Defendant, Douglas Perliitz, files rebuttal to Prosecution's Sentencing Memorandum.

Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 1 of 24 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA, V. Case No. 3:09cr207 (JBA) DOUGLAS PERLITZ, Defendant. DECEMBER 17, 2010 DEFENDANT'S REPLY MEMORANDUM IN AID OF SENTENCING Defendant Douglas Perlitz respectfully submits this reply memorandum as an aid to the Court in connection with his upcoming sentence. This memorandum responds to certain arguments raised in the government's Sentencing Memorandum dated December 16, 2010 ("Gov. Mem."). With respect to any arguments not specifically addressed here, defendant rests on his initial memorandum. I. INTRODUCTION This case understandably stirs great passion, both because of the nature of the charges and the circumstances in which the criminal conduct at issue occurred. Our system of justice, however, is not driven by passion, or anger, or a thirst for vengeance. The Court is obligated by law to weigh a wide variety of factors, including the personal history and characteristics of the individual before it, and ultimately to craft a sentence that is "sufficient, but not greater than necessary" to comply with the statutory purposes of Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 2 of 24 sentencing. Passion and anger, while legitimate and natural emotions, cannot substitute for the measured judgment our laws require. The defense and the government disagree about many points, both legal and factual, in connection with this sentencing. Those disagreements are discussed below. Our most fundamental difference with the government, however, concerns the general approach to sentencing, and particularly to the challenge of balancing the need for punishment with the many qualities unique to this case. In general, the government paints a one-dimensional portrait of the defendant that is unfair for a variety of reasons, and ultimately unhelpful to the Court in carrying out the individualized task before it. The government Mr. Perlitz has submitted a lengthy statement of the offense1 -- unprecedented, in counsels' experience. The government dismisses this lengthy statement out of hand as an attempt to shift blame or justify the defendant's conduct. On this issue, let there be no dispute: Doug Perlitz accepts full responsibility for his acts, and blames no one but himself. The core question he seeks (to the extent he is able) to answer – how he came to commit the criminal acts for which he must now be punished – is most relevant to 1 The government questions why defendant's lengthy statement should be sealed. Gov. Mem. at 1 n.1. As the government well knows, a defendant's "Version of the Offense" is part of the standard Pre-Sentence Report prepared in connection with every sentencing in this district; such reports are confidential by law. The fact that defendant's version of how his offense came about may be substantially longer than the typical defense statement submitted to the Court does not change these basic legal principles. Mr. Perlitz should be free to share his story in candor with the Court and the parties as part of the sentencing process, without fear that anything or everything he says will be splashed across the media. If he wishes to make his story public, that decision should be his, not the government's. 2 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 3 of 24 the sentencing decision. The government is certainly free to disagree with what the defendant says, but its one-dimensional portrait of him as a monster driven solely by illicit sexual desire runs counter to what experience tells us about the human condition: that behavior may rarely if ever be explained so simply, and that most of us, including defendants accused of serious crimes, may only be fairly sketched in shades of gray. The government's argument also requires the Court to reject out of hand the dozens of lengthy letters submitted by people who have stood by Mr. Perlitz even as he has become a figure of public scorn, who feel compelled to share with the Court the positive influence Doug Perlitz has had on them, and on others in his life. And finally, the government would have the Court ignore the powerful statements from Haiti from young men who have known Mr. Perlitz upwards of a decade or more, who have come forward to share the profoundly positive ways that Doug Perlitz affected – or in some cases even saved – their lives. The government's one-dimensional analysis is inherently flawed, and ultimately does not assist the Court in carrying out its obligation under 18 U.S.C. § 3553(a) to administer justice in the manner prescribed by law.  II. SENTENCING GUIDELINE ISSUES The government's position regarding the applicable sentencing guideline range has changed considerably, and in defendant's favor, since the time of the plea agreement in this case. The government now argues that, even under its view of the guidelines, the offense level applicable to Mr. Perlitz is Level 34, which calls for a guideline range of 151- 188 months imprisonment. From the time the plea agreement in this case was filed, 3 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 4 of 24 continuing up until the filing of its sentencing memorandum on December 16, 2010, the government has argued that defendant's guidelines are Level 36, and the applicable sentencing range 188-235 months. The government has now, belatedly but commendably, conceded that its prior position under the Guidelines was wrong. As discussed in our initial memorandum, however, this is not the only flaw in the government's guidelines argument. The two bases on which the Level 34 argument rests – 2 point enhancements for "Vulnerable Victim" under U.S.S.G. § 3A1.1(b)(1), and for Obstruction of Justice under U.S.S.G. § 3C1.1 – are legally and factually flawed. We respond below to each of the government's arguments on these enhancements. A. Vulnerable Victim Enhancement – Section 3A1.1(b)(1) The government's argument with respect to the vulnerable victim enhancement ignores a critical caveat in the Sentencing Guidelines, and also rests on a fundamental misunderstanding of defendant's argument. With respect to the law, the government quotes the applicable guideline, Section 3A1.1(b)(1), but only a portion of the relevant commentary in accompanying Application Note 2. Gov. Mem. at 9. It notably fails to cite the legal principle from the same commentary critical to our claim: Do not apply subsection (b) if the factor that makes a person a vulnerable victim is incorporated in the offense guideline.U.S.S.G. § 3A1.1(b)(1), Application Note 2 (emphasis added). Here, the factors on which the government relies to support its claim of vulnerability are exactly those that have already been taken into account in the offense guideline, Section 2G1.3(b)(1), which increases a 4 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 5 of 24 defendant's punishment if the minor victims at issue were under his "custody, care or supervisory control." The government's argument rests on the mistaken assumption that we are somehow disputing the vulnerable nature of the PPT student victims. That is not so. The government contends that "there simply cannot be a more vulnerable victim than homeless children in Haiti." Gov. Mem. at 9. Its guideline argument, however, mischaracterizes the defense position. We have never sought to downplay the vulnerable nature of the poor street children in Haiti who comprised the PPT program. To the contrary, it is exactly that vulnerability that made them eligible for, and students in, the PPT program – which was open only to individuals who shared the special qualities of vulnerability (homelessness, lack of food, lack of family, lack of schooling) the government repeatedly cites. However, the fact that they were in PPT, the program run by Mr. Perlitz, already has triggered the guideline enhancement for minor victims under the defendant's "custody, care or supervisory control," and elevated defendant's potential sentencing range. Yet the government is relying on the exact same factors that brought them to PPT in urging the Court to apply a further 2-point enhancement under the "Vulnerable Victim" guideline, Section 3A1.1(b)(1). The relevant commentary forbids this type of "double counting", and makes clear that, in this situation, the additional enhancement should not be applied. The primary case relied on by the government, United States v. Irving, 554 F.3d 64 (2d Cir. 2008), does not support the government's argument. As noted in our initial memorandum, Def. Mem. at 6, the defendant in Irving, unlike Mr. Perlitz, was not subject to 5 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 6 of 24 the 2-point increase under Section 2G1.3 for having had a special, supervisory relationship with his victims. His "double counting" argument rested simply on the contention that the only distinguishing vulnerable characteristic of his victims was their age, which by definition was reflected in the offense guideline. Faced with that argument, the court correctly noted that his victims were not just young, but were also "street urchins" who were especially vulnerable for reasons unrelated to their age. Irving, 554 F.3d at 75. Here, by contrast, the fact that the victims were "street urchins" of Haiti has already been taken into account by the enhancement for being students in PPT. B. Obstruction of Justice Enhancement – Section 3C1.1 The government has advanced alternate theories under which a Section 3C1.1 obstruction enhancement should be imposed: allegedly threatening phone calls, and pre- indictment conduct that supposedly was undertaken to thwart an investigation. As we discussed in our initial memorandum, neither theory provides a valid basis for an obstruction finding. We discuss each separately. 1. Alleged Threats During Recorded Phone Calls In our initial memorandum, we argued that the statements on which the government's claim of threat is based can only be fairly assessed by reviewing each call in its entirety, to ensure proper context to the isolated snippets of language culled out by the government. Def. Mem. at 9. Not surprisingly, the government does not attempt to provide context, focusing exclusively on isolated bits of conversation, with no discussion of the circumstances in which the statements at issue were made. Gov. Mem. at 15-16. We 6 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 7 of 24 remain confident that a review of each phone call in its entirety will lead to the conclusion that the record does not support a finding of obstruction under Section 3C1.1, and that there is no basis for a 2-point guideline increase on this theory. However, in response to the government's argument we will address each phone call in greater detail. At the outset, it is important to keep in mind that the experience of being a defendant in a major federal prosecution, especially when detained without bond, can take a significant emotional toll on a defendant and, by extension, those close to him. The government of course would observe, correctly, that Mr. Perlitz had no one but himself to blame for his circumstance. The fact remains, however, that the process often is taxing and frustrating, especially for those in custody. This frustration and emotion often leads parties affected by the process to vent in any number of ways – against their lawyers, against the justice system, or against the prosecution. We are not suggesting for a moment that such expressions of frustration – or any of the language used here – was acceptable; it was not. But in weighing the meaning of that language, particularly whether it provides a legitimate basis for an obstruction enhancement, it is vital to differentiate between expressions of frustration and a genuine plot to do harm. The first two phone calls on which the government relies are with the defendant's brother who lives in Colorado. Gov. Mem. at 14-15. Both are approximately 15 minutes in length. The isolated statements cited by the government are made toward the end of each call; the balance of the calls are devoted to more mundane subjects, such as the status of the case, family matters, and the play of the U.S. national soccer team in the World Cup. 7 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 8 of 24 The defendant does not say anything remotely threatening in either call; all statements cited by the government were made by defendant's brother from Colorado. In the first call this brother describes the prosecutor in offensive terms; he has apologized for these statements, and they cannot and should not be blamed on the defendant. Later in the same call, the brother talks about "going after" the prosecutor; the government pins great importance on this comment in its argument, casting an isolated statement made by Mr. Perlitz a month later as some 'ratification' of this supposed plan to "go after" the government. In context, however, it is clear that the brother from Colorado is not talking about actual threats, but instead complaints about the manner in which the government is prosecuting the case. He and the defendant speculate about how a vocal supporter of the prosecution could have learned about defense counsels' recently- concluded investigative trip to Haiti sufficiently quickly to be able to send critical emails to counsel while they were still traveling. They speculate that the government may have been to blame; the brother in Colorado speaks of "prosecutorial misconduct", "highly illegal" government conduct, the amount of money spent on the case and a "waste of taxpayer dollars", and the possibility of obtaining information in that regard from the Department of Justice. (Call of June 12, 2010, at approximately 14:00 to 15:00.) Viewed in this context, the "threat" to "go after" one of the prosecutors can only be fairly interpreted as a reference to complaint, not physical harm. The objectionable comments in the second call also involve only defendant's brother in Colorado. He uses offensive language to refer to one of the prosecutors. The question 8 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 9 of 24 before the Court is not whether this language was offensive or improper; it was. Defendant's brother at that point still believed in the defendant's innocence, and has apologized for his inexcusable statements. What is relevant, however, is the defendant's response: he laughs nervously, in a way that clearly suggests he is uncomfortable with what is being said, and admonishes his brother that he should not say things like that. Call of June 17, 2010. The third call is with a friend of the defendant's, on July 14, 2010, the day the Court's ruling issued dismissing the case for lack of proper venue. Both vent frustration at the fact that, despite this ruling, Mr. Perlitz remains in custody, and the government was granted time by the Court to attempt to fix the fundamental flaw in its prosecution. Consistent with the pattern, the worst comments on this call are again made by the party with whom the defendant is speaking; Mr. Perlitz is, by comparison, the moderating influence during this discussion. The government's quoted comments are a very small portion of a phone call that also lasted approximately 15 minutes. Finally, the next day, July 15, 2010, defendant spoke with a family member who briefed him on the latest procedural developments in the case. The call was 10 minutes long, and included discussion about the status of the case in the wake of the Court's dismissal ruling. The most significant piece of news conveyed was that a new complaint had been filed in the Eastern District of New York, and that the expected process would require Mr. Perlitz first to appear before a magistrate in Rhode Island, just as he had done following his initial arrest in Colorado. As noted in our initial memorandum, this was 9 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 10 of 24 probably the lowest emotional point for the defendant; within 24 hours he had gone from the high of hearing that his motion to dismiss the indictment had been granted, to the low of remaining in custody while new charges were filed in a different district. He is clearly frustrated, and at one point utters the words, "I'll kill her", referring to the prosecutor. There is no dispute that the defendant uttered those words. But it is equally clear that they are an expression of frustration, and not some reference to an actual plot to threaten or do harm to anyone. The government's argument takes language that, in the vernacular, can be (and is in this case) an expression of anger, frustration or dissatisfaction, and instead ascribes literal meaning to the words. The record does not support this interpretation, or the conclusion that there was any threat. Finally, the government distorts the record when it refers to alleged intimidation by Mr. Perlitz and "family members." Gov. Mem. at 14, 18. As noted, the only comments at issue were made by defendant's brother in Colorado, in the two calls in mid-June, and defendant's statement about a month later, on July 15th. Any attempt to paint this as some sort of concerted "family activity" is disingenuous at best, and should be rejected out of hand.2 The cases cited by the government also do not support its claims. The facts of United States v. Wahlstrom, 588 F.3d 538 (8th Cir. 2009), the first case on which the 2 Two family members who are not alleged to have participated in any threatening conduct have themselves received threatening phone calls in the 24 hours following the filing of the government's memorandum. This further supports our position that the government is painting with a deceivingly, and unfairly, broad brush. 10 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 11 of 24 government relies, were set out in our initial memorandum as a stark contrast to the record of alleged threats here. Def. Mem. at 8-9. That case, and the other authorities on which the government relies, Gov. Mem. at 16-18, illustrate the type of actual threatening behavior that can support an obstruction enhancement under Section 3C1.1. There is no dispute about the general proposition that real threatening conduct can be deemed to obstruct the administration of justice. The record in this case, however, falls far short of establishing a real threat. The language relied on by the government, while ill-considered and at times offensive, is clearly the result of simple frustration (most of it not uttered by Mr. Perlitz), and cannot support an obstruction finding. This prong of the government's Section 3C1.1 argument is unpersuasive. 2. Alleged Pre-Indictment Acts of Obstruction As noted in our initial memorandum, conduct undertaken before the start of an investigation of the offense of conviction may serve as the basis for an obstruction enhancement only if it was "purposefully calculated, and likely, to thwart the investigation or prosecution of the offense of conviction." U.S.S.G. § 3C1.1, Application Note 1. The conduct alleged by the government, even if all of its allegations are credited, is insufficient to support such a finding. This prong of the government's obstruction claim rests on a theory that a long-time board member of the Haiti Fund (identified as "B.M. #1" in the government's papers) conspired with the defendant specifically to retrieve one or more computers from Haiti, and therefore obstruct justice. Gov. Mem. at 19-21. The board member in question was an 11 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 12 of 24 avid supporter of PPT and traveled often to Haiti. At the time of this alleged plot, May 2008, the defendant had been out of Haiti for nearly a month, and there was no law enforcement investigation underway. Indeed, the government has not disputed our claim (Def. Mem. at 13) that the criminal investigation did not begin until some point in 2009. The government claims, "[b]ased on information from e-mail correspondence as well as information received from witnesses", that Mr. Perlitz asked B.M. #1 to retrieve computers and other personal effects from the Bel Air home in Cap Haitien where he had resided for many years. Gov. Mem. at 20. The government does not cite any communication, by email or otherwise, from the defendant, so its claim clearly rests on secondary evidence. B.M. #1, when interviewed by the government, admitted bringing back a computer and some personal effects to the defendant, but denied that the defendant had instructed her to do so.3 The government also cites board minutes and other documents from May 2008 relating to the Haiti Fund, in which defendant's request for his computer was considered. Gov. Mem. at 20. There is no allegation, however, that the Board's decision not to return the computer belonging to the Haiti Fund was communicated to Mr. Perlitz in advance of the board member's trip to Haiti. 3 The government professes surprise at the statement in our initial memorandum that B.M. denied acting on instructions from Perlitz, and questions the absence of an affidavit from B.M. #1. Gov. Mem. at 20 n.6. The government's position is hard to understand, as B.M. #1's position was stated in the memorandum of an interview with her prepared by agents of I.C.E. – which the government provided upon defense request. This evidence is available if needed, although defendant does not believe that the Court need delve into factual questions surrounding this issue. 12 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 13 of 24 Finally, the government makes murky allegations that Mr. Perlitz "sought to delete incriminating information" from the two computers it recovered.4 The exact nature of this incriminating information is unclear. The government does not allege, and has never alleged, that its extensive forensic examination of these computers contained child pornography, or evidence that child pornography had been deleted. It also indicates that its examination "showed a purchase for" a "CyberScrub Privacy" product, "the current version of which includes functions" described by the seller as allowing the erasure of data and removal of on-line browsing history. Gov. Mem. at 28. This very carefully-worded statement raises a number of questions: When was the supposed privacy product purchased – and by whom? When, if at all, was it used on the computer? It is impossible to evaluate the government's claim of obstructive computer activity without this further detail.5 In general, as noted in our initial filing, even if all facts alleged by the government are taken as true, the record cannot support a finding that Mr. Perlitz engaged in pre-indictment conduct that "was purposefully calculated, and likely, to thwart the investigation or 4 As noted in our initial filing, one computer that was Mr. Perlitz's personal property was seized after his arrest in Colorado. Another computer that had been used in Haiti, and which belonged to PPT, was turned over by the defendant in the summer of 2008, upon advice of his counsel at the time. Def. Mem. at 12-13. 5 The government also discusses defendant's browsing history at length in support of its theory that conduct related to computers supports the Section 3C1.1 enhancement – including defendant's alleged browsing history in Connecticut and Colorado between June and September 2009. Gov. Mem. at 26-28. It is difficult to understand how this alleged activity could conceivably be relevant to May 2008 conduct – or to an offense of conviction that occurred in June 2005. 13 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 14 of 24 prosecution of the offense of conviction." U.S.S.G. .§ 3C1.1, Application Note 1. The conduct was too remote in time to the commencement of a criminal investigation. Defendant's connection with the board member's trip to retrieve his property is unclear; more importantly, even if a request was made, it would not have been at all out of the ordinary for an individual who had been told he could not return to where he had lived for many years, and where most or all of his worldly possessions were, to want to retrieve important personal property. One cannot automatically impute a sinister motive to a request for such property, including a computer or computers. In sum, the government's alternate theory also cannot support the obstruction enhancement. If the Court accepts our arguments with respect to the Guidelines, defendant's offense level will be 30, which calls for a sentencing range of 97-121 months. We urge the Court to find that Level 30 is the correct guideline range, and to impose a sentence of 97 months6, at the bottom of that range. 6 The government professes confusion about what sentence the defense is requesting, based on a typographical error in the one-sentence 'Conclusion' to defendant's initial memorandum. Gov. Mem. at 38. Defendant's position that a 97-month sentence is the appropriate disposition in this case is clearly stated at pages 2, 19, 20 and 29 of our initial sentencing memorandum. To clarify any confusion, however, we will file a corrected copy that substitutes '97' for '121' in the conclusion of our initial pleading. 14 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 15 of 24 III. SENTENCING CONSIDERATIONS A. Departures The government moves for an upward departure to a Guidelines sentence of 235 months. It cites to three possible bases for departure identified in the Pre-Sentence Report, under U.S.S.G. §§ 3D1.4, 5K2.3 and 5K2.8. Gov. Mem. at 28-19. Little argument is devoted to this upward departure request; we respond briefly to the arguments raised. The government first argues that defendant's criminal conduct was "particularly cruel and degrading". Gov. Mem. at 29. It attempts to distinguish this case from the "typical" case of "sex tourism", which in its view involves a single victim. The government focuses principally on the number and duration of sexual acts, not their character. Section 5K2.8, however, focuses on the character of a defendant's conduct, specifically whether it is "unusually heinous, cruel, brutal or degrading to the victims." Any sexual misconduct against minor victims necessarily has very traumatic aspects to it, which are already taken into account in the offense guideline. The number of victims involved in this case is likewise already reflected in the 5-level grouping enhancement, which substantially elevates defendant's guideline range. The government has failed to identify any special factor that warrants treating this case more harshly than similar sex offenses. Its argument in support of a departure under Section 5K2.3, which permits (but does not require) a departure if the "victims suffered psychological injury much more serious than that normally resulting from the commission of the offense." U.S.S.G. § 5K2.3. The guideline goes on to state that normally, the injury would be sufficiently severe to warrant 15 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 16 of 24 the adjustment "only when there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim" that is expected to be of an extended duration. Id. The government offers no such specific information on which to base such a finding. Gov. Mem. at 29. Given his history, Mr. Perlitz certainly would never question the possible impact of an abusive relationship. But the text of Section 5K2.3 makes clear that more is required than the government's conclusory proclamation that "[t]here can be no doubt," Gov. Mem. at 29, that the victims in this case will suffer injury more serious than that normally resulting from the commission of the offense. In short, there is no basis for the government's request for an upward departure. 1. Downward Departure In our initial memorandum, we argued that no downward departure was necessary to impose a sentence of 97 months, as such a sentence was permissible under the guidelines that we believe apply. We argued in the alternative that, even if the Court disagreed with our guideline calculation, such a sentence could still be supported under a so-called "heartland" departure theory, as authorized by Koon v. United States, 518 U.S. 81, 92-96 (1996). The government opposes such a departure, arguing that it conflicts with the dictates of Section 5K2.0. We agree that, given the narrow scope of Section 5K2.0, especially with regard to sex crimes, a guideline departure may not be the proper analysis. The same result may be achieved, however, by a non-Guideline sentence that incorporates the "heartland" principles, under the general umbrella of 18 U.S.C. § 3553(a). The government addresses the Section 3553(a) factors in support of its request for a 235-month 16 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 17 of 24 sentence. We discuss the same factors below, in support of our argument for a 97-month sentence. B. Section 3553(a) Factors 1. Nature and Circumstances of the Offense The extent to which the defendant's conduct differed from the typical "heartland" of sex tourism cases under Section 2423(b) and its companion statute, Section 2423(c), is best analyzed under this statutory factor. Both statutes were passed to address concerns about Americans who travel abroad, sometimes to underprivileged countries, in order to engage in sexual activity with minors. The typical case involves a short visit to the foreign country - hence the "tourism" label – followed by a return to the United States. In passing this statute, there is no indication that Congress envisioned a defendant like Mr. Perlitz, who actually moves to the foreign country and does extensive charity work on behalf of its underprivileged citizens. The government argues that defendant moved to Haiti and founded PPT solely so he could have access to a vulnerable victim population. This argument flies in the face of the many first-hand observers who have written to the Court about the defendant, and specifically his work in Haiti. It also defies simple logic. If one's base sexual motivations are as simple and illicit as the government alleges, surely there would have been a better way to satisfy those desires than by moving to the poorest country in the Western Hemisphere, and living there amidst staggering poverty for 12+ years. Put simply, while the defendant's case cannot be excused, any punishment must recognize that this is not the paradigm case the lawmakers had in mind when the 17 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 18 of 24 applicable statute was passed. Our research has uncovered no similar cases, likely because of the unusual circumstances of this offense. The government does agree that defendant's conduct does not fit the common definition of "sex tourism", but argues that this cuts in favor of a harsher sentence. Gov. Mem. at 32 n.11. To be sure, the fact that Mr. Perlitz enjoyed a position of trust with his victims is an aggravating factor here. He has apologized for betraying that trust with his victims, and will apologize directly to them at his sentencing. But that aggravating factor has already been taken into account in the 97-121 month guideline range that we believe should, at minimum, guide the Court. One lingering issue with respect to the "nature and circumstances of the offense" is a factual disagreement about the exact nature of the criminal acts, and how many victims were involved. Defendant has acknowledged illegal sexual conduct with 8 minor students. He does not agree with all of the allegations leveled by all of his accusers, but we do not believe the specifics of defendant's sexual misconduct are critical to the issues before the Court. Defendant has received the maximum enhancement possible under the applicable guidelines for multiple victims. One victim would be one too many; defendant has acknowledged conduct well beyond that. He did so after review of all the accusations made against him, and with the knowledge that 6 victims were necessary for the maximum enhancement to apply. The critical issue before the Court on sentencing, in our view, is not the exact number of victims or acts that defendant engaged in with them; rather, it is how to balance that criminal conduct with other mitigating factors present here. 18 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 19 of 24 For this reason, we do not believe any material purpose would be served by a point- by-point contest of the matters with which defendant disagrees. The government is aware based on its own experiences with the victims in this case that difficult credibility issues can arise. One victim, who was listed by initials in the first two indictments, was removed from the Second Superseding Indictment based on credibility concerns the government had arising from a subsequent interview. The defense was not made aware of this change in position, and the reason for this individual's removal from the indictment, until after the plea agreement had been finalized; the disclosure was made necessary only because defendant volunteered to plead to a count involving that individual. This episode, in our view, speaks both to defendant's honesty in his admissions and the difficulty in sorting information gathered in a foreign land. As noted in our initial memorandum, a number of factors coalesced in this case to bring about defendant's descent into criminal conduct: confusion and shame about his sexuality, and struggles with his identity; an ongoing, complicated and exploitive relationship with an influential priest; and increasing isolation and pressure while in Haiti that, over a period of years, led the defendant to stray from the path he initially followed when he founded PPT. These are not offered as excuses; they are simply an effort to help the Court understand how someone with Mr. Perlitz's background and life history could have come to commit the terrible acts for which he must be sentenced. 2. History and Characteristics of the Defendant 19 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 20 of 24 This factor, in our view, is critical to this case, and not surprisingly it is the point on which the defense and government most sharply disagree. As noted in the introduction to this memorandum, the government's consistent tack is to paint Mr. Perlitz as a one- dimensional monster, who descended upon Haiti for the sole purpose of cultivating and abusing a population of vulnerable victims. The government dismisses out of hand the notion that defendant has engaged in selfless work throughout his life, in service of others, or that his work in Haiti helped anyone in any way. Gov. Mem. at 35. The government does not even attempt to address the more than 100 pages of letters submitted by people who have know Doug Perlitz throughout all phases of his life – including his years working with PPT. Likewise, it does not even acknowledge the statements of former students of PPT from Haiti, who knew Doug for upwards of 10 years or more, and speak unconditionally and movingly of the impact he has had on their lives (or, in some cases, how he saved their lives). And, finally, the government mischaracterizes defendant's attempt to explain to the Court how a fundamentally decent person came to commit such crimes as an "excuse". It is impossible to summarize here the letters the Court has received, or the video statements from the Haitian youths7. We know the Court has reviewed them carefully. 7 Like the government, we ask that the identities of the young men on these videos be kept confidential, not because they are victims, but rather for fear that they may become victims. The fact that they would come forward to speak on behalf of an individual who is vilified in their native land speaks not only to the strength of their character, but also the depth of their feeling about the good Mr. Perlitz has done for them and their country. They fear retribution if their support for the defendant is widely publicized. 20 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 21 of 24 Certain consistent themes emerge: defendant's devotion to helping others, beginning at a young age; the inspirational impact he has had on numerous people throughout his life; the tireless work he did in Haiti that did benefit many, many students in the PPT program; the positive growth of students in the program. The government would have the Court believe that the portrait of Doug Perlitz painted by these dozens of people who have known him at various stages of his life is simply a mirage, a creation conjured up for the purpose of deceiving the Court. A thorough review of the supportive letters and video conclusively rebuts the government's position. This is not to suggest that somehow the good that Mr. Perlitz did in his life, both before Haiti and after arriving there, excuses in any way his criminal conduct. Defendant recognizes all too painfully that his conduct harmed many, many people: his victims; the beneficiaries of the program he founded built; and the many people who believed in him and supported PPT with their time, effort and money. He has apologized, and will again. But in determining what sanction is appropriate, and in weighing the "history and characteristics of the defendant", this life history is most relevant. 3. Seriousness of the Offense/Deterrence The sentence we are advocating, 97 months, would be stern punishment for a 40- year-old man with no criminal history. Defendant's crimes are serious, and the sentencing range of 97-121 months reflects that seriousness. It would also provide adequate deterrence, both specific and general. 4. Need to Protect the Public and Provide Defendant With Necessary Care 21 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 22 of 24 Defendant has submitted a report of a psychological testing and evaluation performed on him. While there is no doubt that he needs treatment and support as he moves forward with his life, it is equally clear that simply warehousing Mr. Perlitz would be an enormous waste of a human being. The psychologist concludes that Mr. Perlitz is not antisocial or psychotic. He does not meet the diagnostic criteria for pedophilia. With proper therapy and treatment, there is every reason to believe he can be a productive member of society again. He is blessed with a very supportive network of family and friends, all of whom have pledged to stand by him in his future endeavors, whenever that may be. 5. Restitution Defendant largely agrees with the government's position with respect to restitution. He is prepared to surrender every penny he owns in order to benefit the children of Haiti. Defendant's only request in that regard would be that any restitution order not be limited to the named victims in this case, but also be for the benefit of the former students of PPT and the street children of Cap Haitien. Defendant can never fully make amends for the harm he caused, but he wants whatever money he has to benefit as many of those needy citizens as is humanly possible. 22 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 23 of 24 Conclusion For the foregoing reasons and the reasons stated in our initial memorandum, defendant urges the Court to find the applicable Guideline range to be 97-121 months, and to impose a sentence of 97 months. Alternatively, defendant urges the Court to impose a non-Guideline sentence of 97 months. THE DEFENDANT, By_/s/David T. Grudberg William F. Dow, III (ct00161) David T. Grudberg (ct01186) JACOBS, GRUDBERG, BELT, DOW & KATZ P.C. 350 Orange Street/P.O. Box 606 New Haven, CT 06503 Tel. (203) 772-3100 Fax (203) 772-1691 wdow@jacobslaw.com dgrudberg@jacobslaw.com 23 Case 3:09-cr-00207-JBA Document 89 Filed 12/17/10 Page 24 of 24 CERTIFICATION OF SERVICE I hereby certify that on December 17, 2010 the attached Reply Memorandum in Aid of Sentencing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by email to all parties by operation of the court's electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the court's CM/ECF system. /s/David T. Grudberg David T. Grudberg, ct01186 JACOBS, GRUDBERG, BELT, DOW & KATZ P.C. 350 Orange St. P.O. Box 606 New Haven, CT 06503 Ph.:(203) 772-3100 Fax:(203) 772-1691 Email: dgrudberg@jacobslaw.com 24 ____________________ "La vraie reconstruction d'Haïti passe par des réformes en profondeur des structures de l'État pour restaurer la confiance, encourager les investisseurs et mettre le peuple au travail. Il faut finir avec cette approche d'un État paternaliste qui tout en refusant de créer le cadre approprié pour le développement des entreprises mendie des millions sur la scène internationale en exhibant la misère du peuple." Cyrus Sibert Reconstruction d'Haïti : A quand les Réformes structurelles? Haïti : La continuité du système colonial d'exploitation  prend la forme de monopole au 21e Siècle. WITHOUT REFORM, NO RETURN ON INVESTMENT IN HAITI (U.S. Senate report.)