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IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA,
v.
MARY BOLAN,
Defendant.
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Case No.: 8:05-CR-342-T-24TGW
MOTION FOR DOWNWARD DEPARTURE AND MEMORANDUM OF LAW IN
SUPPORT OF MITIGATING FACTORS
RICHARD ESCOBAR, Esquire
Florida Bar No. 375179
Escobar, Ramirez & Associates, P.A.
2917 West Kennedy Boulevard, Suite 100
Tampa, Florida 33609
Tel: (813) 875-5100
Fax: (813) 877-6590
Email: [email protected]
ATTORNEY FOR MARY BOLAN
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TABLE OF CONTENT
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.
FACTORS TO BE CONSIDERED IN IMPOSING A SENTENCE,
18 U.S.C. §3553(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A.
B.
C.
D.
History and Characteristics of Ms. Bolan,
18 U.S.C. §3553(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.
Extraordinary Family Situation and Responsibilities . . . . . . . . . . . . . 3
2.
Standing in Community Before Offenses and Lack of Any Prior
Criminal History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Nature and Circumstances of the Offense,
18 U.S.C. §3553(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.
Ms. Bolan’s Minimal Role in the Offense . . . . . . . . . . . . . . . . . . . . . . . 4
2.
Todd Kolbe's Role in the Offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Consideration of the Advisory Federal Sentencing Guidelines
and Pertinent Guidelines Policy Statements:
18 U.S.C. §3553(a)(4) and (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.
Calculation of “Loss” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.
Advisory Sentencing Guidelines Overstate Scope and
Seriousness of Ms. Bolan’s Role in the Offense . . . . . . . . . . . . . . . . . . 13
3.
Specific Offense Characteristics - Sophisticated Means, U.S.S.G.
Section 2B1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.
Minimal Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.
Downward Departure is Appropriate Due to Collateral Punishment
Already Suffered by Ms. Bolan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.
Downward Departure should be applied due to Ms. Bolan’s minuscule
personal gain when compared to that of Todd Kolbe and other
conspirators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Avoiding Sentence Disparities Between Ms. Bolan’s Sentence and the
Sentence of other Conspirators
18 U.S.C. § 3553(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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I.
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INTRODUCTION
Comes now, the defendant Mary Bolan, by and through undersigned counsel, and files
this her motion for downward departure from the application of the advisory sentencing
guidelines. We ask the Court to depart downward from the advisory sentencing guidelines range
for various reasons discussed below and/or to fashion a reasonable sentence that overrides the
guidelines advisory sentence to a term of probation or home detention or a combination of both
probation and home detention. As grounds for the above, the undersigned would show as
follows:
II.
FACTORS TO BE CONSIDERED IN IMPOSING A SENTENCE
18 U.S.C. § 3553(a)
The court in imposing a just and reasonable sentence must first apply Title 18 U.S.C. §
3553 to the facts and circumstances of the defendant’s conduct in the underlying offense.
The Court shall impose a sentence sufficient, but not greater than necessary, to
comply with the purposes set forth in paragraph (2) of this subsection. The court,
in determining the particular sentence to be imposed shall consider:
1.
2.
3.
4.
The nature and circumstances of the offense and the history and
characteristics of the defendant;
The need for the sentence imposed . . .
A.
to reflect the seriousness of the offense, to promote respect for th
elaw, and to provide just punishment for the offense;
B.
to afford adequate deterrence to criminal conduct;
C.
to protect the public from further crimes of the defendant; and
D.
to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner;
The kinds of sentences available;
The kinds of sentence and the sentencing range established for. . .
A.
the applicable category of offense committed by the applicable
category of defendant as set forth in the guidelines . . .
(i)
issued by the Sentencing Commission pursuant to section
994(a)(1) of title 28, United State Code, subject to any
amendments made to such guidelines by act of Congress
(regardless of whether such amendments have yet to be
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5.
6.
7.
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incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title 28; and
(ii)
that, except as provided in section 3742(g), are in effect on
the date the defendant is sentenced; or
B.
in the case of a violation of probation or supervised release, the
applicable guidelines or policy statements issued by the Sentencing
Commission pursuant to section 994(a)(3) of title 28, United States
Code, taking into account any amendments made to such
guidelines or policy statements by act of Congress (regardless of
whether such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued under section
994(p) of title 28);
Any pertinent policy statement . . .
A.
issued by the Sentencing Commission pursuant to section 994(a)(2)
of title 28, United States Code, subject to any amendments made to
such policy statement by act of Congress (regardless of whether
such amendments have yet to be incorporated by the Sentencing
Commission into amendments issued under section 994(p) of title
28); and
B.
that, except as provided in section 3742(g), is in effect on the date
the defendant is sentenced.
The need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct; and
The need to provide restitution to any victims of the offense.
After the Supreme Court’s decision in United States v. Booker, 125 S.Ct. 738, (2005), the
Guidelines are no longer mandatory. The sentencing judge remains obliged to “consult” and
“take into account” the guidelines in sentencing. “After it has made this calculation, the district
court may impose a more severe or more lenient sentence as long as the sentence is “reasonable”.
United States v. Williams, 435 F.3d 1350, 1353, (11th Cir. 2006).
In United States v. Hunt, 459 F.3d 1180, (11th Cir. 2006), the Eleventh Circuit Court of
Appeals recognized that the guidelines are but one factor among many to be considered in
fashioning a fair and reasonable sentence. The Court reasoned that:
There are, however, many instances where the guidelines range will not yield a
reasonable sentence...Booker’s remedial solution makes it possible for courts to impose
non-guideline sentences that override the guidelines, subject only to the ultimate
requirement of reasonableness. If Booker is to mean anything, it must be that district
courts are obligated to impose a reasonable sentence regardless of the Guidelines range,
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so long as the Guidelines have been considered. Thus, a district court's determination that
the Guidelines range fashions a reasonable sentence, necessarily must be a case-by-case
determination. In some cases it may be appropriate to defer to the Guidelines; in others
not.
In applying “the factors to be considered in imposing a sentence under 18 U.S.C. §
3553(a)(1-7) to the above styled case, there are numerous factors, any one of which would justify
a sentence outside the advisory guidelines range.
A. History and Characteristics of Ms. Bolan, 18 U.S.C. § 3553(a)(1)
1.
Extraordinary Family Situation and Responsibilities
Ms. Bolan was born on February 17, 1960. She is a 46 year old mother of four children.
She is the mother of two grown daughters, Rachael Leigh House, 30 years of age, and Sharon
Amber Westfall, 25 years of age. She is also the mother of two minor children, Zachary Thomas
Bolan, who is 12 years of age; and Joshua Michael Bolan, who is 10 years of age. Ms. Bolan is
recently divorced and pursuant to the terms of her divorce decree, Ms. Bolan was awarded
primary residential custody of the two minor children. Ms. Bolan’s former husband has recently
been diagnosed with cancer and his prognosis is unknown. In addition to the two minor children,
Ms. Bolan also cares for her 82 year old chronically ill mother who suffers from asthma and a
heart condition.
Ms. Bolan started her career in real estate in 1992. She obtained her license as a real estate
agent and focused her practice to helping first time home buyers of low income. Ms. Bolan’s
dedication to helping those who could barely afford reaching their life long dream of owning
their own home has been described by many as her labor of love. In 1996, Ms. Bolan succeeded
in obtaining her broker’s license. In September of 2000, she formed her own real estate
company, Mary Bolan and Associates. She currently operates Quest Real Estate, which she
owns with her daughter.
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2.
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Standing in Community Before Offenses and Lack of Any Prior
Criminal History
The letters from family, business associates, real estate professionals, and her former real
estate clients, show that Ms. Bolan is a devoted mother, and an ethical and hard working
professional who is highly respected in her community. Ms. Bolan has devoted countless hours
to civic associations and local community boards devoted to improving our community. These
letters also show that her actions at the direction of and for the mere convenience of Mr. Kolbe
were aberrational departures from a life and career of professional, ethical and honest service to
her clients. Ms. Bolan, prior to her arrest in this cause, had no prior criminal history.
Ms. Bolan takes full responsibility for her offenses and her misguided faith that Todd
Kolbe was operating within the letter of the law in his transactions involving the Lakewood
Properties.
B. Nature and Circumstances of the Offense, 18 U.S.C. § 3553(a)(1)
1.
Ms. Bolan’s Minimal Role in the Offense
The Defendant, Mary Bolan, is a Florida real estate broker whose real estate practice was
almost exclusively devoted to selling residential properties to first time low income clients. For
most of her years in the profession this was her niche in the residential real estate market. Ms.
Bolan had developed close friends in the mortgage industry who oftentimes financed the
properties she sold. One of these trusted friends was Kelly Abercrombie. Ms. Abercrombie had
developed a professional and personal relationship with Ms. Bolan throughout the years. It was
Ms. Abercrombie who introduced Ms. Bolan to Todd Kolbe and suggested that she assist him in
finding properties for sale for his investment portfolio. Ms. Abercrombie described Mr. Kolbe as
a very wealthy, successful, real estate investor and owner of a successful mortgage company.
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Even though Ms. Bolan was out of her comfort zone in assisting a buyer, like Mr. Kolbe, in
finding income producing residential properties, she thought this would possibly be a means of
expanding her real estate company to servicing investment clients.
Mr. Kolbe met with Ms. Bolan and advised her of his business plan to purchase residential
real estate, renovate the same and rent a portfolio of these properties as investments. Mr. Kolbe
felt that seizing upon the low interest rates available in the market would prove to be a profitable
venture. Mr. Kolbe wanted Ms. Bolan to find suitable properties for his company to purchase
and rent. Ms. Bolan’s sole incentive were the commissions she would generate as the buyer's
agent (generally 3%). There was also a promise by Mr. Kolbe of possible additional
commissions if she rented the properties. Ms. Bolan was never offered a salary position nor was
she offered any interest in any of his companies or his investments. Ms. Bolan was impressed by
Mr. Kolbe's business reputation so she never questioned his business plan.
Mary Bolan was requested to locate properties for sale in particular subdivisions and to
submit their listing price and particulars for Mr. Kolbe’s review. Mr. Kolbe made all decisions
on properties to pursue for purchase, offers to be made and accepted, financing and closing. Ms.
Bolan merely acted as a real estate agent working for a potential buyer.
Prior to the first group of closings of Lakewood Properties, Mr. Kolbe proposed to Ms.
Bolan that she sign all closing documents on behalf of Lakewood Properties. Mr. Kolbe told Ms.
Bolan that he was too busy to attend closings and sign real estate documents. In other words, as
a matter of convenience to him he wanted her to sign the real estate documents at his direction.
He told her that Lakewood Properties would give her signing authority to facilitate the
acquisition of Lakewoods investment properties.
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Ms. Bolan was never offered nor did she expect to receive any further payments for acting
as an agent in signing closing documents for Mr. Kolbe and or his investment company. Ms
Bolan viewed this authority as merely perfunctory in nature.
The residential properties that Ms. Bolan located for Mr. Kolbe were purchased by
Lakewood Properties for a fair market price. Ms. Bolan split the standard broker listing
commission with the listing broker on each of the initial sales of the properties. This commission
represented to Ms. Bolan approximately 3% of the sales price. Ms. Bolan was not paid any
commission on the “flip sales” or resales from Lakewood properties to the straw purchasers.
The Addendum to the pre-sentence report alleges that “Ms. Bolan held herself out as a
managing partner of Lakewood” Properties. The report speaks of a copy of the defendant's
alleged on-line application for registration of the fictitious name “Lakewood Property
Management”. The application was allegedly filed on January 20, 2002, and the registration
number is G02021900028. The important question is who filed for this fictitious name and what
was the purpose. Ms. Bolan never applied for the fictitious name of Lakewood Property
Management. She was never informed of this registration by Todd Kolbe and to the best of Ms.
Bolan’s knowledge there is no such entity or business as Lakewood Property Management. It is
also important to note the date for which registration was actually made. This date was clearly
after the closings of the subject properties had taken place.
The signature line on the closing documents had a title name “managing partner” and or
“managing member”. This title was created presumably at the direction of Todd Kolbe by the
closing agent (title company). This title was never requested by Ms. Bolan nor defined by Todd
Kolbe. It is doubtful that this title was ever authorized by any partnership resolution or company
resolution of Lakewood Properties. Ms. Bolan never managed any of the business activities of
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Lakewood Properties. This title on the closing documents gave Ms. Bolan no greater authority
than to perform the perfunctory signing of documents that had already been reviewed and
approved by Todd Kolbe.
Mary Bolan has never owned any interest in Lakewood Properties LLC, or Lakewood
Partnership LLC, or any similar company. Ms. Bolan never even reviewed the closing
documents for accuracy since these had all presumably been approved by Todd Kolbe before the
closing date. Ms. Bolan had no role in drafting the closing documents nor the information
contained in said documents. In fact, Todd Kolbe never advised Ms. Bolan that he was
fraudulently financing the resales of these properties. Again, Mary Bolan’s only financial gain
from her involvement with Lakewood properties and/or Todd Kolbe was the typical real estate
commissions that a buyer’s agent would receive at closing that were equal to 3% of the purchase
price for each property. The commissions paid to Ms. Bolan for all the initial sales of the
properties to Lakewood Properties, LLC, was approximately $119,000.00.
Mary Bolan was not involved in, nor did she profit from, the resale of these properties to
the “straw purchasers.” These properties were resold to “straw purchasers” through fraudulently
obtained mortgage loans from Home Star Mortgage Services.
Ms. Bolan’s actions throughout her involvement with Todd Kolbe and Lakewood
Properties did not contribute in the least bit on the decision by Home Star Mortgage Services to
fund the loans. Ms. Bolan did not participate in any manner with Todd Kolbe or Lakewood
Properties in the application process of the loans. Ms. Bolan was never told by Todd Kolbe nor
anyone of the fraudulent applications for financing that were submitted by him.
Ms. Bolan was never even paid a penny for her perfunctory acts of signing closing
documents on behalf of Lakewood Properties. Ms. Bolan never expected nor did she realize any
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proceeds from the fraudulent loans. Her only compensation was from the perfectly legal real
estate commissions on the original purchases of property at fair market rates by Lakewood
Properties. These same commissions were enjoyed by the selling real estate broker in these sales
and would have been enjoyed by any real estate agent representing the buyer in these same sales.
Ms. Bolan’s only error in judgement was agreeing to the perfunctory signing of closing
documents on “flipped properties” for Lakewood Properties once she suspected that the resale
price of these properties were unusually high. Instead of relying on her gut instinct that
something seemed highly unusual, she relied on the miss impression that Todd Kolbe as a well
respected and successful real estate professional and mortgage company owner would not act
unlawfully in these transactions. She rationalized that even though the “flipping” price seemed
unusally high, even for income properties, that since she was not participating in the loan
application process, she was not engaging in any wrongdoing. In other words, her better
judgement was clouded by the perceived prestige of working with a successful big time
developer who owned his own mortgage company and the wishful thinking that the inflated
financing was due to the new character of the properties as income producing rentals.
2.
Todd Kolbe’s role in the offenses
Todd Kolbe was perceived by members of the business community as a wealthy and very
successful real estate investor and owner of a successful mortgage company. “Mr. Kolbe is
described by some professionals who have worked with him as “controlling” and “believable”
with the ability to downplay objections to questionable acts and persuade otherwise honest and
ethical persons to comply even against their better judgment.” (See Abercrombie Sentencing
Memorandum) Such a beguiling personality as Kolbe’s, combined with Kolbe’s repeated
assurances that the “cash out” loans had been approved by Home Star Mortgage Services
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President Norden (see e.g. Kirk McVey Sentencing Memo, Doc. 83, Case No. 8:05 CR-342-T24TGW), a long time personal and professional friend of Kolbe, would be especially persuasive
in convincing Ms. Bolan to go along with Kolbe and engage in executing documents at closing as
Kolbe’s agent for his “convenience.” (See Abercrombie Sentencing Memorandum)
Todd Kolbe was the mastermind of his scheme to defraud Home Star Mortgage Services in
the resale “flipping”of the Lakewood Properties. The “flipping” of the properties and more
importantly the process to finance the “flipping” is where the fraud took place. Todd Kolbe was
the loan officer on these loans, so his manipulation of the application documents was totally
controlled by him. Mr. Kolbe personally and exclusively created and submitted to Home Star
Mortgage Services all the false loan applications. He calculated the necessary false appraised
value needed to support the inflated loan. Mr. Kolbe drafted and supplied all counterfeit
appraisals to Home Star Mortgage Services in support of the application. Mr. Kolbe created the
false desktop Underwriter loan approval analysis used by Home Star Mortgage Services to
evaluate the loan application.
Mr. Kolbe also falsified the income and credit worthiness of his straw purchasers in loan
application documents submitted to Home Star Mortgage Services. Todd Kolbe falsified,
exagerated and embellished the income, assets, and real estate owned by his companion, Kirk
McVey, and family members in literally hundreds of loan documents submitted to Home Star
Mortgage Services. Mr. Kolbe lied in hundreds of documents and conversations with Home Star
Mortgage Services employees concerning the loans. The number of false documents drafted by
Mr. Kolbe in the loan application process included false federal income tax returns, false AIM
investment account statements, false leases, false appraisals and false HUD-1 Settlement
Statements to name just a few.
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In effect, Mr. Kolbe approved his own fraudulent loans under Home Star Mortgage
Services’s loan approval procedures. This conspiracy was conceived and orchestrated solely by
Todd Kolbe. Because of his influential position with Home Star Mortgage Services and his prior
experience and expertise with loans, Mr. Kolbe did not need the assistance of any of his
conspirators to obtain the loans on any of the properties. Mr. Kolbe could have signed the
documents at closings himself, and his reason for not doing so, and instead asking Ms. Bolan to
sign as his agent was merely for his personal “convenience.”
The goal of Mr. Kolbe’s fraudulent actions was to personally enrich Todd Kolbe. The
“cash out” proceeds of the loan were made payable to him and/or the companies he owned. He
involved in the conspiracy all of Kolbe owned companies such as Kolbe Construction Services,
Kolbe Development Corporation, Lakewood Partnership/Lakewood Properties. Mr. Kolbe
involved in the actual fraud his closest associates and family members. He involved his life
companion, Kirk McVey, and members of his family, including his parents, brother Aaron, and
sister-in-law Amy Samuelson Kolbe. It is undersign’s understanding that Mr. Kolbe and various
family members have also engaged in a number of additional fraudulent loan transactions in
Florida and Utah for which Mr. Kolbe has never been charged.
Ms. Bolan placed her signature on documents at closings at the direction of Kolbe, as his
agent for his convenience so that he would not have to personally attend each closing. Unlike the
false appraised values and loan documents created and submitted to Home Star Mortgage
Services by Todd Kolbe, Ms. Bolan’s act of signing for Mr. Kolbe at closing did not contribute
to the loan approval in a factual “but for,” or legal sense. Anyone could have scribbled the name
on the closing documents at Mr. Kolbe’s direction, while acting as Mr. Kolbe’s agent
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C. Consideration of the Advisory Federal Sentencing Guidelines and Pertinent
Guidelines Policy Statements: 18 U.S.C. § 3553(a)(4) and (5)
1.
Calculation of “Loss”
The United States Fifth Circuit Court of Appeals in United States v. Olis, 429 F.3d 540,
545 (5th Cir.2005) clearly defined how to apply the guidelines for economic offenses as follows:
The guidelines measure criminal culpability in theft and economic crimes
according to their pecuniary impact on victims. Actual loss, which is at issue
here, “means the reasonably foereseeable pecuniary harm that resulted from the
offense”....Moreover actual loss “incorporates [a] causation standard that at a
minimum, requires factual causation (often called “but for” causation) and
provides a rule for legal causation (i.e., guidance to courts regarding how to draw
the line as to what losses should be included and excluded from the loss
determination)....This explanation does not, contrary to the Government’s
argument in brief, lessen the preexisting standards that held a defendant
responsible at sentencing only to the extent that losses are caused directly by the
offense conduct....[there is a] difference between “but for” causation and the
causation-for which the presence of but-for causation is ordinarily a necessary
condition but rarely a sufficient one-that imposes legal liability. The distinction
runs throughout the law. Criminal law is no exception. District courts must take a
realistic, economic approach to determine what losses the defendant truly caused
or intended to cause.
Causation of loss is also required under section 1B1.3 (Relevant Conduct) under both
individual conduct and jointly undertaken conduct provisions. (See 1B1.3(a)(1)(A),
1B1.3(a)(1)(B) and United States v. Hicks, 217 F.3d 1038, (9th Cir. 2000).
Ms. Bolan's perfuntory act of signing real estate closing documents at the direction and on
behalf of Todd Kolbe and Lakewood Properties was not the “but for” that determined the success
of the fraud. In fact the fraud and the approval of the fraudulent loans on the subject properties
had long been completed before Ms. Bolan ever signed any closing documents for and at the
direction of Todd Kolbe. Ms. Bolan's act of signing the closing documents on behalf of and at
the direction of Todd Kolbe and or Lakewood Properties did not result in the loss or harm to
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Home Star Mortgage Services. That harm had already resulted when the loans were approved
based upon Mr. Kolbe's false applications. Likewise, Ms. Bolan’s act of signing the closing
documents on behalf and at the direction of Todd Kolbe cannot be considered an agreement to
join Mr. Kolbe in his fraudulent loan applications. It was not the signing of the contract for sale
of real estate that caused Home Star Mortgage Services to fund the loan, it was the fraudulent
application for loan and the fraudulent supporting documents that caused Home Star Mortgage
Services to issue the loan. Ms. Bolan's act of signing the documents was merely an act of
convenience for Mr. Kolbe. Todd Kolbe performed all the fraudulent application processes,
which were performed by him exclusively for his benefit and without the knowledge and aide of
Ms. Bolan. Had Home Star Mortgage Services been provided a signed “inflated” real estate sales
contract for the resale of the subject properties but not the fraudulent loan application, fraudulent
appraisal and financials which would support the amount of the loan, clearly Home Star
Mortgage Services would not have funded the loans.
Even where a defendant engages in an act that under the law makes him/her a conspirator
that same act does not necessarily subject him/her, for loss calculation, with the loss liability of
the other conspirators. United States v. Hunter, 323 F.3d 1314 (11th Cir. 2003). In other words,
the fact that a defendant knows the overall objective of the conspiracy and has agreed to perform
a particular act, does not amount to acquiescence in the acts of the criminal enterprise as a
whole. United States v. Campbell, 279 F.3d 392 (6th Cir. 2002), United States v. Studley, 47 F.3d
569 (2d Cir. 1995), United States v. Laboy, 351 F.3d 578 (1st Cir. 2003), United States v.
McClatchey, 316 F.3d 1122 (10th Cir. 2003), United States v. Israel, 254 F.Supp. 2d 912 (S.D.
Ohio 2003).
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Ms. Bolan was not even remotely aware of the scope of the criminal activities of Mr.
Kolbe in his criminal enterprise. Ms. Bolan’s sole participation consisted of finding residential
property for sale and signing closing documents that were drafted by Mr. Kolbe or others at his
direction and obtaining partial commissions from the legitimate side of the property acquisitions.
Ms. Bolan’s base level offense should remain at level 6 pursuant to U.S.S.G. § 2B1.1(a). It
is undersign’s position that Ms. Bolan’s base offense level should not be increased pursuant to
U.S.S.G. § 2B1(b)(1)(1). The loss of $1.7 million should be attributed to Todd Kolbe and those
who actually assisted him in the fraud (straw purchasers) and those who knowingly and directly
benefitted from the proceeds of the fraudulent loans.
2.
Advisory Sentencing Guidelines Overstate Scope and Seriousness of Ms.
Bolan’s Role in the Offense
It is clear that the position of the advisory guidelines in applying the $1.7 million loss
calculation to Ms. Bolan overstates the scope and seriousness of her particular conduct. Clearly
Ms. Bolan had no intent to steal and she did not personally profit from the fraud in the “flipping
of properties”. Courts have recognized appropriate downward adjustments in these instances
where a defendant’s loss calculations overstate the scope and seriousness of the particular
conduct. United States v. Mueffelman, 400 F.Supp.2d 368 (D. Mass. 2005), United States v.
Graham, 146 F.3d 6 (1st Cir. 1998), United States v. Monaco, 23 F.3d 793 (3d Cir. 1994), United
States v. Stuart, 22 F.3d 76 (3d Cir. 1994), United States v. Walters, 87 F.3d 666 (5th Cir. 1996).
Should the court believe that some increase in her base offense level is required, undersign
proposes that the loss amount as attributed to her be no greater than her personal gain which
resulted from her commissions on the initial property sales contracts to Lakewood Properties
LLC. The commissions paid to Ms. Bolan for all the initial sales of the properties to Lakewood
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Property LLC is approximately $119,000. It is important again to reiterate that Ms. Bolan made
no commission on the “flipping” of the properties by Todd Kolbe to his straw purchasers.
3.
Specific Offense Characteristics - Sophisticated Means, U.S.S.G. Section
2B1.1
The presentence investigative report has recommended a two (2) level increase to the
offense level computation due to the alleged sophisticated means of the offense. Sophisticated
means is defined by the U.S.S.G. as especially complex or especially intricate offense conduct
pertaining to the execution or concealment of an offense. As outlined thoroughly above, there
was nothing sophisticated in Ms. Bolan's perfunctory role of signing closing documents at the
direction of, and merely for, the convenience of Todd Kolbe. The sophistication started and
ended with Todd Kolbe in his know methods to deceive the mortgage company. Ms. Bolan did
not know about, much less participate in, any complex or intricate facet of the fraud process or its
concealment.
4.
Minimal Role
U.S.S.G. 3B1.2 Mitigating Role reads as follows:
Based on the defendant’s role in the offense, decrease the level as follows:
(a)
(b)
If the defendant was a minimal participant in any criminal
activity, decrease by 4 levels.
If the defendant was a minor participant in any criminal
activity, decrease by 2 levels.
In cases falling between (a) and (b) decrease by 3 levels.
The application notes (4) suggest that the role of “minimal participant” applies to a
defendant . . . who plays a minimal role in concerted activity. It is intended to cover defendants
who are plainly among the least culpable of those involved in the conduct of a group. Under this
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provision, the defendant’s lack of knowledge or understanding of the scope and structure of the
enterprise and the activities of others is indicative of a role as minimal participant.
Ms. Bolan clearly had an inadequate understanding of the schemes of Todd Kolbe and his
conspirators. Such an inadequate understanding has been upheld as an appropriate minimal role
reduction. United States v. Moeller, 80 F.3d 1053 (5th Cir. 1996), United States v. Westerman,
973 F.2d 1422 (8th Cir. 1992).
Should the court not agree that Ms. Bolan’s role was one of a minimal participant,
undersigned requests this Court consider a downward departure based on role to the extent of 3
or 2 levels.
5.
Downward Departure is Appropriate Due to Collateral Punishment Already
Suffered by Ms. Bolan
Ms. Bolan has suffered extraordinary collateral punishment related to these charges,
including adverse publicity, ruined business, and recent divorce. In United States v. Redemann,
295 F. Supp. 2d 887 (E.R. Wisc. 2003), the court departed downward two levels in part because
the case was outside the heartland and the guideline sentence was “greater than necessary” to
satisfy the “purpose” of sentencing. “Courts have long recognized that where the sentence called
for by the guidelines would result in punishment greater than necessary the court can depart
downward.” Id. at 898. The Court in Redemann recognized that in certain circumstances
collateral punishment suffered by the defendant could result in a downward departure by the
court. In addition to the above referenced collateral consequences, Ms. Bolan is in serious
jeopardy of losing her real estate broker license. Proceedings by the Department of Business and
Professional Regulations have commenced and with her convictions in this matter revocation of
her license is certain.
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Downward Departure should be applied due to Ms. Bolan’s minuscule
personal gain when compared to that of Todd Kolbe and other conspirators
Ms. Bolan's personal gain from her actions was minuscule when compared with the
proposed total calculated loss used to calculate the advisory sentencing guidelines. In this case,
where the Defendant’s personal gain is substantially less than the loss to Home Star Mortgage
Services resulting from the offense, the Court should “depart downward” because a defendant
who causes a larger economic loss, but receives relatively little personal benefit from the crime,
is less culpable than a defendant who garners all or a large portion of the victim’s loss for
himself. See Roger Haines et al., Federal Sentencing Guidelines Handbook (West Group, 2006
Edition, §2B1.1, section 16, page 336). In fact, a departure on this “small personal gain” ground
was proposed in several drafts of the new economic crime guideline; however, no such departure
appears in the final version. Id. Citing §2B1.1 n. 15(B) (Downward Departure Considerations)
(2001) [now § 2B1.1 n. 19(B) (2005)]. “This omission does not categorically preclude a
departure based on a defendant’s small personal gain, although such a departure would simply be
an “unmentioned,” rather than an “encouraged,” departure under the taxonomy of Koon v. United
States, 518 U.S. 81, 95-96 (1996)” (creating a three-tiered structure for reviewing departures
under U.S.S.G. §5K2.0, with different standards of review for encouraged, prohibited, and
unmentioned factors.).
D.
Avoiding Sentence Disparities Between Ms. Bolan’s Sentence and the
Sentence of other Conspirators, Title 18 § 3553 (6)
The presentence investigation identifies other alleged members of the Todd Kolbe
conspiracy as Taya Prado, Kirk McVey, Amy Kolbe and Kelly Abercrombie. If the factual
findings of the presentence investigation are correct concerning their role in the conspiracy, it is
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then also evident that each of the above listed members of the conspiracy either drafted or
participated in the drafting of false documents and benefited directly from the proceeds of the
fraudulent loans. A fact that is clearly absent in Ms. Bolan's case.
The presentence report recommends a total offense level of 21, Criminal History
Category of 1 providing for an advisory sentence of 37 - 46 months in the Federal Bureau of
Prisons for Ms. Bolan.
Todd Kolbe, the mastermind of the scheme to defraud, has been sentenced to 30 months
in the Federal Bureau of Prisons followed by 36 months probation.
Kirk McVey, who was a straw purchaser in at least 16 fraudulent real estate transactions
was sentenced to 30 months BOP, followed by 36 months probation.
Amy S. Kolbe, who was a straw purchaser in at least 8 fraudulent real estate transactions
was sentenced to five years probation with 6 months of home detention.
Clearly, Ms. Bolan is the least culpable of all conspirators. Her culpability is based
strictly upon the doctrine of willful blindness and not as a result of any affirmative act to
intentionally defraud or deceive any lending institution. Ms. Bolan’s sentence should be
mitigated to reflect her culpability as compared to that of her co-conspirators. A mitigated
sentence of probation or combination of probation and home detention would accomplish this
goal of the Sentencing Reform Act.
III.
CONCLUSION
In this case, the guideline provisions as calculated in the presentence report are based on a
total offense level of 21 and a criminal history category of 1; therefore, the guideline
imprisonment range is 37-46 months (3 years, 1 month to 3 years, 10 months).
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This court has been given a variety of options to pronounce a just and reasonable sentence,
one that is sufficient but not greater than necessary. Undersign respectfully submits that a just
and reasonable sentence is one which imposes a period of probation and/or home detention or a
combination of both.
Respectfully submitted,
/s/ Richard Escobar
RICHARD ESCOBAR, Esquire
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 28th day of November, 2006 the foregoing document
was electronically filed with the United States District Court Clerk of Court via the CM/ECF
system which will send a notice of electronic filing to all parties.
/s/ Richard Escobar
RICHARD ESCOBAR, Esquire
Florida Bar No. 375179
Escobar, Ramirez & Associates, P.A.
2917 West Kennedy Boulevard, Suite 100
Tampa, Florida 33609
Tel: (813) 875-5100
Fax: (813) 877-6590
Email: [email protected]
Attorney for Defendant
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