Efraim Diveroli: Transcript of Sentencing Day One - 8-23-11 - Gun Charge

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 1 of 175 PageID 447
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
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Case no.:
6:10-cr-281-ORl-31KRS
UNITED STATES OF AMERICA,
Plaintiff,
v.
EFRAIM DIVEROLI,
Defendant.
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Orlando, Florida
August 23, 2011
9:30 a.m.
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Transcript of the sentencing (day one)
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before the Honorable Gregory A. Presnell
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United States District Judge
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Appearances:
Counsel for Plaintiff:
J. Bishop Ravenel
Counsel for Defendant:
Cynthia Hawkins
Court Reporter:
Diane C. Peede, RMR, CRR

United States Courthouse
401 West Central Blvd., #4600
Orlando, Florida 32801
(407) 615-0305
Proceedings recorded by mechanical stenography, transcript

produced by computer.

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Index of Transcript
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Page
Direct by Mr. Ravenel
Cross by Ms. Hawkins
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9
10
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15
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Aaron Monahan
Dejan Djuric
Daniel O'Kelly
Redirect by Mr. Ravenel
Recross by Ms. Hawkins
Further redirect by Mr. Ravenel

Jacob Shprecher
Andrian Leonard Jones


Government's
Government's
Government's
Government's
Government's
Government's
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5
4
8 & 9
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1
Kevin McCann
EXHIBITS IN EVIDENCE
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15
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29
32
43
63
64
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68
73
75
76
79
94
109
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78
89
90

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P R O C E E D I N G S
THE COURT:
Lisa, call the case, please.
THE COURTROOM DEPUTY:
This is in the matter of
United States of America versus Efraim Diveroli, case number
6:10-criminal-281-Orlando-31KRS.
THE COURT:
MR. RAVENEL:
Okay.
Appearing for the government?
Good morning, Your Honor.
Ravenel for the United States.
the A.T.F.
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THE COURT:
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MS. HAWKINS:
Bishop
With me is Kevin McCann with
And for the defendant?

Good morning, Your Honor.
Cynthia
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Hawkins on behalf of Mr. Efraim Diveroli, who's to my right.
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Also assisting me is Elena Cesario Pollock, who is a retired
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A.T.F. agent, and she's going to be handling the I.T. matters
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for the defense today.
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Also present is counsel from the Southern District
17
of Florida, who may be assisting us during the course of the
18
proceedings.
Your Honor, may I introduce Richard Dansoh.
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THE COURT:
20
MR. DANSOH:
21
THE COURT:
Good morning.
Welcome.
Thank you, Judge.

All right.
We're here today for the
22
sentencing in this matter.
Mr. Diveroli entered a guilty
23
plea to Count One of the Information in this case, charging
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him with possession of firearms and ammunition by a
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prohibited person, to wit, a convicted felon, in violation of

4
18, United States Code, Section 922(g)(1) and 924(a)(2).
In connection with the sentencing, Probation has
prepared a Presentence Report dated May 5, 2011, which I have
reviewed.
number 45, which was filed by counsel for the government, as
well as a notice of supplemental filing at document number
52.
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I also have a sentencing memorandum at document
I also have a sentencing memorandum prepared by

defense counsel, appearing at document number 55 in the file.
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I also have a folder containing numerous letters
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from family and friends of the defendant, and a notebook
12
containing various documents in reference to or in support of
13
the government's memorandum.
14
So that's what I've reviewed as of this morning.
15
In terms of scheduling, I can go until about three
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o'clock today, if necessary.
I just -- I can't go beyond
17
that.
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to keep.
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week, because I'm going on a brief vacation tomorrow.
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Anyway, we'll do the best we can.
I've got a doctor's appointment and something I have
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If we don't finish by three, I have to do it next
In looking this over, I don't know why we can't
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finish this today; but if we can't, we can't.
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it until such time as we can conclude it.
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All right.
proceed?
We'll continue
Mr. Ravenel, are you prepared to

5
MR. RAVENEL:
I am, Your Honor.
witnesses we'd like to present.
Mr. Diveroli's character.
defense objections.
We have several
It will affect your view of
We also have to address several
So we can do that whenever you're ready.
THE COURT:
All right.
These witnesses will --
their testimony will have some bearing on the defendant's
objections, scoring objections or factual objections?
MR. RAVENEL:
THE COURT:
I believe they do.

All right.
Ms. Hawkins, is it okay if
10
just go ahead and take the testimony and then sort things out
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after that?
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MS. HAWKINS:
13
THE COURT:
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MS. HAWKINS:
15
THE COURT:
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That's fine with me, Judge.

Okay.
Yes, sir.
All right.
Let's go ahead with the
government's witnesses then.
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MR. RAVENEL:
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Our witness stand is over here.
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down and I'll swear you in.
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I call Aaron Monahan.

Please come forward, sir.
Please pause before sitting
Please raise your right hand.
AARON MONAHAN,
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having been first duly sworn, was examined and testified as
23
follows:
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seated.
Thank you.
You may be

6
MR. RAVENEL:
THE COURT:
May I approach the stand?

You may.
DIRECT EXAMINATION
BY MR. RAVENEL:
Q.
name.
A.
Aaron Monahan, A-a-r-o-n M-o-n-a-h-a-n.
Q.
What do you do for a living?
A.
I'm a realtor.
10
Q.
In what part of the state?
11
A.
South Miami.
12
Q.
Do you know Efraim Diveroli?
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A.
Yes.
14
Q.
Do you see him in court today?
15
A.
Yes.
16
Q.
Please describe what he's wearing.
17
A.
Red jumpsuit.
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Please state your name and spell your first and last
MR. RAVENEL:
Your Honor, the record should reflect
the witness identified the defendant.

THE COURT:
Okay.
Pull that mic over a little bit
21
closer so we can hear you better.
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THE WITNESS:
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THE COURT:
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Yes, so noted.
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BY MR. RAVENEL:
Is that better?
Yes.
Thanks.

7
Q.
When did you meet Mr. Diveroli?
A.
Around the summer of last year.
Q.
How did you meet him?
A.
Answered an employment ad in Craigslist.
Q.
What was the advertisement for?
A.
A sporting goods company.
Q.
Did you ultimately contact Mr. Diveroli as a result of
that posting?
A.
Yes.
10
Q.
Describe the initial conversation you had with Mr.
11
Diveroli.
12
A.
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sporting goods, stuff like that.
14
Q.
Did you ultimately come to work for Mr. Diveroli?
15
A.
Yes.
16
Q.
What was your role with his organization?
17
A.
Computer sales, outside sales, phone sales, for the most
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part.
19
Q.
Of what?
20
A.
Ammunition.
21
Q.
What was the company name?
22
A.
A.M.D., Advanced Munitions Distribution.
23
Q.
And who was actually in charge of that company?
24
A.
From the top, it would be Efraim; and then my direct
25
manager would be Dejan Djuric.
Very casual at the residence, describing ammunition,

8
Q.
Why do you say that Efraim Diveroli was in charge of
that company?
A.
Everything was -- he was in charge of everything.
Q.
Before you started working for him selling ammunition,
what type of jobs had you held?
A.
retail sales.
Q.
based on your background?
Just sales, outdoor sales -- I'm sorry -- outside sales,
Is there a reason why selling ammunition interested you,
10
A.
Yeah.
I was former military.
I thought it would be
11
something different, something new.
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Q.
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month did you purchase an AR-15-style rifle?
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A.
Yes.
15
Q.
Why did you purchase that rifle?
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A.
To test the new magazines.
17
Q.
Did you purchase it with your own money or somebody
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else's?
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A.
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in my possession as my firearm.
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Q.
How did you come up with the idea to purchase the gun?
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A.
It wasn't my idea.
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going to test the magazines and that was the first one we
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purchased.
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Q.
I want to talk to you about August of 2010.
No.
During that
Efraim gave me the money and said I could keep it
We have a list of weapons we were
Who came up with that list of weapons?

9
A.
Efraim.
Q.
Who directed you to purchase the firearm?
A.
The same.
Q.
Did Efraim mention any other firearms that he wanted
purchased in August of 2010?
A.
caliber that fit that magazine.
Q.
that date did you go to the Markham Shooting Range?
I believe a Mini-14 and a couple other of the same
I want to talk to you next about August 11, 2010.
On
10
A.
Yes.
11
Q.
Whose idea was it to go to the shooting range?
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A.
Efraim's.
13
Q.
Who went?
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A.
Dejan, Jake, myself and Efraim.
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Q.
What happened when you got to the range?
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A.
Jake and I drove together.
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the targets.
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we'd start shooting, testing the magazines.
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Q.
Did Efraim shoot a firearm that day?
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A.
Yes.
21
Q.
Where is the Markham Shooting Range?
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A.
North.
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Fort Lauderdale, approximately.
24
Q.
Did anybody force Efraim to go the shooting range?
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A.
No.
Where he got there.
We got
We were there before Dejan and Efraim; and then
I'm not real familiar with the area.
West of

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Q.
Whose idea was it?
A.
Efraim's ultimately.
Q.
What firearms did you see him shoot?
A.
The one that we had in our possession.
or six stalls to the right of us, I think another gentleman
had the same caliber weapon.
was.
THE COURT:
THE WITNESS:
Then about five
I'm not sure what design it
Are you talking about an AR-15?
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THE COURT:
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THE WITNESS:
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THE COURT:
Excuse me?
An AR-15?
Yes, sir.
Okay.
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BY MR. RAVENEL:
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Q.
Was he using any sort of magazine to shoot the AR-15?
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A.
In addition to ours, I'm not sure what the gentleman
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had.
17
Q.
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AR-15?
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A.
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round magazine.
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Q.
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Efraim or anybody else to go shoot those firearms at the
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Markham Shooting Range?
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A.
No.
25
Q.
Were there any federal agents there, to your knowledge,
I think it was, like, a 30-round, a typical.

What was your magazine that you were shooting with the
It was a clone of a company, Beta Mag.
It's a 100-
On August 11th did any federal agents encourage you or

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with you?
A.
No, sir.
Q.
I want to show you it's been marked with a tag in the
top left as Exhibit 2, Government's Exhibit 2.
recognize that?
A.
Yes.
Q.
What is that?
A.
That's the firearm I had in my possession.
purchased with Efraim's money.
Do you
That was
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Q.
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11th at the Markham Shooting Range?
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A.
One of them, yes, sir.
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Q.
Does that photograph fairly and accurately depict the
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AR-15 rifle?
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A.
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Is that the firearm that Mr. Diveroli shot on August
Yes.
MR. RAVENEL:
Your Honor, I'd offer that photograph
into evidence and ask for permission to publish it.
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MS. HAWKINS:
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THE COURT:
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MR. RAVENEL:
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BY MR. RAVENEL:
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Q.
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No objection.
All right.
Government's 2 is admitted.
That's Bates number 1394.
Next, I want to show you -THE COURT:
Does that have the magazine in it that
you were trying to sell?

THE WITNESS:
No, Your Honor.

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BY MR. RAVENEL:
Q.
show?
A.
Myself.
Q.
There are several --
A.
I'm sorry.
photo is Jake sitting down.
Q.
firearms at the Markham Shooting Range?
I want to show you next Exhibit 3.
What is Exhibit 3
The standing photo is myself.
The second
Were those photographs taken of you two shooting
10
A.
Yes.
11
Q.
Do those photographs fairly and accurately depict you
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two shooting at the Markham Shooting Range?
13
A.
Yes.
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MR. RAVENEL:
I'd move for the admission of that
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Exhibit, Exhibit 3, Your Honor, and ask for permission to
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publish it.
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MS. HAWKINS:
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THE COURT:
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MR. RAVENEL:
No objection.
3 is admitted.
If we can publish 1405.
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BY MR. RAVENEL:
21
Q.
Who is that photograph of?
22
A.
That's myself.
23
Q.
Is that the AR-15?
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A.
Yes.
25
Q.
And is the 100-round magazine drum attached to it?

13
A.
Yes.
Q.
Did Efraim actually fire the gun as it was in that state
right there with the magazine drum?
A.
Yes.
MR. RAVENEL:
If we can, show the next photograph.
BY MR. RAVENEL:
Q.
What does this photograph show?
A.
That's Jake shooting the same weapon.
MR. RAVENEL:
We can take that down.
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BY MR. RAVENEL:
11
Q.
Next I want to show you Exhibit 5.
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A.
That's the 100-round magazine that goes to the AR-15.
13
Q.
Does that fairly and accurately depict the magazine drum
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as it was in August of 2010?
15
A.
Yes.
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What is that?
MR. RAVENEL:
I'd move for the admission of that
document and ask for permission to publish it.
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MS. HAWKINS:
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THE COURT:
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MR. RAVENEL:
No objection.
5 is admitted.
If we can publish that.
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BY MR. RAVENEL:
22
Q.
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Markham Shooting Range?
24
A.
Yes.
25
Q.
The purpose of buying these different weapons was to be
That's the same type of drum that was taken to the

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able to test fire that magazine drum?
A.
Correct.
Q.
Next I want to talk to you about August 20 of 2010.
you come to Titusville on that date?
A.
Yes.
Q.
Who were you with?
A.
Jake.
Q.
At some point during that day did you go to Wal-Mart?
A.
Yes.
10
Q.
What was the purpose of going to Wal-Mart?
11
A.
Buy ammunition to shoot the weapon.
12
Q.
Whose idea was it to go to Wal-Mart?
13
A.
Efraim's.
14
Q.
Who paid it paid for the ammunition?
15
A.
I was handed money to purchase that at the register by
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Efraim.
17
Q.
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purchased?
19
A.
Hundreds of rounds.
20
Q.
Was there anything left -- how much compared to the
21
stock of ammunition that Wal-Mart had?
22
A.
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cart to use it.
24
Q.
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selected?
Did
Who were you driving with?
Do you remember approximately how much ammunition you
Cleaned out a couple of shelves.
We had to get a push
Who selected the types of caliber ammunition that was

15
A.
Efraim did.
THE COURT:
This is 223?
THE WITNESS:
Yes, sir.
BY MR. RAVENEL:
Q.
true that Mr. Diveroli was arrested?
A.
Yes, sir.
Q.
Describe for the Court what sort of negative
consequences you've had as a result of your involvement with
10
After that, after you came back from Wal-Mart, is it
Mr. Diveroli?
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MS. HAWKINS:
Objection; relevancy.
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MR. RAVENEL:
It goes to his character.
13
THE COURT:
Overruled.
I'll weigh it as
14
appropriate.
15
BY MR. RAVENEL:
16
Q.
You can answer the question.
17
A.
Well, my name has come up on the Internet.
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for future employment, that could be a negative for me, the
19
embarrassment.
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arrested, my character questioned as well.
21
Q.
22
You know,
You know, being shoved on the ground,
Answer any questions the defense attorney has for you.

THE COURT:
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Ms. Hawkins.
CROSS-EXAMINATION
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BY MS. HAWKINS:
25
Q.
Good morning.

16
A.
Good morning.
Q.
Mr. Monahan?
A.
Yes.
Q.
Have you seen the charges against Mr. Diveroli in this
case here today?
A.
Not exactly.
Q.
Would you like to look at a copy of the charge?
A.
Not especially.
Q.
Okay.
Do you know what time period he was charged with
10
a criminal offense for here in the Middle District of
11
Florida?
12
A.
Last summer.
13
Q.
Pardon?
14
A.
I'm sorry.
15
Q.
I'm asking if you are aware of the time period contained
16
in the charges pending against Mr. Diveroli in the Middle
17
District of Florida?
18
A.
I don't know all the specifics, no.
19
Q.
So you don't know he's just charged with what he did on
20
August 20th?
21
A.
No.
22
Q.
So on August 20th, y'all went and bought ammo at
23
Wal-Mart, correct?
24
A.
Yes, ma'am.
25
Q.
And are you aware that Mr. Diveroli pled guilty to that?
Last summer, are you referring?
You didn't know that?
I do know that.

17
A.
Yes, ma'am.
Q.
I'm sorry?
A.
Yes, ma'am.
Q.
Okay.
direct supervisor?
A.
Efraim and Dejan.
Q.
Who's your direct supervisor?
A.
Efraim until -- the company wasn't really put into place
yet even at that time.

Okay.
Now, you said in A.M.D. that -- who was your
It was being in the process.
10
Q.
And then you said your direct supervisor was
11
Dejan?
12
A.
13
into the new building.
14
Q.
Okay.
15
A.
First name is Dejan D-e-j-a-n.
16
D-j-u-r-i-c, I believe.
17
Q.
I'm sorry.
18
A.
D-j-u-r-i-c, I think.
19
Q.
Dejan Djuric?
20
A.
I believe so.
21
Q.
What did he do for A.M.D. when he was your direct
22
supervisor?
23
A.
24
yet.
25
Q.
He was going to be my direct supervisor once we moved
Spell that, please.

Last name is
Can you say that again, the last name.
Well, like I said, we didn't get into the new building

He was going to be my manager.
So. . .
Did you ever see the paperwork where he was the owner of

18
A.M.D.?
A.
No.
Q.
And did you ever -- are you privy to the contractual
arrangement between A.M.D. and Ammo Works?
A.
No.
Q.
Now, you've said that on August of 2010 you purchased an
AR-15 to test magazines?
A.
Yes.
Q.
And was that for A.M.D.?
10
A.
It was under Efraim's guidance.
11
Q.
I -- that's not the question I asked you.
12
if that was for A.M.D.?
13
A.
I was given the money to grab the --
14
Q.
Do you know -- do you know whether or not it was --
15
THE COURT:
Do you know
Excuse me, Ms. Hawkins, but don't
16
interrupt him.
He's trying to answer.
If you don't like the
17
answer, at least wait until he finishes it.
18
A.
19
weapon, to buy -- to test fire the magazines.
20
Q.
Do you know whether or not that was on behalf of A.M.D.?
21
A.
It was given to me in cash money from Efraim.
22
assume it's under his guidance.
23
Q.
I didn't ask you if you assume, sir.
24
A.
I don't know specifically if it was under A.M.D., no,
25
ma'am.
I was given the money directly from Efraim to buy the
So I
Do you know?

19
Q.
Thank you.
Now, I think that you said that you were
told that you could keep that in your possession as your
firearm, correct?
A.
Yes.
Q.
All right.
of Florida, correct?
A.
Yes, ma'am.
Q.
So that's not anything that Mr. Diveroli is charged
with, is it?
Now, this happened in the Southern District
10
A.
I don't know the specifics, ma'am.
11
Q.
Well, again, you don't want to look at the charges so
12
you can see for yourself?
13
A.
Not particularly.
14
Q.
So whether or not it was -- it was not explained to you
15
what the difference between the Middle District of Florida
16
and the Southern District of Florida is?
17
A.
No, ma'am.
18
Q.
Now, you said also that on August 11th you went to
19
Markham Shooting Range.
20
of Florida; do you know that?
21
A.
22
geography.
23
Q.
Is it near Fort Lauderdale?
24
A.
Yes, I believe so.
25
Q.
Now, were you aware of Mr. Diveroli working on a deal to
That's also in the Southern District
Ma'am, I'm not sure about all the maps and all the
I just went there to shoot.

20
brand the magazines?
A.
Yes.
Q.
And that was a deal to take the magazines with no
ammunition in them and put a manufacturer over a dealer's
brand on the magazine itself?
A.
Yes.
Q.
And that was so it could be sold?
A.
Yes, ma'am.
Q.
Okay.
And are you aware of whether or not magazines are
10
covered under federal firearms?
11
A.
No, ma'am.
12
Q.
Do you know one way or the other?
13
A.
No.
14
Q.
Now, you were shown a picture of Government's Exhibit, I
15
think it was, 4.
16
If you will, look at that picture.
THE COURT:
17
BY MS. HAWKINS:
18
Q.
Okay.
19
5.
I don't think we looked at 4.
I'm sorry.
THE COURT:
Can you put it up on the screen.
20
BY MS. HAWKINS:
21
Q.
Do you have that, sir?
22
A.
Yes.
23
Q.
Okay.
24
sell?
25
A.
5, that's the drum that y'all were trying to
Yes, ma'am.

21
Q.
And that's the one that y'all were trying to have
branded with a logo so it could be sold?
A.
Yes.
Q.
And you were aware that's what Mr. Diveroli was trying
to do in coming to Titusville?
A.
Yes.
Q.
Did you know who Mr. Diveroli was going to meet with on
August 20th in Brevard County?
A.
Knights Armament.
10
Q.
Knights Armament?
11
A.
Yes.
12
Q.
Do you know whether or not that's an actual, real,
13
legitimate company?
14
A.
Yes, ma'am.
15
Q.
You do know that, don't you?
16
A.
Yes, ma'am.
17
Q.
Okay.
18
Diveroli was trying to put together was to have Knights
19
Armament put their brand or their brand name or their logo on
20
the drum that's shown in Government's Exhibit 5?
21
A.
That was the intent.
22
Q.
Okay.
23
paperwork prepared for that transaction?
24
A.
25
done by Efraim, but I don't remember seeing the final, no,
And did you understand that the deal that Mr.
That was -- did you ever see the contract or any
I remember the verbal and the rough drafts were being

22
ma'am.
Q.
purporting to be Mr. Knight or the owner's son?
A.
No.
Q.
Okay.
A.
I believe I heard a couple calls being made to set it
up, yes.
Q.
undercover officer, but another person who was posing as the
Did you yourself ever take a call from a gentleman
I believe that was handled by Efraim.
Okay.
Do you know whether or not a call was made?
So not just with the -- who turned out to be an
10
owner or the boss of Knight?
11
A.
12
a couple phone calls as well.
13
Q.
14
test out the magazines that you were going to sell?
15
A.
Yes.
16
Q.
Who else worked for A.M.D. during this time period?
17
A.
Myself, Jake Shprecher.
18
Q.
And how long -- what was Jake's job?
19
A.
The same as mine:
20
Q.
Sales?
21
A.
Yes, ma'am.
22
Q.
Now, on the money given to you for the AR-15, do you
23
recall whether or not you got a company check for that?
24
A.
It was cash.
25
Q.
But we can pull the company records if we want to verify
I believe we received an e-mail and I thought there was
So the purpose for going to the shooting range was to
Phone sales.

23
whether or not cash was withdrawn from the company or a check
was cut?
A.
Of the cash, no.
Q.
Of depositing it or a receipt from the transaction,
anything like that?
A.
(No verbal response.)
Q.
No?
A.
(Witness shakes head negatively.)
Q.
I have no further questions.
Do you have any records, I guess, is my question?
10
THE COURT:
11
MR. RAVENEL:
12
THE COURT:
13
MR. RAVENEL:
Thank you, sir.
Redirect?
No, sir.
All right.
Thank you, sir.
14
Call Dejan Djuric.

DEJAN DJURIC,
15
16
follows:
17
18
Thank you.
You may be
seated.
19
THE COURT:
20
THE WITNESS:
21
Okay.
Yes.
DIRECT EXAMINATION
22
BY MR. RAVENEL:
23
Q.
24
name.
25
A.
Please state your name and spell your first and last
My name is Dejan Djuric, D-e-j-a-n, last name

24
D-j-u-r-i-c.
Q.
A.
I'm working as a dispatcher right now.
Q.
Where do you live?
A.
Miami Beach.
Q.
You're from another country originally?
A.
Yes, from Yugoslavia.
Q.
A.
Yes.
10
Q.
11
A.
Yes.
12
Q.
Please point him out and describe what he's wearing.
13
A.
A red -- red and white. . .
14
Q.
Like, a jumpsuit?
15
A.
Yes.
16
17
MR. RAVENEL:
What part of the country?
The record should reflect the witness
identified the defendant.
18
THE COURT:
So noted.
19
BY MR. RAVENEL:
20
Q.
How did you meet Mr. Diveroli?
21
A.
I met him in my building.
22
Q.
Was that in Miami?
23
A.
Yes.
24
Q.
How long ago was that?
25
A.
It was 2007, 2008.

25
Q.
At some point did you come to work for Mr. Diveroli?
A.
Yes.
Q.
In what capacity?
A.
I work for his company called A.U.I., was, like, doing
researching and stuff on the computers.
Q.
What sort of research were you doing?
A.
Like, freight and different -- I was contacting actually
eastern Europe because that's my language.
speak, Slavic.
That's what I
10
Q.
Did you also work for other companies that Mr. Diveroli
11
controlled?
12
A.
Ammo Works and Pinnacle Minerals.
13
Q.
Were you on the paperwork for those companies?
14
listed as an officer for those companies?
15
A.
I was president of the Pinnacle Minerals.
16
Q.
Did you make the decisions about those companies by
17
yourself or did you consult with Mr. Diveroli in making those
18
decisions?
19
A.
For the Pinnacle Minerals?
20
Q.
Yes, sir.
21
A.
Efraim put me as president of the Pinnacle Minerals
22
because I was in California working.
23
mine in California.
24
Q.
Did you also work for Ammo Works as well?
25
A.
Yes, sir.
Were you
I was working on gold

26
Q.
Were you also listed as a corporate officer on Ammo
Works?
A.
No.
Q.
Were you listed as a corporate officer on
Advanced Munitions?
A.
Yes.
Q.
Do you know why you were listed as a corporate officer?
A.
The company was open to -- Efraim told me that I'm going
to be one of the company.

Did you have control?
Marco actually opened the company.
10
Q.
Could you make all the decisions
11
for the company or who made those decisions?
12
A.
Efraim.
13
Q.
Did you have any prior experience before you met Efraim
14
in arms dealing or anything like that?
15
A.
No, sir.
16
Q.
What sort of jobs had you held before that?
17
A.
I do moving company.
18
hospitality business, working as a server.
19
Q.
20
Range?
21
A.
Yes, sir.
22
Q.
What was the purpose of going?
23
A.
Efraim's.
24
Q.
Why did you go to the range?
25
A.
They was testing magazines, hundred-round magazines for
I was in restaurant business, in
During August of 2010 did you go to the Markham Shooting

27
the M-16, I believe, the gun, rifle gun.
Q.
Did -- whose idea was it to go to the range?
A.
Efraim's.
Q.
Whose idea was to it to purchase the firearm that was
used at the range?
A.
Efraim gave Aaron money to purchase the firearms.
Q.
Did Efraim know, according to what you heard in Efraim's
presence, whether or not he can have a firearm during that
time period?
10
A.
I'm sorry.
I don't understand.
11
Q.
Do you know whether Efraim was allowed to have a gun
12
during that time period?
13
A.
Yeah, I know.
14
Q.
Was he allowed to?
15
A.
No.
16
Q.
Did anybody tell him in your presence that he couldn't
17
have a firearm?
18
A.
Everybody.
19
Q.
What did you see Efraim do at the shooting range on
20
August 11, 2010?
21
A.
22
shooting range.
23
Q.
24
firearms?
25
A.
Actually, Efraim and myself, we went together to the

Jake and Aaron was in separate car.
Once you got there, did you see Efraim shoot any of the
Yes.

28
Q.
How many did you see him shoot?
A.
I don't remember how many, but was shooting on the
shooting range with a rifle, M-16 what is it called.
Q.
already in evidence.
A.
Okay.
Q.
Is that the firearm that was taken to the range and shot
by Mr. Diveroli?
A.
Yes, sir.
10
Q.
Did Mr. Diveroli shoot any other firearms that day at
11
the range?
12
A.
13
one.
14
that moment.
I want to show you a photograph, Exhibit 2, that's

It'll come up on your TV screen.
I believe so was a round, but I don't remember which

He was trying with some other people that was there at
15
MR. RAVENEL:
We can take that photograph down.
16
BY MR. RAVENEL:
17
Q.
18
you've had personally as a result of being involved with Mr.
19
Diveroli?
20
A.
21
are calling me every day, all day.
22
a lot of stuff.
23
something.
24
know, all around the news and Google.
25
account at the bank.
Would you describe for the Court what consequences
Many things.
My bank account was cancelled.
Reporters
My name is all around and
I was trying to apply for a loan to do
I didn't get any loan because my name is, you

And so they closed my

29
MR. RAVENEL:
THE COURT:
Thank you, Your Honor.

What country in the former Yugoslavia
are you from?
THE JUROR:
I was born in Croatia.
THE COURT:
Croatia.
Ms. Hawkins.
CROSS-EXAMINATION
BY MS. HAWKINS:
Q.
Good morning.
10
A.
Good morning.
11
Q.
Isn't it true that you continued to work for Mr.
12
Diveroli long after the negative publicity?
13
A.
I don't understand your question.
14
Q.
Well, you said there was negative publicity or you
15
suffered some negative consequences because you worked for
16
Mr. Diveroli.
17
him after the negative publicity, right into 2008?
18
A.
I start working for Efraim Diveroli in 2008.
19
Q.
And how long did you work for him?
20
A.
Until 2010.
21
Q.
Until 2010, right?
22
A.
Yes.
23
Q.
You continued to work for him?
24
A.
No.
25
Q.
Now, how much was he paying you a week?
After. . .
Isn't it true that you continued to work for
And that's after he was arrested?
I got fired after he got arrested.

30
A.
Four seventy-five a week.
Q.
Wasn't he paying you a thousand dollars a week even when
there was no work for you?
A.
dollars a week.
Q.
Did he pay over $10,000 for a family funeral in Bosnia?
A.
Yes, ma'am.
Q.
And helped to support your family over there for years?
A.
Yes.
10
Q.
And supported your family because your father was in
11
prison?
12
A.
Yes.
13
Q.
I'm sorry.
14
You answered my question.
15
A.
Okay.
16
Q.
When you were the president of Pinnacle, you said that
17
you were doing work for Pinnacle, correct?
18
A.
Yes, ma'am.
19
Q.
And that was a minerals company?
20
A.
Yes.
21
Q.
And that was a real company, wasn't it?
22
A.
Yes.
23
Q.
Isn't it true that you married a woman in order to give
24
her papers to stay in the United States?
25
A.
That was last month he start paying me, like, a thousand
No.
It's not all that.
He actually never paid me.
I haven't actually asked you a question.

Thank you.
Sorry.

31
Q.
In order for you to have papers to stay in the United
States?
A.
No.
Q.
Didn't you talk -- didn't the agents ask you about that
when you were interviewed by the A.T.F. agents?
A.
Yes.
Q.
How much older was she than you?
A.
No matter.
Q.
How much older was she than you?
10
A.
Fifteen years.
11
Q.
And didn't you divorce shortly thereafter?
12
A.
I divorce her, like, six year after, five year after.
13
Q.
And you deny that that was a marriage that was just for
14
the sake of getting your papers?
15
A.
This is not true.
16
Q.
Didn't you tell people that that's why you were married
17
to her, just so you could get papers?
18
A.
Never.
19
MS. HAWKINS:
No further questions.
20
THE COURT:
21
MR. RAVENEL:
22
Thank you very much.
23
THE COURT:
24
MR. RAVENEL:
25
He's a special agent with A.T.F.
Redirect?
I have nothing further.
All right.
You can come down.

Thank you, sir.
The next witness is Daniel O'Kelly.

32
DANIEL O'KELLY,
follows:
4
5
You may be
seated.
MR. RAVENEL:
THE COURT:
8
9
Thank you.
May I approach, Your Honor?

You may.
DIRECT EXAMINATION
BY MR. RAVENEL:
10
Q.
Please state your name.
11
A.
Daniel O'Kelly.
12
Q.
Is that the common spelling for your first and last
13
name?
14
A.
Yes.
15
Q.
16
A.
I'm an A.T.F. agent.
17
Q.
You might need to speak up a little bit into the
18
microphone.
19
How long have you been an A.T.F. agent?
20
A.
Twenty-three years.
21
Q.
Did you have any prior law enforcement experience before
22
that?
23
A.
I was a police officer for ten years prior.
24
Q.
What state was that in?
25
A.
The state of Indiana.

33
Q.
Would you describe your career with A.T.F., what sort of
cases you've worked and what your specialty is.
A.
experience doing undercover work.
Q.
firearms specialist?
A.
I've been everything from -- prior to law enforcement, I was
a gun store clerk to being a firearm instructor with the
I'm a firearms specialist and I have quite a bit of
Can you describe your experience with firearms as a
I am a lifelong student of firearm history and design.
10
police department to having taught firearm technology
11
internationally in the academies in Africa and Europe.
12
I have taught at the A.T.F. academy for years.
13
I was on staff at the A.T.F. academy for five years, teaching
14
firearm technology; and I teach interstate nexus to A.T.F.
15
agents nationwide.
16
for police officers across the state of Florida regularly.
17
Q.
18
person by the name of Efraim Diveroli?
19
A.
Yes.
20
Q.
21
A.
Yes, I do.
22
Q.
Please point him out.
23
A.
He's at the defense table in the red jumpsuit.
24
25
I put on seminars on firearm technology
During the course of your duties did you come to know a
MR. RAVENEL:

34
THE COURT:
So noted.
BY MR. RAVENEL:
Q.
Diveroli in the Middle District of Florida?
A.
Yes.
Q.
What was your role?
A.
I played an undercover role as a firearm dealer.
Q.
When did your investigation or your role in the
investigation begin?
Were you involved in the investigation of Efraim
10
A.
July of 2010.
11
Q.
During the course of your investigation, did you have
12
recorded conversations with Mr. Diveroli?
13
A.
Yes, I did.
14
Q.
Was there a mention of shooting firearms during this
15
conversation?
16
A.
Yes, there was.
17
Q.
Who initially brought up the idea of shooting firearms?
18
A.
Efraim Diveroli did.
19
Q.
Would you describe that to the Court.
20
A.
It was the second, maybe third time we spoke by phone,
21
discussing these ammunition magazines and the sale of
22
ammunition to me by him.
23
coming weekend.
24
rental property and that I was planning to attend the gun
25
show in Stark, Florida, and asked him why he had asked.
He asked what I was doing this
I responded that I had tenant issues with my
He

35
said, well, he'd like to know if "you'd come down and shoot
with us.
Q.
Did you go down and shoot with them?
A.
No, I did not.
Q.
Did he also describe shooting firearms in other
conversations you had with him?
A.
Yes, he did.
Q.
Would you describe that for the Court.
A.
He told me at one point by phone that they -- "they,"
Bring some of your guns and we'll go shooting."
10
referring to he and his co-workers -- had gone to the
11
Everglades and had been shooting at deer, hogs, alligators,
12
just shooting in general, and that they had been to some
13
other range.
14
Q.
15
2010?
16
A.
Yes.
17
Q.
Where did that operation take place with regards to this
18
case?
19
A.
20
the arrest, I believe?
21
Q.
Yes, sir.
22
A.
That took place in the parking lot of a Target store,
23
which is also the parking lot of a Quiznos sandwich shop in,
24
I believe it's Titusville.
25
Q.
Were you involved in the operation on August 20th of
I'm trying to refresh my memory.
That was the date of
Why was that location selected for the operation,

36
Titusville?
A.
were supposed to meet with that day, at least I led him to
believe that we were supposed to meet with this cooperating
source at the business.
to make an arrest.
Q.
Miami?
A.
Yes, at one point.
10
Q.
What was your response to that and why did you respond
11
how you did?
12
A.
13
cooperating source would travel to Miami for him to present
14
his product to the source for the purpose of the source
15
deciding to endorse it and sell it nationally or
16
internationally.
It was near the business of a cooperating source that we
The real purpose of the meeting was
Was there a discussion about having the meeting in
Well, Diveroli wanted to know if myself and the
17
And I said, you know, "This guy is a multi-
18
millionaire.
He owns a huge corporation."
I said, "He
19
doesn't know you."
20
well.
21
yeah, it works fine; but," I said, "you're going to need to
22
travel up here to him.
23
on some unsure possible wild goose chase.
24
to come to where he is.
25
Q.
I said, "I don't really know you that
You know, we've seen one sample of your product and,
He's not going to travel down to you

You know, you need
You want his business."
What was the tactical reason behind doing that, behind

37
responding that way?
A.
that sounded realistic and we were doing the investigation in
the Middle District of Florida.
Q.
multi-millionaire owner of a company to travel to a person,
an unknown person essentially, to engage in a business --
A.
No, not at all.
Q.
Before August 20th, did you have discussions with Mr.
Well, for starters, it was the common-sense approach
Did you believe it would have been realistic for a
10
Diveroli about shooting firearms on the 20th?
11
A.
Yes.
12
Q.
On the 20th of August, did you bring firearms to the
13
meeting with Mr. Diveroli in Titusville?
14
A.
Yes, I did.
15
Q.
What firearms did you bring?
16
A.
I brought three.
17
rifle called a model FSL.
18
terms, it's a variant of an FAL-type rifle.
19
caliber, 20-shot assault rifle, a very high-powered weapon.
20
I also brought a Steyr model USR or also known
The first is an FMAP manufactured

It's -- in normal recognizable
It's a .30
21
as an AUG.
It's the Austrian military rifle to date.
22
.223 caliber, 30-shot, semi-automatic assault weapon.
23
And I brought a Glock pistol, which is a
It's a
24
nine-millimeter, 17-shot firearm, semi-automatic pistol.
25
Q.
Why did you bring those three firearms?
Why did you

38
select those type of firearms?
A.
the calibers that he had indicated he had ammunition
available for, that he had magazines that would fit that type
of gun.
guns that were ever discussed were semi-automatic assault
weapon-type firearms such as AR-15s, AK47s, that kind of
firearm.
available as props, I did not want to manufacture, you know,
Because they were the type of firearms that he -- and
During this whole investigation, the only kind of
And I did not want to bring -- of the things I had
10
a higher situation by bringing machine guns or anything.
11
I brought semi automatics.
12
So
I could have brought -- I had full automatic
13
AK47s.
I had full auto M-16s and other things I could have
14
brought; but rather than try to extenuate the circumstance, I
15
brought these as being reasonable.
16
THE COURT:
17
THE WITNESS:
18
19
Why did you bring the Glock?

The Glock is also a semi-automatic
firearm.
THE COURT:
But it's not an assault weapon.
It's a
20
normal -- I mean, it's something used by law enforcement.
21
It's not an assault rifle.
22
THE WITNESS:
Yes, sir.
I brought the Glock
23
because it's something I have seen these snail drum magazines
24
made for on the Internet and because it's a common pistol.
25
THE COURT:
Okay.

39
BY MR. RAVENEL:
Q.
firearm under federal law?
A.
Yes, sir.
Q.
Did you also bring magazines as well?
A.
Yes, I did.
Q.
What size were the magazines for the weapons?
A.
The magazine for the FMAP is a 20-round, 20-shot
magazine.
Were -- each of these firearms, did they qualify as a
The magazine for the Steyr is a 30-shot, and the
10
Glock magazine is a 17-shot.
11
Q.
12
pulled up in a truck; is that correct?
13
A.
14
behind the two front seats, it has the small fold-down seats
15
for children or whatever.
16
And it has the false rear doors.
17
the driver's door and that exposes a hidden lever.
18
that lever and a half-door then opens in the opposite
19
direction, like a suicide-type door, so you can see the area
20
behind the driver's seat.
21
lying on the floor behind the driver's seat along with the
22
magazines.
23
Q.
24
firearms?
25
A.
Where were the magazines located in your truck?
You
A pickup truck, yes, with the extended cab, meaning that
It's not a complete back seat.

In other words, you open
You pop
And these three firearms were
What's the proximity between the magazines and the
They were touching.
They were just lying in a pile.

40
They were not in cases.
Q.
firearms?
A.
them; and without magazines, they would be one-shot firearms.
You can't fire them more than one shot at a time without
physically reloading the chamber each time, if you don't have
a magazine.
Q.
Why did you decide to bring the magazines as well as the
Because the idea for bringing the firearms was to shoot
Its just part and parcel of a firearm.
Did you bring those magazines for the purpose of
10
enhancing Mr. Diveroli's sentencing guidelines or anything
11
like that?
12
A.
13
magazines that go with those three firearms.
14
Q.
15
conversation about shooting firearms?
16
A.
Yes.
17
Q.
Where were you located when you had that conversation?
18
A.
Prior to arriving at this parking lot or on that day?
19
Q.
On that day.
20
A.
We were standing on the sidewalk outside the Quiznos
21
sandwich shop and -- that's where we were.
22
know the essence of the conversation or just where we were?
23
Q.
How far away from the truck were you?
24
A.
Twenty-five yards.
25
Q.
Did you mention to Mr. Diveroli that you had firearms in
No.
They're the size -- they're the standard size
At some point did you and Mr. Diveroli have a
Do you want to

41
the truck?
A.
bring firearms, I said, "Yes."
Q.
At some point did you go over to the truck?
A.
After he asked and I said, "Yes, I brought them," he
said, "Let me see them," and we walked over to the truck.
opened the doors and pointed, standing outside the swing
radius of the doors, just pointed to them and at that point
he reached in and picked up the Glock and started
When he asked.
After -- in response to him asking did I
10
manipulating the slide, working the slide back and forth,
11
examining the firearm.
12
Q.
At some point did you leave the truck after that?
13
A.
Yes.
14
I shut the doors, locked the truck and we walked back over to
15
Quiznos where the other gentlemen were.
16
Q.
What happened next?
17
A.
The other gentlemen came out of the Quiznos and engaged
18
us in just chitchat.
19
Within two minutes of conversation about the guns,
And after a minute or so, Efraim again said,
20
"Hey, you guys want to look at this.
Look at what he
21
brought," and walked us back over to the truck, at which
22
point I swung the doors open and pointed, just like the first
23
time, and at this point Efraim reached in and picked up the
24
FMAP rifle and started working the action on it and
25
demonstrating it for everyone.

42
Q.
I want to show you Exhibit 4.
you began testifying.
A.
Yes.
Q.
Do you recognize that?
A.
Yes.
took with me that day.
Q.
exhibit?
A.
I handed it to you before
This is a photograph of the actual FMAP that I
Are there several photographs actually as part of that
The next photograph is the Glock and the third one is
10
the Steyr AUG that I took with me that day and the magazines
11
that go with them.
12
Q.
13
the firearms appeared on August 20th of 2010?
14
A.
Do those photographs fairly and accurately depict how
Yes, they're exactly the same.
15
MR. RAVENEL:
Move to admit Exhibit 4.
16
MS. HAWKINS:
No objection.
17
MR. RAVENEL:
And publish that.
18
THE COURT:
19
MR. RAVENEL:
All right.
4 is admitted.
Publish the first photograph.
20
BY MR. RAVENEL:
21
Q.
22
1392.
23
A.
That's the FMAP rifle.
24
Q.
The next photograph is 1393, is the number Bates number
25
on the bottom right.
What does this photograph show?
This is Bates number

43
A.
That's the Glock Model 17 that I took with me that day.
Q.
And the next photograph is 1397.
A.
And that's the Steyr that I took that day.
Q.
The magazines, are those the same magazines that are
depicted in those photographs that you took that day?
A.
Yes, sir.
Q.
I want to show you next Exhibit 5.
admitted.
that photograph of?
That's already been
If we can show you that on the TV screen.
What is
10
A.
11
drum magazine, the -- one of the ones that were provided by
12
Efraim during the investigation.
13
Q.
14
is that?
15
A.
16
That's similar to the same model that the U.S. military uses
17
and which A.T.F. is issued for enforcement operations.
18
Q.
19
capable of accepting?
20
A.
21
100-round magazine.
22
Q.
23
That is a KCI-manufactured 100-round .223-caliber snail
Next I want to show you Exhibit 2.
That's one of the variants of the AR-15-style rifle.
Are you aware of what size magazine that firearm is
It will accept anything from a 20-round magazine to a
I have no further questions.

THE COURT:
24
25
What type of firearm
All right.
Thank you.
Ms. Hawkins.
CROSS-EXAMINATION
BY MS. HAWKINS:

44
Q.
Good morning.
A.
Good morning.
Q.
How many times did Efraim Diveroli tell you that he did
not want to come to the Middle District of Florida?
A.
At least once.
Q.
You don't recall three times?
A.
It could have been three times.
Q.
It could have been at least three times, couldn't it?
A.
I said yes.
10
Q.
And he told you that he had -- he could only come as far
11
north as Jupiter; do you recall that?
12
A.
13
Miami area.
14
Q.
15
go as far north as Jupiter on any of the recordings?
16
A.
17
jurisdictional city, a line of some kind, and it may have
18
been Jupiter, yes.
19
Q.
20
longer had a license, a federal firearms license, right?
21
A.
He told me that.
22
Q.
And you knew that he was out on bond on that case,
23
didn't you?
24
A.
Yes, I did.
25
Q.
And you knew that if you got him to come north of
I don't recall a number.
At one point he said he could not come outside of the
Did you remember him saying specifically he could only
There was one conversation where he named a
And he told you that he had been prosecuted, that he no

45
Jupiter into Brevard County, that he would be violating that
bond, correct?
A.
I knew that.
Q.
And yet you still told him at least three times when he
said no, that you wanted him to come to the Middle District
of Florida, didn't you?
A.
wanted to meet the connection I had in the gun industry who
may be interested in doing what he wanted done, that he
Actually, no.
More specifically, I told him if he
10
needed to come to see that man, because that man was much too
11
high in the industry to come to him.
12
Q.
That was Mr. Knight?
13
A.
Yes.
14
Q.
Knights Armament is a real company, correct?
15
A.
Yes, it is.
16
Q.
It's a legitimate, well-known company, correct?
17
A.
Yes.
18
Q.
And isn't it true that Mr. Diveroli was well known in
19
the armament community?
20
A.
21
community.
22
Q.
23
Works or A.E.Y. or Mr. Diveroli?
24
A.
25
heard of him.
I couldn't tell you how well know he was in the armament

I'd never heard of him until this case started.
Did you ask Mr. Knight whether or not he knew of Ammo
The name was brought up and, as I recall, he had never

46
Q.
Did you try to set up a meeting in Jupiter?
A.
No.
Q.
Isn't it correct that if you did not get Mr. Diveroli to
travel to Brevard County, you would not have venue to bring a
federal case against him?
6
7
MR. RAVENEL:
conclusion.
8
9
Objection; calls for a legal
THE COURT:
A.
Well, overruled.
What he was doing was illegal across the United States.
10
It doesn't matter where he was doing it.
11
Q.
12
Florida?
13
A.
Yes.
14
Q.
And isn't it true that in order for the Middle District
15
of Florida to prosecute him, you had to get him to come into
16
the Middle District of Florida?
17
A.
I didn't care where he got prosecuted.
18
Q.
At that time did you know where venue was for the Middle
19
20
A.
Yes.
21
Q.
And you knew that Brevard County was in the Middle
22
District?
23
A.
24
office covers.
25
that it is.
Was the case being run out of the Middle District of
Yes, I believe it is.
It's not part of the area that my
So I can't swear that it is, but I believe

47
Q.
What were you going to arrest him for on the 20th?
A.
I wasn't going to arrest him.
Q.
Was A.T.F. going to arrest him?
A.
Yes.
Q.
And what was he to be arrested for?
A.
Being a felon in possession of firearms and ammunition.
Q.
And at that time, had he been in possession of a firearm
in the Middle District of Florida before that meeting?
A.
He said he was.
10
Q.
Was that sufficient to prosecute him in the Middle
11
12
A.
No.
13
Q.
He never said he was in possession -- a felon in
14
possession of a firearm in the Middle District of Florida
15
prior to that day, did he?
16
A.
17
ammunition in the Southern District.
18
Q.
Right.
19
A.
He didn't admit that he had done that in the Middle
20
District, no.
21
Q.
22
on August 20th was to arrest him, you didn't have anything to
23
arrest him for in the Middle District of Florida, did you?
24
A.
25
charge him with international traffic and regulation under
He said he was a felon in possession of firearms and
Right.
But not in the Middle District, right?
So when you said that the purpose of the meeting
We had, as the case agent had informed me, plans to also

48
the ITAR Act.
Q.
was a sustainable charge?
A.
to be the undercover gun guy.
Q.
that?
A.
I don't believe he was.
Q.
And do you know whether or not the U.S. Attorney's
And had you made an examination of whether or not that
I wasn't the case agent.
That wasn't my -- my role was
And do you know whether or not he was ever charged with
10
Office had given approval to arrest Mr. Diveroli prior to the
11
August 20 transaction?
12
A.
13
wasn't the one serving it.
14
Q.
15
went to meet with Mr. Diveroli?
16
A.
17
were going to arrest him on probable cause.
18
Q.
19
meeting on August 20, did you?
20
A.
No.
21
Q.
There wasn't probable cause until August 20th to arrest
22
him for anything in the Middle District, to your knowledge,
23
was there?
24
A.
There was, according to the case agent.
25
Q.
And you don't know whether the case agent had actually
I wasn't aware of what was in the arrest warrant.
Was there an arrest warrant on August 20th before you

There wasn't, was there?
I can't swear that they were using a warrant or if they
Well, you never saw an arrest warrant before that
I didn't need to.

49
already spoken with the U.S. Attorney's Office for a probable
cause arrest; that's what you're saying?
A.
investigation.
Q.
the purpose of the meeting was to arrest him, and that's why
I don't understand that you don't know the answer to this
question of whether or not an arrest had been approved for
federal prosecution before the meeting.
That was outside the scope of my part of the
Well, I was just very interested, because you said that
10
A.
Well, I would never expect that the case agent led me to
11
believe we're going to arrest him without legal ability to do
12
so.
13
Q.
14
actually arrested him for was for picking up the two guns
15
that you brought to the meeting, correct?
16
A.
17
because that was being directed by the U.S. Attorney's Office
18
in correspondence with the case agent.
19
information from this man by talking to him about what he was
20
doing, what he was willing to do, what he had done.
21
nothing to do with the arrest.
22
Q.
23
Criminal Complaint against him for what happened that day?
24
A.
25
being run out of office, a completely different supervisor, a
And what you actually arrested him for, what A.T.F.
I couldn't tell you what he was arrested for that day
My job was to glean
I had
So I take it you're saying that you never reviewed the
I don't believe I did.
I work in Tampa.
The case was

50
completely different office, an hour an some minutes away
from where I work.
Q.
Well, I understand that.
A.
If I did read it, I do not have independent recall of
having read it at this point, because it really was not part
of what I was doing on the case.
If I read it, it would have
been just for personal interest.
I don't believe I did.
Q.
isn't it?
Did you see the Complaint?
Well, Tampa is in the Middle District of Florida, too,
10
A.
Yes.
11
Q.
So you do know what the Middle District of Florida
12
encompasses, don't you?
13
A.
14
the whole Middle District.
15
down to Collier County and east to include Polk County.
16
Outside of that, the rest of the Middle District is covered
17
by at least two other offices that I know of.
18
Q.
19
getting Mr. Diveroli to come up to the Middle District, to
20
Brevard County?
21
A.
Yes.
22
Q.
And that was so that you could have venue in the Middle
23
District of Florida, wasn't it?
24
A.
25
undercover role.
The entire boundaries of it, no, because I don't cover

My office covers Citrus County
Did you have discussions with the case agent about
No.
Did he say that?
It was to maintain realism in the investigation, my

51
Q.
It had nothing to do with venue?
was not discussed?
A.
The issue of venue was brought up that --
Q.
Right, because you couldn't have arrested him for what
he did in the Southern District, right, or Agent McCann
couldn't have?
A.
That's, again, a legal question.
Q.
Well, come on.
they're authorized or not.
You make arrests.
Are you saying that
I don't know.
You know whether
10
A.
You can arrest people for violating the law across the
11
United States.
12
Q.
I'm sorry.
13
A.
Well, you didn't let me finish my answer, either, from
14
the prior question.
I'm not done with my question.
15
THE COURT:
16
MS. HAWKINS:
17
That's correct, Ms. Hawkins.

I'm sorry.
I thought he was
finished.
18
THE COURT:
If you're going to interrupt him, he's
19
going to interrupt you; and I won't hear a thing either one
20
of you say.
21
MS. HAWKINS:
Well, I'm sorry, Your Honor.
22
thought he was finished.
23
BY MS. HAWKINS:
24
Q.
25
Go ahead.
THE COURT:
Well, I didn't think he was finished,

52
and he obviously wasn't finished.
So let's try to at least
wait for his answer.
A.
anyplace in the United States or its territories.
Q.
So you are aware of what it takes to make an arrest?
A.
Certainly.
Q.
And you are aware that in order to make an arrest in the
Middle District of Florida and to bring a case for
prosecution in the Middle District of Florida, you would have
10
to get authorization by the Assistant U.S. Attorney in charge
11
of that investigation, correct?
I can arrest somebody for violating any federal law
12
MR. RAVENEL:
13
THE COURT:
Objection.
Sustained.
14
BY MS. HAWKINS:
15
Q.
16
arrest?
17
A.
Unless you have a warrant, yes.
18
Q.
And then you have to bring that case before the court in
19
that district, in that federal district?
20
A.
Yes.
21
Q.
So when you talked about venue with Agent McCann, the
22
case agent, you were aware of this situation that Mr.
23
Diveroli, in order to be prosecuted in the Middle District,
24
would need to be arrested in the Middle District, correct?
25
A.
You know that you have to have probable cause for an
Was I aware that that was -- I'm not sure I'm clear on

53
your question.
Q.
McCann, didn't you all discuss the fact that he had -- Mr.
Diveroli would have to be arrested in the Middle District of
Florida in order for him to be prosecuted in the Middle
THE COURT:
I'm asking you, in terms of your discussions with Agent
Well, I don't think that's a correct
statement of the law.
prosecute someone in the Middle District, you have to arrest
10
him here?
11
You're telling me that in order to
I see a lot of people that aren't arrested here.

MS. HAWKINS:
I'll rephrase that.
12
BY MS. HAWKINS:
13
Q.
14
District of Florida, did you discuss with Agent McCann that
15
he would like the arrest to happen in Brevard County?
16
A.
17
He -- I don't think he had a concern with where it had to
18
happen.
19
Q.
And did --
20
A.
You're asking --
21
Q.
-- you discuss with him that Mr. Diveroli would need to
22
commit some kind of crime in the Middle District of Florida
23
in order for it to be prosecuted under his case?
24
A.
25
where you're going with this.
Based on authorization to prosecute in the Middle
We discussed where the arrest was going to happen.
In an investigation, you -- I mean, I'm not clear on

I'm trying to answer your

54
question.
When you're doing an investigation in an
undercover capacity, with or without yourself also being the
case agent, you provide opportunity for a defendant to commit
a violation; and if they commit that violation, you document
it.
much further you want to allow the guy to go before you make
an arrest.
You continue to correspond with the prosecutor as to how
At the time you're going to make an arrest, you
10
take leadership from the U.S. Attorney on whether you're
11
going to do it on complaint, probable cause, warrant, what
12
have you.
13
Q.
14
agent about Mr. Diveroli committing a criminal act in the
15
Middle District and having him being arrested in the Middle
16
District so that Agent McCann could handle the case in the
17
Middle District?
And that's the process we followed.
I'm asking you if you had a discussion with the case
18
MR. RAVENEL:
19
THE COURT:
Asked and answered.

Well, let's try to answer it and move
20
on.
21
A.
22
Diveroli was doing.
23
that confirmed the fact that if an arrest was made, it would
24
be prosecuted in the Middle District, because that's where he
25
and I work.
I did have discussions with Agent McCann about what

I did have discussions with Agent McCann

55
Q.
Now, you told Mr. Diveroli that you were a licensed
firearms dealer?
A.
Yes.
Q.
And at one point when he was talking to you about
ammunition, did he not explain to you that he no longer was
in that business and did not want to be in that business
anymore?
A.
within the same sentence so many times that he came off
Mr. Diveroli made a practice of contradicting himself
10
like -- I don't want to use a cliche about salesmen, but he
11
would tell you in one breath that, as is recorded on our
12
phone calls, which I have reviewed many times and it's very
13
fresh in my mind, he said in one phone call that he does
14
this, in other words, this representing companies in the sale
15
of firearm-related products and ammunition, for, quote,
16
"three or four different companies," and within the same
17
breath said that "I do this just for my company."
18
Q.
Do you want to hear my question again?
19
A.
Sure.
20
Q.
Yeah.
21
longer selling ammunition directly?
22
A.
23
contradicted it within minutes.
24
Q.
And did he tell you that he was acting as a consultant?
25
A.
He made that statement.
Did he tell you on the recordings that he was no
Well, he made that statement at one point and then

56
Q.
Did he tell you that because of the legal problem he
had, he no longer wanted to be in the weapons, firearms, any
kind of business at all?
A.
He made that statement and then contradicted it.
Q.
And then did he tell you that you should talk with Aaron
on the ammunition, that he's not going to be working on that
anymore?
A.
about ammunition, because Aaron wasn't able to provide the
He made that statement and then continued to talk to me
10
information I needed.
11
Q.
12
tell you that, quote, "I'm not -- I'm not doing that well the
13
last couple of years, and I've been trying to get out of that
14
business, the ammunition business, and into other ventures"?
15
Do you recall him telling you that?
16
A.
17
said, "Once a gun runner, always a gun runner."
18
Q.
And then he laughed, right, and said, "Just kidding"?
19
A.
I think he laughed and -- I don't recall if he said,
20
"Just kidding."
21
Q.
22
he?
23
A.
He wasn't selling me any firearms.
24
Q.
Actually, what he was trying to do was set up a deal to
25
have these magazines branded by Knights Armament, correct?
I'm sorry.
Yes.
He continued --
I haven't asked you a question yet.
Did he
That was about the same conversation where he
Because he wasn't running guns in the deal with you, was

57
A.
Correct.
Q.
And that's what he told you several times during your
conversations with him, that he didn't care about this other
stuff, any ammunition, that that was the deal that he was
interested in?
A.
even paying for it.
Q.
Do you understand my question?
A.
Yes.
He told me he'd give me a pallet of ammunition without
And your question was is he not involved in
10
firearms --
11
Q.
I asked you --
12
A.
-- any more and ammunition.
13
Q.
I asked you, sir, if he told you that he was not
14
interested in those other things, that what he was really
15
interested in doing was getting these drums branded, correct?
16
A.
That answer is no.
17
Q.
Did he not tell you before he traveled up in August to
18
the Middle District that when you were discussing guns, that
19
he said, you know, "I'm not up there to play with toys; I'm
20
up here to make a business deal"?
21
conversation?
22
A.
I do.
23
Q.
Where in your report does it say that you had the
24
magazines with the firearms on August 20th?
25
A.
I don't know if it does.
Do you not recall that

58
Q.
It doesn't, does it?
A.
I don't know if it does.
me.
Q.
tapes, yes?
A.
I reviewed a lot of stuff, yes.
Q.
Did you review your reports?
A.
Yes.
Q.
It's not in there that you brought any magazines on the
I'm sorry.
I don't have it in front of
I thought you reviewed -- you reviewed the
10
20th of August, is it?
11
A.
If you say so.
12
Q.
You don't recall?
13
A.
No, I don't.
14
Q.
And it's -- have you looked at the Plea Agreement that
15
Mr. Diveroli signed?
16
A.
I did read it.
17
Q.
You read the factual basis, the stipulated facts portion
18
where it lays out the whole case for, like, 20 pages?
19
A.
I read the whole thing.
20
Q.
It doesn't say anything about you bringing magazines to
21
the Middle District of Florida on August 20th, does it?
22
A.
I didn't write that.
23
Q.
Does it say anything about you bringing magazines to
24
Middle Florida on August 20th?
25
A.
I don't have it memorized.
It may not.

59
Q.
And maybe that's because you didn't put it in your
report?
A.
not in my report, I took magazines.
Q.
You didn't take any pictures either, did you?
A.
What?
Q.
Pictures in the car that day?
A.
No.
Q.
So there's nothing in your report that you brought
It may be because I didn't put it in my report.
If it's
10
magazines on August 20th, there's nothing in the stipulated
11
facts of the Plea Agreement, there are no photographs of any
12
magazines in the back of your truck that day, basically?
13
A.
There are no photographs of any guns in my car either.
14
Q.
But it's in your report, right?
15
A.
Yes.
16
Q.
Yes.
17
bringing guns that day, did he?
18
A.
Yes, he did.
19
Q.
In the conversations, it's not discussed, is it?
20
A.
Play the tapes.
21
Q.
Did he discuss whether or not he was going to bring
22
guns?
23
A.
24
because after signing the contract, we were going to get a
25
factory tour and shoot on the range.
And, in fact, Mr. Diveroli did not know you were
Yes, it is.
We agreed we were going to, quote, "bring our toys,"

60
Q.
And that's where Mr. Diveroli says, "I don't care about
toys.
A.
He made that statement at one point.
Q.
And you said, well, when he got there on the 20th, "Did
you bring guns," but he didn't bring any guns, did he?
A.
No.
Q.
But you said, "Oh, that's okay.
A.
No.
Q.
You said, "I brought guns," didn't you?
10
A.
He asked me.
11
he asked me if I brought any, I said, "Yes."
12
Q.
13
this case?
14
A.
I did read that, I believe, yes.
15
Q.
Oh, you did read the P.S.R.?
16
A.
Well, I'm not sure what you're referring to as the
17
P.S.R.
18
Q.
The Presentence Investigation Report of Efraim Diveroli.
19
A.
No, that, I don't believe I did read.
20
Agreement.
21
Q.
You haven't read the P.S.R.?
22
A.
No.
23
Q.
At paragraph 53, it says this, and then I have a
24
question for you:
25
had brought any firearms or ammunition to the meeting.
I'm coming up there for a business deal," right?
I brought guns," right?
He brought up the topic of guns, and when
Have you said -- have you seen the Presentence Report in
I read the Plea
I thought that's what you were referring to.
"The undercover asked Mr. Diveroli if he

61
Diveroli advised the undercover that he did not bring any
firearms or ammunition to the meeting.
undercover responded that he/she had brought firearms."
However, the
Is that incorrect?
A.
Yes.
Q.
Do you know that that was a report prepared for the
Court, reviewed by the prosecution in this case?
A.
outside Quiznos was him -- he may have asked me at one
I don't know who wrote that.
10
point -- I'm sorry.
11
you bring guns?"
12
topic was dropped temporarily.
13
14
The conversation we had
I may have asked him at one point, "Did
And he may have said, "No," and then the
But at another point he said, "Did you bring

guns?"
15
And I said, "Yes."
16
And he said, "Let me see them," and that's when
17
we walked over to the truck and I let him see them.
18
Q.
19
anything illegal anymore?
20
A.
He said that.
21
Q.
Did he tell you -- I'm sorry.
22
A.
-- that he didn't want to be involved in all kind of --
23
Q.
Are you finished?
24
A.
No, I'm not.
25
Q.
Okay.
Did Mr. Diveroli tell you that he doesn't want to do
He kept claiming --
Go ahead.

62
A.
He kept saying he didn't want to be involved in all
kinds of stuff, and then in the next breath would outline how
involved he was in all this illegal stuff.
Q.
All what illegal stuff?
A.
Possession of ammunition, possession of firearms as a
convicted felon.
Q.
District?
A.
You mean when they went shooting in the Southern
Any time he was in possession of firearms or ammunition,
10
all of the times.
11
Q.
12
testimony that he told you that he had been to a gun range
13
and that was in the Southern District, correct?
14
A.
15
referring to.
16
Q.
Well, are you talking about the Everglades?
17
A.
I'm talking about every time he referred to being in
18
possession of guns or ammunition.
19
Q.
20
range, what did he say?
21
A.
22
worth of ammunition."
23
phone calls where he just went on and on about how much
24
ammunition he owns, has, controls --
25
Q.
Well, I believe that you specified twice in your
As far as going to a gun range, yes.
That's not all I'm
And I'm asking you, other than going to the shooting
At one point he said, "I'm sitting on a million dollars

I mean he made -- there are 60-some
Well, let's look at that specific --

63
A.
-- sells.
Q.
Specifically what he said, let's go to that call.
would be call number -- tape number -- recording number 15,
and he says, "Yeah, I'm a convicted felon.
FFL anymore," Federal Firearms License.
ammunition in the house.
don't keep ammunition.
It's the remnants of my business from before I was arrested."
Do you remember him telling you that, explaining
This
I don't have an
"I don't have
I don't keep guns in the house.
And I sold the ammunition to A.M.D.
10
that?
11
A.
Yes.
12
Q.
Now, did -- in the conversations about shooting in the
13
Everglades, did Mr. Diveroli tell you that they were shooting
14
black powder rifles?
15
A.
He mentioned a black powder rifle, yes.
16
Q.
And black powder rifles are not firearms under the
17
definition of firearms, are they?
18
A.
No, they're not.
19
Q.
So he'd be allowed to shoot that?
20
A.
Yes.
21
MS. HAWKINS:
22
THE COURT:
23
I have no other questions.

Redirect?
REDIRECT EXAMINATION
24
BY MR. RAVENEL:
25
Q.
Did Mr. Diveroli invite you to shoot machine guns in

64
South Florida with him?
A.
Yes, sir.
MR. RAVENEL:
THE COURT:
I don't have any other questions.

All right.
Thank you, sir.
You can
step down.
Let's take a fifteen-minute break.
(A recess was taken from 10:42 until 10:56 a.m.)
MS. HAWKINS:
Your Honor, I was going to ask
permission to recall for one question the agent.
I didn't
10
perceive -- the redirect was a new area, and I wanted to ask
11
a question about that one question.
12
THE COURT:
13
MS. HAWKINS:
14
THE COURT:
15
Okay.
It's agent O'Kelly.
All right.
Agent, you're still under
oath.
16
THE WITNESS:
Okay.
17
BY MS. HAWKINS:
18
Q.
19
machine guns.
20
on audio file 42.
21
A.
I'm not sure which audio file number you're referring
22
to.
I recall the conversation, it was about the third one we
23
had, where he asked if I could come shooting in Miami, the
24
Everglades area, and he wanted to know if I had a full auto
25
M-16 so he could use it to try out the 100-round drum.
I just had one question about the conversation about

Do you recall that entire conversation?
It's

65
said I did.
He asked what else I had.
I told him I had a
Mini-14 full auto, an AK, a Thompson, a BM-59, and maybe I
mentioned a couple of others guns; and he asked if I would
bring them down to go shooting.
Q.
And that didn't take place?
A.
No.
Q.
And do you recall in audio file 42 a conversation where
you say, "And let's meet in the Everglades and all that," and
10
Mr. Diveroli is saying, "I'm not going to shoot.
I'm not
11
going to shoot any gun that's not papered, that I can't see
12
the paperwork for"?
13
A.
That part of it, yes.
14
Q.
And are there -- maybe just for the record, tell the
15
Court the difference between a transferable machine gun and
16
one that's not.
17
A.
18
machine guns.
19
manufactured and registered with the U.S. government prior to
20
May 19th of 1986, and it's referred to as a "transferable
21
machine gun," because it can be bought and sold between any
22
private individual who is not a prohibited person, upon
23
registration with A.T.F.
Do you recall that conversation?
Well, there are two different types legally of legal

A transferable machine gun is one that was
24
The other kind of legal machine gun is called a
25
"dealer sample," and it's a post-'86-manufactured gun, which

66
can only be possessed by a licensed machine gun dealer or by
a government agency but not by a private individual.
In that conversation, when he asked me if I
would bring my M-16 down, I told him, "Well, since you're
contemplating going to just shoot out in the woods rather
than a regular range, the police are liable to show up."
I said, "The M-16 that I have is not necessarily legal on
paper.
Q.
10
So I'm a little hesitant to go down there with that."
Thank you.
MS. HAWKINS:
11
That's all I have.
FURTHER REDIRECT EXAMINATION
12
BY MR. RAVENEL:
13
Q.
14
any of those types of machine guns you talked about?
15
A.
16
a gun or even one cartridge of ammunition.
Can a prohibited person legally possess a machine gun,
No, sir.
A prohibited person can't possess any kind of
17
MR. RAVENEL:
18
THE COURT:
I don't have any further questions.

Agent, I've got a question, since
19
you're back on the stand.
20
I take it that they will accept magazines with different
21
capacities.
22
And
THE WITNESS:
The weapons depicted in Exhibit 4,
Yes, sir.
The upper end or the end
23
of the magazine that fits into the firearm has to be
24
engineered specifically for that firearm so that the parts
25
mate up, of course.
But given that, the length of the body

67
and then the internal spring corresponding or being, you
know, an equal length, in order to provide pressure, you can
make the length as long -- and they made some -- just to be
able to say they did it, they made some ridiculously long
magazines for some of these firearms, but --
THE COURT:
Well, let me ask you, normally, would
each of these firearms come with a magazine of 15 rounds or
more?
THE WITNESS:
Yes, sir.
The FAL -- this FMAP is a
10
variant or a clone of the FAL, which was -- for instance, it
11
was designed by the company called Fabrique Nationale in
12
Belgium, and it was originally adopted as the Belgium
13
military rifle, as issued to the Belgium military, and then
14
adopted by many other countries in the U.S. -- I'm sorry --
15
many other countries in the world.
16
magazine was as you see it, a 20-round, 20-shot magazine.
17
THE COURT:
18
THE WITNESS:
19
THE COURT:
20
THE WITNESS:
Its standard-issue
And that's .30 caliber?

Yes, sir.
Okay.
The Glock Model 17 was the very first
21
model Glock designed by Gaston Glock in the country of
22
Austria, and it's as standard issue, a 17-shot magazine, and
23
that's what you see here.
24
25
Then the Steyr was designed by the company of Steyr

in the city of Steyr in the country of Austria and was

68
adopted by the Austrian military in 1977 and is presently in
use as their military rifle.
and that's what you see in the photograph.
THE COURT:
Okay.
MR. RAVENEL:
Standard magazine is a 30-shot,
All right.
Thank you, sir.
You can step down, unless there are
any questions.
Call Jacob Shprecher.
Step right up there and she'll swear you in.
10
11

down and I'll swear you in.
12
Please pause before sitting
JACOB SHPRECHER,
13
14
follows:
15
16
Thank you.
You may be
seated.
17
DIRECT EXAMINATION
18
BY MR. RAVENEL:
19
Q.
Please state your name and spell your last name.
20
A.
Jacob Shprecher.
21
Q.
22
A.
I do real estate.
23
Q.
How long have you been doing real estate?
24
A.
About six years.
25
Q.
Last name is S-h-p-r-e-c-h-e-r.

69
A.
Uh-huh.
Q.
A.
Yes.
4
5
THE COURT:
You're going to have to speak up, sir.
You're just leaning back and kind of whispering.
THE WITNESS:
I apologize.
A.
What was the question?
Q.
Do you know Mr. Diveroli?
A.
Yes.
10
Q.
11
A.
Yes.
12
Q.
You still need to speak up a little bit, if you can.
13
A.
Sorry.
14
Q.
Just try to speak into the microphone.
15
up.
16
A.
Yeah, I do.
17
Q.
What's he wearing today?
18
A.
A red jumpsuit.
19
20
I know him.
MR. RAVENEL:
21
It'll pick it
THE COURT:
So noted.
22
BY MR. RAVENEL:
23
Q.
How did you meet Mr. Diveroli?
24
A.
Through friends.
25
Q.
What time period was that?

70
A.
It was about, I'd say, two years ago, approximately.
Q.
That would have been the summer of 2009?
A.
I'd assume so, yeah.
Q.
At some point did you come to work for Mr. Diveroli?
A.
Yes.
Q.
Before you started working for him, what sort of work
experience had you had?
A.
management and leasing, that type of thing.
I was in sales and I was in real estate.
I did
10
Q.
Did you have any experience in the firearms industry at
11
all?
12
A.
No.
13
Q.
What position did you take with Mr. Diveroli?
14
A.
I was to do sales.
15
Q.
Do you remember what the company's name was?
16
A.
Advanced Munitions Distribution.
17
Q.
Who did you work for?
18
A.
Efraim.
19
Q.
Who did you take your orders from?
20
A.
Efraim.
21
Q.
Was anybody above Efraim?
22
to do?
23
A.
He had counsel, advisors and those kind of things.
24
Q.
I want to talk to you about August 11th of 2010.
25
you go to the Markham Shooting Range on that day?
Did anybody direct him what
No.
Did

71
A.
Yes.
Q.
What was the purpose of going to the shooting range?
A.
To test the drum that we were going to sell.
Q.
Did you take firearms with you?
A.
Yes.
Q.
Who all went to the shooting range?
A.
It was myself, Efraim, Dejan and Aaron.
Q.
What firearms were taken to the range?
A.
The M-16.
10
Q.
How did you -- the group of you come into possession of
11
that firearm?
12
A.
We purchased it.
13
Q.
Whose decision was it to purchase it?
14
A.
Efraim's.
15
Q.
Did anybody tell Efraim, "Hey, you need to buy this
16
firearm," or anything like that?
17
A.
No.
18
Q.
Did any of you encourage him to buy that firearm?
19
A.
No.
20
Q.
Were any federal agents with you at the shooting range?
21
A.
No.
22
Q.
What did you see Efraim do at the shooting range with
23
the firearm?
24
A.
Fire the gun.
25
Q.
Did he fire any other guns that you saw?

72
A.
No, not that I recall.
No.
Q.
You said you're in real estate.
negative consequences as a result of your association with
Mr. Diveroli?
A.
you type my name into Google, you know, the -- the -- I
forgot what it's called -- the ban, the federal ban comes up.
Q.
Are you on the excluded parties' list?
A.
Yes, that's what it's called.
10
Q.
Does that affect your aspirations in real estate?
11
A.
It does and can have consequences of being able to get
12
financing from government parties, like states and
13
municipalities.
14
Q.
You aspire to be a developer; is that true?
15
A.
I do.
16
Q.
How does being on the excluded parties' list affect your
17
aspirations to be a developer?
18
A.
19
do low-income housing, I believe, from what I've found out,
20
you're excluded from that.
21
municipalities or any government agency.
22
Q.
23
Google?
24
A.
25
up, and I don't believe that you can get one of the articles
Have you had any
Just the peripheral, you know, stuff like, you know, if
If you want to apply for a grant from the government to
Okay.
You cannot deal with any
What do you see when you put your name in on
The excluded parties' list is the first thing that comes

73
about the incident or whatever; but the excluded parties'
list is really what comes up the first thing that's relevant
to this.
Q.
to purchase a firearm for him from Lou's Police Supply in
Hialeah, Florida?
A.
Uh-huh.
Q.
What sort of firearm did he ask you to purchase?
A.
It was the Mini-14.
10
Q.
Was that for the same purpose of testing the machine gun
11
magazine or -- I'm sorry -- the magazines, the 100-round
12
drums?
During the summer of last year, did Mr. Diveroli ask you
13
MS. HAWKINS:
14
THE COURT:
Objection; it's leading.

All right.
Rephrase your question.
15
BY MR. RAVENEL:
16
Q.
What was the purpose of buying the Mini-14?
17
A.
To test the -- the drum.
18
MR. RAVENEL:
19
THE COURT:
20
MS. HAWKINS:
21
No further questions.
Cross?
CROSS-EXAMINATION
22
BY MS. HAWKINS:
23
Q.
Good morning.
24
A.
Good morning.
25
Q.
Didn't Mr. Diveroli ask you to go buy some drums that

74
day instead of the Mini-14?
A.
Drums in addition to the Mini-14.
Q.
Didn't he get in an argument with you about buying that
Mini-14 and tell you that you were just supposed to buy the
drums and not the Mini-14?
A.
No.
Q.
You said that you went to shoot at Markham --
A.
Uh-huh.
Q.
-- at the range?
10
A.
Yes.
11
Q.
And you were with Aaron and Dejan also?
12
A.
Yes.
13
Q.
And who is Dejan to you?
14
A.
Now, I consider him a friend; but at the time, he was
15
somebody that worked with me.
16
Q.
Okay.
17
A.
No, he was not.
18
Q.
Did you -- you've said that Mr. Diveroli had counsel and
19
advisers?
20
A.
Yes.
21
Q.
And he had counsel to tell him how he could act in
22
relation to A.M.D., didn't he?
23
A.
Yes.
24
Q.
And that was whether or not it would be okay for him to
25
be a consultant?
You have to say yes or no.
Was he your direct supervisor?
Did you say that?

75
A.
Uh-huh.
Q.
You have to say yes or no.
A.
Yes.
Q.
And so you're aware that he spoke with his lawyers about
what he could and couldn't do as a consultant for A.M.D.?
A.
Yes.
Q.
Thank you.
MS. HAWKINS:
I have nothing further.
10
BY MR. RAVENEL:
11
Q.
12
could and couldn't do with firearms?
13
A.
Yes.
14
Q.
What was spoken?
15
A.
About not being able to shoot firearms.
16
Q.
Okay.
Did anybody ever tell Efraim in your presence what he
I mean, it was -- it was spoken, yes.
17
THE COURT:
18
MR. RAVENEL:
19
Thank you, sir.
Can I release the witnesses, Your
Honor, that have already testified?
20
THE COURT:
21
MS. HAWKINS:
22
You can step down.
Ms. Hawkins?
I have no problem with that, Your
Honor.
23
THE COURT:
All right.
24
You can step down, sir.
25
MR. RAVENEL:
You may.
My next witness is Andy Jones.

76
1
2
Please go up to the witness
stand and pause before sitting down, and I'll swear you in.
ANDRIAN LEONARD JONES,
follows:
7
8
Thank you.
You may be
seated.
MR. RAVENEL:
10
THE COURT:
11
May I approach?
You may.
DIRECT EXAMINATION
12
BY MR. RAVENEL:
13
Q.
14
A.
Andrian Leonard Jones.
15
Q.
16
A.
I am the custodian of inmate phone records at the Orange
17
County, Florida, jail.
18
Q.
What are your duties?
19
A.
We work with the inmate phone system at the jail, down
20
to the repairing of the phones, the maintenance of the
21
computers that house the data, the call record information as
22
well, upon request, we will provide copies of CDs or other
23
records from the inmate phone system.
24
Q.
25
County Jail recorded?
Are telephone calls made by inmates from the Orange

77
A.
Yes, they are.
Q.
What's the purpose of recording the phone calls?
A.
There's a number of reasons for the purposes of the
jail.
an individual, what have you, and there's later something
brought against the county or staff members or what have you.
For risk management purposes is the main reason, at least,
that the jail uses them.
Q.
Risk management purposes, in case something happens to
Are they also kept and provided to law enforcement for
10
investigative purposes as well?
11
A.
Yes, they are.
12
Q.
Could you describe how the inmate telephone system works
13
at the Orange County Jail?
14
A.
15
the person would pick up the phone.
16
to enter their PIN number, enter whatever number that they
17
were trying to call.
18
there's a message that informs the parties that the calls are
19
subject to monitoring and recording; and as long as there's
20
an account set up properly, the call can go forward.
21
Q.
22
uses to access the phone system?
23
A.
24
eight-digit booking number and their four-digit book time in
25
military time.
As far as from the standpoint of a person using them,

They would be instructed
After doing so, when the call connects,
Does each inmate have a unique identifier that he or she
Yes.
There's a twelve-digit PIN number made up of their
Those combine and make up a twelve-digit PIN

78
number.
Q.
see all the calls made under a certain inmate PIN?
A.
information as well, location of a person, where a phone
happens to be, what have you.
Q.
the Orange County Jail?
A.
Yes.
10
Q.
And did you locate a phone call that was made by his
11
inmate PIN on February 6, 2011?
12
A.
Can you search the telephone records, the recordings, to
Yes, we were able to search by PIN number, by other
Did you research the jail calls of Efraim Diveroli at
I did.
13
MS. HAWKINS:
I will stipulate to the admissibility
14
and the identification of the speakers, if that will speed
15
things up.
16
MR. RAVENEL:
17
THE COURT:
18
MR. RAVENEL:
That's fine.
Okay.
We'd offer Exhibits 8 and 9, Your
19
Honor.
That's a jail telephone call made by Efraim Diveroli
20
on February 6, 2011, from the Orange County Jail.
21
is the audio recording and Exhibit 9 is a transcript.
22
23
24
25
THE COURT:
All right.
Exhibit 8
They're admitted without
objection.
MR. RAVENEL:
for the witness.
I don't have any further questions

79
THE COURT:
MS. HAWKINS:
THE COURT:
All right.
MR. RAVENEL:
Thank you, sir.
Appreciate
Your Honor, my next witness is
Special Agent Kevin McCann.
7
8
No, Your Honor.
your coming.
5
6
Any cross?
Please raise your right
hand.
KEVIN McCANN,
10
11
follows:
12
13
Thank you.
You may be
seated.
14
MR. RAVENEL:
15
THE COURT:
16
May I approach, Your Honor?

Yes.
DIRECT EXAMINATION
17
BY MR. RAVENEL:
18
Q.
19
A.
Kevin McCann.
20
Q.
How do you spell your last name?
21
A.
M-c-C-a-n-n.
22
Q.
23
A.
I'm a special agent with the Bureau of Alcohol, Tobacco,
24
Firearms and Explosives.
25
Q.
What type of investigations do you work on?

80
A.
Armed drug dealing, firearms trafficking and other
assorted violent crime investigations.
Q.
Can you describe your experience for the Court.
A.
I've been an A.T.F. special agent for 19 years.
worked in Baltimore.
supervisor of the intelligence unit and of the firearms
trafficking unit, and have now been in the Orlando field
office for four years.
Q.
I've
I've worked in Chicago as a group
Were you involved as an agent in the Orlando field
10
office in the investigation of Efraim Diveroli?
11
A.
Yes, sir.
12
Q.
How did that -- how did Mr. Diveroli initially come to
13
your attention as a special agent?
14
A.
15
2010 as a result of a suspicious phone call that he received
16
from Efraim Diveroli and wanted to report the suspicious
17
nature of it.
18
Q.
19
person?
A federal firearms licensee contacted A.T.F. in July of
What was suspicious about the call, according to that
20
MS. HAWKINS:
21
THE COURT:
Objection; hearsay.
Overruled.
22
A.
Mr. Diveroli contacted this federal firearms licensee in
23
order to try to establish a business relationship.
24
offered up ammunition for sale.
25
firearms licensee had the ability to manufacture a thousand
He
He requested if the federal

81
M-4 rifles a month, and he requested that the licensee create
a business partnership with him for the purchase and sale of
transferrable machine guns.
Q.
violations?
A.
possession of ammunition and the potential violations of the
Arms Export Control Act.
Q.
Are you familiar with the magazine drums in this case?
10
A.
Yes.
11
Q.
Are those drums on the United States' munitions list?
12
A.
Yes.
13
Q.
What is required for somebody to be involved in the
14
transaction importing those drums from outside the country
15
into the United States?
16
A.
17
the U.S. munitions list, they'd have to be registered with
18
the U.S. government to participate in those kind of
19
activities.
Initially, what did your investigation reveal, what
Initially, we were looking at Mr. Diveroli for felon in
For someone to manufacture, export or import items on
20
In addition to that, for individuals who broker
21
such activities, they would also have to be registered to
22
conduct brokering activities.
23
Q.
24
sentencing transcript from the Southern District of Florida?
25
A.
Have you reviewed the Presentence -- I'm sorry -- the
Yes.

82
Q.
Have you reviewed the defense attorney's comments about
the nature of this case from that sentencing transcript?
A.
Yes.
Q.
Do you believe it's entirely accurate about the facts of
this case?
A.
during that hearing.
Q.
disagreement?
No.
I believe the facts of this case were downplayed
What do you believe -- what are your points of
10
A.
That Mr. Diveroli did, in fact, engage in violations of
11
the Arms Export Control Act, that Mr. Diveroli voluntarily
12
traveled to the Middle District of Florida to engage in such
13
activities, that Mr. Diveroli did offer ammunition for sale,
14
and that Mr. Diveroli voluntarily and -- voluntarily
15
committed alleged federal firearms violations.
16
Q.
17
Act?
18
A.
19
drums without being registered with the U.S. government.
20
Q.
21
information you acquired during your investigation, where
22
were those magazine drums from?
23
A.
South Korea.
24
Q.
That's according to information that he provided?
25
A.
Yes.
Why do you believe he violated the Arms Export Control
Because he brokered transactions involving the magazine
And according to the conversations he had and the

83
Q.
You've reviewed the recordings in this case.
initially broached the idea of shooting firearms?
A.
Mr. Diveroli.
Q.
Have you also reviewed the Presentence Report or the
sentencing memorandum filed by the defense in this case?
A.
Yes.
Q.
Do you have any points of disagreement with respect to
that in terms of the factual contents of that?
A.
Yes.
Who
I believe there was many incorrect factual
10
statements in that or many incorrect statements.
11
Q.
12
dispute?
13
A.
14
traveling to the Middle District of Florida.
15
reached out to a federal firearms licensee in the Middle
16
District of Florida.
17
federal firearms licensee contacted A.T.F. in the Middle
18
District of Florida.
19
one who chose venue.
20
21
What do you believe the -- what are your chief points of
Well, Mr. Diveroli was the first person to suggest

Mr. Diveroli
Therefore, that Middle District -- that
So, in my opinion, Mr. Diveroli was the
He asked that federal firearms licensee if they

can meet and he suggested either Orlando or Miami.
22
In addition to that, the conduct that he was
23
engaging in regarding those magazines was a violation of the
24
Arms Export Control Act.
25
Q.
What about the statement about his dealings with A.E.Y.?

84
Do you believe those are accurate in terms of the integrity
of his business?
A.
the business operations of A.E.Y.
of Florida case in which he was convicted of defrauding the
government, I think, was downplayed.
Q.
In what ways?
A.
Well, they said there was no loss to the government;
but, you know, the literature I've read, that the government
10
had paid out $66 million, and Mr. Diveroli defaulted on that
11
contract and Mr. Diveroli defaulted on several other
12
contracts that he had with the government to provide military
13
items, firearms, ammunition, helmets, bulletproof vests to
14
the U.S. military, Iraqi --
Mr. Diveroli was the president of A.E.Y. and controlled
15
16
MS. HAWKINS:
nature.
17
And the Southern District
Your Honor, I object to the hearsay
He has no personal knowledge of this at all.

THE COURT:
Overruled.
18
A.
-- to the U.S. military, the Iraqi allies and the Afghan
19
allies.
20
on contracts and unjustly enriched himself.
21
Q.
22
relationship with the Titusville firearms dealer, was that
23
legal?
24
based on your understanding of the Arms Export Control Act?
25
A.
There were several incidents in which he defaulted
This idea that Mr. Diveroli entering into this
The magazine contract, would that have been legal,
No, he could not broker the manufacture, export or

85
import of items on the U.S. munitions list, which includes
the firearms magazines, including the 100-round drums that he
wanted to import from South Korea.
Q.
transcript from South Florida in regards to the idea that he
had been rehabilitated as of the sentencing in South Florida?
A.
Yes.
Q.
Do you believe that to be true?
A.
No.
10
Q.
Why not?
11
A.
Based on the review of jail calls and the review of his
12
possessions while incarcerated in the Orange County Jail and
13
information received from a cooperator.
14
Q.
15
jail recording from February 6th of 2011?
16
A.
Yes.
17
Q.
And that was made from the Orange County Jail by Mr.
18
Diveroli to his father?
19
A.
Yes.
20
Q.
Do you recognize both of their voices?
21
A.
I do.
22
Q.
Based on -- okay.
23
accurately sets forth the conversation?
24
A.
25
Okay.
You also -- did you also review the sentencing
I want to talk to you about Exhibits 8 and 9.
Is that a
Do you believe the transcript
Yes.
MR. RAVENEL:
Your Honor, we'd ask to publish

86
Exhibits 8 and 9.
transcript along with the recording.
3
4
THE COURT:
All right.
Do you want to play the
recording now?
5
6
They'll be published together, the
MR. RAVENEL:
scroll.
Yes, sir, and the transcript will
That's why I said at the same time.
THE COURT:
(Audio recording played in open court.)
All right.
BY MR. RAVENEL:
10
Q.
How is Michael Diveroli related to Efraim Diveroli?
11
A.
He's his father.
12
Q.
Does this conversation raise any questions for you as an
13
investigator as to Mr. Diveroli cooperating with the
14
government?
15
A.
Absolutely.
16
Q.
Why is that?
17
A.
It seems clear to me that he's trying to get his father
18
to do something his father doesn't want to do, and the
19
interpretation is the father believes that this Mr. Harry
20
Chang is a battery salesman.
21
Mr. Diveroli is telling him, "Oh, no, no, no,
22
he's not."
He's telling him, "You need to get your hands
23
dirty and you need to do whatever it takes to get me out of
24
here," and that's not consistent with cooperation.
25
Q.
Who is Harry Chang, just so you can give the Court a

87
background on him?
A.
manufactures batteries and -- for two-way radios.
Q.
is that true?
A.
Yes.
Q.
How did he relate to that investigation?
A.
I'm not exactly sure exactly how he relates to it, but I
believe he was involved in perhaps negotiating the purchase
Harry Chang owns a business in Miami in which he
His name also came up during the A.U.I. investigation;
10
and transfer of bulletproof vests from China with Mr.
11
Diveroli to be supplied to U.S. narcotics agents in Iraq
12
and -- China is on the proscribed country list.
13
cannot -- the U.S. government or any U.S. personnel cannot
14
engage in any Arms Export Control Act activities with China.
15
Q.
By "proscribed," do you mean prohibited; is that right?
16
A.
Yes.
17
Q.
What do you understand the statement to mean, "If Harry
18
Chang has to go to jail for life so I can get one year off my
19
sentence, that's what's going to happen"?
20
A.
So we
I interpret that --
21
MS. HAWKINS:
22
THE COURT:
Objection as speculation, Your Honor.

Overruled.
23
A.
I interpret that to do anything you have to do; and if
24
that -- if the outcome is Harry Chang going to jail for the
25
rest of his life, then so be it.
As long as I can get a year

88
off my sentence, I'll do anything.
Q.
Michael Diveroli would need to make to a Wachovia account.
A.
Yes.
Q.
Do you know what that relates to?
A.
Yes.
Q.
What is that?
A.
Payments of gambling debts.
Q.
This call, was this call made after the Southern
At the beginning, there's mention of a payment that
10
District of Florida sentencing hearing?
11
A.
Yes.
12
Q.
At some point in December -- or November, December of
13
2010 Mr. Diveroli was transferred from the Middle District of
14
Florida at Orange County down to the Miami area; is that
15
true?
16
A.
Yes.
17
Q.
When that was done, did the United States Marshal's
18
Service contact you?
19
A.
Yes.
20
Q.
What was the purpose of that contact?
21
A.
They advised me that the transportation had taken place
22
and that they are in receipt of his jail possessions.
23
Q.
Did you look at those jail possessions?
24
A.
Yes, I did.
25
Q.
I want to show you Exhibit 7.
It's one of the exhibits

89
I handed you.
A.
it lists colors and sizes of alleged T-shirts.
relate to drugs and the sizes relate to quantities.
Q.
That was found in Mr. Diveroli's possessions?
A.
Yes.
7
8
Can you describe what that is?
It's a sheet of paper entitled, "T-shirt Company," and
MR. RAVENEL:
The colors
Your Honor, I'd offer that into
evidence, Exhibit 7.
MS. HAWKINS:
10
THE COURT:
11
MR. RAVENEL:
12
THE COURT:
No objection.
7 is admitted.
Can we publish that?
Yes.
13
BY MR. RAVENEL:
14
Q.
Are there any illegal substances listed on that?
15
A.
Yes, numerous.
16
MR. RAVENEL:
We can take that down.
17
BY MR. RAVENEL:
18
Q.
19
the Markham Shooting Range on August 11, 2010?
20
A.
Yes, I did.
21
Q.
I want to show you Exhibit 1 and ask you if you
22
recognize that?
23
A.
Yes, I do.
24
Q.
What is that?
25
A.
It is the release, identity and waiver document, and the
Did you corroborate whether Mr. Diveroli was in fact at

90
check-in document for the Markham Park Regional tactical --
or Target Range, and a receipt relating to the invoice signed
and -- to Efraim Diveroli.
Q.
Target Range?
A.
Is that document receipt actually from the Markham
Yes.
7
8
MR. RAVENEL:
I'd offer Exhibit 1 into evidence,
Your Honor.
MS. HAWKINS:
10
THE COURT:
11
MR. RAVENEL:
No objection.
1's admitted.
If we can, publish the first page of
12
that exhibit.
13
BY MR. RAVENEL:
14
Q.
That's dated August 11th of 2010?
15
A.
Yes.
16
Q.
Is there also a recording on that same date or nearly or
17
the day after where Mr. Diveroli mentions shooting firearms?
18
A.
19
A.T.F. agent.
20
Q.
21
document I want to show you is Exhibit 6.
22
that?
23
A.
Yes, I do.
24
Q.
Describe for the Court who Stephen Shelton is and his
25
background.
Yes, later that day, a recording to the undercover
The last photograph I want to show you or the last

Do you recognize

91
A.
Stephen Shelton is or at least was at the time an inmate
in the Orange County Detention Center who is pending federal
charges for a gun possession violation.
Q.
Do you understand he's been sentenced at this point?
A.
I didn't know that.
Q.
Okay.
A.
Yes.
Q.
Can you describe for the Court Mr. Shelton's criminal
record?
Are you familiar with his criminal record?
10
A.
Mr. Shelton has a prior attempted murder conviction in
11
which he was an accomplice in alleged an attempted murder,
12
and he also has a federal felon-in-possession-of-a-firearm
13
violation and conviction.
14
Q.
15
Florida as well; is that true?
16
A.
Yes.
17
Q.
At some point did you come in contact with Mr. Shelton?
18
A.
Yes.
19
Q.
How did that contact initially take place?
20
reach out to Mr. Shelton or did he reach out to you?
21
A.
22
counsel.
23
Q.
Did you meet with Mr. Shelton at some point?
24
A.
Yes.
25
Q.
What information did Mr. Shelton relate to you?
He also has a charge here in the Middle District of
No.
Did you
He reached out to the government through his

92
A.
Mr. Shelton wanted --
MS. HAWKINS:
THE COURT:
Objection; hearsay.
Overruled.
A.
Diveroli attempted to hire him to murder someone, a witness,
on his behalf and he was alarmed by that.
information to the authorities.
Q.
phone call, do you believe Mr. Diveroli actually wanted
10
Mr. Shelton wanted to relay information that Efraim
Based on your investigation, based on this Harry Chang
somebody killed?
11
12
So he brought that
MS. HAWKINS:
Objection, Your Honor; this is
speculation.
13
THE COURT:
Sustained.
14
BY MR. RAVENEL:
15
Q.
Exhibit 6.
16
A.
It's a handwritten note provided by Mr. Shelton from
17
Efraim Diveroli.
18
Q.
That's a note that you received from Stephen Shelton?
19
A.
Yes.
20
Diveroli.
21
Q.
22
about the note?
23
A.
24
his name, his company A.E.Y., Inc., and a former witness
25
against him, Kosta Trebicka, so that Mr. Shelton would know
What is Exhibit 6?
He stated it was provided to him from Efraim
What did Mr. Shelton tell you that Mr. Diveroli said
He said that Mr. Shelton can have someone do research on

93
that he has the ability to have someone murdered.
2
3
MR. RAVENEL:
Your Honor, I'd offer Exhibit 6 into
evidence at this point.
MS. HAWKINS:
THE COURT:
MR. RAVENEL:
No objection.
It's admitted.
Can we publish the first page of
that.
BY MR. RAVENEL:
Q.
Tell the Court who Kosta Trebicka is.
10
A.
Kosta Trebicka was an individual that Mr. Diveroli hired
11
during his A.E.Y. days.
12
U.S. government, Mr. Diveroli was to provide ammunition to
13
the Afghan forces, and he purchased and tried to transfer a
14
Chinese-made ammunition, which was illegal, based on the Arms
15
Export Control Act, and he had Kosta Trebicka run an
16
organization to repackage that ammunition and conceal its
17
Chinese origins.
18
Q.
What happened to Mr. Trebicka?
19
A.
Mr. Trebicka --
20
Q.
Did he ultimately cooperate with the government?
21
A.
Yes, he did cooperate with the U.S. government.
22
Q.
Where is he now?
23
A.
He's no longer alive.
24
Q.
Do you understand anything about the circumstances of
25
his death, where he was found?
In one of his contracts with the

94
A.
He was found on the side of a road and allegedly it was
a mysterious circumstances, but the ultimate determination
was that it was a vehicle accident.
Q.
Was it a dirt road in Albania he ended up dead on?
A.
Yes, sir.
Q.
Did Mr. Shelton know anything about Kosta Trebicka when
you interviewed him?
A.
No.
Q.
10
THE COURT:
11
All right.
Cross?
CROSS-EXAMINATION
12
BY MS. HAWKINS:
13
Q.
Good morning.
14
A.
Good morning.
15
Q.
The first person that called you about Mr. Diveroli,
16
there was never any charge made against Mr. Diveroli for any
17
conversation or action he took with that informant, was
18
there?
19
A.
20
with that informant, no.
21
Q.
22
investigated for a felon in possession of ammunition and also
23
you mentioned the Arms Export Control Act.
24
an ITAR violation?
25
A.
He was not charged with any crime regarding interactions
Now, you've said that Mr. Diveroli was being
Yes.
Is that known as
ITAR is the code of federal regulations that

95
corresponds with the Arms Export Control Act.
Q.
importer and being a broker under that Act, don't you?
A.
Yes.
Q.
And being an importer is bringing something that's on
the list, a munitions list, into the United States, correct?
A.
Yes.
Q.
And being a broker is taking something from one country
outside the United States into another country outside the
Now, sir, you know there's a difference between being an
10
United States, isn't it?
11
A.
12
Control Act transaction and provides financial support,
13
negotiations, negotiates contracts, represents someone in a
14
consultant situation.
15
Q.
That's not what it says in the Act, is it?
16
A.
It is what it says under "broker," yes.
17
Q.
In fact, you can be -- import -- using a broker, you can
18
import things into the United States, can't you?
19
okay if it's on the list, as long as they have a license,
20
right?
21
A.
22
someone is -- if someone is suspended or debarred by the
23
State Department for engaging in ITAR activities, they cannot
24
even have a broker represent them.
25
Q.
No.
A broker is someone who brokers an Arms Export
And that's
As long as that broker has a license and -- but if
How about if they have a different company?

96
A.
If they --
Q.
And they consult for it?
A.
If they start a front company?
Q.
No.
represent as a consultant?
A.
violation of ITAR.
Q.
the company itself?
If there is a legitimate other company and they
They can't engage in brokering activities.
That's not what I asked you actually.
That's a
I mean, how about
If they're not on the debarment list,
10
they can hire a broker, right, as long as the broker has a
11
license?
12
A.
13
case.
14
Q.
15
being a broker or an importer, is there?
16
A.
No, he was not charged with that.
17
Q.
And, in fact, have you interviewed his lawyers about the
18
advice they gave him, if he waived confidentiality about the
19
advice they gave him of what he could do in this regard?
20
A.
No.
21
Q.
Do you know from listening to the recordings that
22
there's a lot of discussion about Mr. Diveroli consulting
23
Washington, D.C., lawyers to make sure that he was acting
24
within the law?
25
A.
It can be done, but that's not how it happened in this
Well, in this case there's no charge of Mr. Diveroli as
I did hear some conversation about that.

97
Q.
But you didn't look into who those lawyers were or what
they told him?
A.
No.
Q.
Now, you've said that you thought there was a
$66 million loss in the Southern District of Florida.
you seen the defendant's P.S.R. in the Southern District of
Florida?
A.
No, I have not.
Q.
Are you aware that there was no loss to the government?
Have
10
The only loss was to re-solicit the contract?
11
A.
12
calculated under there.
13
was paid on that contract.
14
Q.
Well, who told you that?
15
A.
It was a Congressional report.
16
Q.
Oh, well, we have the Congressional report.
17
look at that.
18
Congressional report, they talk about Mr. Diveroli defaulting
19
in five D.O.D. contracts out of over 150 that he had?
20
that your understanding?
21
A.
Yes.
22
Q.
Five with the D.O.D., correct?
23
A.
Five and then the additional one was the $298 million
24
contract.
25
Q.
I'm not sure of the definition of loss and how it was

I just have learned that $66 million
So we can
But did you -- did you know that on the
Is
He did default on many contracts, yes.
Of those five, are you aware that Mr. Diveroli litigated

98
that matter and he was found not to be in default; that those
were changed from termination for default into termination
for the convenience of the government?
A.
No.
Q.
You didn't follow up on what the 2008 report said, did
you?
A.
No.
Q.
So when you said earlier that he defaulted on contracts,
you're aware that there's no penalty for being terminated for
10
the convenience of the government, aren't you?
11
A.
12
for doing that.
13
Q.
14
understand that there's no penalty, there's no negative mark
15
against him when there's a termination for the convenience of
16
the government as opposed to a termination for default; did
17
you know that?
18
A.
I didn't know that.
19
Q.
But in terms of the loss to the government, you didn't
20
see the P.S.R. in the Southern District of Florida that
21
talked about any loss to the government, right?
22
A.
No.
23
Q.
Basically what you know is what's in that report, and we
24
can read that for ourselves, right?
25
A.
He was found guilty in the Southern District of Florida
Sir, I'm asking you, on the five D.O.D. contracts, you
Yes.

99
Q.
We listened to a conversation between Mr. Diveroli and
his father.
cooperated with agents from the D.C.I.S. in the Southern
A.
government, and I do believe it was D.C.I.S. and perhaps
I.C.E., Immigration and Customs Enforcement.
Q.
phone calls on behalf of federal agents to investigate
Do you know whether or not Mr. Diveroli
I do know that Mr. Diveroli did cooperate with the
And are you aware that he made hundreds of hours of
10
possible violations of federal criminal law?
11
A.
I don't know the extent of his cooperation.
12
Q.
Did you talk to the agents that he cooperated with?
13
A.
I talked to one of the agents that he cooperated with
14
and --
15
Q.
Who was that?
16
A.
David Dietrich, a special agent with I.C.E.
17
Q.
But you didn't talk with D.C.I.S., the main federal
18
agency handling Mr. Diveroli?
19
A.
20
we did not discuss the extent of his cooperation.
21
Q.
22
hours of conversations that were recorded when Mr. Diveroli
23
was cooperating?
24
A.
No.
25
Q.
Do you know whether or not that one of the people being
I'm sorry.
I talked briefly on one occasion with a Bob Koontz, and
Okay.
So you didn't talk to Agent Koontz about how many
100
investigated by federal authorities was Harry Chang?
A.
that they're very interested in.
Q.
investigating Harry Chang?
A.
No.
Q.
Do you know whether or not Mr. Diveroli made any
undercover calls on behalf of the United States of America to
Harry Chang?
According to David Dietrich, Harry Chang is not someone
Do you know whether or not a federal agency was
10
A.
No.
11
Q.
So you don't know whether or not Harry Chang was being
12
investigated for doing something criminal?
13
A.
I don't know that.
14
Q.
And you don't know whether or not there was anything
15
criminal about what Harry Chang was doing with A.E.Y., Mr.
16
Diveroli's former company?
17
A.
I'm sorry.
18
Q.
You don't know whether or not Harry Chang was being
19
investigated for doing something criminal in his involvement
20
in the Southern District of Florida case, the A.E.Y. case?
21
A.
22
with him that Harry Chang is not someone they're interested
23
in.
24
Q.
Well, but he wasn't D.C.I.S., was he?
25
A.
No.
Could you repeat the question.
No, just based on Agent Dietrich's conversation I had
101
Q.
So you don't know whether D.C.I.S. was -- I think you've
already said you don't know what they were investigating
using Mr. Diveroli.
A.
I don't know what D.C.I.S. was doing with Mr. Diveroli.
Q.
know if he placed undercover calls, if Mr. Diveroli did, to
Mr. Chang?
A.
No.
10
Q.
Now, in that conversation, Mr. Diveroli says that he
11
doesn't want his dad to do anything -- he only should do
12
things within the law, "You're working with the government,"
13
"You're working with lawyers," correct?
14
A.
15
father, that was insistence that anything he does has to be
16
within the law.
17
Q.
18
Diveroli say, "Yes, anything -- it's got to be within the
19
law.
20
cooperating with the federal government"?
21
Mr. Efraim Diveroli say that?
22
A.
23
interpreted what he was trying to relate to his father.
24
Q.
25
if that's what he said.
I believe I.C.E. and D.C.I.S. were working together, but
Okay.
And, again, I think you already said you don't
I believe that was Mr. Diveroli, Michael Diveroli, the
Well, we just listened to this.
Dad, we're dealing with lawyers.
Didn't you hear Efraim
You're talking about

Didn't you hear
Not in that manner, and that was not the way I
I didn't ask for your interpretation, sir; I asked you
102
THE COURT:
I know what he said.
So if you're not
interested in his interpretation, I can read it myself, Ms.
Hawkins.
BY MS. HAWKINS:
Q.
Diveroli was trying to get his dad to do something, I think
you said, that he didn't want to do?
A.
Yes.
Q.
Did you interpret Mr. Efraim Diveroli saying, "This is
In fact, what your -- your interpretation is that Mr.
10
an ugly, dirty game," that he was talking about cooperating
11
with the government?
12
A.
Yes.
13
Q.
No.
14
cooperating with the federal government is a dirty game?
15
A.
16
federal government is a dirty game.
17
Q.
18
cooperate with the government, then one person, chicken, goes
19
in, one gets out?
20
A.
21
trying to get his dad to do something dirty.
22
Q.
I'm asking you something different.
23
A.
Sorry.
24
Q.
Isn't what Mr. Efraim Diveroli said is that you have to
25
cooperate, help put somebody else in jail in order for you to
In a dirty way, yes.

That didn't you understand him to say that
I don't interpret it that way, the cooperating with the
Didn't you understand him to say that you have to
That's how it works, isn't it?
That's what he said.
My interpretation was that he was
103
get out?
A.
Yes, he did say that.
Q.
Isn't that how it works, sir?
A.
Not exactly.
Q.
Now, let's talk about Mr. Diveroli's arrest here in this
case.
A.
Yes.
Q.
And did you have -- you and other agents have many
meetings with Mr. Efraim Diveroli?
Did he not agree to cooperate with you?
10
A.
Two.
11
Q.
And did I also pass along information to you on phone
12
calls?
13
A.
Yes.
14
Q.
Did you talk -- that came from Mr. Efraim Diveroli?
15
A.
Yes.
16
Q.
And did you talk to Mr. Richard Dansoh?
17
A.
Yes.
18
Q.
And did he also pass along cooperation information from
19
Efraim Diveroli to you?
20
A.
Yes.
21
Q.
And was one of the people that information was passed
22
along to you as the case agent about a drug defendant named
23
Altrevius Biram?
24
A.
He passed some information on about a Mr. Biram.
25
Q.
And was it drug information?
104
A.
Yes.
Q.
That Mr. Biram had drugs in the jail?
A.
That's what he advised.
Q.
And did you understand this list to have been Mr. Efraim
Diveroli writing down -- that's Government's Exhibit 7 --
writing down what Altrevius Biram was telling him the prices
were?
A.
told Mr. Diveroli what he thought Mr. Diveroli wanted to hear
I don't understand that.
According to Mr. Biram, he
10
in order to cooperate against Mr. Diveroli as well.
11
Q.
12
and Mr. Biram is telling you things about Mr. Diveroli?
13
A.
Yes.
14
Q.
And so you decide who to believe?
15
A.
I gave them both an opportunity to cooperate.
16
Q.
And did you catch Mr. Biram doing drugs?
17
A.
No.
18
Q.
Did he get out?
19
A.
Did he get out?
20
Q.
Did he get out of jail?
21
A.
No.
22
Q.
Does Mr. Biram have a history of drug dealing?
23
A.
Yes.
24
Q.
How many convictions does he have?
25
A.
I'm not certain.
So Mr. Diveroli is telling you things about Mr. Biram,
105
Q.
Several?
A.
I believe more than one, yes.
Q.
Okay.
that Stephen Shelton was locked up and had been locked up for
gun charges and even attempted murder at one point, correct?
A.
Yes.
Q.
And did not -- didn't you get a call from Mr. Richard
Dansoh, the attorney for Mr. Diveroli, about Stephen Shelton
saying that he killed people for a living?

No.
In Government's Exhibit 6, I think you've said
10
A.
There was a second inmate which was being reported
11
that they kill people for a living.
12
Q.
13
passed on by Attorney Dansoh?
14
A.
15
were two individuals who Mr. Diveroli was reporting who wants
16
to do a murder for hire.
17
Q.
18
information about people in jail saying that they would do a
19
murder for hire, right?
20
A.
Yes.
21
Q.
And he -- he did tell you that there was an inmate in
22
there saying he killed people for a living, right?
23
A.
24
that.
25
Q.
Didn't you get some information about Stephen Shelton
I don't believe it was that -- that individual.
There
Mr. Diveroli did pass along to the federal government
That's what he stated, but that inmate contradicted
Okay.
So, again, you have two inmates, one saying one
106
thing, the other saying the complete opposite?
A.
is trying to set him up.
Q.
Diveroli is in the jail and he's cooperating with you and
getting information from Shelton or any of the other guys and
passing it along to you, would you consider that trying to
set him up?
A.
Well, this one is coming in to report that Mr. Diveroli
Mr. Diveroli -- well, let's put it this way.
If Mr.
Yes, he's trying to set him up for a murder for hire-
10
type investigation.
11
Q.
But disclosing it to you as well?
12
A.
Well, he wants me to do the investigation.
13
of course, he's going to disclose it.
14
little scheme to do a murder-for-hire-type cooperation
15
situation, but Mr. Shelton came right in and reported that.
16
Q.
17
cooperative?
18
A.
19
alarmed him from some individual in jail trying to hire him
20
to do a murder for hire.
21
Q.
22
you about the murder-for-hire situation, and then Shelton
23
comes in and tells you about Mr. Diveroli, who's cooperating
24
with you.
25
other, basically; isn't that right?
So,
He wants to set up a
So it looks like again both of them were being
Mr. Shelton was not a cooperator.
You understand what I'm saying?
He reported what
Mr. Diveroli's telling
So, again, you have two inmates telling on each
107
A.
No. I have one inmate reporting that another one is
trying to get him to do a murder for hire.
cooperator.
Q.
passing along this information about Stephen Shelton and the
people talking about murders for hire?
A.
inmate who was -- Mr. Diveroli wanted to report in a
murder-for-hire scheme, but there were two inmates and I'm
He was not a
You don't recall either myself or Mr. -- Attorney Dansoh
I remember both of you did pass information on about an
10
not sure if that was the one.
I thought it was the previous
11
one.
12
Q.
Do you have your notes here today?
13
A.
I don't think I have the notes for that.
14
Q.
For the conversations with the lawyers?
15
A.
Right.
16
Q.
So it is possible that he is one of the people --
17
A.
Actually, I do have notes.
18
here.
19
Q.
20
from all the conversations with me and Mr. Dansoh with you?
21
A.
I believe so.
22
Q.
When was this -- when was this that Shelton came
23
forward?
24
A.
25
Southern District of Florida.
I'm sorry.
I guess we can look at those.
I do have notes
But do you have the notes
I believe it was after Mr. Diveroli returned from the
108
Q.
So that would have been what month?
A.
Either January or February of 2011.
Q.
And that was during the time that Mr. Dansoh and I were
both calling you about Mr. Efraim Diveroli's cooperation?
A.
Yes.
Q.
And, in fact, did -- was a request made to bring Mr.
Diveroli in and hear it from him directly?
A.
Yes.
Q.
And for operational reasons or whatever, y'all didn't do
10
that, right?
11
A.
No.
12
Q.
I'm correct?
13
A.
We only -- we met with him on two occasions.
14
meet with him on the third occasion.
15
Q.
And that was before he went to Miami?
16
A.
We met with him one time before Miami and one time after
17
Miami.
18
Q.
19
with him again after he got back from Miami another time?
20
A.
21
and reported the scheme.
22
Q.
23
was -- one of the things he was trying to tell you, because
24
you didn't talk to him after that, right?
25
A.
You didn't do that, right?
I'm right?
We didn't
And I guess my question is, did I request that you speak
Yes, but we didn't do that because Mr. Shelton came in
Right.
And you don't know that that's what Mr. Diveroli
According to his lawyers, he had some information to
109
pass on.
Q.
Trebicka.
determination?
A.
That was the official determination, yes.
Q.
You have absolutely zero information, objective
information, that my client had anything to do with that?
You don't have any -- you don't know that?
A.
Now, the final point I want to make here is this Kosta

He was killed by a car wreck; that was the
No, I don't even believe he did.
I think he was just
10
telling that to Mr. Shelton for credibility purposes.
11
Q.
12
cooperation?
13
A.
Yes.
14
Q.
That's all I have.
Right.
15
So and that was part of his undercover
THE COURT:
16
Thank you.
Redirect?
17
BY MR. RAVENEL:
18
Q.
19
attorney information about two murder-for-hire schemes?
20
A.
Yes.
21
Q.
How many murder-for-hire schemes have you investigated
22
in 19 years as an A.T.F. agent?
23
A.
Zero.
24
Q.
Was it unusual to you that the same cooperator would
25
provide information about two different schemes?
You talked about Mr. Diveroli providing through his
They're rare.
110
A.
Highly unusual.
Q.
THE COURT:
We'll be in recess until one o'clock.
(Lunch recess from 12:03 until 1:06 p.m.)
THE COURT:
MR. RAVENEL:
Thank you agent.
You can step down.
Mr. Ravenel.
I don't have any more evidence, Your
Honor.
THE COURT:
10
All right.
MS. HAWKINS:
Ms. Hawkins.
Your Honor, we are going to play 26
11
minutes of excerpts.
Instead of playing a whole bunch of
12
tapes that would take the rest of the day, we've prepared
13
some excerpts.
14
Can I approach and offer one to the Court?
I've given a transcript to the government.
15
THE COURT:
16
MS. HAWKINS:
17
These are excerpts from?
The undercover recordings the
government provided to me.
18
19
Sure.
THE COURT:
Okay.
We'll mark this as Defendant's
Exhibit 1.
20
MS. HAWKINS:
Thank you.
21
MR. RAVENEL:
Your Honor, I would object.
22
understand at sentencing you have a lot of latitude you can
23
consider.
24
the entire case.
25
indicates the facts of the case the defendant admitted to in
Initially, I don't think the excerpts represent

You have a 40-page Plea Agreement that
111
open court.
What you have here is you have essentially --
THE COURT:
Diane's sake.
Mr. Ravenel, there you go.
It's for
Thank you.
MR. RAVENEL:
What you have here is essentially
they take every excerpt that benefits them somehow, if it's a
couple of seconds or something like that.
contradicts it later on, as the undercover agent testified
to, you've got that.
Even if he
I would ask you, if you're going to
10
receive this information, to instruct Mr. Diveroli as to
11
acceptance of responsibility.
12
I'm still going to be the one who's going to be in
13
control of his third point.
14
he did at the plea hearing, which was admit to the facts in
15
that Plea Agreement, admit that he was in violation of the
16
law.
17
THE COURT:
18
that.
19
does it?
20
I believe this undermines what
Well, I'll let Ms. Hawkins speak to
But I don't think this relates to the third point,
MS. HAWKINS:
No, Your Honor.
This is during the
21
course of the conversations he had with the undercover agent.
22
These are part of the case itself.
23
THE COURT:
This is kind of the counterpoint of
24
what you've put on through your case.
I recognize these are
25
excerpts and may be out of context, and I don't know how to
112
resolve that other than to read it in context or to give you
an opportunity to put it in context.
MR. RAVENEL:
To the extent they contradict the
facts he admitted in the Plea Agreement, then I would
probably -- I'll listen to what she's got.
chance to look at it.
possible that I might not move for his third point for
acceptance, if he's going to contradict what he's already
admitted to in the Plea Agreement.
I received it this morning.
10
THE COURT:
11
MR. RAVENEL:
12
right before the hearing started.
13
I haven't had a
But it's
Well, have you read these excerpts?
THE COURT:
I haven't read through it.
All right.
I got it
Well, you understand what
14
he's saying, Ms. Hawkins?
15
thinks the defendant is now trying to renege on facts that
16
are set forth in the Plea Agreement, he may not move for the
17
third point acceptance of responsibility?
18
MS. HAWKINS:
That by introducing this, if he
I understand that, Your Honor.
19
don't think they do that.
20
little context in to balance out.
21
22
23
THE COURT:
stand then.
I just think that this puts a
All right.
It doesn't contradict.
Well, we all know where we
So I'll listen to it.
(Audio excerpts played in open court.
Defense
24
Exhibit 1 is the transcript corresponding to what was played
25
in open court.)
113
MS. HAWKINS:
Your Honor, I didn't know if the
Court wanted to addresses the two objections to the P.S.R.
and then hear mitigation.
THE COURT:
MS. HAWKINS:
Well, are you going to call witnesses?

Just I'm going to have a couple of
brief statements by the defendant's mother and uncle.
nothing substantive about the case.
8
9
THE COURT:
It's
Well, let's go ahead, and if we don't
get finished today, I'd like to at least let them say what
10
they want to say so they don't have to come back, unless they
11
want to.
12
MS. HAWKINS:
13
THE COURT:
Yes, sir.
So let's go ahead and put on whatever
14
evidence with regard to mitigation or anything else you want
15
to put on, and then we'll go back and try to wrap it up.
16
MS. HAWKINS:
Yes, sir.
17
Mrs. Diveroli address the Court.
18
she did it from here, Judge?
I just would like to have

Would it be all right if
19
THE COURT:
20
Just stand up there and Ms. Hawkins will ask you
21
some questions.
22
23
Sure.
If you'll just introduce yourself, please.
MS. DIVEROLI:
Diveroli.
Hi.
Your Honor.
I'm Efraim's mother.
24
MS. HAWKINS:
25
MS. DIVEROLI:
How old is Efraim?

25.
My name is Terry
114
1
2
MS. HAWKINS:
live?
MS. DIVEROLI:
MS. HAWKINS:
this case?
today?
MS. DIVEROLI:
MS. HAWKINS:
10
11
12
13
14
15
Miami Beach, Florida.

And you're aware of what happened in
You've been sitting through the proceedings
In what part of the country do you
Yes, I have.
And do you want to tell the Court
something about Mr. Diveroli's, your son's support in the

community?
MS. DIVEROLI:
Yes.
I would like to tell Your
Honor that -- can I tell him a little bit more?

MS. HAWKINS:
You can tell him a little bit about
his background.
MS. DIVEROLI:
Okay.
Your Honor, you know, when --
16
you know, I raised Efraim just like I was raised, you know to
17
be -- to stay close to God, to be honest, to be law-abiding,
18
to be respectful.
19
brother, a good son, a good student.
20
an age of about 16, he was thrown out of private school for
21
using marijuana and I sent him to my brother, because things
22
weren't getting better.
23
didn't approve of, and I sent him to L.A. for my brother,
24
who -- who his business was government contracts, and that's
25
where Efraim learned government contracts.
And -- and he's always been a good

And, unfortunately, at
He had -- he had some friends that I
115
And, unfortunately, at a very young age, Efraim
made a lot of money, even before the Indictment, he made with
government contracts and that money just fueled alcohol and
drug addictions and gambling addictions.
And -- and I did -- as a mother, I tried my best to
help him.
paperwork to show you that it wasn't just a one time.
was, like, continuously for a long time.
9
10
I did the Marchman Act, and I have a lot of

It
I -- I even called his parole officer when he was

indicted, when he wasn't following the rules.
11
I -- I went to AA meetings with him.
12
everything I could to help him.
13
drug and alcohol problem, and everybody knew it.
14
government knew it.
15
it.
Efraim had a very serious
The attorneys knew it.
16
MS. HAWKINS:
17
MS. DIVEROLI:
18
MS. HAWKINS:
19
MS. DIVEROLI:
I did
The
Everybody knew
Do you mean in Miami?

In Miami, yes.
Sorry.
The first Indictment?

The first Indictment, yes.
And --
20
and the thing is that Efraim never got the help he needed,
21
and he didn't get the help because, you know, it was like a
22
Band-Aid.
23
from a lot of the so-called people that work for him today
24
who are bad influences on him, he needed to get away from
25
that and he couldn't.
Efraim needed to get away from his environment,
116
The -- the -- the lawyer at the Marchman Act didn't
want to touch trying to send him away because he was in the
middle of a -- you know, he was meeting with the government.
He was meeting with his attorneys, and he never got the help
he wanted; and there that, he started going to so many
doctors who gave him so many prescription pills that, honest
to goodness, I couldn't even recognize my son sometimes.
was -- his face was blown.
know, to try to -- they gave him a lot of medication to try
10
He
He was slurring his words, you
to help his appetite.
11
THE COURT:
Can you slow down a little bit.
12
MS. DIVEROLI:
Oh, sorry.
I'm sorry.
To try to
13
help him with his drugs cravings and alcohol.
14
you know, when Efraim was arrested in Orlando a year ago,
15
honestly, I was -- I felt like God was on my side, because I
16
know it saved his life.
17
don't know.
18
alcohol and the gambling affected all his ideas, his
19
thoughts.
20
They took over his life completely, and -- and -- and I
21
was -- I was so thankful.
22
listened to me, because my son's life was saved.
23
And -- and,
His life was a roller coaster.
It was roller coaster.
You
All his -- the drug and
He wasn't -- they were in control of his life.
I really felt that God finally
You know, every time I visit Efraim in jail, I say,
24
"Efraim, you know, I feel so lucky that I can visit you here
25
and not in a graveyard," because, honest to goodness, that's
117
where he was going to end up.
No doubt in my mind.
And I was also glad because I know Efraim has the
ability to be a productive citizen, a good son, a good
brother.
get out of that bad environment he was in.
so much money and he had such bad influences around him and
he couldn't -- he couldn't get out.
was in jail, he was able finally to step out and see what
he's done to his life, you know.
I know he does, but he -- he -- he -- he couldn't

You know, he had
And, finally, when he
10
And like I know the prosecutor said before, listen
11
to the tape of Efraim, you know, I'm not going to stand here
12
and tell you overnight he's a new person.
13
tell you that.
14
learning, okay?
15
I'm not going to
You know, he's learning to live again.
He's
You know -- you know, like, for example, it used to
16
be when he called me up from jail, it would always be about
17
him.
18
okay?
19
he has the ability to change.
20
"Mom, do this."
"Mom, please do this."
It's not overnight, okay?
It changed,
But he's changing because
He was brought up that way.
Now he'll call me up and go, "Mom, how are you?"
21
"How are my siblings?"
22
It's like he's learning to live again.
23
be -- to be part of a community, which he wasn't.
24
25
It's something -- it's a process.

He's learning to
And -- and, you know, and the last thing wanted to

tell you is that also when he calls me up and he goes, "Mom,"
118
I can't explain to you it's like a "Mom" I haven't heard in
years.
talking to.
feel the affection.
got my son back.
It's like it used to be a different boy that I was

It wasn't my son.
Now, when he says, "Mom," I
I feel like -- I really feel like I've
And -- and I just -- I just -- it's not that I
don't think Efraim should take responsibility for his
actions.
their actions; but, Your Honor, when you sentence Efraim,
I do feel people should take responsibility for
10
please keep in mind that -- that he really had a lot of
11
things that affected his choices, he really did.
12
young boy with such a big addiction having millions of
13
dollars before the age of 20, and these were government
14
contracts before the Indictment.
15
the Indictment.
16
nobody could help him because he had all that money.
17
was -- his money was a curse.
18
that's all.
19
Imagine a
They had nothing to do with
He was -- he was like a reckless train and
His money was a curse.
It
And
I just hope you're as lenient as possible, Your
20
Honor, because I know Efraim really has the ability to be a
21
productive citizen, a good son, a good sibling.
22
Your Honor.
23
24
25
MS. HAWKINS:
And, please,
Do you know whether or not your son
had any mental problems?

MS. DIVEROLI:
Yes.
When I went -- when I did the
119
Marchman Act with him, first they put him into rehab and then
Carol Ross, who was the attorney at the time, she goes to me,
"Terry, you know what?"
She goes, "How old is your son?"
I was telling her.
And she goes, "You know what, Terry?"
She goes,
"He needs to go into dual, because he has some mental
problems that -- that just -- that just -- that just -- rehab
is not going to help him with."
And he worked with a Dr. Shomasser for quite a few
10
years, and Dr. Shomasser many times emphasized to me, "Terry,
11
your son's thinking process is not normal.
12
thinking, he has some mental illness issues that has to be
13
dealt with."
14
His way of
And personally I think those mental illness issues,
15
which he definitely had, because his way of thinking was way
16
out there, had to do with all his addictions.
17
horrible addictions, terrible addictions.
18
know, even while he was on parole, he was tested positive for
19
cocaine, and they knew.
20
Everyone knew he had addictions.
21
He had
He was even -- you
He went to court for it.
They knew.
And, you know, unfortunately, in this country he
22
had a lot of rights, too, and I did as much as I could to try
23
to help him.
24
25
MS. HAWKINS:
When your son is released from
prison, what kind of -- what can you tell the Judge about the
120
type of support that you, your family and your community can
provide to him so that he doesn't get back into trouble.
MS. DIVEROLI:
Your Honor, you know, this is my
family behind me; and, thank God, I have five siblings, and
we're all very close to each other.
here today and one wasn't able to come.
There's three of them
I speak to my siblings twice a day.
One lives in
New Jersey.
One lives in L.A., and we're a close-knit family
and we're all very hurt about what happened to Efraim,
10
because this is not who we are.
11
we're ashamed.
12
of his behavior and what he's done with his life, and -- but
13
we're a close-knit family and we're a devoted family, and our
14
goal is always to help Efraim lead a straight life.
15
my -- that has always been my goal.
16
doing things he shouldn't, I went to his parole officer.
17
We're ashamed and he knows
I've told him many times that we're ashamed
That is
That's why when he was
I -- our goal is to always -- to be committed to
18
Efraim, to be committed to helping him.
19
him any other way, and Efraim knows we wouldn't accept him
20
any other way.
21
22
23
24
25
THE COURT:
We wouldn't accept
Do you have any anything else you want
to tell the Court?

MS. DIVEROLI:
No.
I just thank you very much for
listening to me.
THE COURT:
All right.
Well, thank you, ma'am.
121
appreciate your being here; and, obviously, your support is
very important.
MS. DIVEROLI:
MS. HAWKINS:
At this time we would like to call
the defendant's uncle, Rabbi Shmuley Boteach.
THE COURT:
MS. HAWKINS:
Okay.
State your full name and spell your
name, please.
9
10
Thank you.
RABBI SHMULEY BOTEACH:
S-h-m-u-l-e-y B, as in "boy" o-t-e-a-c-h.
11
MS. HAWKINS:
12
13
MS. HAWKINS:
14
15
MS. HAWKINS:
16
And you're related to the defendant?
when he was a younger person?
18
MS. HAWKINS:
25
And do -- you reside in what part of
RABBI SMULEY BOTEACH:
I live in Englewood, New
Jersey.
22
24
Of course.
the country?
20
23
He is my sister's son.
And have you been acquainted with him
21
I am.
How are you related?
17
19
Rabbi Shmuley Boteach,
MS. HAWKINS:
So what kind of contact have you had
with him?
RABBI SMULEY BOTEACH:
I've been to Florida
multiple times to see him alone under difficult
122
circumstances -- I have nine children, thank God -- to visit
Efraim during painful experiences, like his first sentencing
in Miami.
Every one of us, Your Honor -- and I'm very
grateful for your time in allowing me to address your
court -- is very devoted to family.
mother of six.
the mother of five.
Barcho, who lives in Los Angeles, is a father of seven.
My sister Terry, who you just heard from, is

My own parents have five.
10
believe in family.
11
and values by which to live.
12
My eldest sister is the
My brother
We
We believe in giving our children morals
I actually hosted a national TV show trying to
13
repair families.
14
from this courthouse here in Orlando I helped a woman, whose
15
husband was killed right near here, overcome the grief of
16
that terrible tragedy.
17
And a few years ago, four or five blocks
I never would believe that I would be sitting
18
before you to discuss my own flesh and blood in these
19
circumstances.
20
and how helping one's own family is the greatest challenge of
21
all.
22
Sometimes one discovers one's own limitations
My sister is a saintly figure.
She has been since
23
she was a little girl.
Altruism is in her D.N.A.
24
embellish nothing in telling you that this is a woman who,
25
although is a successful small-business owner, goes by
123
herself to take care of an elderly couple who live around the
block from her who cannot dress themselves, feed themselves,
and cleans their house several times a week, completely on
her own.
She is the president of a charity that raises money
for orphans in Israel.
facing with her son, she's been pleading with me to come down
to Miami to speak on behalf of the organization to raise
money for these orphans.
10
And amidst all of the issues she's
That is the greatest anomaly of all, that this
11
should take place in her family, given her -- her
12
incomparable commitment to ethics and values, Judaism and a
13
religious way of life.
14
My sister spent untold numbers -- untold sums
15
ensuring that my nephew had a Jewish education in Jewish day
16
schools when she was the sole breadwinner for the family,
17
when her husband was struggling to hold a job.
18
in Jewish day school to ensure that he had a values-based
19
education.
20
ways.
21
She kept him
She would berate him daily about changing his
And here we are, just a few years later, because
22
Efraim is still so young, and as we Jews prepare for our
23
national Jewish New Year, which is celebrated in some
24
communities with partying and revelry, but in our community,
25
with deep reflection and resolutions for the future, I really
124
see those two sides of my nephew.
I think no greater truth was spoken in this
courtroom today than by the first A.T.F. agent, who said that
Efraim would on the one hand say, "I really can't do X and
I'm prevented from doing Y," and seemed sincere in saying it,
and a moment later would contradict himself.
been a battle going on inside him, the battle of good and
evil, the battle to do the right thing versus the narcissism
and selfishness that has dictated many of his actions.
10
There's always
In our religion, we believe that there are three
11
things on the Jewish New Year, on this judgment day that has
12
come early for my nephew before you today, Your Honor.
13
believe in the three Rs of recognition, repentance, and
14
rectification.
15
We
Recognition is something that Efraim has struggled
16
with, even as we tried to impart that to him; but he has
17
fallen so low, he has hit such rock bottom, he is sitting in
18
a jumpsuit in the presence of his cousins, some of whom he
19
once employed.
20
He could not fall any lower.
He has experienced national humiliation with
21
stories written about him, some of which are not accurate and
22
misportrayed some of his actions, but that's par for the
23
course.
24
they're going to say the good and the bad, and not all of
25
it's going to be accurate.
When you've got yourself in this kind of trouble,
He's had no opportunity to
125
respond to it because of his conditions.
He has fallen so low and that has brought a certain
recognition that heretofore was lacking, and I plainly admit
that it was lacking, because I see his failure as my own
failure, as our family's failure.
through to him when so many of us tried?
Why couldn't we get
But, unfortunately, Your Honor, there are two ways
to motivate people in life.
There's the inspirational, where
you focus on the positive; and, unfortunately, there's the
10
condemnational, where only negative impulsion can get people
11
to recognize tragic truths.
12
tragic truth.
13
Efraim has recognized that
I agree with everything my sister said.
He's a
14
different person when you speak to him on the phone.
15
to him on the phone on Friday, when he called me, thanking me
16
for planning to be here today, amidst responsibilities to a
17
large family, I said to him, "You know that the person you've
18
hurt the most is the one who loved you the most:
19
mother."
20
I said
Your
My sister is on the phone with me every single
21
night crying such bitter tears that I -- I can't work
22
afterward.
23
much.
24
acknowledged that he has betrayed everything she believes in
25
and everything that he was raised to believe in as well.
I can't function, hearing my sister suffer so
And he has called her and begged her forgiveness and
126
The second R, that's repentance, and that's what I
mean, where he goes and repairs the relationships that he's
broken, where he pays his debt to society.
jail, incarcerated here in Orlando for a year.
my kids to visit him before Passover, the Jewish festival.
It was painful seeing three-year-old children, five-year-old
children speaking to a cousin they love through a glass over
telephones and having to explain to my kids why he's there,
these small children who are very innocent.
10
11
He's been in
I brought all
He is trying to
repent of everything that he has done.

Finally, Your Honor, there is rectification.
What
12
I plead before you today as you sit in judgment is to
13
understand that a young life that clearly has talent may
14
never experience that third R of rectification if he's given
15
a sentence that is overly long, where this spark of God, the
16
human countenance, the desire for a person to be a blessing
17
rather than a burden is slowly snuffed out from him, where
18
keeping him in prison just provides diminishing returns.
19
20
Efraim has so much good to do in his life.

a millionaire in his teens.
He was
He had no guidance.
21
What you heard in that terrible phone call that we
22
all listened to, where I tried to keep a poker face, even as
23
my soul was torn asunder by hearing a conversation where you
24
didn't know who the father was and who the son was.
25
giving instructions to who?
Who's
127
He was never given any kind of moral guidance.
blame no one for that.
financially for so many years.
that security in life is not found in loving relationships;
it's found by having money in the bank.
more and more depressed about his life, because without
purpose, you cannot find happiness, he turned to some of the
things that you've heard about, terrible addictions of drugs,
alcohol in dangerous quantities, gambling, anything to avoid
10
11
This is a family that's struggled

The message that he got is
And as he became
the purposelessness of his life.

He was not given that guidance.
That was a painful
12
phone call, but it gives you a window, Your Honor, into
13
seeing the utter absence of guidance that this young man had.
14
A lot of what he did was done at such a tender age.
15
given government contracts of hundreds of millions of dollars
16
when -- I'm not sure of the exact chronology, please forgive
17
me -- I'm not sure he was allowed to buy a drink, to buy a
18
beer in a bar, and he was supplying whole armies.
19
He was
That does not in any way absolve him for the things
20
that he did for which he must be justly punished.
He has
21
been punished very severely.
22
Miami from a federal judge there.
23
please -- we are a family that loves him, we are a family of
24
deep values -- if you'll give him back to us after having
25
paid his debt to society, we will endeavor our utmost to make
He already has a sentence from

I'm asking Your Honor,
128
him a blessing rather than a burden, someone who contributes
rather than takes.
My brothers and sisters -- and we are very
close-knit family who endured the very painful breakup of our
parents' marriage when we were all very young -- and,
unfortunately, our family is ravaged by divorce.
are divorced.
ex-brother-in-law.
sit on two different sides of the courtroom, and he was
My two sisters are divorced.
My parents
My brother -- my
You see the divisions even here, how we
10
always pulled between those two places.
11
divorced.
But we all were are closely knit, me and my
12
siblings.
We all care and love each other's children.
13
His parents are
I helped to raise another nephew on a different
14
path in God, who is now very charitable, very religious, and
15
I'd like that opportunity to do so with Efraim, now that he
16
might listen to me, given how far he has fallen.
17
In conclusion, Your Honor, my brothers and sisters
18
who run a jewelry business in Miami, they are well-known in
19
the community, that all of these -- they're call meserlokin
20
(phonetic) -- emissaries who come from Israel to raise money
21
for brides who don't have money to pay for a wedding or buy a
22
dress, desperately poor families in Israel who have no money
23
to buy their children food, they line up outside their
24
jewelry store, and everyone in Miami knows that no person
25
leaves without a check.
They're very good, charitable
129
people.
I'm the rabbi in the family, but I can tell you --
and I would not lie to you in any way on embellish -- they're
much better people than I am.
most spoiled.
divorce was to give me what I wanted because they felt I
suffered the most, but my siblings are the most incredible
people, and he will have a very loving and very healthy
environment.
10
I was the youngest.
I was the
My parents thought the way to deal with their
Efraim, you've done things for which you have to
11
accept full responsibility.
12
now you're standing before someone who will determine your
13
fate and now you've learned that every action has
14
consequences.
15
You've hurt a lot of people, and
And this is a great nation.
This is the greatest
16
country in the world, and that your sins involve the U.S.
17
military is the most disgraceful thing of all, because the
18
U.S. military is the single greatest force for good in the
19
world today, giving women in Afghanistan dignity and
20
protecting them from being beaten, allowing people in Libia
21
to experience freedom for the first time and not living under
22
a tyrant.
23
Those men and women, who are just two percent of
24
the population, they work for almost no money, but they have
25
the greatest thing of all.
It's called honor, and it's
130
something that you have to beg to have the freedom to maybe
achieve with your life.
And you have our commitment, Your Honor, that we
will endeavor to do so.
very much for your time.
6
7
8
9
THE COURT:
And God bless you, and thank you
Thank you, Rabbi, for your thoughts.
appreciate it.
MS. HAWKINS:
witnesses to call.
Your Honor, I don't have any other
I provided a copy of some documents to
10
the government earlier and these documents are just a few of
11
the charitable contributions made by the defendant during the
12
time -- over a several-year period during the time that he --
13
before he was doing anything illegal in Miami and continuing
14
thereafter.
If I may approach?
15
THE COURT:
16
MS. HAWKINS:
17
THE COURT:
18
MS. HAWKINS:
Sure.
This would be Defense 2.
Thank you.
Is this a composite exhibit?

Yes, sir.
Your Honor, I believe at
19
this time it might be appropriate to talk about the P.S.R.
20
objections.
21
22
THE COURT:
Okay.
The
first one is the base computation?
23
MS. HAWKINS:
24
THE COURT:
25
Let me switch files here.
Yes, Your Honor.

All right.
to the script here for a minute.
Well, let's kind of go back

What about factual
131
objections to the P.S.R.?
noted in the addendum are scoring objections primarily.
need to get any factual objections out of the way.
MS. HAWKINS:
THE COURT:
Because I think the objections

So I
No factual objections, Your Honor.

All right.
Then let me review what the
scoring is so we'll know what you're objecting to.
On page
16, Probation has scored it as a base of 20.
understand your position is it should be 14, and that's going
to turn on the issue of the magazine capacity.
And I
10
Then there's a two-level increase for the number of
11
firearms and then a three-level increase under 3(c)1.3; and I
12
also understand there's some dispute about the interpretation
13
of that, including the consecutive nature of any sentence
14
imposed thereunder.
15
responsibility, we end up with a total offense level of 22
16
with a criminal history category II.
17
Then subtracting three for acceptance of
So, with that scoring then, let's go ahead and take
18
up your objection as to the base.
19
MS. HAWKINS:
20
Yes, Your Honor.
Our objection is
set forth on pages nine and ten of our sentencing memorandum.
21
THE COURT:
22
MS. HAWKINS:
I've read them.

I'm sure you did, Judge.
So I won't
23
repeat myself, but to say that application note two of
24
Section 2(k)2.1 defines what a weapon that is a
25
semi-automatic firearm capable of accepting a large-capacity
132
magazine is; and it's not just the weapon that's capable of
accepting it, but it goes on to say if either a magazine is
attached to it, which is not the case here, or if there's a
magazine in close proximity to the firearm.
Your Honor, it's our position that there was no
magazine in close proximity to this firearm.
certainly never saw that.
the undercover agent's report or in any of the agents'
reports that were there that day saying that there was a
10
The defendant
There were -- there was nothing in
magazine near any of these firearms.
11
Recall that the defendant did not bring any weapons
12
to this meeting.
13
brought by the -- the federal agents.
14
that they brought magazines that were there.
15
Court looks at the stipulated facts of this Plea Agreement,
16
they are inordinately detailed and they have no mention of
17
this.
18
Agreement and the stipulated facts, and yet there's no
19
mention of any magazines being there.
20
He brought none.
These were the weapons

They're saying now
However, if the
Everything else in great detail is in the Plea
At the position-of-the-parties' meeting, it wasn't
21
even clear to me that the prosecutor knew it in our
22
conversation.
23
there were some magazines there, but it was very, very late
24
in the game and there's just no documentation of it, Your
25
Honor.
So I don't know when somebody decided that
And given the facts particularly that the defendant
133
had nothing to do with bringing these guns or the magazines
that they say are there, it's just not fair for them to bring
guns and then bring magazines, too, to enhance his sentence;
and this is six levels.
I mean, it's very, very important.
I do cite on page ten of my memorandum the
Ciszkowski case, and here's the quote from that case.
an Eleventh Circuit case from 2007.
would fine it troubling if the government provided the
defendant with a firearm with a silencer that he could not
10
It's
The court said, "We
see, solely to inflate his sentence upon a conviction."
11
Now, I don't know what to say about the testimony
12
of the undercover agent except for he doesn't remember or
13
he's just not being straight; but every federal agent of his
14
experience knows that if you've got something important, you
15
put it in a report, and if it's not there, it's highly
16
suspect to the defense.
17
To enhance his sentence on this basis would be to
18
countenance the agent's placing the magazine near the gun
19
under the circumstances where there can be the consequence of
20
holding him accountable for it.
21
and, Your Honor, it's -- it's not fair and it's manipulative,
22
and our position is that the Court should not enhance his
23
sentence under this provision.
24
THE COURT:
25
argument.
Okay.
He's not charged with it
Well, I understand your
134
I'll certainly let Mr. Ravenel respond, but there's
a difference between a silencer and magazines, in my view, in
terms of the analysis.
First of all, I've got to make a credibility
decision.
magazines were there with the weapons or not.
testified that they were.
want to jeopardize his career by such a falsehood simply to
get me to enhance a sentence.
10
I wasn't there, so I don't know whether the

The agent
I can't imagine the agent would
So it's hard for me to believe that he would make
11
that up and just come into court under oath and lie.
12
from a credibility standpoint, I really don't have a basis
13
not to believe him.
14
So,
The other problem with it is that the notes are
15
simply inconsistent with the guideline itself.
16
said if the weapon involves a semi-automatic firearm, which
17
we have here, that is capable of accepting a large-capacity
18
magazine.
19
The guideline
Now, if you have a firearm that normally has a
20
capacity of ten but could be modified to accept a capacity of
21
20, then maybe the proximity of the magazine would be
22
important and determinative; but here, every one of these
23
weapons normally, in normal use, accepts a magazine that has
24
more than 15 rounds; and to me, that is clearly within the
25
plain language of the guideline.
135
I recognize what you say about the comment.
comment says, well, it's not just enough to be capable.
has to actually be either in it or in close proximity.
The
It
So to the extent that it has to be in close
proximity -- and for these weapons, I really don't think that
should be the law, if it is the law -- I don't have any basis
to discredit the testimony of the agent in that regard.
8
9
I guess I've already answered Mr. Ravenel's

response.
10
MR. RAVENEL:
11
THE COURT:
12
on the record?
13
my orders.
14
Much better than I could have.

Is there anything else you want to put
Because Ms. Hawkins is very good at appealing
MR. RAVENEL:
No, sir.
I would just say there's no
15
evidence that Dan O'Kelly brought those magazines to enhance
16
his sentence.
17
the fact that he didn't put it in the report, I think,
18
corroborates that to some extent.
19
enhance it, certainly I imagine he would have it in the
20
report.
21
He said that he didn't for that reason.
Also,
If he brought it to
You also know that nine days earlier Mr. Diveroli
22
shot a high-capacity firearm by himself, without the
23
assistance of any government agent.
24
to whether or not he was somehow entrapped from a sentencing
25
perspective.
I think that also speaks
136
THE COURT:
All right.
Well, Ms. Hawkins, I
understand your argument, and I think I've stated as best I
can my understanding of the guideline and my factual finding.
So your objection with respect to the base guideline
calculation is overruled.
base of 20.
So I'm going to score it with a
That brings us to the issue that is more troubling
to me in terms of a legal issue and that is the 3(c) -- that
is your next argument, right?
10
MS. HAWKINS:
11
THE COURT:
12
MS. HAWKINS:
13
THE COURT:
14
MS. HAWKINS:
Yes, Your Honor.

3(c)1.3?
Yes, Your Honor.
Our -- our. . .
Go ahead.
Our discussion of that begins on the
15
bottom of page ten and goes to page 13 of the sentencing
16
memorandum; that in paragraph 70, there are several reasons
17
why we say that the defendant should not have his guideline
18
adjusted three levels upward, and the first is probably
19
what -- in line with what the Court just said about the plain
20
language of the statute and then the application notes.
21
is -- it's not clear.
22
The example contradicts itself, for that matter.
23
This
They seem to contradict one another.
But our first point is that it's really unfair, in
24
terms of equity for a defendant, to be encouraged.
And I
25
think we heard three times today on those tapes alone where
137
the undercover agent suggests and says, you know, "This is a
millions-of-dollars deal and you really have to come up
here."
I did note that what he said on the stand was not
really what was on the tapes.
he's too busy to come down there and he's a millionaire guy.
He said, "Well, I just didn't get into that with him."
8
9
10
On the tapes, he didn't say
So, for whatever reason, the defendant resisted

coming up here several times.
He said, "I can only go to
Jupiter."
11
The undercover agent says, "Well, to West Palm."
12
He goes, "Okay.
13
So there's something wrong when the agent knows
I'll come to West Palm."
14
that there -- this would be a violation of the bond, and yet
15
they encourage a person to violate the bond and then want to
16
enhance his sentence for it.
17
government, Your Honor, and that's just not equitable.
18
wouldn't be an equitable result in this case.
19
THE COURT:
20
MS. HAWKINS:
21
THE COURT:
Well, the government's the

It
Well, let's separate these issues.

Yes.
There's the issue of the proper
22
interpretation of 3147 and its application to the guideline
23
score --
24
MS. HAWKINS:
25
THE COURT:
Yes.
-- and then there's the issue of
138
fairness, which I can take into consideration under my Booker
discretion.
MS. HAWKINS:
THE COURT:
5
6
Yes.
So they're really two separate issues,
it seems to me.
MS. HAWKINS:
Yes.
And, actually, that was all I
was going to say about the fairness Booker issue in terms
of -- and I did note that we would ask the Court, if it
doesn't agree with us on the guidelines interpretation, that
10
it do exactly that, to vary under the Booker analysis in the
11
fashioning of the sentence.
12
But in terms of the actual literal reading of the
13
guideline itself, the -- the adjustment says in application
14
note one of 3(c)1.3, that note indicates that the adjustment
15
applies when a defendant is charged with a violation of
16
Section 3147; and I think I've pointed out this has been a --
17
there's some history behind this section.
18
19
20
21
It makes sense for this to be applied when the

person is charged with Section -THE COURT:
What did you just read from with the as
charged language?
22
MS. HAWKINS:
23
THE COURT:
24
MS. HAWKINS:
25
THE COURT:
I have it on my page eleven.

But where is it in -Application note one.
Where in application note one?
139
1
2
MS. HAWKINS:
front of me.
I'm sorry.
I apologize.
THE COURT:
MS. HAWKINS:
I don't have that in
All right.
Okay.
Go ahead.
Which makes sense.
guideline for that.
THE COURT:
But the problem is 3147 is not an
offense.
sentencing enhancement.
You don't charge someone with 3147.
MS. HAWKINS:
that; but the defendant was charged with 3147.
11
been done.
12
case that was cited by the probation officer.
13
done, Your Honor.
14
So it has
And that was a Fourth Circuit case, but it's the
THE COURT:
So it has been
Well, the fact that it's been done
doesn't -- a lot of things have been done, but go ahead.
16
17
It's a
Well, I mean, some of the cases say
10
15
There's no
MS. HAWKINS:
I'm just saying that I don't know
that that's --
18
THE COURT:
I read it clearly as a sentencing
19
enhancement provision of the United States Code, not an
20
offense against the United States.
21
worded.
22
while you are on probation, the court can increase the
23
sentence as a result of that up to ten years if it's a felony
24
and, which is the more troubling part, whatever that
25
increase -- the way I read it, whatever that increase is has
It's rather simply
It basically says that if you commit an offense
140
1
2
to be consecutive to any other sentence of imprisonment.

Now, that raises some very interesting and
difficult conceptual legal problems in my mind; but the
statute itself, to me, simply says, look, if you commit a
crime against the United States while you're already under
probation, the court under this statute can sentence you to
additional time and that time has to be consecutive, whatever
that means.
MS. HAWKINS:
And in reading that statute together
10
with the Section 3(c)1.3 of the guidelines, there is an
11
example of how this is supposed to work in application note
12
one, which talks about -- it gives by way of an example
13
there's an offense with a guidelines range of 30 to 36 months
14
for the underlying offense.
15
And then it says if the court determines, for instance, that
16
the sentence should be 36, that on the actual form, the
17
sentencing form, that the court would put 30 months for the
18
underlying offense and six months for the violation of 3147,
19
and that does give an additional penalty for the commission
20
of this offense while on bond.
21
THE COURT:
In this case, a gun offense.
Well, not really.
I mean, frankly,
22
that application note is rather nonsensical.
I understand
23
what it says, but it makes no sense to me.
24
determine the appropriate sentence for the underlying offense
25
is 36 months and if I have the authority to increase that
I mean, if I
141
because he committed that offense while on probation, and if
that increase has to be consecutive, and I think all those
assumptions are correct, then this guideline application note
makes no sense, because what it says is I just sentence him
as if there was no adjustment other than the three levels.
MS. HAWKINS:
Well, it is complicated, because when
you read it in conjunction with the guidelines, it's --
it's -- our point is that the government has drafted these
guidelines and they should be -- to the extent that they're
10
hard to understand, that should be read against -- any
11
ambiguity should be read against the author, which is the
12
government.
13
THE COURT:
14
I'm sorry, Mr. Ravenel.
15
paying you to be here.
16
it down.
17
18
Well, let me break this down.
Let me hear from you before I break
MR. RAVENEL:
want to.
I know the government's
Sure.
You can keep talking, if you
19
I'll respond at some point.

THE COURT:
I'm sorry.
I get carried away
20
sometimes.
21
here and I have thoughts and issues and questions, so I just
22
start saying them.
23
Since I look at these things before I come in
Sometimes I get ahead of myself.
MR. RAVENEL:
Well, I can tell you how I analyzed
24
it and some of the concerns I had and they're the concerns
25
that the defense attorney has raised.
142
Initially, you look at the guideline and it says if
a statutory sentencing enhancement under 18, U.S.C., 3147,
applies, increase the offense level by three levels.
So initially you look at 3147.
I think unambiguously it does.
THE COURT:
MR. RAVENEL:
too.
applies.
10
11
12
13
14
Does it apply?
And
I agree.
And you've got cases that say that,
You've got cases that say, without exception, it
So then I look at notice.

notice of this particular thing?
THE COURT:
Was the defendant on
And you've got. . .
What's notice got to do with it other
than the fairness issue?

MR. RAVENEL:
Well, that's where I come down to it
15
on notice, just that he was aware of it.
And there was a
16
Ninth Circuit case, Rosis, which talked about notice a little
17
bit, and basically they said if he's got notice in a
18
Presentence Report, he's got notice.
19
Here in this case, he's got more than that, because
20
when he was released on bond, the court notified him, hey, if
21
you commit a new violation, that's going to be consecutive.
22
THE COURT:
Well, but they can tell him it might be
23
consecutive, but that bond order does not bind my sentencing
24
decision in this case.
25
MR. RAVENEL:
I don't think the bond order would,
143
but just as far as him being aware that that's a possible
consequence --
THE COURT:
I agree with that.
MR. RAVENEL:
You know, in terms of notice, I was also concerned
-- while he's on bond.
with whether this had to be charged, this 3147 violation.
don't believe it does.
unpublished opinion from this circuit, Clemendor, and you've
also got a Fifth Circuit opinion, Dison, that say it's not a
10
charging statute.
11
You've got two opinions, one
It's a sentencing --
THE COURT:
I don't think Ms. Hawkins is claiming
12
legally it had to be charged.
13
Are you?
14
MS. HAWKINS:
15
major point.
16
part of it.
17
Not at this point.
That's not my
I've pointed that out, but that's not my major
MR. RAVENEL:
So then you come down to you've got
18
notice.
It doesn't need to be charged.
Whether it applies?
19
And you have five different cases.
20
language of the statute.
21
new concept to argue this statute's ambiguous.
22
apply.
23
been raised.
24
Sixth Circuit, the Fourth Circuit, this Circuit as well as
25
the Ninth Circuit --
You've got the plain
And those five cases, it's not a

It doesn't
You've got to read it in favor of my client.
That's
It's been raised in the Fifth Circuit, the
144
THE COURT:
MR. RAVENEL:
THE COURT:
All right.
-- and they've rejected it.
I think we're on the same page up to a
point.
MR. RAVENEL:
THE COURT:
Yes, sir.
The guideline 3(c)1.3 says if the 3147
provision applies, then increase the offense level by three
levels.
I agree that 3147 on its face applies.
So we
10
increase the offense level by three; and that, you know,
11
gives us the scoring of 25 minus three for acceptance of
12
responsibility, unless you're still holding one of those
13
out --
14
MR. RAVENEL:
No, I'm not.
15
THE COURT:
16
Now, the problem I have is how I apply that
-- is a 22/II and it's 46 to 57 months.
17
guideline in light of the application note, because that
18
application note clearly says -- I don't know why it says
19
this and it makes no sense for it to say this, but it clearly
20
says that if, for example, I think the appropriate sentence
21
here is 46 months for the underlying offense and that six
22
months is appropriate for the 3147 enhancement, that I should
23
sentence him to 40 months plus six months or 46 months.
24
That's what it says.
25
MR. RAVENEL:
And I agree with that.
And I think
145
the problem with the application note and the reason it
doesn't apply is it assumes you have the same sentencing
judge for the underlying as well as the new conduct.
it assumes what you have is either the conduct is committed
in the same jurisdiction or you have a Rule 20 situation.
THE COURT:
I know.
I guess
I've read this thing over and
over again, and it sure would be nice if they explained that,
but they don't; and this is supposedly the body that's
supposed to, you know, be the expert on sentencing issues,
10
and they give us an application note like this that's
11
essentially nonsensical.
12
MR. RAVENEL:
And I guess where I come down on that
13
is if you've got this application note which clearly doesn't
14
apply here, because you didn't sentence Mr. Diveroli in South
15
Florida, then you've got to compare that against what the
16
legislature did, and that's the statute, 18, 3147.
17
Eleventh Circuit as well as four other circuits have
18
interpreted that statute to say it's unambiguous and it
19
applies without exception.
20
THE COURT:
And the
Don't you agree with me that the intent
21
of that statute is that whatever I enhance his sentence under
22
3147, that should be what's consecutive, not the sentence for
23
the underlying offense?
24
bootstrap up the entire new offense to be consecutive to, for
25
example, what he's serving in Miami.
In other words, you don't then
146
I don't think that question has ever been presented
to an appellate court that I'm aware of, and that's where
that sort of interpretation, which I think you want me to
draw, simply doesn't -- it doesn't seem right to me.
see what I'm saying?
MR. RAVENEL:
Did you
I can understand that perspective,
certainly.
is under a normal situation, you could either run this
sentence concurrent or consecutive, and that's subject to
10
And I think where we're at, just so we're clear,
what you want to do.
11
In this situation, I believe that there's at least
12
an aspect of this sentence that is required to be run
13
consecutive by law.
14
have here is, how much of the sentence and how do you figure
15
that out?
16
And the real issue, I think, what we
And because you're not the sentencing judge in
17
Miami, you didn't sentence it altogether, it's difficult to
18
figure out what percentage that is.
19
know, the position you're taking and I can understand.
20
don't have a very good answer for it.
21
THE COURT:
And I do respect, you

I
I'm not really taking a position; I'm
22
asking some difficult questions that concern -- should
23
concern all of us as lawyers and officers of the court.
24
other words, I think we're basically all in agreement that I
25
need to determine what is a fair and appropriate sentence for
In
147
the defendant's conduct that occurred in this district for
which I am sentencing him, and the guideline for that is
enhanced by three levels under 3(c)1.3.
Then, according to the application note, which may
not apply because I'm not the sentencing judge, but which the
note doesn't say one way or the other, I need to determine
what additional consecutive punishment is appropriate for the
fact that he committed this underlying offense while on
probation in Miami.
Then, looking at the application note, I
10
have to kind of put those two together and sentence him
11
within the enhanced guideline.
12
I think that's the right answer.
I'm not saying
13
it's a logical answer, but I think that's the right answer,
14
based on the way this guideline and application note's
15
written.
16
Mr. Mason, do you have any wisdom on this?
17
THE PROBATION OFFICER:
I believe, Your Honor, the
18
way you've just stated it is the way I read this guideline
19
application.
20
MR. RAVENEL:
I would just like to put on the
21
record, Your Honor, I understand that probation is going to
22
take a different position as to whether or not this sentence
23
can run concurrent completely with the South Florida
24
sentence.
25
THE COURT:
Well, their recommendation is
148
concurrent.
2
3
MR. RAVENEL:
I don't believe that's their
recommendation anymore.
THE COURT:
I'm sorry.
THE PROBATION OFFICER:
We do have a written
recommendation.
I've had a chance to review the sentencing
memorandum of both parties, and I think Probation's
recommendation would be exactly the way the application note
reads; that if our recommendation is followed by the Court,
10
you do have to split those months partially to the 924(c) and
11
then to the 3147 penalty, just as the application note
12
states.
13
What part of that is concurrent with Miami, I
14
think, would be the front end; and based on the statute,
15
reading 3147, any part of that penalty must be consecutive to
16
everything else.
17
THE COURT:
18
terms of analytical framework.
19
there.
20
21
And that's where we part company in
Let's go back and reconstruct this again, and maybe

using some actual numbers would help.
22
MS. HAWKINS:
23
THE COURT:
24
25
I think we part company
Yes.
The guideline range here is 46 to 57
months.
MS. HAWKINS:
Your Honor, and I think it's
149
important to point out that when -- when the government is
saying that the three levels should apply in the Miami case,
that doesn't make any sense to me.
in this case.
THE COURT:
No.
It's here in this P.S.R.
His sentencing guideline has been
increased for the underlying offense as a result of 3(c)1.3.
So he's already being bumped up in the underlying offense.
MS. HAWKINS:
THE COURT:
Right.
And I think that's why this application
10
note tries to then take that back out but apply it
11
consecutively.
12
MS. HAWKINS:
Well, and I think that because
13
3(c)1.3 is being applied in this case, that the application
14
note must apply; and I would go on to say that I would
15
suggest that what the Court just said, making the overall
16
sentence 40 and having the six months to comply with the
17
note, would be a good way to do it.
18
agreeing that that should be the final sentence, of course,
19
because of my other reasons on the Booker issues.
20
THE COURT:
Then, of course, I'm not
Well, but the first question is, you
21
know, there's nothing that says I have to make the first part
22
of that sentence concurrent with Miami.
23
MS. HAWKINS:
24
THE COURT:
25
That's right.
I mean, let's assume that I think a
guideline sentence of 48 months is appropriate, and let's
150
assume that I think eight months is appropriate for the
consecutive aspect of 3147.
the statute and the guideline and the application note if I
sentenced him to 40 months for this underlying offense
concurrent with Miami and six months -- or eight months, I'm
sorry, consecutive for the 3147 enhancement.
MS. HAWKINS:
THE COURT:
So it would be consistent with
In Orlando?
Yeah.
Well, I'm sentencing him in
Orlando for both.
10
MS. HAWKINS:
Right, but I'm just saying that
11
wouldn't be consecutive to the Miami case.
12
my memo that talks about that -- that's the Royer case on
13
footnote five on page 15, that where we're saying here, the
14
enhancement might run consecutive, but certainly this Royer
15
case said that it did not; that the enhancement would be
16
consecutive to the Orlando sentence and not the Miami
17
sentence.
18
19
20
THE COURT:
Circuit case.
I cite a case in
Well, I haven't read that Second
I'll have to go read it.
MS. HAWKINS:
And I also argued in there that
21
there's no case law contrary to that in anything the
22
government has filed.
23
THE COURT:
All right.
Mr. Ravenel, come full
24
circle with me now and tell me what you think I should do
25
from the government's standpoint.
151
MR. RAVENEL:
Well, I still maintain the same
position, that 3147 applies.
I believe that you have to
sentence him consecutive for the entire sentence.
understand the position the Court's taken based on the
application note.
position that it has to be consecutive.
I can understand that, but I'm taking the
I'm also saying that, in any event --
THE COURT:
Consecutive to the South Florida
sentence?
10
MR. RAVENEL:
Yes, sir, the entire sentence here.
11
In any event, I'm saying, based on the facts in this case --
12
and I'll talk about that in my sentencing argument -- you
13
should want to sentence him consecutive in this case, in any
14
event, based on, you know, different factors:
15
characteristics, his circumstances of the offense and
16
whatnot.
His personal
17
So my position is you have to and you also should.
18
THE COURT:
All right.
Well, in terms of
19
objections and whatnot, I think the scoring is proper.
20
other words, I think the three-level enhancement is
21
appropriate and the score of 22/II is appropriate, and that
22
calls for 46 to 57 months.
23
In
The questions I need to decide is, to what extent
24
whatever sentence I impose is concurrent or consecutive to
25
Miami, and what portion of that sentence is consecutive
152
pursuant to 3147?
2
3
I would like to hear argument on that after we take

a brief break.
4
5
Ms. Hawkins, is there anything else you want to

argue on the scoring issue?
6
7
MS. HAWKINS:
10
Not as to the guidelines, no,
Your Honor.
8
9
No.
THE COURT:
All right.
3:30 now, as it turns out.
I've got to leave here at
My appointment is at four.
So
I've got another hour I can give you.
11
So we'll take about ten minutes.
12
(A recess was taken from 2:32 until 2:45 p.m.)
13
THE COURT:
14
MS. HAWKINS:
Yes, ma'am.
Your Honor, during the break the
15
government and myself had a conversation with Mr. Mason.
16
I'm sure he will correct me if I'm wrong, but this is the way
17
I understood what his recommendation or his reading of how
18
this should go; that we're talking about basically the first
19
part of how the Court said that arriving at a total sentence,
20
then determining which part of that would be the concurrent
21
part for the Orlando sentence.
22
THE COURT:
23
MS. HAWKINS:
Yes.
And
Concurrent with Miami, you mean?

No -- yes, concurrent with Miami.
24
I'm sorry.
That the -- that the -- so, in other words,
25
if the Court gave a 46-month sentence and said six months of
153
that is concurrent for the bond, the 3(c) bond part, that
that would be a total sentence of 46 months in Orlando.
Then, after going through the guidelines, through
chapter two, chapter three, chapter four is criminal history,
chapter five is -- talks about concurrent and consecutive,
and the Probation Office's view and it's also the defense's
view is that the complete 46-month sentence can be completely
concurrent to the 48 months that he got in Miami.
I'm sure the government doesn't agree with that,
10
but that's because -- you know, in applying the guidelines --
11
and I was telling Mr. Mason I was actually a federal
12
prosecutor back before the guidelines were in place.
13
makes me pretty old.
14
start with chapter A -- I mean, one, which talks about
15
relevant conduct.
16
for grouping.
17
that's true under the statutes, that the Court has the
18
discretion to run it concurrent or consecutive.
19
So that
But that's how we were taught, that you
Then two for the offense conduct.
Four, five.
Three
And so -- and that's -- basically
We would ask for it to be fully concurrent with the
20
Miami sentence.
For instance, if you gave 40 months here,
21
that that be -- all 40 months be concurrent with the 48 in
22
Miami.
23
footnote, the Royer case, does say that.
24
entire First Amendment -- I don't know whether it's
25
necessarily the holding of the case, but that's what they
And the case that I cited to the Court in my

It does run the
154
1
2
3
4
did.
And I did search, Your Honor.
I found no cases in
the Eleventh Circuit on the subject, and I did look.

In Royer, there was -- it was the same situation,
the same violation of -- bond violation.
indictment, let's say that -- we'll call that one "Miami."
call it first, just by way of example.
indictment would be Orlando.
The first
I
And then the second
So, in reading that footnote, what they did in the
10
Royer case, in trying to figure this out, was the sentence on
11
the Orlando indictment ran concurrent to the sentence on the
12
Miami indictment.
13
apply this three-level -- the enhancement.
14
That was what they did in that case to
THE COURT:
Well, I didn't have a chance to read
15
the whole case because it's rather lengthy; but the headnote
16
portion of the case, the judge there sentenced the defendant
17
to 60 months concurrent with the prior conviction and 27
18
months for the 3147 enhancement consecutive, I think.
19
MS. HAWKINS:
Well, no.
I was looking at page 904
20
and 905, where they ran them concurrent.
21
case, we would agree with the probation officer that going
22
through chapters in order, that the entire sentence should
23
be -- it's the Court's discretion and we would ask the Court
24
to run them entirely concurrent.
25
THE COURT:
But, in either
Well, I was getting ready to say it
155
doesn't say I have to make them concurrent.
the discretion to make them concurrent, consecutive or split.
MS. HAWKINS:
That's right.
It says I have
I completely agree
with that.
has the authority to do that, and that's what we're asking
the Court to do under the facts of this case.
to mitigation when the Court's ready to do that.
8
9
10
I was just saying -- I was saying that the Court
THE COURT:
do it that way.
Well, I'm ready.
And I can get
Tell me why I should
Why should I sentence him, in essence, to no
additional time for all of this Orlando stuff?
11
MS. HAWKINS:
Well, I'll tell you, Your Honor, and
12
I'm not saying it's no additional time, because he has been
13
in the county jail, and you know the consequences of being in
14
the county jail as opposed to being in a federal facility are
15
different.
16
difference in just the actual hard time, and there are cases
17
that recognize the fact that county jail time is harder time
18
than the Bureau of Prisons.
There's a difference in gain time.
19
THE COURT:
20
MS. HAWKINS:
There's a
Yeah.
I will say that, yeah, I looked at
21
this case and in my memorandum I say I think the gravamen of
22
the case is really that he bought ammunition that day,
23
because he didn't come -- he didn't come into the Middle
24
District of Florida with the intent to commit a crime.
25
came to have this business deal, to have the logo branded on
He
156
these magazines, which he could do.
I mean, I know that there's been disagreement about
whether or not -- he wasn't the importer.
and somebody else was going to buy them at the point of
delivery.
He had an importer
He wasn't the importer.

Needless to say, he had talked to lawyers about
this, a highly technical area of the law.
lawyers about it.
consultant, and that's what he did.
10
the tape, "I'm trying to be legal."
He had talked to
They told him he could do it this way as a

And he says it a lot on
11
So even though he did give the other gentleman the
12
money to buy the ammunition, and that was wrong, he came in,
13
Judge, the first chance he got, offered to plead guilty,
14
cooperated to the nth degree.
15
cooperation because, as you can see, the government had
16
different people all trying to -- you know, the jail is full
17
of snitches, Judge, and they were all trying to do each other
18
to get cooperation.
19
He's gotten nothing for that
I know the Court's seen that before.
Your Honor
20
has been on the bench a long time, and we know what goes on
21
and people get information in the jail and coming in and
22
running and telling, and that's what was going on here; but
23
he did make a real effort and he should get some
24
consideration for that.
25
through the trial.
I mean, he didn't put the government
He didn't make them get ready for trial.
157
He tried to help in every way he could, as he did in the
Miami case.
3
4
THE COURT:
Well, he gets a three-point reduction
for that.
MS. HAWKINS:
For pleading guilty but not for his
efforts at cooperation, which he also gave information to the
Brevard County deputy sheriffs and sat with them for many
hours and sat with --
THE COURT:
I'll tell you, frankly, it's hard to
10
credit his cooperation when you listen to that phone call
11
with his father, which is shocking.
12
MS. HAWKINS:
It was shocking.
Well, let me also say this, Your
13
Honor.
Mr. Diveroli, let me tell you, when
14
I met him in the lockup, Judge, he was like that.
15
medicated.
16
almost.
17
don't know if he's bipolar.
18
stabilizers, antidepressants; and once he got on medication,
19
he was a different person and that's true.
20
government, Mr. -- I'm sorry.
He was not
He was, I would say, not completely competent
He was just -- he's got depression problems.
He's under treatment with mood
I think even the
21
Bishop, what's your last name?
22
MR. RAVENEL:
Ravenel.
23
MS. HAWKINS:
Just kidding.
24
MR. Ravenel will tell you we were in court together
25
that first day and Mr. Diveroli was different than he is now
158
because he's getting some help for his mental health issues.
And, obviously, he hasn't had drugs and alcohol.
he's. . .
4
5
THE COURT:
People have been trying to help him for
years.
MS. HAWKINS:
THE COURT:
MS. HAWKINS:
So
And I know that, Your Honor, but -Without much success, apparently.
Well, I understand that, Your Honor.
But, on the other hand, his addictions were very severe.
10
I keep coming back to the idea -- two big points.
11
He came here -- he didn't come to Titusville to commit a
12
crime.
13
was with a legitimate businessman, and that's what he was
14
trying to do.
15
16
In his mind, he came here to do that drum deal.
It
When he got here, he gave them the money to buy

ammunition.
He shouldn't have done that, but that's it.
17
THE COURT:
18
MS. HAWKINS:
Well, he also asked to see the weapons.

You know, I -- I -- you know, as a --
19
in my experience of 20-plus years as a prosecutor, I just
20
can't imagine charging the possession of the guns by picking
21
it up and putting it down.
22
Is it a technical violation?
23
Is it something that we -- that we're -- that we
24
need to guard against as a society?
25
he trying to hurt anybody?
Yes.
Was he selling gun?
No, not really, Judge.
Was
159
The other thing that's bothersome is the whole
action of the agents in getting him to violate his bond and
come up here.
Your Honor.
know Your Honor is looking at that and there has to be
something additional for this violation, but it's not the
worst.
8
9
That was, I thought, a little beyond the pale,

But he has suffered some consequences, and I
In the great scheme of A.T.F. violations that this

Court has seen, it's not -- it's pretty atypical in that it
10
didn't pose a large danger to anybody.
11
go shooting on a range and not to do anything else, sell it
12
to somebody that shouldn't have it or to shoot somebody or
13
anything like that.
14
THE COURT:
15
MS. HAWKINS:
16
THE COURT:
17
All right.
The ammunition was to
Who was the judge in Miami?
Judge Leonard.
Okay.
That's right.
I remember seeing
the transcript.
18
MS. HAWKINS:
Yes, I was there, Your Honor, and she
19
did give him some -- she gave him acceptance of
20
responsibility, even though he had been arrested here on this
21
case, because of his attempted cooperation and the fact that
22
he was cooperating here at the time.
23
24
25
THE COURT:
Okay.
Well, let me hear from Mr.
Ravenel.
MR. RAVENEL:
I'd like to first ask the Court just
160
to take a step back.
the evidence, not based on a proffer of an attorney who has
an interest in putting her client in the best light.
got to be based on the evidence, and the evidence you have in
this case, you have a Plea Agreement, you have a
Congressional report, and you also have the testimony that
you heard today.
8
9
You have to decide the case based on
It's
Aside from that, if there's something in her

sentencing memo that doesn't -- is not consistent with the
10
evidence here, the Plea Agreement or that Congressional
11
report, you can't consider it.
12
You've got to look at a number of factors:
How
13
serious you believe the offense is, the characteristics of
14
the defendant, the need to promote respect for the law, an
15
adequate deterrence, and you've got to also think about other
16
sentences.
17
You know that this defendant has received a number,
18
a number of breaks.
19
Congressional report.
20
contract, he was defaulting on contracts with the Army.
21
was on the watch list.
22
"Once a firearms trafficker, always a firearms trafficker."
23
Initially, you start with the

Before he ever entered into that
He
You know that he admitted on tape to
He had numerous failures to provide the Army and
24
its allies with the necessary equipment.
The supply
25
officers -- and this just gives you an idea.
It was not
161
legitimate.
quality, junk.
said that he lied about his failures.
time he made up the fact that there was a hurricane in Miami.
The supply officers said they received poor

They said it was hurting their mission.
They
He made up -- at one
They consistently described his way of doing
business was bait and switch.
He entered into a contract to
provide one thing, and then he provided the cheapest, lowest
quality substitute he could find, including potentially
unsafe helmets.
He failed to deliver 10,000 pistols,
10
provided poor quality ammunition to special forces.
11
late.
12
And the Miami court essentially agreed.
He was
The Miami
13
court said that the United States and the Afghans were
14
victims.
15
greed.
16
theater of war and that he lied a number of times.
17
She said that this crime was compelled by his own

She also said that his crime imperiled people in the
The reality is what he did with that big contract,
18
is he entered into the contract and then he began scouring
19
eastern Europe for ways to meet it and he couldn't do that.
20
He couldn't do that legally under the contract and he knew
21
it, because he asked them, "Can I supply Chinese ammunition,"
22
and he was told he couldn't.
23
The reality is also that the Army has some stake in
24
this whole thing.
I think the Congressional report makes
25
clear that they could have satisfied that need without paying
162
for it, because Albania was looking to offload a lot of this
ammunition.
He was indicted in 2008, in the summer, and he was
released and he was told, "If you commit a new violation, the
time you receive for that will be consecutive."
his father co-signed that bond.
And you know
That's another victim.
A year later he was arrested for D.U.I.
His bond
was not revoked.
also had substance abuse issues that his mother talked about.
10
He was allowed to stay out on bond.
He
He was allowed to stay out on bond.
11
Two years after his initial arrest, this is during
12
the time period he had the same exact family that he has
13
today, who could have been there for him, two years later he
14
stars shooting high-capacity firearms in the Southern
15
District of Florida and he tells our undercover about that.
16
He seeks to import and he says he's excited about
17
the prospect -- this is in the Plea Agreement -- of having
18
200,000 high-capacity magazines brought into the United
19
States.
20
He possesses firearms in the Middle District of
21
Florida.
22
asked the undercover to shoot firearms with him.
23
that, he talks about the undercover coming to South Florida
24
to shoot machine guns.
25
And the Plea Agreement goes in detail.
July 29 he
Before
July 30th, he talks about shooting a firearm.
163
1
2
3
August 4th, he talks about being a gun runner and

he'll always be a gun runner.
August 9th, he's excited about 200,000 magazine
drums hitting the market in the United States, and about how
if the assault weapons ban is changed, then that could affect
the business.
August 11th, he talks about shooting at a range
earlier that day.
witnesses today.
10
11
12
13
14
We know that's true, based on the
August 16th, he invites the undercover to Miami to

the shoot the undercover's registered machine guns.
August 19th, he talks about shooting firearms at
the meeting the next day.
August 20th, he's confronted with the fact the
15
undercover has weapons, and he describes himself as ant
16
(phonetic).
17
dollars worth of ammunition.
18
ammunition at the Wal-Mart, according to the witness, and
19
talks about "blasting 100 rounds."
20
He wants to shoot firearms.
He buys a thousand
He clears out several rows of
Despite this, he goes to South Florida in January
21
of this year.
22
attorney, to the fact that he's changed, he's cooperating,
23
he's a different person, and we don't believe that to be the
24
case, then or now.
25
And people testify, including his current
Despite the fact that he had several bond
164
violations, he had been arrested twice, he had substance
abuse problems, he received a two-point reduction for
acceptance based on the testimony of his attorney about our
case, which we don't believe fully sets forth the details of
our case, and family members, he receives a reduced sentence
in South Florida.
He says he's --
THE COURT:
MR. RAVENEL:
Reduced how?
His guidelines were reduced by two
10
levels for acceptance, even though he had been arrested twice
11
and convicted of a new crime.
12
THE COURT:
13
MR. RAVENEL:
Okay.
He continues to blame others.
If
14
you'll look at the tenor of what he's done today, he's blamed
15
an undercover, and this disputes the fact that he put three
16
normal people in harm's way.
17
The three witnesses you heard from didn't have any
18
firearms experience -- a salesmen, real estate agent, and
19
somebody who worked as a waiter -- and he picked them, just
20
like he picked the massage therapist that helped him in the
21
Southern District case.
22
He picked them and he used them.
He used them, just like he used his father and he
23
would have used his father, had his father allowed it, the
24
same person that co-signed on his bond; and that's the real
25
problem I have with this case.
165
There are some positives.
We've listened to a lot
of jail calls in this case, and there's no question that his
mother has tried to talk some sense into him.
will be an asset to him when he gets out.
community that he comes back to will help him as well, and
certainly he did plead guilty.
responsibility; and that's questionable at this point, based
on his attempts to blame the government for his problems.
Certainly, she
I think his
At one point he accepted
Ultimately you've got somebody who's got an
10
extremely greedy disposition, whether it's drugs, alcohol,
11
money.
12
to get what he wants.
13
14
15
He's jeopardized and he's used people again and again
His treatment records in paragraph 89 indicate he's

manipulative and antisocial.
Paragraph 93, this is treatment that he was
16
offered, indicated that he manipulated his father to take him
17
home rather than to a lawyer's office, which is why he got
18
out of treatment.
19
20
21
Paragraph 79 indicates how he treats people,

battery on a valet.
And so now you stand and you've got to think about
22
him in terms of how he compares in terms of personal
23
characteristics with other people you see.
24
the Court to lose sight of the fact that I would hope, as a
25
general principle, if somebody committed a crime while
And I don't want
166
pending sentencing for another crime, the default would be to
sentence that person consecutively.
shifted.
three-level bond because 3147 applies, it's almost understood
that the rest of it will apply concurrently.
But now we've sort of
You've got a situation where, because he gets a
I don't believe that that's consistent with what we
do in other cases.
requires a different sentence, an additional sentence.
As a general matter, a different crime
He's had a series of breaks dating all the way back
10
to 2008.
11
only himself to blame.
12
would have used Harry Chang.
13
them as nominees or fronts.
14
were doing, the fact that they were supplying ammunition or
15
firearms to a convicted felon.
16
that, had he done them himself, would have been crimes.
17
A number of people have tried to help him.
He has
He would have used his father.

He used his friends.
He
He had
People had no idea what they
They were involved in things
You've got to consider all that and think about his
18
circumstances, his characteristics, and all the other people
19
that come before this Court that don't have nearly the
20
opportunities that he has in the sentences they receive on a
21
regular basis.
22
I'd ask you to impose a sentence within the
23
guidelines.
I'm not asking for a high-end sentence or
24
anything like that.
25
I'm asking you to run it consecutive to the other unrelated
I'm asking for a guideline sentence and
167
conduct in South Florida that's already been imposed.
THE COURT:
So your contention is that a guideline
sentence would be at least 46 months consecutive to his Miami
sentence?
MR. RAVENEL:
THE COURT:
MS. HAWKINS:
THE COURT:
MS. HAWKINS:
Yes, sir.
All right.
If I may respond to that?
Sure.
Two things.
One, we're going to look
10
at the offense.
11
this offense is one day's events, August 20th.
12
hearing, you know, the Miami indictment and talking about
13
that, and that's not why we're here.
14
I've already talked about the gravamen of
THE COURT:
We keep
I agree that while technically it may
15
be of some relevance, that he's been sentenced for whatever
16
he did on his government contract stuff.
17
re-sentence him for that conduct.
18
So I'm not going to
However, other stuff related to his use of weapons,
19
I think, is relevant to my consideration of an appropriate
20
sentence in this case.
21
MS. HAWKINS:
No.
I understand that, Your Honor.
22
I just wanted to point out that to recall, if the Court will,
23
that this defendant was cooperating in the Southern District
24
case, and because of his arrest here, he was not allowed
25
to -- obviously, he was no longer allowed to cooperate in the
168
Miami case.
co-defendant who went to trial, and the other cooperators,
there were three or four of them, that were in the same
position that he was and they all got probation.
And there was a trial of Mr. Merrill, the one
So the fact that he's been arrested here, he's
obviously suffered a loss of any ability to cooperate down
there and to mitigate his sentence, and that is a fact.
other cooperators did get probation.
that would have happened probably to him; and so there has
10
The
So, but for this case,
been a great impact upon him already.
11
Also, you know, a violation of his bond down there
12
was a million dollars, and that's being forfeited from him;
13
and they've already taken 100,000 and they're seeking the
14
rest.
15
say, to violate that; but that's -- that's -- I just wanted
16
the Court to know there have been financial and --
17
repercussions for him in terms of the sentence that he's
18
ultimately going to serve.
19
Obviously, I mean, he was induced or encouraged, I'll
And I had one other.
I think that there's a
20
mischaracterization of what "addiction" is.
I really do,
21
especially with drugs and alcohol.
22
and we know, the mother and the uncle have testified, that he
23
had a terrible, terrible addiction.
24
that he manipulated to get out from his treatment, of course,
25
that's what an addict does.
The fact that -- that --
So, you know, the fact
169
But I would ask the Court to pay special attention
to what the rabbi and Efraim's mother said.
They've been
talking to him all along this last year.
first conversation with Mrs. Diveroli when said, "Thank God,
he's alive."
how she reacted.
that he's come a long way.
hit bottom and now, finally, he's in a position to rebuild;
and, Your Honor, we'd just ask you to give him that chance.
And I had that
I was on the phone with her, and I know that's

And I know that she's telling the Court
10
THE COURT:
11
MS. HAWKINS:
12
THE COURT:
And, like the rabbi, said he has
All right.
Thank you, Ms. Hawkins.
Yes, sir.
Well, I need some time to review -- I
13
mean, there's a lot here for me to digest.
14
the P.S.R. more carefully.
15
about not only the appropriate sentence, but how to structure
16
it.
17
I need to re-read
I need to consider and think
So I'm not going to complete the sentencing today.

I can do it one day next week.
If y'all have a
18
particular preference, just let Tomlyn know and I'll try to
19
schedule it around so it's not too inconvenient for you.
20
I'll be back Tuesday, although I'd like at least a day to
21
think about this.
22
Factually, there's some issues and, legally,
23
there's some questions that I want to resolve in my mind
24
before I complete the sentencing.
25
Is there anything more we can do today before we --
170
I mean, I've dealt with the objections to the scoring and
I've indicated that I think the scoring is correct.
finding is that the scoring of 22/II is correct and is what I
will use in fashioning an appropriate sentence, and that's 46
to 57 months, two to three years' supervised release, a fine
of between 7500 and $75,000, and a $100 special assessment.
7
8
I think I've also heard everything from counsel

that they would have to say in mitigation.
MS. HAWKINS:
Yes, sir.
10
MR. RAVENEL:
Yes, sir.
11
THE COURT:
12
Hawkins?
Does he wish to say anything?

MS. HAWKINS:
14
THE COURT:
15
MS. HAWKINS:
17
18
We can do that now, Your Honor.

Okay.
He just wants to address the Court
briefly.
THE COURT:
All right.
There you go.
20
THE DEFENDANT:
22
You can stay seated, sir.
Just pull that microphone down so we can hear you.
19
21
Is that correct?
And what about your client, Ms.
13
16
So my
Thank you.
Your Honor, thank you for allowing
me the opportunity to speak.

I -- you know, it's -- it's -- it's -- I'm so
23
ashamed that -- today is the most important day of any life,
24
I feel like.
25
wedding or a childbirth.
It's -- it's -- it's -- it's not, you know, a

It's -- it's -- it's not giving my
171
family, you know, any joy.
that I've been piling on top of -- on top of them the last
decade.
It's more and more nightmares
And -- and it is true that I have had a lot of
different opportunities, you know.
I mean, I've never done
any time before, and I'd like to think that this time is
really different.
posh rehab somewhere.
opening experience for me.
You know, this isn't just some, you know,

This is really a very, very eyeAnd I really do want you to know
10
that the person you heard on that recording -- and I
11
understand how you felt about it -- is not who I truly am,
12
Your Honor.
13
It is not who I am, not for one second.
You know, I'm -- I have issues, but I -- I do
14
believe that my -- I do believe that -- of course, I'm -- I'm
15
not going to say anything bad about myself; but I do believe
16
that in my heart, I do have, you know, good and mainly good,
17
and I only wish the best for people.
18
And, you know, a lot of those people who were
19
around me, you know, were called victims; and I'm not going
20
to -- I'm not an attorney and I'm not going to debate, you
21
know, what the government said and I have no issue with the
22
government, you know.
23
But those people, you know, for a good while, they really
24
looked at opportunities, and these people couldn't get jobs
25
in a -- in a -- in a down economy, and they knew exactly, you
They're doing what they've got to do.
172
know, what they were getting into, and they did and they
worked hard and I paid everybody very well.
THE COURT:
sitting back here, your family.
I think the victims are the people
THE DEFENDANT:
That's -- that's what I wanted to
get to.
victims are here, and they're the real -- the real victims of
my -- of my crime.
the ammunition to rob somebody.
10
That's absolutely correct.
The victims -- the
I mean, they -- I didn't -- I didn't get

I didn't get the ammunition
to -- to make a sale off selling it to some criminals.
11
You know, I know I broke the law; and for that, I
12
really can't -- I've no way to -- I've no way to, you know,
13
justify that.
14
I've no way to do that, Your Honor.
But I also -- when I'm speaking now, I'm also
15
addressing -- I'm addressing my family.
16
family when I say that I do -- you know, I do truly realize
17
the gravity.
18
appreciate the gravity of the situation I've put everybody
19
in.
20
I'm addressing my
I mean, now it's kind of late, but I do finally
I mean, I've got a mother who drives here every
21
week to see me, and I'm just -- you know, I did -- I mean, I
22
took everything for granted when I had it, you know, when I
23
had everything in the world.
24
me, you know, I turned into a curse.
25
caused others to go down that path.
I mean, every blessing God gave

Every. . .and I have
173
I think, like I said, the real victims are my
family.
The government also was burdened with something that
they didn't need to be burdened with twice.
was a correct way I could have done things in Miami and there
was -- and this should have never happened and -- but my --
but what I've done to my family -- I'm the role model for my
younger brother, sister.
mean, I can do this time and everything else, but I just --
for them, I really, really -- I just -- I mean, that's the
I mean, there
I'm the oldest of five kids.
10
honest-to-God reason why I want to get out as soon as
11
possible, because I need to reconnect with my family.
12
And I'm not even asking for, you know, a reduced
13
sentence.
14
leave that to Cynthia.
15
head's at.
16
Whatever's going to happen, I'm just going to

But I just want you to know where my
And, yeah, I did -- when I first got locked up, I
17
was not -- you know, it wasn't like a light switch.
18
didn't just turn on.
19
was my usual selfish, you know, greedy self, and I was
20
just -- you know, instead of -- I was just trying still to
21
manipulate, trying still to just kind of, you know, get
22
around rules and gamble and, you know, whatnot; and I -- for
23
that, I'm truly -- I'm truly -- you know, it took me a little
24
bit of time to see what's going on.
25
It
I mean, first when I got in there, I
And all those friends that I had, you know, back
174
then -- and a lot of those people that came up and testified
today were at one point some of my closest friends, and --
and I left this family that I love to death for those people,
okay?
could have done things.
And that's what I really feel sorry about, because I
I could have intervened.
I've got one brother who's not even here today,
Your Honor.
mention it, but he's sort of AWOL from our family right now.
We don't know his whereabouts, and I feel responsible for
10
I don't know where he is.
My family didn't
that.
11
And given the opportunity, I mean, I -- I can't --
12
I can't squander any opportunity that you'll give me.
13
just not physically possible at this point.
14
made up about how I want to lead my life going forward.
15
have no desire to -- to slip back into -- into that life that
16
I lived.
17
dead or he's rapidly dying, okay?
18
19
20
21
That person is dead, Your Honor.
It's
My mind is -- is
I
That person is
I appreciate the opportunity to speak today to the

Court.
Thank you.
Thank you to my family for coming.
I love all of
you very much.
22
23
THE COURT:
24
Well, I'm not going to proceed with the sentencing.
25
Thank you, sir.
So I'll withhold my thoughts and comments until later.
175
However, I do want to thank Mr. Diveroli's family
and friends who are here.
know how many people I've sentenced now in the last eleven
years.
think that this process will at the end result in a stronger
person.
I think in my court -- and I don't
Probably more than a thousand.
It doesn't always happen.
I always want to
A lot of people in the
position Mr. Diveroli is in profess to have changed their
ways and, as it turns out, they don't or couldn't.
But I
10
think everybody here hopes Mr. Diveroli has and can; and with
11
the family support, whatever I do, God willing, he will.
12
So, with that, I'm going to conclude the
13
proceeding.
14
next week, probably it'll be another hour, maybe, and we'll
15
finish it up then.
16
And if y'all want to schedule the conclusion
Thank you.
(Proceedings adjourned at 3:18 p.m.)
17
- - - - - - - -
18
Reporter's Certification
19
I certify that the foregoing is a correct transcript from the
20
record of proceedings in the above-entitled matter.
21
22
23
24
25
Date:
October 19, 2011
s/Diane Peede, RMR, CRR

Official Court Reporter
United States District Court
Middle District of Florida

Efraim Diveroli: Transcript of Sentencing Day One - 8-23-11 - Gun Charge

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Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 1 of 175 PageID 447

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

Transcript of the sentencing (day one)

before the Honorable Gregory A. Presnell

United States District Judge

Counsel for Defendant:

Diane C. Peede, RMR, CRR

Proceedings recorded by mechanical stenography, transcript

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 2 of 175 PageID 448

Direct by Mr. Ravenel

Direct by Mr. Ravenel

Andrian Leonard Jones

Direct by Mr. Ravenel

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 3 of 175 PageID 449

Lisa, call the case, please.

THE COURTROOM DEPUTY:

This is in the matter of

United States of America versus Efraim Diveroli, case number

Appearing for the government?

Good morning, Your Honor.

Ravenel for the United States.

With me is Kevin McCann with

And for the defendant?

Hawkins on behalf of Mr. Efraim Diveroli, who's to my right.

Also assisting me is Elena Cesario Pollock, who is a retired

A.T.F. agent, and she's going to be handling the I.T. matters

for the defense today.

Also present is counsel from the Southern District

of Florida, who may be assisting us during the course of the

Your Honor, may I introduce Richard Dansoh.

Thank you, Judge.

We're here today for the

sentencing in this matter.

Mr. Diveroli entered a guilty

plea to Count One of the Information in this case, charging

him with possession of firearms and ammunition by a

prohibited person, to wit, a convicted felon, in violation of

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 4 of 175 PageID 450

18, United States Code, Section 922(g)(1) and 924(a)(2).

In connection with the sentencing, Probation has

prepared a Presentence Report dated May 5, 2011, which I have

number 45, which was filed by counsel for the government, as

well as a notice of supplemental filing at document number

I also have a sentencing memorandum at document

I also have a sentencing memorandum prepared by

I also have a folder containing numerous letters

from family and friends of the defendant, and a notebook

containing various documents in reference to or in support of

the government's memorandum.

So that's what I've reviewed as of this morning.

In terms of scheduling, I can go until about three

o'clock today, if necessary.

I just -- I can't go beyond

week, because I'm going on a brief vacation tomorrow.

Anyway, we'll do the best we can.

I've got a doctor's appointment and something I have

If we don't finish by three, I have to do it next

In looking this over, I don't know why we can't

finish this today; but if we can't, we can't.

it until such time as we can conclude it.

Mr. Ravenel, are you prepared to

Case 6:10-cr-00281-GAP-KRS Document 64 Filed 10/26/11 Page 5 of 175 PageID 451

I am, Your Honor.