USA v Marvin Jemal - Sentencing Memorandum on Behalf of Marvin Jemal

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

14 Cr. 117 (VEC)

_____________________________________

UNITED STATES OF AMERICA

- against

MARVIN JEMAL Defendant.

_____________________________________

SENTENCING MEMORANDUM ON BEHALF OF MARVIN JEMAL

BRAFMAN & ASSOCIATES, P.C. By: Benjamin Brafman, Esq.

Joshua D. Kirshner, Esq. Attorneys for Marvin Jemal 767 3rd Avenue, 26th FL New York, NY 10017 Tel: (212) 750-7800 Fax: (212) 750-3906

Case 1:14-cr-00117-VEC Document 19 Filed 10/21/14 Page 1 of 36

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

14 Cr. 117 (VEC)


-against-

MARVIN JEMAL,

Defendant.

PRE-SENTENCE MEMORANDUM ON BEHALF OF MARVIN JEMAL

Preliminary Statement

On June 7, 2014, Defendant Marvin Jemal pleaded guilty before this Court to a single

count of bank fraud, in violation of 18 U.S.C. 1344 and 2. Through counsel, Mr. Jemal now

respectfully submits this memorandum to assist the Court in determining an appropriate

sentence.

I. INTRODUCTION

Marvin Jemal respectfully requests the Court to sentence him to a punishment well below

the advisory Guidelines range. A non-custodial sentence is appropriate in this case because of

Mr. Jemals lifetime of good works and service to his community, his support for his family, the

lack of risk of recidivism, and his acceptance of responsibility for the conduct that brought him

before the Court.


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Mr. Jemal is a man of generosity, loyalty, humility and, most notably, unwavering

devotion to his family. He is a pillar of strength and support to his mother, wife, four daughters,

their husbands, and seven grandchildren. His generosity and selflessness are readily apparent to

all who know him. These characteristics, not the conduct now before the Court, define

Mr. Jemal.

Mr. Jemal knows he did not live up to the standards and values that he learned from his

parents or that he and his wife taught their children. Mr. Jemal submitted false invoices to a

bank in order to draw down on a credit agreement. Mr. Jemal used those funds to keep his

business open and his employees working. At the time, Mr. Jemal knew his actions were

unlawful. Mr. Jemal is ashamed of his conduct, which is inconsistent with his personal history

and all other facets of his life. He has accepted complete responsibility for his actions and

acknowledged his wrongdoing in Court, to his family and to his community. He is remorseful

and regrets the pain and disappointment his actions have caused those closest to him.

Mr. Jemal does not seek to minimize his actions or his responsibility. He does not make

excuses. Through this memorandum, Mr. Jemal will provide the Court with the necessary

information about his background and characteristics to permit the Court to sentence him in

accordance with the law.

As the Court is aware, in determining the appropriate sentence for any defendant, a

sentencing court must make an individualized assessment based on the facts presented, which

includes a broad command to consider the nature and circumstances of the offense and the

history and characteristics of the defendant. Gall v. United States, 552 U.S. 38, 50 & n.6


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(2007). In the final analysis, the sentence imposed must be predicated upon the factors of 18

U.S.C. 3553(a) and 3661.

An individualized assessment of Mr. Jemal and his offense should result in a

below-Guidelines, non-custodial sentence. Though he makes no excuse for his conduct, it is

notable that Mr. Jemals acts resulted from an attempt to save his business and the jobs of his

employees. Although Mr. Jemal knew what he was doing was wrong, he hoped to be able to

repay the bank when his financial circumstances improved. His good faith is demonstrated by

the fact that he has never hidden from his debt and was actively attempting to negotiate a civil

resolution with the bank up until weeks before his arrest.

Mr. Jemal will spend the rest of his life regretting and paying for the decision to take an

ill-advised and illegal shortcut. In fact, his punishment has already begun. His conduct has

resulted in a personal and financial collapse from which he may never recover.

An individualized assessment of Mr. Jemal should lead this Court to impose a

non-Guidelines sentence based on disagreement with the [Sentencing] Commission's views[.]

Peugh v. United States, 133 S.Ct. 2072, 2080 (2013) (citing Pepper v. United States,131 S.Ct.

1229, 1247 (2011)). A sentence below the applicable Guidelines range with no incarceration is

appropriate i.e., it is a sentence that is sufficient, but not greater than necessary to accomplish

the goals of sentencing. Kimbrough v. United States, 552 U.S. 85, 101 (2007).

Mr. Jemals application for a below-Guidelines, non-custodial sentence is not a request

for sympathy, but rather an appeal to reason and understanding. Mr. Jemal seeks a sentence

that balances the crime he committed with the extraordinary good he has accomplished as a

businessman, as a community member, as a family member, and as a mentor to others he has


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spent a lifetime volunteering his experience and advice to strangers and family alike. It is Mr.

Jemals hope that, given the entirety of his life, all that he has accomplished, and the persons

whom he has so positively influenced, incarceration is neither a necessary nor an appropriate

penalty. Rather, an alternative to incarceration would also provide a sufficiently punitive

sentence that serves all of the goals of sentencing. See Gall, 552 U.S. at 49-50.

II.

A. Upbringing and Career

PERSONAL HISTORY

Marvin Jemal is a decent and honorable man who through hard work rose from modest

beginnings to extraordinary success. The letters submitted to the Court by Mr. Jemals family,

friends, colleagues, fellow congregants and community members describe these features of

Marvins life and illustrate his true nature.

Mr. Jemal was born on September 23, 1953 in Brooklyn, New York, one of eight

children born to Norman and Sally Jemal (nee Chera). Mr. Jemal was raised in a humble and

close-knit home. Norman Jemal, an Egyptian immigrant, came to the United States when he

was 14 years old and served as a cook during World War I. Norman subsequently became an

entrepreneur who operated retail and wholesale businesses. Mr. Jemals father had an

incredibly positive influence on Marvin and his siblings. He taught all of them the value of

hard work and the importance of friends and family. Unfortunately, Mr. Jemals father passed

away in 1983.

Mr. Jemals mother is 96 years old. Mr. Jemal regularly cares for his mother, at her

home in Deal, New Jersey, and talks to her by phone on days he is unable to see her in person.


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Mr. Jemal is very close to his mother and losing him as a primary care-giver would be a hardship

on her and the Jemal family.

Mr. Jemals siblings, Joseph (age 73), Douglas (71), Ronald (70), Lawrence (68),

Francine (63), Jacqueline (62) and Stephen (58), have all remained supportive of him during this

trying time. Douglas explains their support and devotion for their brother, Anyone who knows

Marvin only from this case does not really know him. . . We are truly fortunate to have someone

as devoted and dedicated to our entire extended family as Marvin has always been and will

always be. (Ex. 19, Letter of Douglas Jemal)

Mr. Jemals hard work and dedication to his entrepreneurial ventures began at an early

age. When he was six years old, he pumped gas at the local filling station near his parents

summer home in New Jersey. When he was l1, his brother operated a store in Seaside Heights,

New Jersey, and Mr. Jemal helped in the store during summer months.

In high school, Mr. Jemal worked part-time at the Sutton Record Company, a record

distributor in Brooklyn, where he learned the distribution and wholesale trade. Later in high

school, Mr. Jemal worked at electronics wholesale business in Manhattan.

When he was 17, Mr. Jemals brothers, Douglas, Lawrence, and Stephen opened a new

business Jmart Discount Department Store in Spanish Harlem. Mr. Jemal left high school to

help his brothers in their new endeavor and began to develop his own retail acumen. During

these years as Mr. Jemal was building this business, he personally hired and trained hundreds of

employees, the vast majority of whom came from local, socioeconomically depressed

neighborhoods. Marvin took the time to visit local chapters of the YMCA, churches and

shelters to assist young people in these areas with finding employment and bettering themselves


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through the good values and the hard work ethic Mr. Jemal imparted upon them. A few years

later, the business began focusing on music and electronics stores and operated several stores

under various names in the Bronx, Queens and New Jersey. Mr. Jemal and his familys core

business principles were to treat customers fairly and provide them tremendous value.

In 1976, Mr. Jemals father identified a retail location available on Fulton Street in

Brooklyn, where Marvin and his brothers opened an electronics specialty store. The Jemals

expanded this business by opening additional stores and ultimately creating a national chain

known as Nobody Beats the Wiz.

Beyond his professional responsibilities as founder and officer of this remarkable

company, Mr. Jemal founded the Wiz University a curriculum devoted to the recruitment and

training of underprivileged local folks to work at Nobody Beats the Wiz and rise up to

management positions or go on to other successful ventures in their own lives. Mr. Jemal

established a Wiz University in each of the five boroughs of New York City and was repeatedly

recognized by the Consumer Electronics Association for his leadership in this area. Marvin

also played a large role in ensuring that all of the local athletes which sponsored Nobody Beats

the Wiz promoted and donated to the charities and youth organizations that were part of Mr.

Jemals legacy.

At its peak, in 1996-97, the company operated 63 stores with $1.4 billion in annual sales.

Unfortunately, however, the Jemals expanded the chain too rapidly and into too many markets.

By 1998, with debts mounting, the company was sold to Cablevision a big psychological

blow to Marvin. PSR 58.


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Over the next several years, Mr. Jemal operated Tecno Zone Enterprises, an electronics

accessories business that sold to major retailers and employed approximately 12 people. In

2004, Mr. Jemal returned to the retail business and opened several electronics stores called The

Zone in Brooklyn. However, Mr. Jemal was unable to rekindle his previous successes and

closed those stores in 2006.

In 2007, Mr. Jemal went back to the wholesale industry and started a company called the

ENE Group. The company imported mobile phone cases, luggage, business bags, backpacks

and other accessories. Mr. Jemal obtained a multi-year licensing agreement with the Sharper

Image for which he personally paid an approximate $400,000 royalty. Due to the Sharper

Images subsequent financial difficulties, the agreement was rescinded, and Mr. Jemal lost the

license altogether in 2009. The loss of the licensing agreement, the ancillary legal fallout, and

the downturn in the economy led Mr. Jemal to make the mistakes that bring him now before the

Court, and ultimately forced him to liquidate the ENE Group.

From 2010 until his arrest in February 2014, Mr. Jemal operated the Underground Group,

a company that bundled iPads and iPods with accessories and sold them to retailers. As a result

of his indictment, Mr. Jemal lost his financing and that business closed.

Throughout his career, Mr. Jemal leveraged his businesses to help those less fortunate

than himself. He opened many of his stores in struggling neighborhoods that other companies

ignored. He gave employment opportunities, mentorship and guidance to minorities and those

less privileged than himself. He always sought to share his success with the people and

communities that helped make it possible.


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B. Generosity and Good Works

Mr. Jemal is a giver it is his defining trait. As his brother, Stephen, stated, Marvin

Louis Jemal was born unto this earth and created by God to do good and to help the needy and sick

children of Gods earth. I was fortunate enough to bear witness to his myriad of great deeds and

witnessed first-hand his true and fine character and know that given the chance and opportunity he

will only add to his lifelong resume of magnificent philanthropic accomplishments. (Ex. 25,

Letter of Stephen Jemal)

A friend, Alan Melah, recounts:

In 2006, the Angel Fund is born. Imagine an organization that helps people build upon an existing business or create a new business. Imagine that besides for interest free loans, we get you volunteers in the SAME industry to advise you and guide you. People thought we were crazy. The idea couldnt and wouldnt work. Who in their right mind would help create their own competition? The volunteers would be impossible to find.

Along came Marvin Jemal, of course the first one on board. Not only did Marvin support us emotionally, spiritually, and financially. He was also our first volunteer. He paved the way for others to learn from him. He believed in the Lord and that the Lord would give you what was yours. He believed helping others would have no impact on his own business. Marvin was a natural. Based on his own life experiences, he was able to help so many clients from retail to wholesale, to internet. He was able to cover so many industries. All our clients were promised confidentiality, and Marvin always kept his lips sealed. He became the go-to guy time and time again. I felt like Marvin was so proud after his meetings. He knew he was really succeeding in helping others. He touched so many people. One of our biggest challenges in the organization was getting the clients to follow our advice, however, this was no problem for Marvin. Not only is he a business genius, but he is the warmest person you will ever meet. You instantly fall in love with his warmth and genuine approach because he truly cared.

(Ex. 26, Letter of Alan Melah)

His brother Douglas writes about his years at Nobody Beats the Wiz with Mr. Jemal:


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But Marvin was more than just a successful executive, he was always well grounded in his community and focused on giving back to others in need. He was the primary driver behind the numerous charitable fundraising activities sponsored by Nobody Beats the WIZ. Police associations, Fire and Rescue Departments, Girls and Boys Clubs, these were many New York and New Jersey groups (and individuals) that were beneficiaries of Marvins big heart. He was not about money, success and fame, he remained a humble person who was passionate about giving back to the communities that helped the WIZ achieve its great success.

(Ex. 19, Letter of Douglas Jemal)

A former employee of Mr. Jemals at Nobody Beats the Wiz, Charles Semah,

remembers:

I was fortunate to work close with Marvin Jemal. I would meet him about twice a month to review the charity account at which time he would review all request and would authorize to fund them. He was very sentimental to all requests. Not only did he donate generously but he felt the pain of the individuals and organizations that were in desperate need of funds. There were many times where Marvin Jemal would take money out of his own pocket in order not to disappoint the people or organizations. He truly had a great love and compassion for the needy.

(Ex. 35, Letter of Charles Semah)

His friend, Joseph I. Douek, recalls:

I met Marvin around 2000, although the exact date escapes me, I remember the place and the circumstances vividly. Marvins office was a block away from mine and we parked in the same parking lot. One evening I offered my friend a ride home and he met me at the parking lot, sure enough Marvin came to get his car at the same time and my friend happened to be a mutual friend of Marvins and we all struck up a conversation. I was organizing a lunch for the benefit of the charity that provides underprivileged children with free after school services and I asked Marvin if he could come to the event. What happened next is typical Marvin, he insisted that he host the event for such a great cause and wouldnt relent until I accepted. Thats Marvin for you; he didnt know me, he didnt know the charity, but yet thought the cause just and jumped in head first to help.

(Ex. 10, Letter of Joseph I. Douek)


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Mr. Jemal not only gives freely from his wallet, but also is generous with his time. Rabbi

Azriel Mansour, a dear friend of Mr. Jemals recollects, Over the course of my many meetings

with Marvin, I saw more and more of his special, noble soul which resides within him. He often

shows me the appeals he receives from people in desperate need of help, who write him letters

explaining their troubles to him. (Ex. 28, Letter of Rabbi Azriel Mansour). Rabbi Mansour

continues:

I was present on more than one occasion when people in need of help came to Marvin to explain to him their problems. I noticed the look of sorrow on his face and how his eyes welled up with tears, and the feelings of compassion in his heart went on full display on his face. He then granted them assistance. I was amazed each and every time I witnessed this scene, and came away inspired and more determined to work to help people in need.

(id.)

His brother-in-law, Raymond Betesh writes:

Marvin is a genuine friend, and I will never forget his sincerity and heartfelt caring while my father was struggling with Alzheimers disease. Towards the end, every day with my father felt like another battle, and there were many times where I would be feeling nothing but frustration and hopelessness. Marvin was always there. Always. He knew I needed support, and he knew exactly how to help. Whether he was visiting or calling, his presence was always felt and the comfort he provided was truly remarkable. It felt like he was right alongside us in our struggle, and we knew he cared for us in a completely selfless manner.

(Ex. 5, Letter of Raymond Betesh)

Jack C. Benun recalls, a time when [Marvin] was working for me that he saw a blind

person walking in the street that was lost. He gave up his lunch to go and help this person get to

their destination. (Ex. 3, Letter of Jack C. Benun). Mr. Benun continues, Another kindness that

always sticks in my mind was that when Marvin was single [and] living with his brother, I visited


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and found out that daily Marvin was feeding a homeless person who lived 2 blocks from the

apartment. Id.

Samuel Morano details an instance that occurred after Marvins arrest:

Recently, in May of 2014 my father passed away. The morning services of the funeral were attended by hundred[s] of community members, relative[s] and close friends. Following the services my family and I went to the cemetery to bury the coffin, as is the Jewish tradition. The tradition also dictates that 10 men accompany the mourners to the burial site. Out of the hundreds of people at my fathers funeral, Marvin was one of ten men who stood shoulder to shoulder-to-shoulder with me as we lifted shovels to bury my father. Marvins act of selfless kindness at the time of my fathers passing is an instance I will always be grateful for and never forget.

(Ex. 33, Letter of Samuel Morano)

These and other anecdotes in the letters submitted to the Court reveal Mr. Jemals true

character, as a generous and giving man.

C. Family Life

In 1981, Mr. Jemal married Robin Jemal (nee Gindi), and their marriage is as strong as

ever. Robin is Mr. Jemals best friend and soul mate (PSR 42) and has remained extremely

supportive of Mr. Jemal throughout the proceedings before this Court. She describes Mr. Jemal:

Hes been a loving, giving, gentle partner in life. Hes always been the person I lean on, my rock when times are tough. He is the most optimistic and positive person, holding me and everyone else together. No matter the stress he was under, his first priority was always me and our family.

(Ex. 24, Letter of Robin Jemal)

Together with Robin, Mr. Jemal has four daughters: Sally, Lorraine, Allyson, and

Jennifer. Mr. Jemal is extremely close with his daughters and his seven grandchildren.


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Jerry Harary observes:

Being a neighbor for many years, I have observed his family life and was always impressed by the interaction, love and sacrifices he made for his children and grandchildren and I hope along with everything else, you will take that in consideration.

(Ex. 18, Letter of Jerry Harary)

Rabbi Azriel Mansour writes:

As our friendship continued to develop, I came to know the entire family and a very close bond was formed. They include me in all family matters, and I serve as a rabbi and counselor. Whenever I travel to the U.S., I visit Marvins home and meet him and his beautiful family. His paternal love and warmth is easily discernible, as is his strong desire to raise his family to become outstanding people and role models for his entire community, and to show them the kind of love and affection that ought to be felt among family members.

(Ex. 28, Letter of Rabbi Azriel Mansour)

Paulette Jemal, Mr. Jemals sister-in-law, recalls:

Marvin is well liked, and has many, many friends, His most cherished role, I believe, is that of husband and father. He is adored by his wife, children and grandchildren and takes an active part in their lives. Marvin is a responsible parent and has rightfully earned their admiration and respect.

(Ex. 23, Letter of Paulette Jemal)

Jack Cohen, his son-in law, writes:

Marvin is a caring family man. One time we were visiting him in his summer home. My son, at the time was 3, and may have been the youngest member of the fire department in the world. When we got there that cloudy Sunday afternoon, my son asked his Papa to take him to the fire station. Marvin, grabbed him strapped him in the car, and drove off to the fire station, getting the fire fighters to give them a tour of the station house. While my mother in law waited to go out to lunch with him. When my son came back all I heard about for weeks was how great it was to go to the fire house.

(Ex. 8, Letter of Jack Cohen)


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Lawrence Jemal, Mr. Jemals older brother, tells the Court:

Marvin is a dedicated husband, father and grandfather and patron to his direct family and his extended family. He has been most generous to all of them with his time and his belongings. He has also extended his time, energy and money to people in need.

Marvin is truly needed by his wife, his children and grandchildren as well as by his mother who g_d bless is ninety six (96) years old now.

(Ex. 21, Letter of Lawrence Jemal)

Of Mr. Jemals love for his family and their love of him, Jack Marcus states:

Marvin built a successful business, but he built something bigger and better. A family. He has a lovely wife Robin, four daughters, three son-in-laws and countless grandchildren. To see the love they have for each other is truly something very special.

(Ex. 29, Letter of Jack Marcus)

Douglas Jemal observes:

I have known this man his whole life and I know him to be a good, compassionate man and a loving brother, husband, father and grandfather. He was extremely respectful to my father when he was alive. Even to this day he calls his mother every night, he washes her car every weekend. We are truly fortunate to have someone as devoted and dedicated to our entire extended family as Marvin has always been and will always be.


Mr. Jemals nephew, Joseph Betesh, comments:

Although I affectionately call him Uncle Marv, I consider him more like a second father than he is an uncle. My close bond with Marvin started when I was 4 years old while suffering a life-threatening reaction to eating peanuts (due to an allergic reaction). I was in the hospital for 10 days and I have never forgotten how Uncle Marv was at my bedside day and night. It was then that our life-long bond was formed. He left his office & family to spend the time with me, as he knew that my young parents were shocked and emotional. We talked for hours about life, family, religion, business, sports, hobbies and his beloved Yankees. I will never forget the way Marvin dropped everything to support me during that terrifying time. From


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then, our bond just grew & grew. Marvin became a mentor, friend and confidante during my formative years. Marvin was a huge influence in my life and taught me many lessons, that I live by today.

(Ex. 6, Letter of Joseph Betesh)

Lorraine Cohen, his second oldest daughter, adds:

My father is a very special man and I would like you to know that no matter what I write in this letter it will never come close to expressing the kind of man he is!...No matter how busy, he always had time for his girls and his family. I knew he was never more than a phone call awayHe was always there to encourage me, even if the odds were stacked against me.

(Ex. 9, Letter of Lorraine Cohen)

Ms. Cohen also reflects on how loving her father treats her children. She writes:

I have 3 children, my first son is almost 6, my daughter is 4, and my youngest, Marvin, is 2 . They are my fathers pride and joy and he makes sure my kids know that if they come home with anything exciting the first thing they say to me is can we call Papa and tell him. My father never stops thinking of his grandchildren, and my kids and sisters kids know it. I remember last year he was with my mother somewhere in the Manhattan, he know my son is obsessed with fire trucks, he saw a vintage fire truck and decided my son had to have it. There was no occasion it was just because he knew it would make him happy.

Id.

Jennifer Jemal, Mr. Jemals daughter, writes:

When my family and I get together every Friday night, my fathers face light up. Nothing makes him happier than seeing all of us daughters, son in laws, and grand children together. Family is the most important thing in his life.

He always taught us all to follow our dreams, he insisted that there is no limit to what we can achieve. He gave all of his daughters, son in laws, and wife, the confidence in ourselves and made sure we knew we can accomplish anything we set our minds to.

(Ex. 20, Letter of Jennifer Jemal)


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Mark Benun writes:

Uncle Marvin is the most wonderful and special family man I have ever saw. He is a loving and devoted husband to my aunt Robin hes a wonderful father to his children and the best grandfather to his grandchildrenUncle Marvin is the first one at family events and always obligates himself to the toughest task; running the grill the barbeque. He takes pride in making sure every family member gets exactly what they wanted to eat the way they like it; rare, well done, as you can imagine with the family as large as ours people can be very demanding uncle Marvin takes every request from the simplest to the toughest with a smile and always says yes. I never remember him saying no to me or to anyone for anything he is always the go to person as you know he is willing to help.

(Ex.4 , Letter of Mark Benun)

Furthermore, Mark Benun recalls a time Mr. Jemal was there for him in the

hospital:

Last November I was in the hospital for 10 days there was not a day that went by that my uncle Marvin did not visit me. Even when I was fast asleep because the nights sleeping in the hospital are very tough I would open my eyes and see him there. I can't tell you how meaningful and loving and important his visits were for me getting my health back. In January I was finally strong enough to do the operation but I didn't do it alone I had all my family around me and my uncle Marvin a daily source of strength always asking me what I needed and what he could do for me. That's my uncle Marvin always asking someone what he can do for them never asking in return what anyone can do for him.

Id.

Mr. Jemal treats his sons-in-law as if they were his own children. Robert Grossman writes:

At around the time when my father left and moved away from our family, without even sending a forwarding address, I met my future wife and her family. Marvin took a keen interest in me and helped me build my confidence during what I would perceive as the most critical time in my life. Marvin did not have any biological sons, and at first became a father figure in my life. I can distinctly remember the first Yankees game that I attended with Marvin, and while most people would be excited to be at a Yankees game I was just happy to have Marvin around to talk to about all kinds of subjects. For me, I never had an adult male in my life to talk to and gain their perspective on things.


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Needless to say, our relationship developed and Marvin transitioned from being a father figure to being my father. Marvin was there for me like any father would be for their son.

(Ex. 16, Letter of Robert Grossman)

Solomon Fallas writes:

Im married to Marvin Jemals daughter Allyson. My close relationship with Marvin began in 2007 about 2 years before I got married. I first met Marvin while picking up Allyson to go on our first date. While I felt anxious and nervous as I walked up to the house, Marvin opened the door and welcomed me into his home with a warm smile and greeted me as if one of his closest friends just came through the door. Right away I was comforted and felt that Marvin was someone who I can relate to, even though I had just met him.

(Ex. 13, Letter of Solomon Fallas)

Later in his letter to the Court, Solomon recounts:

Later in 2009, only a few months after Allyson and I got married, the financial situation of the company was getting substantially worse . . . . I once again experienced his true generosity and selflessness. He contacted an acquaintance and set up an interview for me to get back on my feet, all while he still had to deal with the mounting financial stress of his own. (id.)

Mr. Jemal is a devoted son to his mother, Sally Jemal. His sister, Francine Benun, writes:

Marvin is a devoted and doting son to our mom, Sally Jemal. Our mom is ninety six years old. He visits often. They enjoy long drives together and sharing stories about the old times and current happenings.

(Ex. 2, Letter of Francine Benun)


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Mark Benun adds:

One of my uncles greatest deeds is simply as a son to my wonderful grandmother Sally Jemal who is 96 years old. My grandmother would truly be lost without uncle Marvins daily phone calls and weekly visits. My grandmother looks forward to speaking with Marvin every day and visiting with him every week he is truly the apple of her eye.

(Ex. 4, Letter of Mark Benun)

Samuel Morano remarks:

I recall growing up that my parents would always remark how Marvin took such special care of his elderly mother Mrs. Jemal, throughout her life. This quality of Marvins has always stayed with me as an example of how important it is to respect and care for the elderly and for my parents.

(Ex.33 , Letter of Samuel Morano)

Bonnie Morano, another friend of Mr. Jemal, writes:

Growing up I recall many times when Marvin visited my elderly grandmother. His visits would bring so much happiness to my grandmother because Marvin would reminisce about family memories and relatives which my grandmother enjoyed. His display of patience and kindness was always so warm and sincere. He enjoyed meals with my grandmother and proved to be a special part of her life.

(Ex. 31, Letter of Bonnie Morano)

D. Remorse, Regret and Acceptance of Responsibility

Mr. Jemal makes no excuses for his conduct. In their letters to the Court, many of

his friends and family noted Mr. Jemals nearly overwhelming expressions of regret and

remorse for his actions.

His wife, Robin Jemal, writes:

For the past nine months I have watched him reflect on the mistakes he has made and he has truly repented and has searched his soul, reflecting on his past, trying to really understand how he has come to this point. He has become close to god praying and going to temple everydayHe has spent many nights crying about


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how he hurt me and the family. He is broken and full of regret for the mistakes he has made.

(Ex. 24, Letter of Robin Jemal)

Mr. Jemals daughter, Allyson Fallas, writes:

Every downfall is an opportunity to grow. I have watched my dad pick up the pieces of himself and begin to put them together again. I have seen his guilt, his humiliation, he feels he has let down himself and his family and he cannot forgive himself. But he has not lain in bed in a dark room like I imagine some would. He has sought to heal. He has grown. He has truly repented.

(Ex. 12, Letter of Allyson Fallas)

Jennifer Jemal observes:

I know my father has made some mistakes, but I honestly feel that in the past few months, he has acknowledged what he did and really repented on behalf of it. He is a different person than he was when this all began. Although he is strong in front of us, I know how much this has affected him. I know that he cries most nights because he feels bad that we have to go through this. He has gotten so much closer to god and has influenced all of us to do so as well.

(Ex.20 , Letter of Jennifer Jemal)

Solomon Fallas writes:

Over the last 8 months, while expressing true remorse for what has happened and taking full responsibility he has kept our family together, reminded us to pray and hope for the best possible outcome.

(Ex. 13, Letter of Solomon M. Fallas)

Mark Benun writes:

Lately things have been very hard for my uncle his wife and the children. He is very remorseful for the mistakes he made and wishes he could turn back the clock and take it all back it was truly a momentary lapse in judgment.

(Ex. 4, Letter of Mark Benun)


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Michael Jemal writes:

I have seen his genuine remorse and regret for what he has done. It appears he has reconciled to change his ways as demonstrated by his more frequent visits to Synagogue and a general attitude of humility.

(Ex. 22, Letter of Michael Jemal)

Lawrence Jemal writes:

Marvin has been torn apart by his past actions and is truly remorseful for all that occurred as was evidenced by his confession to your honor in court.

(Ex.21 , Letter of Lawrence Jemal)

Douglas Jemal writes:

I am extremely remorseful for the choices my brother has made and where he stands today. But no one is more remorseful than Marvin himself. I know that if he could undo the bad decisions he has made, he would. But rest assured that he has learned from them and he is suffering for them. And I know that he will never repeat them.


Raymond Betesh writes:

Marvin will never be able to get over how he let his family down. He is completely humbled and remorseful by what he did. His body language and mannerisms have changed. Ive seen the glow drain from Marvins face. He remains strong for his family, and when his children and grandchildren run to him like they always do, he is there to comfort them because he understands they are suffering along with him.

(Ex. 5, Letter of Raymond Betesh)

Rabbi Joseph Beyda has come to know Mr. Jemal well over the years, frequently

seeing him seated with his family in synagogue. Rabbi Beyda acknowledges that being

associated with words like fraud and crime is simply inconsistent with being a member

of his congregation. (Ex. 7, Rabbi Joseph Beyda). Still, Rabbi Beyda writes:


20

I am pleased to say that the response of both [Marvin and the congregation] could not have been better. For his part, Marvin has been incredibly contrite and, in the tradition of Teshuvah (the Jewish term for repentance), has gone to great lengths to change his life for the better. He has become one of the steadiest congregants we have, attending prayers daily and an active participant of our educational classes. Not content with our standard offerings, Marvin has sought out private time with myself and other members of the Rabbinical staff.

Id.

III.

A. Stipulated Guidelines Calculation

SENTENCING ISSUES

As is stated in the plea agreement, Mr. Jemal agrees with the Probation Offices

calculation of his Sentencing Guideline range in this case. Pursuant to U.S.S.G. 2B1.1(a)(1),

the base offense level is 7. PSR 20. Sixteen levels are added pursuant to 2B1.1(b)(1)(I).

PSR 21. An addition two levels are added pursuant to 2B1.1(b)(16)(A). PSR 22.

Three levels are subtracted for acceptance of responsibility pursuant to 3E1.1. PSR 28-29.

Thus, Mr. Jemals total offense level is 22. PSR 25. Because Mr. Jemal has no criminal

history, he is assigned Criminal History I, PSR 33, bringing his Guidelines range to 41-51

months imprisonment.

B. The Federal Sentencing Guidelines Are Advisory and Only One of Several Factors To Be Considered in Sentencing

Incarcerating Mr. Jemal would not serve the ends of justice in this case. The

punishment should fit the offender and not merely the crime. Pepper, 131 S.Ct. at 1240


21

(quoting Williams v. New York, 337 U.S. 241, 247 (1949)). Given the unique circumstances of

this case, the Court should grant a variance from what the Guidelines otherwise prescribe.

Indeed, since Booker, the Supreme Court has made clear that:

although a sentencing court must give respectful consideration to the Guidelines, Booker permits the court to tailor the sentence in light of other statutory concerns as well. Kimbrough v. United States, 552 U.S. 85, 101 (2007) (internal quotation marks and citation omitted). Accordingly, although the Guidelines should be the starting point and the initial benchmark, district courts may impose sentences within statutory limits based on appropriate consideration of all of the factors listed in 3553(a), subject to appellate review for reasonableness. Gall, 552 U.S., at 49-51.

Pepper, 131 S. Ct. at 1241.

A sentencing court must begin the process of determining an appropriate sentence for a

criminal defendant by calculating the applicable Guidelines range. However, it should then

consider all of the 3553(a) factors to determine whether they support the sentence requested by

a party. Gall, 552 U.S. at 49-50; see also Peugh, 133 S. Ct. at 2080 (Under the resulting

scheme, a district court is still required to consult the Guidelines. But the Guidelines are no

longer binding, and the district court must consider all of the factors set forth in 3553(a) to

guide its discretion at sentencing. (citations omitted)).

Moreover, the Guidelines are not presumed to be reasonable:

Our cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable. In [United States v.] Rita [551 U.S. 338, 351 (2007)] we said as much, in fairly explicit terms: We repeat that the presumption before us is an appellate court presumption. . . . [T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply. And in [Gall] we reiterated that district judges, in considering how the various statutory sentencing factors apply to an individual defendant, may not presume that the Guidelines range is reasonable. . . . . The


22

Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable.

Nelson v. United States, 555 U.S. 350, 352 (2009) (citations omitted).

Section 3553(a), as modified by Booker, contains an overarching provision instructing

district courts to impose a sentence sufficient, but not greater than necessary to accomplish the

goals of sentencing. Kimbrough, 552 U.S. at 101 (citing the sentencing goals set forth at 18

U.S.C. 3553(a)(2)(A)-(D)). The statutory factors include the following:

1. The nature and circumstances of the offense and the history andcharacteristics of the defendant;

2. The need for the sentence imposed: (A) to reflect the seriousness of theoffense, to promote respect for the law, and to provide just punishment forthe offense; (B) to afford adequate deterrence to criminal conduct; (C) toprotect the public from further crimes of the defendant; and (D) to providethe defendant with needed educational or vocational training, medical care,or other correctional treatment in the most effective manner;

3. The kinds of sentences available;

4. The advisory guideline range;

5. Any pertinent policy statements issued by the Sentencing Commission;

6. The need to avoid unwarranted sentence disparities; and

7. The need to provide restitution to any victims of the offense.

18 U.S.C. 3553(a)(1)-(7); see also Booker, 543 U.S. at 224.

Although a court may impose a Guidelines-authorized downward departure in an

appropriate case, such downward departure is no longer required in order to justify a

below-Guidelines sentence. After Booker, a sentencing court need not find that a particular


23

Section 3553(a) factor is extraordinary or sufficient to take a case out of the heartland in order

to justify a below-Guidelines sentence. See Gall, 552 U.S. at 47; Rita, 551 U.S. at 351.

Moreover, even those factors that would not necessarily result in the granting of a

downward departure or that were expressly prohibited or deemed irrelevant by the Sentencing

Guidelines must now be considered under the mandate of 3553(a). See United States v. Jones,

531 F.3d 163, 182 (2d Cir. 2008) ([J]ust as we may not bar a district court from considering facts

simply because they were also considered by the Commission, the district court may not presume

the reasonableness of the Commissions Guidelines sentencing ranges. Rather, in every case, the

district court must make an individualized assessment of the appropriate sentence based on the

facts presented and the factors detailed in 3553(a). (citations omitted)); United States v. Smith,

445 F.3d 1, 5 (1st Cir. 2006) (That a factor is discouraged or forbidden under the Guidelines does

not automatically make it irrelevant when a court is weighing the statutory factors apart from the

Guidelines. The Guidelinesbeing advisoryare no longer decisive as to factors any more than as

to results.).

A non-Guidelines sentence is also warranted where a sentencing judge finds that a

particular Guideline or Guideline range fails to properly reflect 3553(a) considerations, reflects

unsound judgment or when the case warrants a different sentence regardless. Rita, 551 U.S.

at 351, 357. The Supreme Court clarified this point:

Even when a particular defendant . . . presents no special mitigating circumstances, such as no outstanding service to country or community, no unusually disadvantaged childhood, no overstated criminal history score, no post-offense rehabilitation, a sentencing court may vary downward from the advisory guideline range. . . . The only fact necessary to justify such a variance is the sentencing courts disagreement with the Guidelines . . . .


24

Spears v. United States, 555 U.S. 261, 263-64 (2009) (per curiam) (quoting United States v.

Spears, 533 F.3d 715, 719 (8th Cir. 2008) (Colloton, J., dissenting)); see also Peugh, 133 S. Ct. at

2080 (The district court may not presume that the Guidelines range is reasonable, and it may in

appropriate cases impose a non-Guidelines sentence based on disagreement with the [Sentencing]

Commissions views. (citation omitted)).

C. Section 3553(a) Factors

1. Mr. Jemals History and Characteristics

Under Section 3553(a), the court must consider the history and characteristics of the

defendant when imposing a sentence. 18 U.S.C. 3553(a)(1) (2006). As Judge Rakoff

explained:

[S]urely, if ever a man is to receive credit for the good he has done, and his immediate misconduct assessed in the context of his overall life hitherto, it should be at the moment of his sentencing, when his very future hangs in the balance. This elementary principle of weighing the good with the bad, which is basic to all the great religions, moral philosophies, and systems of justice, was plainly part of what Congress had in mind when it directed courts to consider, as a necessary sentencing factor, the history and characteristics of the defendant.

United States v. Adelson, 441 F. Supp. 2d 506, 513-514 (S.D.N.Y. 2006); accord Gall, 552 U.S.

at 52 (It has been uniform and constant in the federal judicial tradition for the sentencing judge

to consider every convicted person as an individual and every case as a unique study in the

human failings that sometimes mitigate, sometimes magnify, the crime and punishment to

ensue. (quoting Koon v. United States, 518 U.S. 81, 113 (1996)); see also 18 U.S.C. 3661;

U.S.S.G. 1B1.4 (sentencing court not limited with respect to the information concerning a

defendants background, character and conduct that it may consider for the purpose of imposing

an appropriate sentence).


25

Section 3553(a)(1) permits sentencing courts to consider a defendants life story when

fashioning a fair and just sentence, and Mr. Jemals background and history strongly support a

lenient sentence in this case. Mr. Jemal is a hardworking man who rose from humble roots to

achieve a significant degree of professional accomplishment. Notwithstanding his professional

success, Mr. Jemal has always cared for and shown great generosity to his friends, family and

members of the community. These qualities speak to his fundamental decency and his personal

integrity.

For comparison purposes only, given the restrictions included in the plea agreement, it is

useful to review other courts reasoning for downward departures from the Guidelines in cases

involving defendants who have performed exceptional good works. Indeed, such good works can

also be considered when analyzing a sentence under the 3553 factors. For instance, the

defendant in Canova served six years in the Marine Corps and seven years as a volunteer

firefighter. United States v. Canova, 412 F.3d 331, 358-59 (2d Cir. 2005). After noting that the

defendant had saved several people by administering CPR, the Second Circuit ruled that the

District Court properly relied on the exceptional degree of the defendants public service and

good works in granting a downward departure. Canova, 412 F.3d at 358-59. In Serafini, the

court affirmed a downward departure where many of the letters supporting Serafini, an elected

official, contain[ed] substantive descriptions of Serafinis generosity with his time as well as his

money. United States v. Serafini, 233 F.3d 758, 773 (3d Cir. 2000). Indeed, several

constituents and friends described situations in which Serafini extended himself to them in unique

and meaningful ways during times of serious need. Id. at 773. The Third Circuit specifically

noted three letters describing Serafinis good works: (1) a letter from a friend who sought and


26

received from Serafini a $300,000 guarantee to secure treatment for a family members brain

tumor; (2) a letter from Serafinis constituent who, having sustained serious injury in an accident

that rendered him incapacitated, was hired by Serafini and who credits Serafini with turning his

life around; and (3) a letter from a widow who approached Serafini because she was about to lose

her home and to whom Serafini gave a check for $750 with no expectation of repayment. Id. at

773-74. Finding that Serafini was an exceptionally giving person, the Third Circuit upheld the

District Courts downward departure for community and charitable activities. Id. at 774, 775.

Whether categorized as a downward departure or the basis for a non-Guidelines variance,

a life of extraordinary good works remains a vital factor for a sentencing court to consider. See

also United States v. Tomko, 562 F.3d 558, 572 (3d Cir. 2009) (affirming variance resulting in a

sentence of probation from a recommended range of imprisonment of between twelve and

eighteen months due largely to the defendants exceptional charitable acts and good works);

United States v. Thurston, 544 F.3d 22, 26 (1st Cir. 2008) (affirming a sentence of three months

incarceration and 24 months supervised release from a recommended guideline sentence of 60

months imprisonment based in part on the defendants charitable work, community service,

generosity with time, and spiritual support and assistance to others); United States v. Ali, 508 F.3d

136, 150 & n.19 (3d Cir 2007) (upholding downward departure where the defendant, inter alia,

helped organize fundraising banquets for the [school where she worked], contributed her

personal assistance from leading to scrubbing floors, spent several hours counseling and

comforting a students parent who was struggling to overcome drug-addiction, and became the

legal guardian to two nieces to ensure that they attended better schools. (record citation

omitted)); United States v. Cooper, 394 F.3d 172, 177, 178 (3d Cir. 2005) (noting that


27

[d]ownward departures for good works . . . are permissible when the works are exceptional, and

upholding the departure where the defendants good works included hands-on personal sacrifices,

which have had a dramatic and positive impact on the lives of others); United States v. Woods,

159 F.3d 1132, 1136 (8th Cir. 1998) (upholding defendants downward departure for charitable

activities, which included bringing two troubled young women into her home and paying for them

to attend a private high school, as well as helping to care for an elderly friend).

Tellingly, many of the courts that have addressed a defendants good works have

recognized that a defendants contribution of his time is even more valuable that his monetary

contributions. See, e.g., Tomko, 562 F.3d at 572 (describing how the defendants charitable acts

that involved not only money, but also his personal time.); Cooper, 394 F.3d at 177 (noting that

personal sacrifices are qualitatively different from the detached donation of money); Serafini,

233 F.3d at 775 (noting that Serafinis contributions werent acts of just giving money, they were

acts of giving time, of giving ones self). As reflected in the numerous letters quoted above,

Mr. Jemal possesses these same traits and has positively affected many lives both through

monetary gifts and the donation of his time and efforts.

Finally, Mr. Jemal pleaded guilty, accepted responsibility for his actions, and is sincerely

remorseful for his conduct. Throughout this case, neither Mr. Jemal nor his attorneys have ever

disputed Mr. Jemals guilt to the charge of bank fraud. Accordingly, we urge the Court to

consider the fact of Mr. Jemal acceptance of responsibility as well as the heartfelt contrition that

he has repeatedly stated to the Court, to counsel and to others, when deciding Mr. Jemals

sentence.


28

2. The Nature and Circumstances of Mr. Jemals Offense

As noted, 18 U.S.C. 3553(a)(1) requires the Court to consider the nature and

circumstances of the offense in determining an appropriate sentence. Without minimizing his

conduct in any way, we respectfully submit that an examination of Mr. Jemals conduct supports

a lenient sentence.

In 2007, Mr. Jemal founded the ENE Group. He obtained a valuable, and expensive,

licensing agreement from the Sharper Image. Mr. Jemal personally paid for the license and for

significant capital costs associated with establishing the business. He put everything he had

into the company with the hopes of rekindling his previous retail successes. Initially, the risk

paid off and ENE Group was a success, grossing over $10 million per year in revenue. The

growth of the ENE Group led the company to hire more than 25 employees and to seek out a

factoring arrangement with a bank well known in Marvins community, Israel Discount Bank

(IDB). IDB did not hesitate to finance Marvin due to his standing in the close-knit

community, the licensing agreement with the Sharper Image, and the early success of the ENE

Group. On August 18, 2008, ENE requested an increase in the factoring arrangement that IDB

readily granted.

In 2009, as the U.S. economy was reeling, the Sharper Image went bankrupt and

cancelled the ENE Groups licensing agreement. Business at the company took a significant

hit. Instead of laying off employees en masse and resorting to personal and corporate

bankruptcy protections, Mr. Jemal made the biggest mistake of his life. He drew down on his

credit arrangement based on invoices for products that had not shipped while aware that

shipment was a requirement of his agreement with the bank. This conduct was an


29

unquestionable and intentional violation the law. However, it is imperative to understand that

he did so with the unequivocal intention of paying the debt back once his business improved.

But in the ensuing months business did not improve, the funds were not repaid, and,

eventually, IDB discovered the shortfalls and confronted Marvin. What happened next

differentiates Mr. Jemal from many other of the defendants this Court likely encounters. Up

until his arrest in 2014, Mr. Jemal was in regular contact with IDB, through his attorneys,

attempting to right his wrongs. These efforts included: 1) Mr. Jemals cancellation of the credit

agreements $100,000 cap on his own liability resulting in his personal assumption of the full

amount of the debt (Ex. A); 2) Mr. Jemals arrangement for his wife and other family members

to make personal guaranties of the debt (Ex. B, C); 3) Mr. Jemals entry into a Forbearance

Agreement with IDB in which he, among other things, agreed to collect outstanding receivables,

sell all available inventory, and sell three family homes to settle the debt (Ex. D); and 4) Mr.

Jemals liquidation of the ENE Groups assets to pay down as much of the debt as he could. As

part of his plea agreement, Mr. Jemal has agreed to a consent forfeiture order in the amount of

the remainder of the outstanding debt, which the government has agreed to recommend be

remitted to IDB as restitution. A sentence of incarceration will limit significantly his ability to

make that restitution.

Mr. Jemals actions were an aberration in a long business life in which he has otherwise

always paid his lenders without incident. Before the events that led to his plea, Mr. Jemal was

always honest with and maintained positive relationships with his business partners, lenders and

customers. Since 1971, and over the course of his long business career, he was responsible for

the repayment of hundreds of millions of dollars in lines of credit, mortgages and other debt


30

facilities, all without issue. This history reflects Mr. Jemals true character, not the acts that

bring him before the Court. Prominent sports attorney and agent, David Falk, summarizes his

relationship with Marvin:

Over the past twenty-five years, I have maintained an ongoing business and personal relationship with Marvin. I came to respect him as an entrepreneur and businessman and had a high regard for his commitment to his family and his faith.

(Ex. 11, Letter of David Falk) Mr. Jemals criminal conduct in 2009 was brought about by desperation, the threat of ruin

and a desire to keep his business afloat and his workers employed. Since that conduct, Mr.

Jemal has taken responsibility for his actions and made every effort to make things right with

IDB. The conduct at issue in this case is a true aberration from his long-standing positive

relationships and history with multiple financial institutions across many business endeavors.

In sum, the nature and circumstances of the offense support a sentence well below the

stipulated Guidelines range, one that does not include a period of incarceration.

3. The Need to Protect the Public

One of the Section 3553 factors states that a sentencing court must consider is whether the

sentence imposed protects the public from further crimes of the defendant. 18 U.S.C.

3553(a)(2)(C). Given his otherwise good character, prior unblemished history and compliance

with the terms of his pretrial release, Mr. Jemal poses no risk of recidivism. The public would

be completely protected by a sentence of probation. Mr. Jemal is not in a position to commit

misconduct again, because: a) it is a virtual certainty that no bank would loan Mr. Jemal or any

entity with which he is associated any funds due to the his guilty plea; and b) as his statement of


31

contrition demonstrates, he well recognizes the criminal and wrongful conduct in which he

engaged.

Mr. Jemal is 61 years old, and the Sentencing Guidelines acknowledge that younger

defendants (defined as those in their early 20s or younger) pose a far greater risk of recidivism than

older defendants. See U.S.S.G. 4A1.3 cmt. background (2010); United States v. Lucania, 379

F. Supp. 2d 288, 298 (E.D.N.Y. 2005) (Sifton, J.) (stating that Section 3553(a)(2)(C) also requires

the Court to specifically consider the need for specific deterrence, that is to deter these particular

defendants from committing similar offenses in the future. Post-Booker courts have noted that

recidivism is markedly lower for older defendants. E.g., United States v. Eberhard, 03 CR. 562,

2005 WL 1384038 [S.D.N.Y. June 9, 2005]; United States v. Coleman, 370 F. Supp. 2d 661, 681

(S.D. Ohio 2005); Simon v. United States, 361 F. Supp. 2d 35, 48 (E.D.N.Y. 2005); United States

v. Hernandez, 03 CR. 1257, 2005 WL 1242344, at *5 (S.D.N.Y. May 24, 2005); United States v.

Carmona-Rodriguez, 04 CR 667, 2005 WL 840464, at *5 (S.D.N.Y. Apr. 11, 2005); United States

v. Nellum, 2:04-CR-30, 2005 WL 300073, at *3 (N.D. Ind. Feb. 3, 2005), affirmed in part,

vacated in part and remanded, sub nom., United States v. Cavera, 505 F.3d 216 (2d Cir. 2007),

opinion vacated on rehearing en canc and affirmed, 550 F.3d 180 (2d Cir 2008); see also United

States v. Ward, 814 F. Supp 23 , 24 (E.D. Va. 1993) (the length of time a person refrains from the

commission of crimes, which is invariably tied to a person's age, is a factor that is critical to a

court's determination of the sentence it should impose.).

Similarly, any chance of recidivism for the 61-year old Mr. Jemal, particularly due to the

aberrant nature of his conduct, is non-existent. See United States v. Carmona-Rodriguez, 2005

WL 840464, at *4 (S.D.N.Y. April 11, 2005) (Sweet, J.) (applying non-Guidelines sentence to


32

post-Booker sentencing, district court noted that [t]wo recent courts have declined to impose

Guidelines sentences on defendants who, like Carmona-Rodriguez, were over the age of forty on

the grounds that such defendants exhibit markedly lower rates of recidivism in comparison to

younger defendants. See Simon v. United States, 361 F.Supp.2d 35 [E.D.N.Y. 2005] [Sifton, J.]

[imposing a term of incarceration of 240 months on a 43-year-old defendant where the Guidelines

recommended a minimum of 324 months]; United States v. Nellum, 2005 WL 300073, at *3 [N.D.

Ind. Feb.3, 2005] [imposing a term of incarceration of 108 months on a 57 year-old defendant

where the Guidelines recommended a minimum of 168 months]).

This is a significant consideration. For, as the Court in Pepper noted, the likelihood that

[a convicted defendant] will engage in future criminal conduct...[is] a central factor that district

courts must assess when imposing sentence. See also 3553(a)(2)(B)-(C); Gall, 552 U.S. at

59...[.] 131 S.Ct. at 1242. Thus, because Congress has mandated that a sentencing court shall

impose a sentence sufficient, but not greater than necessary, to comply with the goals of

sentencing articulated in 18 U.S.C. 3553(a), a balancing of the equities in this case favors the

imposition of a probationary sentence. See also Pepper, 131 S.Ct. at 1240 (noting that [t]he

Sentencing Commission, moreover, expressly incorporated 3661 in the Guidelines: In

determining the sentence to impose within the guideline range, or whether a departure from the

Guidelines is warranted, the court may consider, without limitation, any information concerning

the background, character and conduct of the defendant, unless otherwise prohibited by law. See

18 U.S.C. 3661; USSG 1B1.4 (2010)) (emphasis added by the Supreme Court).

In sum, given the complete lack of any chance of recidivism in this case or need to protect

the public from Mr. Jemal, leniency at sentencing is warranted.


33

4. The Need for General Deterrence

Another 3553(a) factor is the need to afford adequate deterrence to criminal conduct.

The substantial penalties, punishments and collateral consequences Mr. Jemal faces under the

plea agreement and as a result of his felony conviction abrogate the need for deterrence through

incarceration. Mr. Jemal must pay significant restitution to the victim of this offense. He

faces an array of parallel proceedings that carry substantial consequence, including his ongoing

bankruptcy proceeding. Due to his criminal conviction, it will be difficult for Mr. Jemal to earn

a living or travel internationally for work.

A sentence that includes a term of incarceration would not serve as a deterrent to those

who might contemplate committing a similar crime. A potential offender need only look at the

financial and reputational punishments already suffered by Mr. Jemal to be deterred.

Accordingly, a prison term would not serve the goal of general deterrence.

5. The Need to Avoid Sentencing Disparities

Under 18 U.S.C. 3553(a)(6), courts must consider the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty of

similar conduct. A non-custodial sentence for Mr. Jemal would ensure that he is treated fairly.

As we have discussed throughout this memorandum, Mr. Jemal was involved in ongoing

negotiations with IDB in the five years subsequent to his conduct. Had he reached an

agreement with them prior to his arrest, it is highly unlikely that this case proceeds to the point

we find ourselves at now. Thus, under all of the circumstances, we respectfully submit a

non-custodial sentence would serve the traditional goals of sentencing.


34

6. Restitution

The need to provide restitution to any victims of the offense, 18 U.S.C. 3553(a)(7),

factor strongly suggests a non-custodial sentence is appropriate. Mr. Jemal, pursuant to his

agreed-upon forfeiture order, owes IDB more than $2,700,000 in restitution. A sentence of

incarceration will delay Mr. Jemals efforts to repay the debt he has been trying to make good on

for many years. A non-custodial sentence will allow him to immediately begin significant efforts

at repayment of this enormous judgment.



IV. CONCLUSION

Mr. Jemal's record of good works as well as his close family and community ties all argue

for leniency. The circumstances of his conduct, his age, and his lack of criminal history preclude

him from relapsing into the same conduct again. The collateral consequences of his actions and

his plea have already punished Mr. Jemal and his family immeasurably. Mr. Jemal has already

lost so much due to his mistakes that a non-custodial sentence is warranted, just and necessary to

punish him appropriately.

Dated: New York, New York October 21, 2014

Respectfully submitted,

By:

BRAFMAN & ASSOCIATES, P.C. Attorneys for Defendant Marvin Jemal 767 Third Avenue, 26th Floor New York, New York 10017 (212) 750-7800

Benjamin Brafman Joshua D. Kirshner

36

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

14 Cr. 117 (VEC)

_____________________________________


- against

MARVIN JEMAL

Defendant. _____________________________________

SENTENCING MEMORANDUM ON BEHALF OF MARVIN JEMAL

SENTENCING EXHIBITS

A-D BRAFMAN & ASSOCIATES, P.C. By: Benjamin Brafman, Esq.

Joshua D. Kirshner, Esq. Attorneys for Marvin Jemal

767 3rd Avenue, 26th FL New York, NY 10017 Tel: (212) 750-7800 Fax: (212) 750-3906

Case 1:14-cr-00117-VEC Document 19-1 Filed 10/21/14 Page 1 of 44

United States v. Marvin Jemal 14 CR. 117 (VEC) Sentencing Exhibits: A-D, 1-35

Exhibit A Jemal Amended And Restated Guaranty Exhibit B Sally Guaranty Exhibit C Jemal Guaranty Exhibit D Jemal Forbearance Agreement

Exhibit 1 Marvin Jemal Exhibit 2 Francine Benun Exhibit 3 Jack Benun Exhibit 4 Mark Benun Exhibit 5 Raymond Betesh Exhibit 6 Joseph Betesh Exhibit 7 Rabbi Joseph J. Beyda Exhibit 8 Jack Cohen Exhibit 9 Lorraine Cohen Exhibit 10 Joseph I. Douek Exhibit 11 David Falk Exhibit 12 Allyson Fallas Exhibit 13 Solomon M. Fallas Exhibit 14 Laurie Franco Exhibit 15 Ken Graham Exhibit 16 Robert Grossman Exhibit 17 Ralph Haber Exhibit 18 Jerry Harary Exhibit 19 Douglas Jemal Exhibit 20 Jennifer Jemal Exhibit 21 Lawrence Jemal Exhibit 22 Michael Jemal Exhibit 23 Paulette Jemal Exhibit 24 Robin Jemal Exhibit 25 Stephen S. Jemal Exhibit 26 Alan A. Maleh Exhibit 27 Isaac Mann Exhibit 28 Rabbi Azriel Mansour Exhibit 29 Jack Marcus Exhibit 30 Stewart Mitchell Exhibit 31 Bonnie Morano Exhibit 32 Irving Morano Exhibit 33 Samuel Morano Exhibit 34 Douglas Moss Exhibit 35 Charles Semah



EXHIBIT A


AMENDED AND RESTATED GUARANTY (Individual)

TO: Israel Discount Bank of New York IDB Factors Division 511 Fifth Avenue New York, New York 10017

Re: The ENE Group LLC (the "Client")

Ladies and Gentlemen:

November 25, 2009

Reference is made to a certain Factoring Agreement dated May 15, 2009 and each of the other related agreements, as amended from time to time (herein the "Agreements") between you and the above-named Client. The undersigned hereby unconditionally guarantees and agrees to be liable for the full and indefeasible payment and performance when due of all now existing and future indebtedness, obligations and liabilities of the Client to you, howsoever arising, whether direct or indirect, absolute or contingent, secured or unsecured, whether arising under any of the Agreements as now written or as amended or supplemented hereafter, or by operation of law or otherwise. The undersigned agrees to pay to you on demand the amount of all expenses (including reasonable attorneys' fees) incurred by you in collecting or attempting to

. collect any of the Client's obligations to you, whether from the Client, or from any other obligor, or from the undersigned, or in realizing upon any collateral; and agrees to pay any interest at the highest lawful rate on all amounts payable to you under the Agreements, even if such amount cannot be collected from the Client. (All of the aforementioned obligations, liabilities, expenses and interest are hereinafter collectively called the "Obligations"). To the extent you receive payment on account of the Obligations guaranteed hereby, which payment is thereafter set aside or required to be repaid by you in whole or .in part, then, to the extent of any sum not finally retained by you (regardless of whether such sum is recovered from you by the Client, its trustee, or any other party acting for, on behalf of or through the Client or its representative), the undersigned's obligation to you under this Guaranty, as amended, modified or supplemented, shall remain in full force and effect ( oi; be reinstated) until the undersigned have made payment to you therefor, which payment shall be.due upon dei:nand.

This Guaranty is executed as an inducement to you to make loans or advances to the Client or otherwise to extend credit or financial accommodations to the Client, or to enter into or continue the Agreements or other financing arrangement with the Client, and is executed in consideration of your doirig or having done any of the foregoing. The undersigned agrees that any of the foregoing shall be done or extended by you in your sole discretion, and shall be .deemed to _"have been done or extended by you in consideration of and in reliance upon the execution of this Guaranty, but that nothing herein shall obligate you to do any of the foregoing.

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Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit to the Client, the purchase or acquisition of receivables from the Client, the amendment, execution or termination of any of the Agreements or any other agreements between you and the Client, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Client or the undersigned may be entitled, and your reliance on this Guaranty are hereby waived. The undersigned also waive notice of: changes in terms or extensions of time of payment, the taking and releasing of collateral or guarantees (including the release of any of the undersigned) and the settlement, compromise or release of any Obligations, and agree that, as to each of the undersigned, the amount of the Obligations shall not be diminished by any of the foregoing. The undersigned also agree that you need not attempt to collect any Obligations from the Client or other obligors or to realize upon any collateral, but may require the undersigned to make immediate payment of Obligations to you when due or at any time thereafter. You shall not be liable for failure to collect Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you be under any obligation to take any action whatsoev~r with regard thereto.

This. Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceabi'li'ty of any of the Obligatiop~ or the fact that a security interest or lien in aD:y c9Uateral or security therefor may not be enfo~?e.abl, by yo1i or may othefWise be subject' to equities or defenses or pri0r claims in favor of 9tbers or may be invalid or defective in any way and f


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the undersigned, or should any of the undersigned dissolve or cease its business, call a meeting of its creditors, fail to meet its debts as they mature, commit an act of bankruptcy, have commenced by or against the undersigned any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law, then the liability of all of the undersigned for the entire Obligations shall mature even if the liability of the Client therefor does not.

This Guaranty may be terminated, which termination will be effective ninety (90) days after actual receipt by one of your officers of written notice of termination sent by registered or certified mail; provided, however, that the undersigned so terminating this Guaranty shall remain bound hereunder, . and this Guaranty shall continue in full force and effect, with respect to any and all Obligations created or arising prior to the effective date of such termination and with respect to any and all extensions, renewals or modifications of said pre-existing Obligations. Termination shall not relieve the undersigned from liability for any post termination collection expenses or interest. This . is a continuing Guaranty and written notice as above provided shall be the only means of termination, notwithstanding the fact that for certain periods of time there may be no Obligations_ owing to you by the Client.

Your books and recprds;shpwing the account between you and the Client shall be admissible in evide~ce iri .- .. :


UNDERSIGNED ON ANY MATTERS WHATSOEVER ARISfNG OUT OF OR fN ANY WAY CONNECTED WITH THIS GUARANTY OR THE RELATIONSHIP CREA TED HEREBY.

When used in this Guaranty all pronouns shall, wherever applicable, be deemed to include the plural as well as the masculine and feminine gender. This Guaranty shall inure to the benefit of you, your successors and assigns and any parent, subsidiary or affiliate of yours, as well as to any concern which you may now or hereafter factor or finance; shall be. binding jointly and severally upon the undersigned and upon the respective heirs, executors, administrators, successors and assigns of each of the undersigned; and shall pertain to the Client and its successors and assigns. This Guaranty may be executed in any number of counterparts, each of which when so executed shall be deemed an original and such counterparts shall, together, constitute but one and the same document.

If claim is ever made upon you for repayment or recovery of any amount or amounts received by you in payment of or on account of any of the Obligations and you repay all or part of said amount by reason of (a) any judgment, decree,. or order of any Court or administrative body having jurisdiction over you or any of your property, or (b) any settlement or compromise of any such claim effected by you with any such claimant (including the Client), then and in such event the undersigned agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the undersigned, notwithstanding any revocation or release hereof or the cancellation of any note or other instrument evidencing any of the Obligations, or any release of any such Obligations, and the undersigned shall each be and remain liable to you as if such amount had never originally been received by you. The provisions of this paragraph shall survive, and continue in effect, notwithstanding any termination or release hereof.

Anyone signing this Guaranty shall be bound hereby, whether or not anyone else signs this Guaranty at any time. The term "you" includes any agent acting for you. .

This Guaranty amends, restates, 4ersedes and replaces in its entirety, without a break in continuity, that certain Guaranty (Indiiv d al) d ted March 27, 2009 executed by the undersigned in favor of Israel Discount Bank ofj 1 e Yor ~ actors Division, as heretofore amended, restated, renewed, extended, supplemrt , d subS! tuted or therwise modified.

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ast 5th Street yn, New York.11223

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STATE ) )ss:

COUNTY OF )

On the 25th day of November in the year 2009, before me, the undersigned, a notary public in and for said state, personally appeared MARVIN JEMAL, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s) , or the person upon behalf of which the individual(s) acted, executed the instrument.

14468423

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MARTIN SILVERSTEIN P blic State ot New Yo ri\

Notary u No.' 4696011 Qualified ln ~ass~y Co~bt~009

Commission Expires ov. '

5


Cet c:o. S'NCOC002930 ww1,._, 1sc.org

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EXHIBITB


GUARANTY (Individual)

TO: Israel Discount Bank of New York IDB Factors Division 511 Fifth Avenue New York, New York 10017

Re: The ENE Group LLC (the "Client")

Ladies and Gentlemen:

November 25, 2009

Reference is made to a certain Factorin,g Agreement dated May 15, 2009 and each of the.: ot;her rel~ted . agi;eeme1}ts, as amended from time to time (herein the "Agreements") hetWeen you and the abov:e-named Cl:ient. The undersigned hereby.unC0uditioually guarantees and .~gree.s,, t0 be lfa:~.ie fqr ~4e full and indefeasibl~ payment and perform~nce when due of all rtow exi'sting 1

, .

. . ' .. -


Notice of acceptance of this Guaranty, the making of loans or advances, or the extension of credit to the Client, the purchase or acquisition of receivables from the Client, the amendment, execution or tennination of any of the Agreements or any other agreements between you and the Client, and presentment, demand, protest, notice of protest, notice of non-payment and all other notices to which the Client or the undersigned may be entitled, and your reliance on this Guaranty are hereby waived. The undersigned also waive notice of: changes in terms or extensions of time of payment, the taking and releasing of collateral or guarantees (including the release of any of the undersigned) and the settlement, compromise or release of any Obligations, and agree that, as to each of the undersigned, the amount of the Obligations shall not be diminished by any of the foregoing. The undersigned also agree that you need not attempt to collect any Obligations from the Client or other obligors or to realize upon any collateral, but may require the undersigned to make immediate payment of Obligations to you when due or at any time thereafter. You shall not be liable for failure to collect Obligations or to realize upon any collateral or security therefor, or any part thereof, or for any delay in so doing, nor shall you be under any obligation to take any action whatsoever with regard thereto.

This Guaranty is absolute, unconditional and continuing, regardless of the validity, regularity or enforceability of any of the Obligations or the fact that a security interest or lien in any collateral or security therefor may not be enforceable by you or may otherwise be subject to equities or defenses or prior claims in favor of others or may be invalid or defective in any way and for any reason, i~cludihg any action, 'or failure to act, on your part. The liability of the undersigned under this Guaranty shall be unaffected by the death of any of the undersigned. Payment by the-undersigned shall be made to you at your office from time to time on demand as Obligations become due, and one or more successive or concurrent actions may be brought hereon against the undersigned either in the same action in which the Client is sued or in separate actions. In the event any claim or action, or action on any judgment, based on this Guaranty, is made or brought against the undersigned, the undersigned agrees not to assert against you any

set~off or counterclaim which the Client may have, and further the undersigned agrees not to deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or may be owed by you to the undersigned, or for any loss of contribution from any other gt.iarantor.

Furthermore, in any litigation based on the Guaranty in which you and the undersigned shall be adverse parties, the undersigned hereby waives the right to interpose any defense based upon any Statute of Limitations or any claim of laches and waive the performance of each and every condition precedent to which the undersigned might otherwise be entitled by law.

( All sums at any time to the credit of the undersigned and any property of the

undersigned on which you at any time have a lien or security interest, or of which you at any time have possession, shall secure payment and performance of all Obligations and any and all other obligations of the undersigned to you however arising. The undersigned shall have no right of subrogation, indemnification or recourse to any Obligations or collateral or guarantees therefor, or to any assets of the Client.

In the event of any breach of, default under or termination of any of the Agreements between you and the Client, or in the everi.t that the undersigned shall fail to observe or perforin any agreements, warranties, or covenants contained herein, or on the death of any of

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the undersigned, or should any of the undersigned dissolve or cease its business, call a meeting of its creditors, fail to meet its debts as they mature, commit an act of bankruptcy, have commenced by or against the undersigned any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law, then the liability of all of the undersigned for the entire Obligations shall mature even if the liability of the Client therefor does not.

This Guaranty may be terminated, which termination will be effective ninety (90) days after actual receipt by one of your officers of written notice of termination sent by registered or certified mail; provided, however, that the undersigned so terminating this Guaranty shall remain bound hereunder, and this Guaranty shall continue in full force and effect, with respect to any and all Obligations created or arising prior to the effective date of such termination and with respect to any and all extensions, renewals or modifications of said pre-existing Obligations. Termination shall not relieve the undersigned from liability for any post termination collection expenses or interest. This is a continuing Guaranty and written notice as above provided shall be the only means of termination, notwithstanding the fact that for certain periods of time there may be no Obligations owing to you by the Client.

Your books and records showing the account between you and the. Client shall be admis~ible _in .ev.idece in ariy action or proceeding as prima facie proof of the items therein set forth. . Your monthly.' s:t~t~~eo..ts reJJ.dered to the Client shall be binding upon the undersigned

' - !, - ,1 (whether 0r no't _the undetsigrie


UNDERSIGNED ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS GUARANTY OR THE . R

Documents

USA v Marvin Jemal - Sentencing Memorandum on Behalf of Marvin Jemal