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SOHN Michael sentencing memo

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					          Case 3:09-cr-00270-MRK Document 36                       Filed 09/14/10 Page 1 of 15



                                UNITED STATES DISTRICT COURT
                                  DISTRICT OF CONNECTICUT


UNITED STATES OF AMERICA                             :       No. 3:09CR270 (MRK)
                                                     :
v.                                                   :
                                                     :
MICHAEL IAN SOHN                                     :       SEPTEMBER 14, 2010


                    DEFENDANT’S MEMORANDUM IN AID OF SENTENCING

I.       Introduction

         Michael Ian Sohn (the defendant or “Mr. Sohn”), pleaded guilty to one count of

Conversion of Campaign Contributions, in violation of 2 U.S.C. §§ 439a (b) and 437g (d) (1)

(A)I), and one count of tax evasion, in violation of 26 U.S.C. § 7201, on March 11, 2010. He

is scheduled to be sentenced by this Court on September 21, 2010. Mr. Sohn makes no

excuses for his conduct. And he is sincere and remorseful. He is also sincere when he says

that he is resolved to put this black mark on an otherwise responsible and law-abiding life

behind him. He wants nothing more than to make amends for his actions and make a quick

return to his family.1

         In fact, notwithstanding the unfortunate starts and stops connected to Mr. Sohn’s initial

efforts concerning legal representation prior to the undersigned’s involvement, Mr. Sohn has

taken positive, meaningful and remorseful steps to make amends for his wrongdoing. For

instance, not long after his guilty plea, Mr. Sohn entered into a Conciliation Agreement with

the Federal Election Commission in which he affirmatively took responsibility for his actions


1
   The Court’s attention is particularly referred to the letter, forwarded to the Probation Officer, from his wife,
Aimee Renaud. The particulars of that letter set forth in great detail the changes that have been wrought in the
defendant by, inter alia, this prosecution.

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and agreed to pay restitution to the Shays Committee in the full amount of $252,424.10. In

effectuating that agreement, Mr. Sohn also provided financial documentation to the

Commission and agreed that, should his financial condition be otherwise, he would

immediately agree to a financial penalty of up to $505,000. Clearly, then, Mr. Sohn is doing

everything he can to make amends for his conduct and those efforts should be taken into

consideration in fashioning an appropriate sentence in this matter.       Indeed, based on Mr.

Sohn’s life history, a non-Guidelines sentence including no incarceration would be “sufficient,

but not greater than necessary” to promote general deterrence, just punishment, respect for the

law, and to reflect the seriousness of the offense.

II.      Mr. Sohn’s Guidelines Range

         As an initial matter, the parties are in general agreement on the computation of the base

guidelines and while we agree that the base offense under U.S.S.G. § 2C1.8(a) is 8, and that a

12 level increase is recommended under U.S.S.G. § 2C1.8(b)(1) and 2B1.1(b)(1)(G) because

the loss amount is between $200,000 and $400,000 and an additional two levels because the

offense involved 30 or more transactions, we do not agree that two levels should be added

under U.S.S.G. § 3B1.3 for Abuse of Position of Trust. Accordingly, prior to any further

adjustments, Mr. Sohn’s offense level should be Offense Level 22, Criminal History Category

I, which results in a Guideline Range of 41 to 51 months. After a three level reduction in the

Offense Level for Acceptance of Responsibility, the adjusted Offense Level is 19, Criminal

History Category I, which results in a Guidelines Range of 30 to 37 months. Mr. Sohn will

address the proper sentencing issues below.




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III.     Abuse of Position of Trust Enhancement

         The Presentence Report recommends an additional two level increase under § 3B 1.3

for “abuse of position of trust." PSR ¶ 23. Such an increase is not applicable in this case,

however, because the Shays Campaign did not entrust Mr. Sohn with the substantial discretion

necessary to support application of this guideline adjustment and thus he therefore did not hold

a position of trust within the meaning of this guideline.

         Section 3B 1.3 provides in pertinent part:

                    If the defendant abused a position of public or private trust, or used a
                    special skill, in a manner that significantly facilitated the commission
                    or concealment of the offense, increase by 2 levels. This adjustment
                    may not be employed if an abuse of trust or skill is included in the
                    base offense level or specific offense characteristic.

U.S.S.G. § 3B1.3. The commentary defines a position of trust as follows:

                    ‘Public or private trust’ refers to a position of public or private trust
                    characterized by professional or managerial discretion (i.e.,
                    substantial discretionary judgment that is ordinarily given
                    considerable deference). Persons holding such positions ordinarily
                    are subject to significantly less supervision.

         “Proper application of § 3B1.3 requires satisfaction of two requirements: first, that [the

defendant] occupied a “position of trust,” and second, that [the defendant] abused that position

of trust to commit or conceal his crimes.” United States v. Nuzzo, 385 F.3d 109, 115 (2d Cir.

2004). The Second Circuit has held that “[i]t is not sufficient that a defendant enjoyed a

position of trust, and thus had an opportunity to commit a difficult-to-detect wrong. That would

merely satisfy the first of the two prongs of § 3B1.3. Rather, (1) the defendant must have

enjoyed a “superior” position, relative to other potential perpetrators, as a result of a trust

relationship, see United States v. Castagnet, 936 F.2d 57, 62 (2d Cir. 1991); and (2) the



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defendant must have capitalized on that superior position in committing the offense conduct,

see U.S.S.G. § 3B1.3, comment. (n.1).

         Not every employee occupies a position of trust subject to this enhancement. United

States v. Viola, 35 F.3d 37, 45 (2d Cir. 1994), abrogated on other grounds by Salinas v.

United States, 522 U.S. 52 (1997). Rather, the Court must examine the degree of discretion

entrusted to the employee by the employer. United States v. Broderson, 67 F.3d at 456 (2d

Cir. 1995) (“[E]very example of an abuse of trust in the Commentary accompanying Section

3Bl.3 also involves a victim entrusting an agent or employee with discretion.”); United States

v. Tribble, 206 F.3d 634, 637 (6th Cir. 2000) (“[T]he level of discretion accorded an

employee is to be the decisive factor in determining whether his position was one that can be

characterized as a trust position . . . . The examples given in the application notes constitute

abuse of a position of trust); Tribble, 206 F.3d at 637 (“[J]ust because we trust a person to

handle another's property in the course of their job does not mean they occupy a ‘position of

trust’ for the purpose of § 3B 1.3.”).

         Mr. Sohn’s position did not accord him the discretion required to invoke this

enhancement. Although his title was that of “Campaign Manager,” in reality his basic job

functions were hiring staff, tracking contributions, making deposits, preparing checks for

payment to vendors, receiving bank account statements and making sure the software program

ran correctly.      As the PSR correctly notes, ¶ 8, Mr. Sohn did not even “have signature

authority on the Committee accounts.”

         His duties were, from the standpoint of this possible enhancement under the sentencing

guidelines, purely ministerial. But when it came to the financial oversight of the Committee’s



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funds, Mr. Sohn worked under the close supervision of the Committee Treasurer, who was

required to file periodic reports with the Federal Election Commission relating to the

Committee’s financial activities and, as the PSR recognizes, “[t]he treasurer, with Sohn’s

assistance, regularly filed required reports with the FEC.” PSR ¶ 10. Clearly, Mr. Sohn was

under the supervision of the Committee Treasurer. See United States v. Barrett, 178 F.3d

643,646 (2d Cir. 1999) (Persons holding positions of trust ordinarily are subject to

significantly       less   supervision   than   employees   whose   responsibilities   are   primarily

nondiscretionary in nature).         While Mr. Sohn had access to Committee funds, he was

nonetheless subject to supervision and oversight by others and, as noted in the PSR, Mr. Sohn

did not even have signature authority over the Committee’s bank accounts.

         There are numerous instances in which the Second Circuit held that a defendant's

position of trust contributed to the commission or concealment of a crime, but those facts are

not present here.          For instance, the Second Circuit upheld the enhancement where “chief

officers of financial institutions used authority afforded to them by their positions to

misallocate bank funds and to subsequently conceal those misallocations,” see United States v.

McElroy, 910 F.2d 1016, 1027-28 (2d Cir. 1990) and a postal worker abused his superior

position with the United States Postal Service that afforded him access to large amounts of cash

without accounting controls, see United States v. Melendez, 41 F.3d 797, 799 (2d Cir. 1994)

(Emphasis added).

         Unlike those cases, Mr. Sohn was supervised and there were accounting controls in

place to stop these thefts. He simply was able to steal the funds anyway. Thus, looking at the

two prongs of the enhancement, with regard to the financial controls of the committee, which



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is the relevant consideration in this case, Mr. Sohn did not have a supervisory position with

discretion to do what he wanted with the finances of the Committee – he didn’t even have

signatory authority.    It is not sufficient that Mr. Sohn might have been trusted by the

Committee and thus had the opportunity to commit a difficult to detect crime. He must have

held a superior position relative to others in the organization. He did not. The campaign

treasurer held that position.

         Second, he couldn’t have used his position to conceal the wrongdoing because the

campaign treasurer filed reports with the FEC that could have detected the wrongdoing. If it

were Mr. Sohn’s responsibility alone to oversee all accounts, have signatory authority over the

accounts, and prepare, certify and file the reports with the FEC, perhaps it could be argued

that he abused a position of trust. But that is not the case here. This case is not akin to the

chief officers of financial institutions who have sole authority over every aspect of their actions

and crimes. There were controls in place, but clearly Mr. Sohn got around them. But as has

long been recognized, “just because we trust a person to handle another's property in the

course of their job does not mean they occupy a “position of trust” for the purpose of § 3B

1.3.”     United States v. Tribble, 206 F.3d 634, 637 (6th Cir. 2000).           Accordingly, no

enhancement for abuse of a position of trust is warranted under the Guidelines.

         With these specific issues addressed, Mr. Sohn now turns to the settled law surrounding

his sentencing.

IV.      Legal Framework of Sentencing in Federal Court

         The Supreme Court decided three important cases in 2007 that guide sentencing courts.

First, in Rita v. United States, 127 S.Ct. 2456 (2007), the Court held that a district court judge



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is not permitted to apply a presumption of reasonableness to a within-Guidelines sentence. Id.

at 2465.

         Next, in Gall v. United States, 128 S.Ct. 586 (2007), the Court rejected any notion that

a variance from the Guidelines range requires extraordinary circumstances. Id. at 595. What

is required instead is that the sentencing court “make an individualized assessment based on the

facts presented [and] if [it] decides that an outside-Guidelines sentence is warranted, [it] must

consider the extent of the deviation and ensure that the justification is sufficiently compelling to

support the degree of the variance.” Id. at 597.

         Lastly, in Kimbrough v. United States, 128 S.Ct. 558 (2007), the Court held that

sentencing judges are free to reject a Guidelines range based on a conclusion that in a

particular case such a range yields sentences “greater than necessary” to promote the § 3553(a)

sentencing goals.     Id. at 564.     The Court noted that a necessary bi-product of such

individualized consideration is that some sentencing disparity will inevitably result. Id. at 574.

         Even before these three landmark cases were decided, courts interpreted United States

v. Booker, 543 U.S. 220 (2005), as mandating that courts consider any fact that is relevant

under 18 U.S.C. § 3553(a) and not just those traditionally considered pertinent to Guidelines

departure grounds. See United States v. Jones, 460 F.3d 191, 194 (2d Cir. 2006) (“With the

entire scheme rendered advisory by the Supreme Court’s decision in Booker, the Guidelines

limitations on the use of factors to permit departures are no more binding on sentencing judges

than the calculated guidelines ranges themselves.”). Similarly, courts interpreted Booker to

require that they carefully consider any argument for a non-Guidelines sentence unconstrained

by Guidelines departure authority. See United States v. Williams, 435 F.3d 1350, 1354, n.2



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(11th Cir. 2006) (“The district court’s sentence [below the Guidelines] does not have to be

justified as a downward departure. After Booker, the sentencing Guidelines are advisory, and

the sentencing court, in its own discretion, can move below the advisory Guidelines range

without a motion for a downward departure as long as the resulting sentence is reasonable.”).

         Post Booker, Rita, Gall, and Kimbrough, the “parsimony clause” is more important

than ever. In determining an appropriate sentence, the Court must apply the “parsimony

clause” set forth in 18 U.S.C. § 3553(a), which provides that the court “shall impose a

sentence sufficient, but not greater than necessary” to comply with the purposes of sentencing.

The “parsimony clause” is not just another “factor” to be considered along with the others set

forth in § 3553(a). Rather, it creates a fundamental over-arching value regarding the exercise

of sentencing discretion.    The “parsimony clause” should be understood as creating a

utilitarian presumption of the lowest punishment necessary to accomplish the goals of

sentencing in light of the § 3553(a) factors. Hence, when the Guidelines were mandatory, that

provision created a presumption in favor of the low end of the prescribed range, just as a

statutory command of “but not less than necessary” would have created a presumption of

erring on the side of greater punishment and hence, within the Guidelines, the high end of the

prescribed range (and the absence of any statutory command would create no presumption

either way). See generally United States v. Chartier, 933 F.2d 111, 117 (2d Cir. 1991).

         Based on the statutory scheme after Booker’s excision of 18 U.S.C. § 3553(b), the

“parsimony clause” of § 3553(a) has broader application than simply influencing the decision

of where to sentence within a mandatory range. Now that the Guidelines are “advisory” and

therefore subordinate to 18 U.S.C. § 3553(a) as a whole, the “parsimony clause” should be



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understood in the broader context of assessing how much punishment is fair and reasonable for

a particular person who has committed a particular crime. The Second Circuit explained in

United States v. Ministro-Tapia, 470 F.3d 137 (2d Cir. 2006), that if the Court believes a

lower sentence will be as effective as a higher sentence in serving the purposes of sentencing,

it must choose the lower sentence.              See id. at 142 (where a Guidelines sentence is “in

equipoise with [a] below-the-range sentence,” the parsimony clause requires imposition of the

lower sentence).

V.       A Non-Guidelines Sentence is Appropriate Based on a Number of Reasons

         With the above framework in mind, a number of factors are present in this case which

calls for a non-Guidelines sentence.             Among these factors are: (1) Mr. Sohn has finally

admitted to a serious substance abuse problem and, (2) Mr. Sohn, based on his personal

characteristics, is unlikely to re-offend.2 Accordingly, any period of incarceration would be

“greater than necessary” to promote the § 3553(a) sentencing goals.

         As noted above, in determining any sentence, the Court is to ensure that the sentencing

being imposed is one that is “sufficient, but not greater than necessary.” 18 U.S.C. §3553(a).

To that end, section 3553(a) sets forth a broad array of factors from which a sentencing judge

must determine the appropriate sentence. These factors are as follows:

         (1)        the nature and circumstances of the offense and the history and characteristics of
                    the defendant;

         (2)        the need for the sentence imposed –




2
   Mr. Sohn has been in therapy since his arrest in this case. His treating psychotherapist, Jack Bloom, Ph.D., has
submitted a report which will be included with his PSR. The report is significant in that it notes that not only has
Mr. Sohn made dramatic progress in the course of his psychotherapy, but that it is unlikely that he will ever re-
offend.

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                    A.       to reflect the seriousness of the offense, to promote respect for the law,
                             and to provide just punishment for the offense;

                    B.       to afford adequate deterrence to criminal conduct;

                    C.       to protect the public from further crimes of the defendant; and

                    D.       to provide the defendant with needed education or vocation training,
                             medical care, or other correctional treatment in the most effective
                             manner;

         (3)        the kinds of sentence available;

         (4)        the kinds of sentence and the sentencing range established for –

                    A.       the applicable category of offense committed by the applicable category
                             of defendant as set forth in the guidelines. . .

         (5)        any pertinent policy statement –

                    A.       issued by the Sentencing Commission . . .

         (6)        the need to avoid unwarranted sentence disparities among defendants with
                    similar records who have been found guilty of similar conduct; and

         (7)        the need to provide restitution to any victims of the offense.

A.       Mr. Sohn is Unlikely to Re-offend

         Recidivism studies from the Sentencing Commission support the view that Mr. Sohn is

very unlikely to re-offend. Mr. Sohn has the following characteristics, all of which indicate a

reduced likelihood of recidivism: (1) he has no prior criminal convictions; (2) he is married;

(3) he has a solid employment history; and (4) he has an above-average education.

         The Sentencing Commission itself has concluded that offenders like Mr. Sohn, with

zero criminal history points, have a substantially lower recidivism rate than other offenders

who fall within criminal history category I of the Guidelines. See United States Sentencing

Commission,              Recidivism    and      the     “First      Offender”     13,   26      (2004),


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http://www.ussc.gov/publicat/Recidivism_FirstOffender.pdf.      In particular, defendants with

zero criminal history points under the Guidelines have a recidivism rate of 11.7 percent

whereas those with one criminal history point have a rate of 22.6 percent. Id. at 13, 26. The

Guidelines range in this case does not capture this significant distinction because the same

range applies regardless of whether the defendant has zero or one criminal history point.

         The Sentencing Commission also has recognized that recidivism rates are strongly

correlated with age. See Measuring Recidivism: The Criminal History Computation of the

Federal      Sentencing   Guidelines   (2004),   www.ussc.gov/publicat/Recidivism_General.pdf

(“Recidivism Report”); A Comparison of the Federal Sentencing Guidelines Criminal History

Category and the U.S. Parole Commission Salient Factor Score (2005) at 8, 13-15,

www.ussc.gov/publicat/Recidivism_General.pdf (first offender status and age are powerful

predictors of recidivism under the United States Parole Commission Salient Factor Score);

United States v. Lucania, 379 F.Supp.2d 288, 297 (E.D.N.Y 2005) (post-Booker, courts have

noted that recidivism is markedly lower for older defendants) (collected cases).            The

Commission has found that “[r]ecidivism rates decline relatively consistently as age increases.”

Recidivism Report at 12. Significantly, for Criminal History Category I defendants between

the age of 36 and 40 at the time of sentencing, only 12.1 percent recidivated. Id. at 28.

         Recidivism is also correlated with employment status.      Mr. Sohn has consistently

worked throughout his adult life and only since this offense has his employment status been

interrupted. PSR ¶¶ 44-47. For offenders in criminal history category I, the recidivism rate

for employed offenders drops to only 12.7 percent. Recidivism Report at 29.




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         Marriage status also predicts recidivism. Those who have never been married have a

32.3 percent recidivism rate, compared to a 13.8 percent rate for married offenders such as

Mr. Sohn. Married offenders in criminal history category I have a rate of only 9.8 percent.

Id. These are all powerful predictors that Mr. Sohn will not offend again.

         In sum, the Commission’s recidivism studies provide powerful evidence that Mr. Sohn,

given his lack of prior record, age, employment history and marital status is unlikely to ever

re-offend. As other courts have found, a variance can be supported based on a defendant’s low

risk of recidivism. See United States v. Baker, 445 F.3d 987, 992 (7th Cir. 2006) (thirty-two

month variance proper where defendant first offender, had solid history of employment, was

well-educated; such factors must be taken into account when assessing the nature and

circumstances of the offense and the history and characteristics of the defendant under §

3553(a)); United States v. Diambrosio, 2008 WL 732031 at *3 (E.D. Pa. March 13, 2008) (a

low chance of recidivism is an appropriate factor supporting a non-Guidelines sentence (citing

United States v. Pauley, 511 F.3d 468 (4th Cir. 2007)); United States v. Hernandez, 2005 WL

1242344 (S.D.N.Y. May 24, 2005) (same).

B.       Mr. Sohn’s Substance Abuse History Warrants Participation in the Bureau of
         Prisons 500 Hour Drug Treatment Program

         Whatever sentence the Court decides to impose, we urge that the Court recommend that

Mr. Sohn participate in the Bureau of Prison’s 500 hour intensive drug program. 3 Although

the PSR initially indicated that Mr. Sohn had relatively little history of drug use, and although

Mr. Sohn initially denied that he had such a problem, it is clear that he does have a history of

3
         The Bureau of Prisons stated criteria for eligibility are: (1) a documented pattern of substance abuse in the
12 months prior to the arrest for which the inmate is serving his sentence; (2) an ability to complete the entire
program; and (3) that the inmate be diagnosed by the Drug Abuse Program Psychologist as having a drug use
disorder as defined in the Diagnostic and Statistical Manual (DSM) of the American Psychiatric Association.

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serious drug abuse. Since the time that he was initially interviewed, Mr. Sohn’s wife met with

and explained to the Probation Officer that Mr. Sohn had regularly and seriously abused

marijuana and cocaine and that this abuse carried through the time he was committing the

offenses which now bring him before the Court. Mr. Sohn has subsequently met with his

Probation Officer and has not only admitted his drug use, but has finally faced up to the

underlying causes of the drug abuse and has begun a treatment program, in addition to his

regular psychotherapy.4 Mr. Sohn has been drug free since at least the time of his arrest in

this case. Yet because, as this Court well knows, substance abuse addictions are life-long, Mr.

Sohn would benefit greatly from participating in the drug treatment program and he urges that

the Court recommend Mr. Sohn’s participation.5




4
    Mr. Sohn’s prompt and difficult recognition of the fact that he had initially misled the Probation Officer, is a
factor which should be taken as additional evidence that the “[s]elf centered, angry, addict [sic], insecure, liar, . . .
irresponsible, explosive, . . . unaccountable, . . . fake[.]” person that he was has now started down the long and
difficult road to rehabilitation cannot be gainsaid. This quotation is taken directly from Ms. Renaud’s letter to the
Court. For reasons of privacy, we have submitted Ms. Renaud’s letter to be included with the Presentence Report,
rather than attaching it to this Memorandum. A copy, of course, has been provided to the Government.
5
    The most recent information available to counsel indicates that Bureau of Prisons Residential Drug Treatment
Programs are available at FPC Lewisburg and FPC McKean in the Northeast Region. We assume that Mr. Sohn
qualifies for placement in a camp; therefore, we ask the court to designate either the Federal Prison Camp at
Lewisburg or at McKean, where the Residential Drug Treatment Program is available. We also ask that the Court
grant Mr. Sohn voluntary surrender to whatever institution is designated by the Bureau of Prisons.

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                                        CONCLUSION

         In sum, notwithstanding his actions, Mr. Sohn’s personal history and characteristics,

the fact that he is unlikely ever to appear before a court again, and his very low risk of

recidivism, strongly militate in favor of a relatively short period of incarceration. Far more

effective, and reasonable, alternatives exist that will satisfy the myriad purposes of sentencing,

including punishment and general deterrence. Accordingly, Mr. Sohn respectfully requests

that the Court fashion a non-Guidelines sentence that provides for a minimal period of

incarceration yet forces him to continue to confront the substance abuse problems from which

he suffers.

                                               Respectfully submitted,


                                         By:     /s/ Harold James Pickerstein
                                               Harold James Pickerstein (ct05094)
                                               McElroy, Deutsch, Mulvaney & Carpenter LLP
                                               30 Jelliff Lane
                                               Southport, CT 06890-1436
                                               Tel: (203) 319-4000
                                               Fax: (203) 259-0251
                                               Email: hpickerstein@pepehazard.com




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                                CERTIFICATE OF SERVICE

         I hereby certify that on September 14, 2010, a copy of foregoing Defendant’s

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 e-mail 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/ Harold James Pickerstein
                                                    Harold James Pickerstein




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