efraim diveroli: 1-3-11 sentencing hearing transcript, diveroli

8/18/2019 Efraim Diveroli: 1-3-11 Sentencing Hearing Transcript, Diveroli

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISIONCASE NO. 08-20574-CRIMINAL-LENARD

UNITED STATES OF AMERICA, Miami, Florida

Plaintiff, January 3, 2011

vs. 4:53 p.m. to 7:10 p.m.

EFRAIM DIVEROLI and AEY, INC.,

Defendants. Pages 1 to 70______________________________________________________________

SENTENCING HEARINGHELD BEFORE THE HONORABLE JOAN A. LENARD,

UNITED STATES DISTRICT JUDGE

APPEARANCES:

FOR THE GOVERNMENT: ELOISA FERNANDEZ, ESQ., andFRANK TAMEN, ESQ.ASSISTANT UNITED STATES ATTORNEYS

99 Northeast Fourth StreetMiami, Florida 33132

FOR THE DEFENDANT HOWARD SREBNICK, ESQ.,EFRAIM DIVEROLI: BLACK, SREBNICK, KORNSPAN & STUMPF, PA

201 South Biscayne BoulevardSuite 1300Miami, Florida 33131

-and-CYNTHIA HAWKINS, ESQ.150 North Orange Avenue, Suite 414Orlando, Florida 32801

FOR THE DEFENDANT HY SHAPIRO, ESQ., andAEY, INC.: MARKO CERENKO, ESQ.

HOGAN, GREER & SHAPIRO2400 South Dixie HighwaySuite 200Miami, Florida 33133

Case 1:08-cr-20574-JAL Document 1052 Entered on FLSD Docket 01/10/2011 Page 1 of 70


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FOR US PROBATION: SARA GARCIA

REPORTED BY: LISA EDWARDS, CRR, RMROfficial Court Reporter400 North Miami AvenueTwelfth FloorMiami, Florida 33128(305) 523-5499



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THE COURT: Good afternoon. You may be seated.

United States of America versus AEY Inc., and Efraim

Diveroli, Case No. 08-20574.

Good afternoon, counsel and Probation.

State your appearances, please, for the record.

MS. FERNANDEZ: Good afternoon, your Honor.

Eloisa Fernandez and Frank Tamen on behalf of the

United States, along with Special Agent Bob Koons.

THE COURT: Good afternoon.

MR. SREBNICK: Good afternoon, Judge.

Howard Srebnick on behalf of Efraim Diveroli; Hy

Shapiro on behalf of AEY, Inc. Also with us, Attorney Marko

Cerenko, Attorney Cynthia Hawkins, who represented Mr. Diveroli

in the Orlando matter.

THE COURT: Good afternoon.

MR. SHAPIRO: Good afternoon.

THE COURT: Mr. Diveroli is present.

THE PROBATION OFFICER: Good afternoon, your Honor.

Sara Garcia with probation.

THE COURT: Good afternoon. And Happy New Year to

everyone.

We are here for the sentencing of both the corporation

AEY, Inc. -- and does Mr. Diveroli also represent the

corporation, Mr. Shapiro? --

MR. SHAPIRO: Yes, your Honor.



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Probation Office not to grant the --

THE COURT: All right. Well, I'm going to let

Mr. Srebnick make his argument in regard to acceptance of

responsibility.

Mr. Srebnick, go ahead.

MR. SREBNICK: Good afternoon, Judge.

I'd like to present for the Court's consideration

Mr. Diveroli himself; his psychologist, Dr. Strumwasser; Rabbi

Sholom Lipsker; and his uncle, Rabbi Shmuley Boteach, to

comment on Mr. Diveroli's acceptance of responsibility not only

for the crime for which he stands before you, but for the

lifestyle that he has chosen to live up to today.

And if we could begin, then, by having Mr. Diveroli

himself address the Court, if that would be acceptable to your

Honor, and he approach the podium.

THE COURT: He can stay right there.

MR. SREBNICK: As you wish.

Would you like him to stand, Judge?

THE COURT: No. That's fine. He can remain seated.

THE DEFENDANT: With your permission, I'm going to

read from my notes.

Your Honor, thank you very much for allowing me to

speak for a few moments.

I can quite honestly say that, after five months of

incarceration, they've been very eye-opening for me. I can



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finally begin to appreciate the devastating effect that my

selfish actions have caused upon me and my family.

My young brothers, my sister, who looked up to me so

much, I now realize that, instead of the big brother taking

them bowling or out to eat, they'll be forced to visit me in a

federal prison.

And my beautiful mother, my biggest fan, my father and

the rest of my extended family -- there are no good words to

express how truly and deeply sorry I am for dragging them

through the hell that has been my life the last three years.

And to think it was all for a little bit of money, which I

didn't deserve or need, is even more shameful.

It is clear to me that, in prison, you are nobody.

And whatever material success I may have enjoyed on the

outside, it is completely meaningless in here.

In here, I'm just another convict, a number, an

embarrassment to my family and my community, so much so that,

when the occasional prison guard looks at my paperwork and

says, "Wow, how did you get such a large contract with the

Army?", I have no answer.

But I think about how hard I worked and how devoted I

was to winning that contract, performing on it and not failing,

to prove to myself and my family that I could be a success.

I had choices to make. More than once, more than

twice, I made the wrong choice. I chose to ignore the



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direction of the State Department when I asked about the

legality of shipping Chinese ammo. I chose to take possession

of a firearm in Orlando even though I knew I shouldn't have.

I can blame alcohol. I can blame drugs. I can blame

other additions of mine. But after five months in prison, I

can only blame myself.

I say this because now I've begun to realize that

business success, although once everything to me, doesn't hold

a candle next to me being back with my family, my religion.

I'd like to apologize and, at the same time, say thank

you to Dr. Strumwasser, Rabbi Lipsker and my attorneys, who I

know tried their absolute best to intervene in my life as best

they possibly could in the past few years regardless of how

frustrating and fruitless their efforts may have seemed.

Finally, I would like to apologize to the Court and

the Government for consuming so much of your time and

resources. Although it was never my intention to harm the

US Army financially or otherwise, I certainly could have done

things differently.

Thank you.

MR. SREBNICK: Your Honor, I'd like to turn the podium

over for the moment to Mr. Shapiro for some comments he would

like to make on this subject.

MR. SHAPIRO: Your Honor, may I stand at the podium?

THE COURT: Sure.



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MR. SHAPIRO: Thank you, your Honor.

Your Honor, AEY, through its president, Mr. Diveroli,

and Mr. Diveroli individually has fully cooperated with the

Government and, indeed, accepted responsibility for his

actions.

He met on no less than 25 occasions with the agents

from the United States Government who were investigating this

case after he entered his plea.

He spent hundreds of hours with them going over

evidence, going over e-mails, going over information that he

was going to provide and was prepared to provide at the trial

of Mr. Merrill.

He explained how, as a 21-year-old president, he was

able to secure a 300-million-dollar contract and how he gained

employment from the United States Government to help the United

States Government build the Afghan National Army.

He went on fedbizops on a computer and found that the

Government was soliciting bids for this overwhelmingly large

contract.

He told the Government how many hours he worked and

how hard it was to put together all of the munitions that were

needed in order to satisfy this contract and to win it.

He told the Government how he traveled to multiple

countries -- to Albania, to Germany, to France, to the United

Kingdom, to Yugoslavia, to Bulgaria, to Montenegro, to



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Slovakia, to Hungary, to Ukraine, Romania and the Czech

Republic -- in order to secure the ammo that the Government was

seeking in this contract.

He told the Government how he was able to secure the

various task orders that were required. It is Task Order 2,

your Honor, that I've always found to be most amazing in the

two years of my representation of AEY and Mr. Diveroli, where

Mr. Diveroli was asked to secure and to deliver to Afghanistan

over 100 million rounds of AK-47 ammunition, over 550 grenade

launchers with HE impact, over 550,000 HE bounding grenade

launchers, 16,200,000 ball ammunition.

He talked to the Government and he told the Government

how he was able to contact foreign governments and to be able

to secure those arms for delivery.

And he told them how he first found out that the

ammunition that he was sending from Albania was Chinese.

Originally, it was Albanian-manufactured ammunition, but the

Albanians ran out of that ammunition and, instead, he learned

from Mr. Podrizki that the ammunition was Chinese.

He sent e-mails, as your Honor knows, to the State

Department to find out whether or not it was permissible. Your

Honor is aware of the response. They told him it was not.

He had two choices to make: the right one or the

wrong one. And, unfortunately, he chose the wrong one and he

decided to send the Chinese ammunition. He told the Government



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how that came about. And he chose to violate the law, and he

admitted that to the Government.

But Mr. Diveroli did not want to fail. He did not

want to disappoint. He didn't want to fail himself. He didn't

want to fail his friends. He didn't want to fail in being able

to provide what the Government had asked him.

He also told the Government about the involvement of

Co-Defendants Podrizki, Packouz and Mr. Merrill. And, in fact,

your Honor, he was prepared to testify at Mr. Merrill's trial,

despite the arrest in Orlando.

And, your Honor, but for that arrest in Orlando, I

believe we would be standing here discussing what the

appropriate sentence for a 5K1 or a Rule 35 would be.

Instead, Mr. Diveroli made the wrong decision.

Unfortunately, he got arrested again in Orlando. But he was

prepared to cooperate.

So I suggest to you, your Honor, that AEY, its

president, and Mr. Diveroli have cooperated fully and have

accepted responsibility for what he's charged with today.

Thank you.

MR. SREBNICK: And so, your Honor, it is clear that,

with respect to the instant offense for which he stands before

the Court, Mr. Diveroli has acknowledged his responsibility,

pled guilty, cooperated. But for his subsequent arrest and now

his plea in the Orlando case, there would be little doubt that



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he would qualify for acceptance.

And so this is the rare case where we're going to ask

the Court that, notwithstanding a subsequent act which violated

the law, the holding of a gun brought to this meeting in

Orlando by an undercover agent and Mr. Diveroli takes

possession of it and, therefore, violates the law, that the

Court nevertheless award him the acceptance.

And we'd like the Court to hear for a few moments and

we would request that it be at side-bar, if possible, from

Dr. Steve Strumwasser regarding Paragraphs 67 through 81 of the

PSI which documents mental health and substance abuse issues.

It would seem to me that, since the PSI is

confidential and since those matters are deemed confidential,

that we address them at side-bar, of course, with the

Government present. If that would be acceptable to the Court,

I would request permission to approach with Dr. Strumwasser and

the Government counsel.

THE COURT: What's the Government's position?

MS. FERNANDEZ: Your Honor, with respect to these

paragraphs, I thought most of this became part of the public

hearing before Judge Turnoff on the Defendant's prior violation

of conditions of release, unless it's something specifically

new.

MR. SREBNICK: There are some family issues that we

think are best addressed in private, Judge.



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THE COURT: Well, how does this all relate to

acceptance of responsibility?

MR. SREBNICK: I think Dr. Strumwasser, who worked

with Mr. Diveroli for two-plus years, could explain to the

Court, in his professional opinion and that of the other

doctors he's collaborated with, the kind of struggle that

Mr. Diveroli day in and day out has to overcome to accept

responsibility for his own addictions and his own mental health

issues and how it makes it infinitely more challenging for

someone with his condition to manage his own conduct and

behavior.

And it's certainly Mr. Diveroli's failure to manage

his behavior while out on bond that will be the linchpin in

depriving Mr. Diveroli of the acceptance-of-responsibility

adjustment, and it is for that reason that I would ask that the

Court hear from Dr. Strumwasser, for what it's worth, as to his

view of the Mr. Diveroli that sits before the Court today in

2011 versus the Mr. Diveroli he's been working with for over

two and a half years to try to help Mr. Diveroli manage these

very difficult circumstances in terms of addiction and mental

health issues.

THE COURT: I will grant the request to have this

matter heard in a sealed portion of this hearing.

I don't want to do it side-bar. It really makes it

much too difficult for Lisa on an extended basis for her to be



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able to get everything down. It's just not the ideal way.

So I'm going to order the courtroom to be sealed at

this time except for the Defendant, his counsel and the

Government counsel and the witness.

MR. SREBNICK: I think with that --

THE COURT: The courtroom is now sealed.

(Whereupon, certain sealed proceedings were held and

have been filed under separate cover.)

(Whereupon, the courtroom was duly unsealed and the

follow proceedings were had in open court:)

THE COURT: Yes, Mr. Srebnick. Go ahead.

MR. SREBNICK: Judge, I think the question posed

regarding why Mr. Diveroli, while on bond, would put his bond

at risk and sentence at risk is the question. I agree.

I'd like to just have Ms. Hawkins, who represented him

in Orlando, address the Court very briefly right from there

just so she can answer a question or two and address the Court.

MS. HAWKINS: May it please the Court: My name is

Cynthia Hawkins. I'm a criminal defense lawyer in Orlando.

Before that, I was an AUSA for 20 years plus in the

Orlando office in the Middle District.

I represent Mr. Diveroli in the case that occurred in

the Middle District, and I think I have some information that

would assist the Court in this -- in the determination of the

acceptance of responsibility issue as to what happened there



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and why he would be involved in an offense while he was out on

bond.

In that case, it was an undercover sting case and

there were many recordings made. I've listened to every minute

of every one of them.

And during the case, as it unfolded, the undercover

agent asked Mr. Diveroli to do several things which

Mr. Diveroli declined to do. This was an ongoing situation for

a couple of months.

For instance, he asked Mr. Diveroli to import

something which might be an ITAR violation. Mr. Diveroli

declined to do that.

What Mr. Diveroli was trying to do was to sell

magazines for weapons, not -- ammunition, not weapons, but a

magazine, which is -- which would be legal for him to do

because it's not a federal firearm.

He says on the tapes to the undercover agent many,

many times, "I don't have a license. I don't want to do

anything illegal. I've been arrested at gunpoint and I never

want to go through that again. I want to do everything

100 percent right. It's not worth it. I don't want to risk

it."

Eventually -- but the calls were continuous.

Eventually, Mr. Diveroli agreed to come up to Orlando. But

before that, on the phone, on the tapes -- and I have excerpts



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of it, if anybody would -- wants to hear them.

But as an officer of the Court, I tell the Court that

he says on there, "I cannot leave. I can't go further north

than Ft. Pierce. I'm circumscribed by matters in the Southern

District."

And the agent said, "If you don't come up here" --

this is a 10-million-dollar deal -- you're not going to get the

deal."

He's tried to abide by the bond, your Honor, but he

was persuaded to leave. That was wrong and he knew it was

wrong. But he did leave after being encouraged to do so by the

agent.

Now, he also says, when he comes to the Middle

District, the night before he had a conversation with the

undercover agent who said, "Why don't you bring some guns," you

know, "Bring some guns, some ammunition."

And Mr. Diveroli says, "I'm coming up there to do this

business deal about the magazines. I'm not coming up here to

play with toys."

And he comes to the Middle District and the agent says

to him, "Did you bring any guns?"

And Mr. Diveroli says, "No, I didn't." And he didn't.

The agent said, "Oh, no problem. I did."

So Mr. Diveroli also had his -- one of the guys that

worked for him bring some ammunition and then they purchased



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some more ammunition that day.

Mr. Diveroli was trying to do the deal with the

magazines. That was his primary mission. But he did bring

ammunition to play with the toys, to shoot the guns, because

that's what he thought the agent wanted him to do.

So he did -- as I explained, he did take

responsibility because he did possess the ammunition. But that

wasn't what he was trying to do, your Honor. He was not trying

to sell ammunition to the undercover officer.

He had set up a corporation after consulting with

attorneys, which I've verified, and they told him that he would

be able to be a consultant, but that he could not really

control the business.

And that's where he crossed the line. He did have

control over the business that had the ammunition. That's why

he pled guilty.

But I just wanted the Court to know that he was trying

to do a legal deal. And he did do something illegal, and he

accepted responsibility for it. But that wasn't his primary

mission.

And it took a couple of months to get him to come up

there and do it. And he did pick up two of the weapons and

look at them and put them down and walk away from them. But he

would have fired them, I think.

So he's accepted responsibility for that.



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He sat down with the agents and ATF. He has

cooperated with them. He's cooperated with them, to some

extent, in a way that could be dangerous for him as to other

inmates, et cetera, that were violent.

He's given any information that they want. He's

agreed to forfeit ammunition that has been seized by the

Government, and I've been in negotiations with them to do that.

From the minute that we sat down with the Government,

he agreed to plead. He pled to an information because he said,

"No. You don't even need to indict me." He waived indictment.

So, your Honor, I think that -- when the doctor said

"easily lured," I kind of wrote that down on my pad. He was

not entrapped. There was not an entrapment. It's a strict

liability offense.

But he was manipulated and he did the wrong thing. He

had already -- took responsibility for that. I just wanted the

Court to know that it wasn't something he set out to do.

MR. SREBNICK: With that context and understanding

that -- from a personal level, I did everything I could to

encourage Mr. Diveroli while he was out on bond to change his

focus, because his focus has always been on how to make a buck,

always trying to prove that he could be a success; and he

didn't define success the way he should have.

On that point, someone who can speak to that much

better than I can is his spiritual advisor, Rabbi Lipsker, who



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has talked to Efraim about regret, remorse, what the definition

of "success" is.

I would invite him to come forward, if the Court would

hear from him, to comment on the evolving Efraim Diveroli.

THE COURT: I will hear from the Rabbi.

RABBI LIPSKER: Good afternoon.

THE COURT: Good afternoon, Rabbi.

RABBI LIPSKER: It's always a very awesome

responsibility to be in this environment.

I find, usually, that to really find a balance between

the spiritual, moral, human elements sometimes and the legal

obligations that are thrust upon us in a positive manner is not

always the easiest thing.

Just to give you some clarity about my relationship

with Mr. Diveroli, I've met with him on many occasions, regular

meetings, and have actually sent some of our rabbis to work

with him regularly for approximately two and a half years.

In the almost 30 years of working in the prison

environment with men and women that are facing these

difficulties, it's the first time I said to a defendant, "You

need to go to jail," because for multiple reasons of his own

environment, his own background, he chose a path that was

driven by other than the most noble causes.

You might have some kind of an excuse where you define

insanity in a certain fashion. Most geniuses have some element



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of that, out-of-the-box feelings and thinking.

Efraim is one of those. Brilliant person. A mind

that far exceeded his maturity and extroversion that came from

a deep sense of lack of security, deep sense of insecurity, of

lack of personal pride. He had to prove himself, had to always

be the loudest voice, the biggest partier, the flashiest guy.

It came easy to him.

The evil factors that dwell in our animal souls and

our animal instincts many times are much more powerful than the

spiritual factors that have to come to us through a lot of work

in exercising that extraordinary human concept of intellect,

being able to have control over emotions.

And the basic foundations of cognitive psychology and

thinking, that tape recorder that continues to play in our

inner beings, that starts playing from the time we were born

and maybe before that, we often just react to it like an

autonomous system without knowing that we can change the tape.

He didn't think he could change the tape. He didn't

even think about it.

THE COURT: He probably didn't want to change the

tape.

RABBI LIPSKER: It's true. He didn't want to change

the tape. He was having too much fun, and luck was going his

way. He always was just on the other side of the unlucky

moment.



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Mr. Diveroli has enormous capacity. He's a man with a

great heart, a great soul, and corrupt behavior.

The worst thing in his life -- I don't know if I

should be so blunt, but I told Mr. Diveroli that I will -- he

told me one day, "You know, Rabbi, if you could keep me out of

jail, I'll give you a million dollars."

I said, "You know, Efraim, just for saying that, I

want you to go to jail because you've got it all wrong. It's

not about that. It's about life. It's about being productive.

God gave you a gift. Use it in the right way."

THE COURT: Let me ask you a question, Rabbi.

You have seen him since he's been in jail?

RABBI LIPSKER: Yes.

THE COURT: And what have you observed as far as a

change or a lack of change in Mr. Diveroli?

RABBI LIPSKER: Three elements that I find to be

extremely fundamental in the human behavior patterns is

arrogance, selfishness, hedonistic pleasure principles, power,

jealousy and always thinking, "The other guy's wrong. I'll

make it happen. I can get it done. I can throw enough money

at him," et cetera, or her or whatever.

What I was looking for throughout the two and a half

years, I finally saw it. And I said to him -- the first time I

saw him in jail, I said, "I'm not going to go talk on your

behalf." I said, "This is an extremely honorable and



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well-intentioned judge who knows the work of Aleph. I'm not

going to jeopardize her credibility because of someone like

you. Unless I see some change, I'm not going to come and do

anything for you."

We talked for a while. I said, "Talk is not enough.

I want you to write me a letter."

He wrote me a letter, and I saw him again. For the

first time in two and a half years, I saw three things:

acknowledgement, real acknowledgement.

Everybody comes in here and says "I'm sorry" because,

if you don't say "I'm sorry," you're going to get hit a lot

harder than if you do say "I'm sorry." Everybody knows that.

So he was going to come in and say "I'm sorry."

I said, "That's not enough."

I saw the fact that he was cognizant, he was aware, of

the destruction. More than what he brought upon his family,

it's what he brought upon himself.

Sometimes when God gives you a gift and you not only

squander it, but continue to destroy it -- I said, "What right

do you have to have a good mind? You should be some kind of an

idiot and put away somewhere because your good mind can be used

to better society or to destroy society. You can be a

Tubalcain that creates armaments for destruction or you can be

his brother that becomes a shepherd of history."

I believe he can. So the first thing was



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acknowledgement.

The second thing I saw was humility. I told his

attorney when he came out -- I said, "You know, I think he

still thinks he can fool some people, but he was humble." He

felt a sense that he's not that all-powerful person.

And the third thing was a serious commitment, in my

eyes, of change.

Now, the reason I'm speaking on his behalf -- and I

know these five months to him was worse than purgatory. It was

going to be the worst thing.

My son was one of my assistants whom I assigned to

work with Mr. Diveroli and went to visit him in Orlando. He

came back, my son. He said, "Ta," he said, "I didn't believe

what I saw. This is a broken person."

To him, prison was the ultimate negative. Trapped.

Captured like a common criminal, which he was, and is. He did

wrong things.

When I saw the fact that he had a serious desire for

change -- and I made a list in Hebrew. It'll only take me a

minute because I'll just translate it quickly.

Five levels of remorse and repentance:

acknowledgement to know that you did it, just to acknowledge

that you did it. Remorse. Acceptance of responsibility. A

commitment never to do it again. And to be confronted with the

same circumstances and not to do it. Those are the five



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levels.

I said it must be domination of your negative forces.

The answer is "no." The heart says "yes." The head says

"Don't do it." It's like the Jewish myths of tefillin. That's

why we put on tefillin, because the head should control the

heart.

Transformation, where the mind controls the heart.

Naturally, our natural instinct is, "Give me, give me, I want"

from the time a child is born. I said, "You're no different

than anyone."

And when that is not answered in a healthy way, which,

in some instances -- I suppose it was discussed earlier; it may

not have been -- the physical desires become enormous and

overwhelming.

When they start to be fed, it's not drug addiction.

It's not alcohol addiction. It's not sex addiction. It's not

food addiction. It's just addiction for everything. You just

need more and more and it's never satisfactory.

The capacity to know that you can change, that you

have the potential to be good, requires a tremendous effort, an

effort that sometimes it's easier to be in prison than to put

forth that effort. I've had that experience as well.

I believe that we can save this person. I'm a rabbi,

but we're not talking about saving the Jew for Jewishness.

We're talking about saving a person for humanity.



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I think he needs to spend a little bit more time in

prison. But five years? There is a diminishing return, in my

experience. After a certain period of time, instead of the

benefits, you start becoming a prison person. You start

wanting to excel in that environment.

You know, he got tested. There were sting programs.

We say every morning in our prayer, "Lord, our God, do not

bring me to test. Don't test me."

It's said that a repented person who had a problem

with morality should not walk down a street of prostitution

because you don't want to awaken those factors until the person

is healthy enough.

I would ask your Honor, in understanding these

elements from many perspectives -- the last time I was in this

court I talked on behalf of a person with a diminished mental

capacity.

Today we talk about a person with a diminished

disciplinary capacity, enormous mental capacity. He should

spend some more time in prison.

I think it should be to the extent where he can -- I'm

sorry. I should not -- I don't know if I can or should. But

it should be -- in my opinion, if a person spends a couple of

years in jail -- for him, that could transform him.

Aleph would have our people in the prisons on a

regular basis, working with them. Because we're working -- we



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work across the country, not only in New York, not only in

Florida, but I suppose he would be in Florida.

And when he comes out, to impose a very serious,

strong period of probation -- parole, probation that would

include enormous responsibilities, house arrest, halfway house

where he can be productive, the various types of counseling

elements that we would participate in.

I believe -- and I would not say this by

decredibilizing Aleph for myself -- and I will tell you we

didn't get a million dollars from him nor would we accept it.

It's not within that range. It's about human beings.

I believe that we can come back here in five years

from now with an example and say we saved this person, this

productive person of society.

If I can be of any help or my organization can be of

any help, we're here to do so.

Thank you very much.

THE COURT: Thank you, Rabbi.

MR. SREBNICK: Judge, the last person that I'd ask to

address the Court is another rabbi who is his family member,

Shmuley Boteach.

I'd ask him to come forward.

He can tell you a little bit about himself. But he's

the brother of Efraim 's mother. He's Efraim's mother's

brother.



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THE COURT REPORTER: Pleas spell your name for the

record.

RABBI BOTEACH: Rabbi Shmuley, S-h-m-u-l-e-y. Second

name B-o-t-e-a-c-h.

Thank you, your Honor, for allowing me to take a few

precious moments of the Court.

And with your permission, if you would not mind, I

would like to thank Rabbi Lipsker, who began to influence me

when I was a boy of 8, after my parents divorced.

In my own state of brokenness, he used to mesmerize me

with stories of great men and noble action and, but for the

grace of God, where I might have been had I not been exposed to

the incredible work of Chabad in this city, which I later

joined.

You're a true hero of the Jewish people, showing love

to those who others and society rejects, and I salute you.

Your Honor, I come before you today with pain and

humility, pain in seeing my own nephew in such a fallen and

disgraced state, humility because I am someone who, since my

own parents divorced, has devoted himself to attempting to

rescue families in crisis.

I broadcast a national show trying to help families

who are in pain. I -- and radio. I've written many books on

relationships. And, therefore, humility and acknowledging my

own impotence and my own failure at having helped a member of



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my own family.

Indeed, many loving professional and personal

counselors have advised me not to be here today, saying it

would damage my credibility.

But Efraim is my nephew. He's my flesh and blood. I

love him and I will never abandon him because, above all else,

I believe in family and I believe in values.

There have been several victims to Efraim's crime.

Foremost among them is the American military, which is

particularly excruciating, because I have trained my kids to

walk over to every person wearing the uniform and thank them

for their service.

I'm the father of six daughters and three sons. I was

raised by a single mother. I have two sisters that are single

mothers. And to see the work of the military in Afghanistan,

especially, the theater of war with which this case is

involved, and to see how these -- how Afghani women are saved

by the brave men and women of the military from being

brutalized by men is, in my opinion, God's work. And the fact

that my nephew could have deceived the military is particularly

shameful.

But there's another victim that has been overlooked, I

believe, and that is my sister and her children. We are five

kids. My mother raised us after she divorced. My father was

3,000 miles away. My sister was always the most selfless and



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noble of the entire family.

She is known as a saint in the community here in Miami

Beach. On February the 6th, she will be honored by AMIT, an

organization that raises money for orphan children in Israel.

Three or four times a week she goes to take care of an

elderly couple that live a block away from her who are

childless. The man has Alzheimer's and often does not

recognize his own wife. She has to go and stop them from

fighting. She cooks for them. She cleans for them. She takes

them to their hospital appointments.

When Efraim started making money, she was contemptuous

of his success. All she ever wanted was for him to be, in her

words, a mensch. She wanted him to honor the Sabbath. She

wanted him to be respectful to his elders. She wanted him to

lead a religious and spiritual life.

She has been devastated beyond description by his

actions. I cannot tell you about the infinite phone calls she

made to me to try to influence my nephew and all the people

around, which begs the question: In such a moral environment

where we were raised by my mother, who is here today, to

always -- to never be greedy, to always live righteously, to

love our Judaism and to love God and to love all of God's

children, whatever color, whatever ethnicity, each and every

one of us still today has 30 or 40 guests for the Sabbath

dinner -- how could Efraim have done this? That's the



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question.

I can't claim to be able to answer that, but I do

believe my response and any insight I could offer has a

directed bearing on the decision you will make today, your

Honor.

When my sister and Efraim's father married, Efraim's

father found it very difficult to support his family. He went

through perhaps 20 jobs in 10 years.

So when my brother finally offered him a job in

Government contracts in order to give him a life of dignity and

allow him to support his family in dignity and Efraim later

joined and started showing a phenomenal business acumen, I

believe that -- and I do not wish to be critical -- that, to an

extent, his father and perhaps others began to live vicariously

through his success.

No one stopped his excess. His mother used to badger

him and berate him constantly to be better. She never cared

for any of his success.

But he was allowed to get away with it, to an extent,

and given very little guidance when he was 16, 17. He was a

millionaire by 18. No one cared about his success. He had a

rocket strapped to his back with absolutely zero moral

guidance.

When some of us tried to correct him and tell him, as

Rabbi Lipsker expressed so nobly and as even Efraim's dedicated



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lawyers, like Howard, just said, that success must be defined

by other things, he looked down at us who were less successful

than him as people who could not offer him moral guidance. He

was smarter than everyone.

This is why I believe, your Honor, if I can plead

before you for leniency, this is the key that has changed.

There's a famous Jewish expression that says that the

difference between the wise man and the clever man is that the

clever man can extricate himself from situations into which the

wise man would never have gotten himself into.

My nephew has discovered today that he is neither

clever nor wise, certainly not wise. He never discerned the

consequences of his actions. But he always believed he could

get out of anything he got into.

He always believed, if he threw enough money at a

problem, his army of lawyers, very dedicated to him, who were

even like father figures to him, that they would rescue him.

And today here we sit. All the king's horses and men cannot

save him from the sentence you will impose.

I have never seen him as broken. I do not see the

criminal justice system as anything today, sincerely stated,

but angels of mercy who have saved my nephew from

self-annihilation.

But I fear, your Honor, that this moment that we've

been waiting for for him to really get it -- and I saw a man



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broken to the core yesterday.

He spoke to me very movingly about how in jail he now

sees that life doesn't go anywhere, it's utterly stagnant, that

one must relinquish ambition, you become utterly anonymous. He

wanted to make himself something and he went the exact opposite

direction.

I fear that, if the sentence -- and please forgive me,

because I'm not accustomed to these situations. But if it's

excessive, your Honor, we will snuff out the light of a bright

soul who might, as Rabbi Lipsker said, be able to truly

contribute. He's very bright. He's very smart.

He will come back to a family that is extremely

close-knit. I have nine children. They are praying for him,

saying psalms right now. They know that I'm speaking before

you.

My son is 17 and studying to be a rabbi in Germany. I

have two daughters in Israel, studying at seminaries. They

love him. All his cousins love him. His mother is one of the

most moral people around. His father prays at Rabbi Lipsker's

synagogue.

He will come into a moral environment with an open

heart so we can really begin to influence him. He has

stonewalled us until now.

And I'm not saying that we're not also responsible.

There are things that my family must begin to address. And I



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say it to all of them gathered here today. We are very moral

people, but we must discipline our children.

If you'll forgive me, your Honor, there's one thing I

discovered in marital counseling, that very often -- and my

sister really is a saint. I say that sincerely, having watched

her actions throughout my life.

But I've seen that, when a woman is in a very lonely

and unloving marriage, she finds it difficult to be as tough as

she should with her own children because they become her source

of affection. They become the only thing that she has left,

and she's afraid to bite the hand that feeds her. I think that

existed early in Efraim's life.

I also ask you to please consider, your Honor, the

extreme youth. At the time that this was committed, I believe,

21 when he started with the contract, he was barely allowed to

buy a beer. He was doing contracts none of us even knew. This

is startling, that at that age he was doing business this big.

He had a rocket strapped to his back with absolutely no

guidance system.

And, finally, I'm asking you to please consider my

nephews and nieces, Efraim's siblings. The one thing that

Efraim always was a loving brother. He always showed

tremendous affection to his younger siblings.

There were other acts of kindness that just came to my

attention. Outside a man walked over to me and said to me, "I



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needed a job. I couldn't support my family and Efraim came and

offered me a job."

There is goodness in him. He has an open heart. I

don't want my sister to be -- life to be destroyed by him

sitting for so many years where the entire family is revolving

around going to prison visits.

We'd like to teach him the beauty of the Jewish faith,

of Jewish values. Yes. He was raised with it. Yes. He

rejected it. That is all true.

Unfortunately, he needed to hit rock bottom. He

cannot sink any lower. He has lost everything he has. He has

shamed us. He has disgraced himself. He has lost all of his

money. He has lost his very freedom.

Thank you for considering my petition for leniency,

your Honor.

May God bless you.

MR. SREBNICK: Your Honor, that is all the testimony

on the issue of acceptance.

I know it's a bit novel of an approach we've taken.

But I think you've heard not only from Efraim, the acceptance

of responsibility from him, but, frankly, I think the entire

community is trying to do everything they can to help Efraim

reach that awakening that is so important.

And I will say that, on this point, your Honor said

something today that I can't help but being reminded of. It



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would have been the best thing that happened to Efraim had he

gone to jail right when he got arrested the first time.

And Mr. Shapiro and I advised him that that would be

the best course for him. But, of course, as his counsel, we

take -- we can't tell our client to go to jail and ask the

Court to take him to jail if that's not his request.

And I think he knows, sitting here today, that he'd

have been much better off. He would have been able to

successfully complete his cooperation. He would be here today

on a 5K, not on a quarrel over two points for acceptance of

responsibility.

Having said that, Judge, I do believe in this unusual

circumstance, given his mental health issues, substance abuse

issues, the other issues that you've heard from the fact that

he's pled in both cases, that whatever punishment is coming to

him in Orlando will be meted out by the Judge there.

I do think that today, January 3rd, 2011, that

Mr. Diveroli, after five months in prison, has reached that

point of awakening of acknowledgement, of acceptance, not only

for responsibility for the crimes he stands committed, but for

a wasted existence.

And I've told him that. And he knows that. And we've

met in prison very recently. And he knows he's been a total

waste. His ability to finally acknowledge that, in my view,

deserves some adjustment.



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Unless Mr. Shapiro wants to add to my comments, I

think that's all we have on this point.

THE COURT: Let me hear from the Government.

MS. FERNANDEZ: Your Honor, with respect to the

acceptance of responsibility, we ask the Court to focus on two

primary issues.

First of all, in looking back, from the time that this

Defendant was released on bond, there's a pattern of continuous

violations of his conditions of release.

Even after those conditions were modified back in

October of '09 in front of Judge Turnoff, this Defendant once

again stood in front of that Court and said, "I recognize what

the conditions of my release are. I will not make another

mistake. I will abide by the law."

And even as he was --

THE COURT: What had happened before Judge Turnoff?

Remind me.

MS. FERNANDEZ: Your Honor, before Judge Turnoff,

there had been a positive testing of cocaine in September of

'09 by the Defendant. There had been a number of failure to

reports.

And so, while the Defendant again -- and he had the

assistance of a number of these experts and clinical

psychologists all throughout who came forward and said, "If we

give the Defendant another chance and have an opportunity to



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increase the number of psychiatric visits, the number of

Alcoholics Anonymous visits, we believe we can help him."

He was given a chance then. And without the

Government even knowing, as he was meeting with the Government,

he was violating conditions of his release.

I bring that to the Court's attention because, in

looking back, it appears as a total disregard for the law. And

that has been the pattern that we have seen from Mr. Diveroli.

He's had the assistance of many professionals, many

loved ones, oftentimes to deal with the same issues that many

of the Defendants that this Court sentences has to deal with:

Substance abuse issues, mental health issues and broken homes.

There's nothing unusual about any of that.

But what is striking is that there's a continuous

pattern to disregard the law.

And I guess the climax of that is, again, this

Orlando, the new offense, which the Court, I'm sure, has seen

the description in the PSI as well as we moved to revoke his

bond, illustrates the number -- the continuous phone calls,

engaging -- and the Defendant finally admitting and knowing

that he had no way he could have been involved in that kind of

conduct. He had to find other ways to evade the law.

And that's been the pattern that we've seen.

I submit to you that, under 3E1.1 and the notes that

accompanied that acceptance of responsibility section, there's



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two bases for not granting that acceptance, number one, the

failure to voluntarily terminate or withdraw from criminal

conduct.

And I would submit that the rehabilitative efforts

that many have tried to provide for the last two and a half

years to this Defendant have not been successful to that end

because there's continuous evasion and disregard for the law.

THE COURT: What was the second provision? You

mentioned, one --

MS. FERNANDEZ: Post-rehabilitative efforts.

THE COURT: Oh, okay.

Well, I will tell you that, while the Doctor was

testifying in the sealed hearing, Mr. Srebnick referred to it,

the one thing that I stated, which was exactly what Rabbi

Lipsker said: He had to go to jail. He needed to go to jail.

He had to be in jail.

It's unfortunate. First of all, it's unfortunate that

he was involved in all this, unfortunate that, while he was out

on bond, he was not able to realize either the seriousness of

the conduct that he had been involved in or have the ability to

make some change in his life and accept responsibility at that

time.

And as Mr. Srebnick said, it is unfortunate that

Mr. Diveroli now stands before the Court to be sentenced

without giving himself the opportunity for -- I don't believe



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the Government intends to bring forth a motion for substantial

assistance, while, in fact, that had been contemplated.

I know he was on the witness list and they made some

changes in the presentation of their case twice, two times, in

the case against Ralph Merrill.

But having heard from the psychologist who testified

and the rabbis who have been involved with Mr. Diveroli and

spiritually advised him and the statements that Mr. Diveroli

has now stated, which -- I think he himself said, "I'm in jail

now. I have so limited my existence. I am in denial of

everything." That's what jail is. We deny everything.

Under 3E1.1, the Court is to determine whether a

defendant qualifies under Subsection (a), which is clear

demonstration of acceptance of responsibility.

And there are appropriate considerations that the

Court is to consider, including, but not limited to -- and some

of that is voluntary termination or withdrawal from criminal

conduct.

As far as post-offense rehabilitation and counseling,

I think it's been made very clear from everybody who has spoken

here today that Mr. Diveroli was not able to see himself for

what he was until he was in jail. As sad as that is, he had to

be there. He's not the first Defendant that I've seen stand

before me who had to be there.

In fact, I recently got a holiday card from a



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defendant who I put in jail who said to me, "Thank you. Thank

you so much for putting me in jail" -- it's the most unusual

holiday card I have ever received -- "because you changed my

life. I changed my life because of what you did."

And I think now that Mr. Diveroli, now that he is in

jail, is accepting responsibility.

So in the exercise of my discretion, in considering

all of the factors under 3E1.1, I am going to grant him the two

levels for acceptance of responsibility.

I would say that he chose a very difficult road to

receive these two levels. But I do believe that, given his

mental health status and given the way he was and the way he

now is in jail, that being in prison has forced him to really

look at himself for maybe the first time in his life.

And I do believe that people can change and they can

realize things about themselves for the better and become

better people.

Now, that is not to say that I am not going to

exercise my duty and punish Mr. Diveroli for the acts he

committed.

But I do believe and I do find that he is entitled to

the two levels off for acceptance of responsibility because, as

now sits before me, I find that he has accepted responsibility.

So I will order that the advisory presentence

investigation report be modified to reflect two levels off for



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acceptance of responsibility under 3E1.1.

Is that the only objection that you have,

Mr. Srebnick?

MR. SREBNICK: One moment. I need to consult with

Mr. Shapiro.

THE COURT: The corporation received two levels.

MR. SREBNICK: I was just consulting with the

Government because, frankly, I confess ignorance on the

application of that third level.

THE COURT: That's the Government's choice.

MR. SREBNICK: And I understand from them that we

won't be receiving their motion on that.

THE COURT: One cannot be surprised.

MR. SREBNICK: So with that, Judge, we understand that

the guideline would be reduced by two levels.

THE COURT: Right.

Are there any other objections? I'm going to review

everything with you. Any other objections?

MR. SREBNICK: No other objections for the guidelines.

THE COURT: The Court will adopt the factual findings

and guideline applications as contained in the revised advisory

presentence investigation report as modified at this hearing.

Before going further, I would ask counsel to review

with me, with the assistance of Probation, the major

calculations contained in the advisory presentence



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investigation report as modified.

The offense level is now a 24; the criminal history

category remains at Roman numeral I; the advisory guideline

range is now 51 to 60 months.

THE PROBATION OFFICER: Yes, your Honor.

THE COURT: Because the statutory maximum is

60 months. The advisory guideline range is actually 51 to 63.

But the statutory maximum is 60.

The supervised release period is still two to three

years.

How does the potential fine change?

THE PROBATION OFFICER: The fine range is now 10,000

to 100,000, your Honor.

THE COURT: 10,000 to 100,000-dollar fine.

Restitution in the amount of $149,279.28. And

$100 special assessment.

Is that correct in its totality as it relates to

Efraim Diveroli?

MR. SREBNICK: I believe that's a correct computation,

Judge.

THE COURT: Do you agree, Ms. Fernandez?

MS. FERNANDEZ: Yes, your Honor.

THE COURT: Mr. Diveroli, you are in court today to

receive your sentence. Before that happens, I must ask you if

there's any legal cause as to why the sentence of the law



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should not be pronounced upon you.

THE DEFENDANT: No, your Honor.

THE COURT: No legal cause having been shown, the

Court will consider whatever you may wish to say in mitigation.

Mr. Srebnick?

MR. SREBNICK: Thank you, Judge. One moment.

Judge, I need to address one housekeeping matter

because that might affect the final sentence.

I did discuss this with the Government.

The Court, because Mr. Diveroli violated his bond,

ultimately revoked his bond in December. It's Docket

Entries 1001, 1002. And according to the docket sheet, it was

on December 7 of 2010.

Because Mr. Diveroli was on bond, my concern is that

we clarify whether Mr. Diveroli will get credit for time served

from the point of his arrest, August 19, 2010, when he was

incarcerated in Orlando.

And so that it is clear, if the Court were to make the

order of December 7, 2010, nunc pro tunc to the date of his

arrest, meaning it's effective as of the date of his arrest,

then I'm confident that, in computing his time, the Bureau of

Prisons would give him credit for all the time beginning on the

day of his arrest, August 19, 2010, in the Orlando matter.

Failing that, there may be significant confusion over

whether or not he gets credit for that time served because,



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technically, he was on bond in your case until your Honor

entered the revocation.

So that's a concern I have. I don't know if it's

going to affect your decision in terms of how much more time

you had in your mind to give him.

But the request I would make -- I think there's no

objection -- is that the Court make that order of revocation

effective -- I think the Latin phrase nunc pro tunc --

THE COURT: I'm familiar with the phrase.

MR. SREBNICK: I know that. I thought the audience

might not be and they think I'm speaking in gibberish here. I

have a few people listening in behind me.

THE COURT: What's the Government's position?

MS. FERNANDEZ: Your Honor, we have no objection.

We would typically just have Bureau of Prisons

calculate time for -- credit for time served. He's been

incarcerated since the arrest in Orlando.

THE COURT: Normally, they do -- the Bureau of Prisons

calculates that.

I will amend -- what are the docket entries, please,

again?

MR. SREBNICK: By my record, it's 1001. And I see

another one, 1002.

Thank you, Judge.

THE COURT: Let me make sure.



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MR. SREBNICK: Judge, I just spoke to Ms. Fernandez.

If the Court would prefer, we can conclude the sentencing and

then clarify that, making sure we reference the correct --

THE COURT: I'm almost there. Just wait a minute.

They are Docket Entries 1001 and 1002, granting the

motions -- Docket Entries 953 and 954, motions to revoke bond.

I will make them nunc pro tunc.

What was the date of the arrest in Orlando?

August 19th?

MR. SHAPIRO: Yes.

THE COURT: August 19th.

MR. SREBNICK: Ms. Fernandez notes Docket Entry 1040,

I believe, the arrest warrant, to the extent that that's

relevant. I'm not sure.

THE COURT: I'm not going to make any changes in the

arrest warrant. I will make my orders nunc pro tunc to

August 19th.

MR. SREBNICK: Thank you.

THE COURT: We'll enter a docket entry as to that.

MR. SREBNICK: Thank you, Judge.

So where we stand now, Judge, given the Court's

finding, under the findings of the Court, the guideline range

would be 51 to 60.

Had Mr. Diveroli not found himself in trouble in

Orlando and gotten the full credit for acceptance, he would be



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at 46 months, which is one level lower.

Under the plea agreement, counsel is not allowed to

request any departures or variances. Nevertheless, I would

like the Court to hear from Mr. Diveroli's mom, who would like

to address the Court.

At this time I would introduce Ateret Diveroli.

THE COURT REPORTER: And please spell your first name

for the record.

MS. DIVEROLI: A-t-e-r-e-t.

THE COURT REPORTER: Thank you.

MS. DIVEROLI: Hi, Judge Lenard. My name is Ateret

Diveroli. I'm Efraim's mother.

And Efraim -- you know, ever since Efraim was young, I

always taught him to be an upstanding citizen. To me, that was

the most important thing. And he knows better than anyone that

his mother and his family were all upstanding citizens of the

community for many years.

In fact, I've worked downtown, the Seybold Building,

which is two blocks from here, for over -- almost 30 years

already. We have a very good name, a good reputation. We are

a very close-knit family. And Efraim knows that that was the

most important thing.

And when Efraim got these Government contracts, they

never meant anything to us in the family. We didn't even know

what kind of money he's making. The family never benefited



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from anything.

And not only that, but I also -- Efraim was -- I knew

he was doing alcohol, drugs, gambling. I even called your

office once because I'm not familiar with -- you know, nobody

in our family has ever gone to prison. I wasn't familiar with

the ropes. So I called your office because he was gambling and

drinking and I needed help.

I wanted him to go to jail. And I know every time I

say that he hates me for saying it, but I love my son more than

anything in the world. And he needed to go to jail. Okay? I

felt like a lucky person. I can sleep at night because I know

I have my son with me and he's okay.

And I just want to say that, you know, I took him

to -- many times, I was in and out of the courthouse so many

times for his alcohol and drug use.

And my sister went with me to the Hard Rock to pull

him out. You don't know what it was to pull him out of Hard

Rock one night. I went back the next day and made him sign his

name to not gamble anymore.

Your Honor, you know, like, I understand the

Government's point of view. Efraim did something illegal he

shouldn't have done. You're 100 percent right. But when they

say he got counseling, he really didn't get what he needed.

You know, he was still in the same neighborhood with

the same friends, the same -- nothing really changed. He



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needed to go away for at least a year, 18 months.

He had so many alcohol and drug and gambling issues,

he couldn't be where he was, you know. And then he got

involved with his lawyers and the case and he couldn't leave in

the middle.

And he never got what he needed, believe me. He never

got it. And that's why he got back to Orlando, because Efraim

never -- his issues were never addressed. They weren't

addressed correctly.

And believe me, I tried. I was hoping the Marchman

Act would put him in jail, but it didn't. They kept giving him

another chance, another chance. And, believe me, like I said,

I feel lucky that my son -- that I have my son.

But on the other hand, your Honor, I see how Efraim --

when I go to visit him now, how he's talking differently, how

he sees things differently. He's finally able to be out,

looking in. He wasn't able to do that before.

And he finally realized all those people which he gave

up his family for are not really his friends. Okay? Not one

of them have come to visit him since he's been in jail. His

family are the only ones. And thank God for my family, who

have been there to support me through all this.

And I just think that, as little as -- you can be

lenient with his prison time because Efraim really is a good

boy with a good heart and he really needs another chance. I



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know, with another chance, he can -- he could really be a good

member of society.

He comes -- you know, I believe in the old cliche:

The apple doesn't fall far from the tree. Efraim has a very

nice, upstanding family, and I know he can be the same way. I

know that, if he's given the chance, he has the opportunity to

be that way.

Thank you.

MR. SREBNICK: Having to follow Rabbis Lipsker and

Boteach is not easy as a lawyer, and certainly having to hear

the heartache of his mother.

I remember when Efraim got arrested in August and

there were all these "I told you so's" going on because we all

were worried about him.

And, finally, his mom called me and -- and, of course,

you heard the suffering in this woman's voice. And over the

telephone, we had a conversation. She was just distraught.

And I said to Ateret -- I said, "Let me ask you,

Ateret. Tonight is August 19th. Your son has been arrested.

Tell me, if I had the power to get him out tonight, would you

want him to come home tonight?"

And a mother who can say to me, "No. No. I'd rather

just tonight that my son spend the night in jail," not because

she's angry at him or -- it's because she loves him and she

knew that he needed the brakes put on him.



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And Ateret and I struck a deal. I said, "Let's talk

once a week. Next week I'm going to ask you the same

question."

And each week we've had the conversation: "Is Efraim

ready to come home? Has he gotten to the point where it's time

to come home?"

And so now we're having that conversation in January

of 2011, and we all know today's not the day that Efraim is

going to come home. We know that.

We don't think he's going to come home in 2011. But

as Rabbi Lipsker pointed out, there comes a point of

diminishing returns, when another day in jail becomes a wasted

day in jail, a waste for him as an individual and a waste for

us as taxpayers.

And so we leave it to your wisdom, Judge. You've got

much more experience than any of us, more than Rabbis Lipsker

and Boteach, more than Hy Shapiro, who's got a lot of

experience and a few more gray hairs than I do.

And he knows I say that with a lot of love.

But we ask you to find: Where is that point where

hope turns into despair? Where is the sentence where it goes

from Efraim looking forward to going back to his family with

hope versus looking at life with despair?

And given what you've heard about him, the potential

he has, we ask you to find that point for us so that his life



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will be better and so that we can have Efraim back with clarity

of thought, healthy and productive.

Thank you, Judge.

THE COURT: Mr. Diveroli, is there something you wish

to say, sir?

THE DEFENDANT: I think I've already said my piece,

your Honor.

The last thing I would say is that some people in my

position, you know, who've had the experience that I've had --

and I, also, for my short life have had many. I mean, I've

probably done more things than most people would dream of -- I

would have done it differently. I really would have done it

differently.

I would have just -- the money, the -- almost

notoriety in my industry and the good times -- and there were

some -- were not -- no way could ever be worth the suffering

that I've endured and that my family has endured as a result of

my actions.

And I have nothing else to say.

Thank you.

THE COURT: What does the Government say?

MS. FERNANDEZ: Your Honor, we ask that the Court

consider the seriousness of this offense and sentence the

Defendant within the revised advisory guideline range.

THE COURT: If you would, stand with your client.



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Come March of this year, I will have sat on this bench

for 15 years. From day one until that day, and going forward,

sentencing has always been the hardest part of my job. Today

is no different.

I certainly did hear the anguish of an uncle, who sees

his flesh and blood acting in a way that he knew was wrong and

would not consider his guidance or his love.

And I did hear the anguish of a mother who, in fact,

in a conversation with her attorney -- her son's attorney,

said, "Today was an okay day, a good day, for my son to be in

jail."

Sentencing is always very sad because there are so

many victims. Certainly the family of Efraim Diveroli are

victims here. As his uncle stated, certainly the United States

Army and its assistance to the Afghani National Army and Police

is a victim. And certainly the fact that this Defendant was

willing to put all of those persons in the theater of war in

peril for his own greed: They were victims, also.

And putting aside for the moment, as it is not my duty

today to sentence Mr. Diveroli on the basis of any outrage or

concern that all of us, as citizens, must have in the

Department of Defense granting a 290-million-dollar contract to

a 19-year-old -- or 20-year-old, who in a contract -- and I've

heard this case twice; so, I'm very familiar with the facts of

this case -- in a contract in which the compelling



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determination for the granting of such contract was prior

experience, where Mr. Diveroli and others lied to obtain that

contract -- they lied about their prior experience. They lied

about their references. They lied about AEY. But that is for

another day and for

efraim diveroli: 1-3-11 sentencing hearing transcript, diveroli

Documents