 31, par. 126). Mandell was stationed in Germany. His
discharge was honorable. It is respectfully submitted that Mandell has earned some credit for his
service to the United States.
Additionally, the Court is asked to consider the fact that from July 26, 1990 to February 26,
2004, Mandell was confined in either Illinois or Missouri jails and prisons based on convictions that
were obtained as a consequence of prosecutorial misconduct. (PSR at 28, par. 107; PSR at 33-34,
par. 140). On January 24, 2005, a federal jury specifically found that certain FBI agents fabricated
or caused to be fabricated certain material evidence, and then concealed that and other material
matters. (PSR at 33, par. 140). In further litigation on the lawsuit, Judge Matthew F. Kennelly wrote
in an order that he agrees with the jurys findings on some of the issues regarding the fabrication
and concealment of evidence and disagress with the jury in other respects. (Id.). Judge Kennelly
found the FBI agents actions in investigating Mandell to be improper, ruling that Mandells rights
to due process and a fair trial were likely violated. (Id.). While finding that probable cause still
existed, thus vacating the jurys $6.5 million monetary award, Judge Kennelly still characterized the
FBI agents actions with jailhouse informant Tommy Dye in investigating Mandell to be
deplorable. (Id.).
In 2000, former Governor George H. Ryan declared a moratorium on executions in Illinois,
and appointed a blue-ribbon commission to determine what reforms would ensure that Illinois
capital punishment system is fair, just and accurate. On April 15, 2002, the commission released its
Report of the Governors Commission on Capital Punishment. The report addressed the State of
Illinois prosecution of Mandell, who was one of thirteen released death row inmates. The
commission wrote: The murder conviction of former death row inmate Steven Manning was based
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almost completely upon uncorroborated testimony of an in-custody informer. No physical evidence

linked Manning to the murder he was said to have committed, nor was there any solid corroboration
of the alleged statements he made admitting to the murder. Report of the Governors Commission
on Capital Punishment, Ch. 1, pp. 7-8, April 15, 2002.
Over time, the corrupt practices of the FBI agents and the state prosecutors finally were
uncovered. Yet, Mandell was subject to incarceration for nearly 14 years as a consequence of their
intentional actions in violating Mandells constitutional rights. As Mandells personal history can
be considered by the Court, we urge the Court to consider that Mandell was confined for a
substantial part of his life for crimes he did not commit. It is respectfully submitted that the Court
should consider the fact that Mandells constitutional protections were violated, and he should be
credited for the 14 years he spent in prison because of the FBIs and state prosecutors prosecutorial
misconduct.
It also is proper for the Court to consider Mandells medical condition and present state of
health. Before imposing a sentence the Court must consider providing him with needed medical
care, or other correctional treatment in the most effective manner[.] 18 U.S.C. 3553(a)(2)(D).
Mandell suffers from Type II diabetes, high blood pressure, and high cholesterol. Records from the
MCC confirm that Mandell is prescribed insulin, Metformin, glyburide, simvastatin and lisinopril
to treat the chronic condictions. (PSR at 29, par. 114). Mandell respectfully asks the Court to include
language in the final judgment order that the Bureau of Prisons provide Mandell with the medical
care he needs.
Moreover, the Court is required to consider the nature and circumstances of the offense.
18 U.S.C. 3553(a)(1). It is expected the government will cover this factor in some detail. Mandell
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rests on his trial testimony and his position of actual innocence in this case. Mandell also asks the
Court to consider the unusual circumstances surrounding the FBIs and the informants failure to
record dozens upon dozens of meetings and telephone calls between the informant and Mandell.
Of course, at sentencing the Court also is required to avoid unwarranted sentencing
disparities among defendants with similar records who have been found guilty of similar conduct.
18 U.S.C. 3553(a)(6). In that light, we suggest that it is appropriate to compare Mandells conduct
to that of similarly situated defendants who have been convicted and sentenced. Some of these cases
are close on certain facts, some of them are not so close on the facts. However, these cases constitute
a fair array of cases for purposes of establishing a reasonable sentence.
For example, we ask the Court to consider the case the government cited and we discussed
infra in some detail, United States v. Young, 213 F.3d 627, 2000 U.S.App. Lexis 11916 (2d Cir.
2000). There, the 31-year retired veteran of the police force (1) used his law enforcement contacts
to track down the victim, (2) befriended the victims girlfriend, (3) planned the abduction of the
victim with the girlfriend, (4) recruited another individual to assist him, (5) arrested and
handcuffed the victim, (6) brought him to a warehouse, (7) wrapped him in duct tape from head to
toe, (8) tied him to a forklift, and (9) left the victim there to suffer. Id. at 3. The defendant entered
a not guilty plea and proceeded to trial. He was found guilty of kidnapping. The federal district court
sentencing him to a term of incarceration of 120 months. Id. at 1, 5. Mandells sentence should be
more in line with the sentence imposed in Young, rather than the life sentence sought by the
government.
We ask the Court to consider also the sentences imposed against the conspirators that plotted
a terrorist attack on the then-Sears Tower and FBI offices. The ringleader was sentenced to 162
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months of imprisonment. Four other men involved in the conspiracy were sentenced to between 72
and 120 months in custody. See United States v. Batiste, et al., No. 06-20373-CR (S.D. Fla.). In our
district, the government prosecuted a man who pled guilty to using an instrument of interstate and
foreign commerce to communicate threats concerning the use of explosives, in violation of 18 U.S.C.
844. This defendant placed approximately 64 telephone calls to a local police department that were
extremely threatening in nature. In one call he told a dispatcher that he placed a pipe bomb under a
police vehicle that was about to explode. He also threatened to kill a specific police officers
daughter and, in other calls, several other people. He was sentenced to a term of imprisonment of
36 months. See United States v. Abney, No. 08 CR 85 (N.D. Ill.).
Additionally, the Seventh Circuit Court of Appeals upheld a 40 month sentence for a man
who threatened to kill a federal judge. That defendant also used an instrument of interstate commerce
to threaten to destroy a federal courthouse, all in violation of 18 U.S.C. 115(a)(1)(B) and 844(e).
See United States v. Miller, 2009 WL 2336216 (7th Cir. 2009). Prior to the so-called Family
Secrets prosecution, Jimmy Marcello and Anthony Zizzo of the Chicago Outfit were convicted
of RICO violations which included the extortion of a movie theater owner and the attempted
bombing of his building. Gasoline, grenades and a Molotov cocktail were used in an attempt to
destroy the building. Marcello was sentenced to 144 months and Zizzo was sentenced to 120 months
for their roles in that and other criminal activities. See United States v. Zizzo, 120 F.3d 1338, 1345,
1361 (7th Cir. 1997).
There are several other representative cases over the years like United States v. Parr, 545
F.3d 491 (7th Cir. 2008) (120 month sentence for threatening to use a weapon of mass destruction
against a federal building in Milwaukee); United States v. Austad, 519 F.3d 431 (8th Cir. 2008) (84
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month sentence found reasonable for mailing threatening communications to assassinate and
dismember a federal judge); United States v. Gibney, 519 F.3d 301 (6th Cir. 2008) (84 month
sentence for a series of arsons, one of which caused injury to a firefighter, as well as threatening to
kill a government witness); and United States v. Hull, 456 F.3d 133 (3d Cir. 2006) (144 month
sentence for white supremacist who possessed a variety of weapons and instructed others on how
to make pipe bombs).
And, there are still more, such as United States v. Farris, 448 F.3d 965 (7th Cir. 2006) (120
month sentence for a convicted sex offender who mailed threatening letters to principals of five
schools, promising to kill students and a teacher); United States v. Walker, 428 F.3d 1165 (8th Cir.
2005) (120 month sentence for threatening communications and attempting to burn down home with
people inside using Molotov cocktails); United States v. De La Fuente, 353 F.3d 766 (9th Cir. 2003)
(37 month sentence for mailing threatening communications containing white powder thought to be
Anthrax); United States v. Barber, 272 F.3d 1067 (8th Cir. 2001) (96 month sentence vacated as
excessive under guideline grouping rules where defendant manufactured and possessed five pipe
bombs).
There are many additional cases involving threats of bodily injury as well as attempted or
actual use of physical violence in which the sentences were at, higher or lower than what might be
contemplated in this sentencing hearing. However, as stated above, we believe the above summary
is a fair array of cases to conduct a level review of disparity. Clearly, Mandell potentially is being
subjected to an excessive term of imprisonment, especially when his conduct is considered against
the acts of similarly situated defendants like Young and the others.

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The nature of all these considerations genuinely prove that a non-guideline sentence is fair
and reasonable under traditional departure principles or as part of a 3553(a) analysis. See Gall, 552
U.S. at 50. Consequently, given the Courts authority to exercise its discretion, and given the facts
presented, Mandell respectfully submits that a variance or deviation well below the advisory
guideline range is justified. Clearly, under the unique circumstances presented, imprisonment for a
term of years that still allows for the prospect of freedom is appropriate.
In raising these factors in mitigation, the defense respectfully submits that the otherwise
applicable punishment be modified to reflect the unusual circumstances present in this case. 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 the punishment to ensue. Koon v. United
States, 518 U.S. 81, 112 (1996). For all of the reasons stated, defendant Steven Mandell respectfully
submits that this Honorable Court should enter judgment imposing a term of imprisonment below
the advisory guidelines range as it is reasonable and sufficient, and is not greater than necessary to
comply with the goals of sentencing.
Respectfully submitted,
s/ Francis C. Lipuma
Francis C. Lipuma
Attorney for Steven Mandell
Francis C. Lipuma
300 South Wacker Drive
Suite 1700
Chicago, Illinois 60606
(312) 675-0089

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CERTIFICATE OF SERVICE
I, Francis C. Lipuma, an attorney, do hereby certify that I caused a copy of Defendant Steven
Mandells Sentencing Memorandum to be served upon:
U.S. Attorneys Office
219 South Dearborn Street
Chicago, IL 60604

U.S. Probation Office

55 East Monroe Street
Chicago, IL 60603

pursuant to Fed.R.Crim.P. 49, L.R. 5.5, and the General Order on Electronic Case Filing of the
United States District Court for the Northern District of Illinois, Eastern Division.
s/ Francis C. Lipuma
Francis C. Lipuma
300 South Wacker Drive
Suite 1700
Chicago, IL 60606
(312) 675-0089