Case 4:13-cr-00158-JLH Document 99 Filed 05/01/15 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
UNITED STATES OF AMERICA
v.
No. 4:13 CR 00158-01 JLH
MARTHA ANN SHOFFNER
DEFENDANT’S SENTENCING MEMORANDUM
COMES NOW, the Defendant, Martha Shoffner, by through the undersigned Counsel
and submits her Sentencing Memorandum. In this submission, Ms. Shoffner addresses why she
should receive a below-guideline sentence.
I.
SUMMARY
The attached letters of support provided by family, friends, and leaders of our State
demonstrate that Martha Shoffner is not the person whom every resident of this State has seen
rebuked in televised political advertisements, editorials, and cartoons. Those who know Ms.
Shoffner know a good person who made a bad mistake, near the end of a life lived with grace
and passion for public service. Regardless of the outcome of this sentencing, Ms. Shoffner will
continue to have the support of those in her community that have had the privilege of coming to
know her as an individual, instead of as the target of a criminal prosecution.
There is no doubt Ms. Shoffner is ashamed and remorseful for her actions that led to her
indictment and conviction before this Court. She is sorry that she accepted money from a broker
that she knew she should not have accepted. Most importantly, she is deeply hurt for the shame
she has brought upon herself and her family. In Ms. Shoffner‟s arrest, trial, and conviction, she
faced challenges and anxiety that few criminal defendants must face, due to the immense media
coverage of the trial, which was only compounded by the consistent, negative use of her personal
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image in campaign advertisements during the following election season. Ms. Shoffner asks that
this Court consider the punishment she has already received, when determining a just sentence.
Ms. Shoffner‟s reputation will never recover, she will never hold political office again, and she
will continue in her struggle to make ends meet, financially, for the rest of her life. The
undersigned Counsel presents this Sentencing Memorandum for the Court to consider in granting
a non-guideline sentence, not as an excuse for her behavior, but so the Court can see Martha
Shoffner, as an individual.
II.
ARGUMENT
As this Court is Aware, the Sentencing Guidelines are not Mandatory,1 and the Court
should consider the factors set forth in Section 3553 (a) when imposing a sentence. These
Section 3553 factors generally include: 1) the nature and circumstances of the offense and the
history and characteristics of the defendant; 2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense, to afford adequate deterrence to criminal conduct, and to protect the public from further
crimes of the defendant; (4) the sentencing range set forth in the advisory Guidelines; and (5) the
need to avoid unwarranted sentencing disparities among defendants. Courts may vary from the
sentencing Guideline range, and a District Court is free to make its own application of the
Section 3553 factors.2
1
2
See United States v. Booker, 543 U.S. 220, 260-61 (2005).
See Kimbrough v. United States, 552 U.S. 85 (2007).
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A. Analysis of Section 3553 (a) Factors
1. Nature and Circumstances of the Offense -3553(a)(1)
Ms. Shoffner recognizes the severity of her offense and has admitted remorse for her
conduct. This case was tried before the Court, and, as a result, the Court is well aware of the
facts. Ms. Shoffner asks the Court to consider that government witness, Steele Stephens, who
made $36,000.00 in payments to Ms. Shoffner while he was trading bonds for the State Treasury,
has not been charged with any crime and has not been required to disgorge any of his profits.
Ms. Shoffner asks the Court to consider that Steele Stephens and Martha Shoffner had a personal
relationship wherein Mr. Stephens testified, at trial, that Ms. Shoffner considered herself as his
“older sister,”3 that Ms. Shoffner wouldn‟t know a bond from an “onion,”4 and that Ms. Shoffner
trusted Mr. Stephens.
The offense of Ms. Shoffner was certainly unique in the context of Hobbs Act Extortion
and programs bribery as Ms. Shoffner does not appear to have come up with the idea for Mr.
Stephens to make $6,000.00 payments to her, and there was no monetary “loss” to the State
Treasury.5 Steele Stephens himself testified that he made the state of Arkansas over twelve
million dollars a year during the time frame discussed in trial testimony.6 Counsel for the United
States was obviously displeased with much of the testimony by Mr. Stephens, as was indicated
by the government‟s three (3) attempts to impeach the testimony of their own star witness
Stephens, while he was under direct examination.
Throughout Shoffner‟s tenure, from January 2007 until May 2013, the daily operation of
the office was closely monitored by three state agencies including daily, weekly, and monthly
3
Please refer to the testimony of Steele Stephens, at Docket No. 74, see Transcript pg. 156, lines 23-24.
Please refer to the testimony of Steele Stephens, at Docket No. 74, see Transcript pg. 156, lines 5-11.
5
Please refer to the testimony of Steele Stephens, at Docket No. 74, see Transcript pg. 100, lines 8-11.
6
Please refer to the trial testimony of Steele Stephens, at Docket No. 74, see Transcript, pg. 99, see lines 20-21.
4
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checks and balances of revenues received and revenues disbursed. Trades were monitored by the
Arkansas Securities Commission, the Legislative Joint Audit Committee, the Arkansas Finance
Board, and two separate federal agencies, FINRA and the Securities Exchange Commission.
Ms. Shoffner never intended, nor was there any financial damage to the Treasurer‟s
office. There was no money lost, stolen, or pilfered. No money was lost from financial trades or
transactions due to lost opportunities to make more money. No capital losses were taken, no
unrealized losses were placed on the books. Arkansas is one of five states to maintain a surplus
in its Treasury even after the recession of 2008-2012. The trades in question that bring Shoffner
to punishment actually made the state profits, rather than any loss. The benefits derived by
Steele Stephens may be grossly overvalued but, even if not, none of this alleged value to Steele
Stephens was sought by Martha Shoffner nor was it was shared with Martha Shoffner. Ms.
Shoffner asks that the Court keep these unique circumstances of the case and of the trial in mind
when imposing her sentence.
2. History and Characteristics of Martha Shoffner
Ms. Shoffner‟s history and personal characteristics show that imprisonment is not
necessary to satisfy the purpose of punishment.
In fact, imprisonment is a waste of the
taxpayers‟ money. Ms. Shoffner is seventy-one years old, has no criminal history, will never be
in a position to affect state business again, and, as recognized by the attached letters in her
support, is a valued member of her Church and community.
A person‟s history and
characteristics are “clearly relevant to the selection of an appropriate sentence.” Pepper v.
United States, 131 S. Ct. 1229, 1242 (2011) (citing § 3553(a)(1)). (emphasis added).
sentencing court must “consider every convicted person as an individual.” Id. at 1240.
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A
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a. Public Service
Prior to the largest mistake of her life, Martha Shoffner was a widely respected public
servant in this state. Ms. Shoffner‟s love for public service was instilled in her by her aunt, Irma
Shoffner, who was the Circuit Clerk of Jackson County, Arkansas for approximately 30 years.
Public service was a high calling in the Shoffner family home. Ms. Shoffner‟s passion was
making State Government work for its citizens. Her proudest moment was having her Mother
present when she was sworn in as Arkansas‟ State Treasurer. The shame she now brings to bear
on her family name, is a source of constant anguish. When it came to public service, “Martha‟
focus was not so much on filing bills; it was on humanitarian work for the people she
represented.”7
To summarize Martha Shoffner‟s service to the citizens of this State, it will suffice to stay
that Martha Shoffner was elected to the Arkansas House of Representatives, serving three
consecutive terms. In that position she dedicated herself to excellent constituent service, was on
a number of committees and chaired the Governmental Affairs Committee of the General
Assembly. Former State Representative Joe Harris Jr. recalls Martha Shoffner as “a true and
loyal colleague” in the legislature who displayed “southern charm and grace.” 8 Ms. Shoffner
was later elected twice to office of Arkansas State Treasurer, a constitutional office requiring a
statewide campaign.
She remains proud of her contributions to the office, especially her
advocacy for local artists who display their work in the Capitol and her origination of the State‟s
7
Please refer to the Character Letter submitted to the Court by Kenneth Burks, formerly of the Arkansas House of
Representatives’ Office of Constituency Services, attached hereto in Exhibit A.
8
Please refer to the Letter of Support submitted to the Court by Former Representative Joe Harris, Jr, attached
hereto in Exhibit A.
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529 College Savings Plan, which is a viable and ongoing program for that Office. On May 24,
2013, Ms. Shoffner tendered her resignation as Treasurer of the State of Arkansas.
b. Personal Life
The guidelines do not properly account for the role of family, community, and Church, in
the life of an individual. This is especially relevant to the question of whether Ms. Shoffner
needs to be placed in a prison for a significant remainder of her life or whether she can be a
positive part of society and avoid reoffending. The fact that a number of people who know Ms.
Shoffner have stepped up to offer letters of support is a testimony to Martha Shoffner and should
serve as notice to the Court that Martha Shoffner poses absolutely no risk of harm or re-offense
to the State of Arkansas.9 Ms. Shoffner currently lives in Newport, near her sister, Ida Dean, and
her cousins to whom she is very close. Martha Shoffner will be 71 years of age July 10, 2015.
She drives a 2003 Oldsmobile Alero and lives in a house which needs much repair. Her home is
heavily mortgaged. As the Court will see in one of her letters of support, Ms. Shoffner has
needed a new roof for some time, but has only been able to afford replacing one-half of her
roof.10 She understands that she will lose her home, after a sentence is issued in this case, due to
a loss of social security income and lack of ability to work and earn income as she has done
steadily throughout her life.
Ms. Shoffner was raised in Weldon, Jackson County, Arkansas, and she cherishes
Jackson County, where her father farmed, her mother taught in the public schools, and Ms.
Shoffner graduated high school at Newport. Following high school, Ms. Shoffner attended
Memphis State University and was later employed by the Cranford Johnson Insurance Agency,
9
Letters are attached hereto as Exhibit A
Please refer to the handwritten letter in support of Martha Shoffner, submitted by Mr. Eddie Taylor and
attached hereto, in Exhibit A.
10
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where she was well-liked by both her employers and co-workers as well as a constant source of
support to those around her.11 She went on to work at the State Auditor‟s office under the tenure
of Julia Hughes Jones. Ms. Shoffner has been engaged in many activities in her Church, where
she is presently a valued and appreciated member. The former Pastor of First Presbyterian
recalls the people Ms. Shoffner has helped, during her life, in his letter of support.
As is more widely known, Martha Shoffner excelled in local and state politics. In 1996,
she was named Jackson County Woman of the Year, she has served with the Newport City
beautification project, and on other boards and committees which have benefited her community
and her neighbors. Ms. Shoffner has no criminal history. Until the course of conduct that
brought her before this Court, she has been nothing but a blessing to her City, County, and State.
Defendant‟s Counsel asks that this truth be taken into consideration at sentencing.
Today Ms. Shoffner is financially broken and living on Social Security. Her reputation is
ruined and she expects to lose her home. Her daily existence is distraught with fear and anxiety
for her future. In spite of this, she accepts full responsibility for the actions she took that were
wrong. To assist the Court in getting to know the real Martha Shoffner and to demonstrate her
true history and character, Counsel has provided the following excerpts from just a minority of
the letters provided to the Court in support of Martha Shoffner, who is truly not the person the
media has portrayed her to be.
11
Please refer to numerous letters of support from individuals she worked with in the 1970’s but who have
remained close friends with Martha Shoffner through all the intervening years, attached hereto in Exhibit A.
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Character References
“Martha has been so helpful to people, so willing to be of help to others”
-Excerpt from letter by Alan Ford, Martha Shoffner‟s former Pastor at
First Presbyterian Church in Newport
“She is an incredibly hard worker, and people love her because she’s honest,
she’s sincere, and she’s concerned about the people.”
-Excerpt from letter by former Arkansas State Representative, Lindsley
Smith, of Fayetteville, Arkansas
“Martha has always been a true and loyal colleague.”
-Excerpt from letter by former State Representative, Joe Harris, Jr., of
Osceola, Arkansas
“Martha has always been an upstanding citizen in Jackson County until this
happened and I would like to see her serve no time”
- Excerpt from letter by Former Newport Mayor, Wayne Beard, Jr.
“She is an honest and decent person with many good qualities. Martha had a
momentary lapse of judgment and made a terrible mistake.”
- Excerpt from letter by Ollie Adams Burton, Friend of Martha Shoffner
“Martha . . . was my rock during a very difficult time in my life. She’s the kind
of person who shows up and gets the job done, without seeking any credit.”
- Excerpt from letter by Cynthia East, friend of approximately 35 years.
“Martha has a tendency to believe whatever people tell her, and this gullibility
leads her to misplace trust, as she did when Steve Stephens approached her with
offers to help.”
-Excerpt from letter by Jackye Finch, friend of 46 years
“This was totally out of character for her”
- Excerpt from letter by Katie Jones-Vasarhely, friend and neighbor
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“Martha’s treatment of her employees has garnered some undeserved criticism.
In my opinion, she treated everyone with respect and fairness.”
- Excerpt from letter by Kenneth Burks, formerly of the Arkansas House
of Representatives Office of Constituency Services,
“My wife and I know Martha as a kind and likeable person. She displays
southern charm and grace and has been a welcome guest in our home on
several occasions.”
-Excerpt from letter by former State Representative, Joe Harris, Jr., of
Osceola, Arkansas
“I have never known her to lie or be dishonest or dishonorable in any way.”
-
Excerpt from letter by Wayne Cranford, former employer of Ms.
Shoffner at Cranford Johnson Robinson Woods
“She is a good and decent person who fell prey to an egregious lack of
judgment.”
- Excerpt of letter from the current Pastor and the Elders of First
Presbyterian Church, Newport, Arkansas, where Ms. Shoffner is an
active member
Acceptance of Responsibility and Personal Guilt
“She is embarrassed and ashamed and also guilt-ridden over what her family
has gone through with her.”
- Excerpt from letter by Margaret Snow, friend and fellow church member
“She readily admits her guilty and is so distraught she no longer cares about
losing her house, her possession or her future” . . . “I have witnessed her tears
and remorse and know she will never be the same again.”
-Excerpts from the letter by Jackye Finch, friend of 46 years
“Martha has realized and accepted the fact that she made some very bad
decisions that continue to weigh heavily on her conscience.”
--Excerpt from letter by Jacqueline Baum, friend of almost 60 years
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Thoughts on Punishment
“Martha is not a threat to society. . . She has suffered the loss of her job, and a
great deal of embarrassment and shame.”
-Excerpt from letter by Harold Dixon, friend of 58 years
“I believe that nothing more would be gained by imposing a prison sentence on
Martha.”
--Excerpt from letter by Jacqueline Baum, friend of almost 60 years
“I believe that Martha Shoffner’s loss of public office and public humiliation
have been a severe penalty and that her current financial circumstances and
advanced age make additional sentencing requirements both impractical and
unnecessary. I urge you to temper justice with mercy. . .”
-Excerpt from letter by former state representative, Lindsley Smith, of
Fayetteville, Arkansas
“She turns 70 on July 10 and will live out her life an impoverished and broken
woman. As the Psalmist has said “. . . iniquities have overtaken her and she
canot see . . . her heart fails her.”
-Excerpt from letter by Jackye Finch, friend of 46 years
“Please be lenient in her sentencing, Judge Holmes. We all believe that she can
soon be returned to society as a citizen who has learned a big lesson.”
- Excerpt from letter by Jim D. Johnson, Cranford Johnson Robinson
Woods, former employer of Martha Shoffner
c. Age
Ms. Shoffner will be 71 years of age on July 10, 2015. Outwardly she appears to be in
reasonable physical and emotional health. However, she should be considered “elderly” by
definition for federal sentencing.
Counsel believes reports that the median age of federal
defendants at sentencing is 34 years old. The National Institute of Corrections defines prisoners
50 years and older as “elderly” and “aging.” It has been estimated that only 10.8% of all federal
defendants are over 50 years of age. Defendant‟s Counsel suggests that older inmates are
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potential subjects of abuse during incarceration. The Eighth Circuit has stated that a defendant‟s
age should be considered in sentencing, and even recognized that “age may be a reason to depart
downward in a case in which the defendant is elderly.”12
Defendant‟s Counsel asks that the Court consider that incarceration is substantially more
punitive for an older defendant than for a younger defendant. A sentence to the Bureau of
Prisons for an “elderly” defendant not only takes away the freedom that the Defendant presently
enjoys but also garnishes a much more tangible portion of all the freedom an elderly Defendant
will ever have on this earth. The Presentence Report that has been provided by the Probation
Office suggests that the guideline sentencing range is 188 months to 235 months. Defendant‟s
Counsel strongly objects to that calculation of the guideline sentencing range, as is noted in the
Defendant‟s Objections to the Presentence Report, filed with this Court, but, more importantly, a
sentence in this range is not just or reasonable. In fact, such a sentence would be a waste of the
taxpayers‟ money and Martha Shoffner may not even live to the end of a 188 month sentence.
Sentencing leniency based on “old age” promotes the imposing of sufficient punishment
and avoiding unwarranted sentencing injustice. Defendant‟s Counsel asks the Court to consider
that, because Ms. Shoffner has lived without spouse or children her entire adult life, the ordinary
rigors of a serious prison sentence will be particularly difficult. Prison is already disturbing but
is particularly disturbing to the elderly defendant not used to the lack of privacy, humiliation,
noise, and pace of the daily life of a prisoner. If the Defendant is incarcerated at a great distance
from her primary family, her sister Ida, and her closest friends, her social isolation will lead to
depression and an overall adverse impact on her physical and mental well-being. Simply put,
12
United States v. Johnson, 619 F.3d 910 (8th Cir., 2010).
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counsel for Shoffner believes that a prison sentence as suggested by the guideline calculations
could easily have a decided impact on the longevity and well-being of her life.
The Bureau of Prisons routinely proffers letters stating that its facilities can accommodate
any medical or other special needs. Simple conversations with others formerly incarcerated
make it appear there is little evidence that these stated goals are routinely met. It is proper to
avoid unwanted disparities in the sentence imposed. Any prison term is far more important to an
older person‟s life than that of a younger person. Common sense tells one that if Ms. Shoffner‟s
remaining life expectancy is an approximately 15 years, then, again, common sense tells one that
the prison time disproportionately punishes an older offender. The point is most younger
defendants can look forward to many years ahead after serving a prison term. Ms. Shoffner can
look forward to little, if any time left, without downward departure or a variance for the Court to
fashion reasonable punishment.
d.
Acceptance of Responsibility and Extreme Remorse
As noted in the letters provided to the Court in Support of Martha Shoffner and the
excerpts contained within this sentencing memorandum, Martha Shoffner has accepted
responsibility for her conduct and is deeply ashamed of what she did. A defendant who has been
convicted at trial can still be found to have accepted responsibility if he “goes to trial to assert
and preserve issues that do not relate to factual guilt,” such as to make a “challenge to the
applicability of a statute to his conduct.” Id. These are the exact circumstances with which the
Court is faced in this sentencing process. 13
13
Please refer to the Rule 29 Motion for Acquittal at Docket No. 72& 73, wherein Ms. Shoffner contests Federal
Jurisdiction and the Application of statutes to the Defendant’s conduct.
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In order to determine whether a Defendant has gone to trial has accepted responsibility
for her actions, the Eighth Circuit has indicated that “a Court should look primarily to a
defendant‟s pretrial statements and conduct.”14 Ms. Shoffner told FBI agents investigating this
case where she had placed payments received from Steele Stephens, she turned over the money
she had received from Steele Stephens, she “admitted to receiving multiple $6,000 cash
payments,” and “admitted she knew it was wrong to accept payments from the broker” to Agents
of the Federal Bureau of Investigation, prior to trial. Ms. Shoffner then resigned from her office
as Treasurer of the State of Arkansas. Ms. Shoffner‟s actions show acceptance of responsibility.
A downward variance and/or departure based on acceptance of responsibility should be granted.
Martha Shoffner is a religious person. As discussed earlier, she attends the Presbyterian
Church in Newport. In addition to her faith, she received great joy and serenity in her love for
her mother and father – especially her mother, Helen. She remembers with great pride the joy
that her mother received on the day she was sworn in for her first term as Treasurer of Arkansas.
The heartache and shame that she feels of having brought humiliation to her mother‟s and
father‟s good names, at times, seems too much. She believes, regardless of the Court‟s judgment,
that this remorse and embarrassment of her actions to the citizens of Arkansas will be with her
the remainder of her life. She will say these things publicly at the time of her sentencing.
Martha Shoffner never intended harm to the office of Treasurer or to the people of the
State. She believes that her acceptance of responsibility by her resignation on or about May 24,
2013 should be considered some indication of her remorse and regret. Likewise, she hopes that
the citizens of the State recognize that she immediately confessed what she did, how much she
received and agreed with her lawyer that the proper defense of this case was to admit what she
14
th
U.S. v. Spurlock, 495 F.3d 1011 (8 Cir. 2007).
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actually received. Lastly, while not a proper guideline consideration, Ms. Shoffner recognizes
and accepts with great remorse that her crime was an act of injury to the public trust of the office
she held. The breaching of that public trust by giving any preference to one broker diminishes
the respect of the citizens for public service that is essential to a democratic society.
Shoffner respectfully asserts to the Court that there was no damage to the funds of the
taxpayer, and that the financial benefits enjoyed by Steele Stephens were not intentional or
foreseeable, to her. No excuse is intended by the above. Rather, it is her explanation that the
$36,000.00 was illegally received, she knew it was wrong and believed if it was discovered she
would be punished. For all of this, she bears great shame.
3. The Need to Promote Respect for the Law, Provide Just Punishment for the
Offense, and Afford Adequate Deterrence to Criminal Conduct. -3353(a)(2)
Anyone who has followed the case of United States v. Martha Ann Shoffner, realizes the
consequences that follow disrespect for the law. The punishment in this case involves more than
just imprisonment. Martha Shoffner has lost her job, gone through a living hell of media
attention and scrutiny, and been unable to turn on the television without seeing herself, featured
in political attack ads for an entire election season. She has also earned her first criminal
convictions and embarrassed her entire family. She will live with these facts for the rest of her
life. There is no risk that she will be involved in criminal activity in the future. Defendant‟s
Counsel suggests that hard Bureau of Prison time is not needed in this case and that a split
sentence placing Ms. Shoffner in a halfway house and later in home confinement would serve the
interests of just punishment.
The Defendant asks the Court to Consider the fact that this is the only offense on Ms.
Shoffner‟s criminal record. She has been a featured participant in political attack ads accusing
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her of crimes this Court knows she did not commit. For example, Ms. Shoffner‟s name and
photograph was a feature in at least two such advertisements, including one which suggested that
Ms. Shoffner directed taxpayer dollars to a bank formerly owned by Congressman French Hill,
in return for bribes or campaign contributions from Congressmen Hill. 15 Such accusations are
not supported by evidence but not everyone who watches television realizes this. Ms. Shoffner‟s
reputation is tarnished and such false accusations will follow her for the rest of her life. Ms.
Shoffner has learned the hardest lesson of her life, and she is at no risk of being involved in
criminal activity in the future.
In Gall v. United States, 552 U.S. 38, 54 (2007), the Supreme Court explained that the
“unique facts” of the defendant‟s situation “provide ample support” for the conclusion that, “in
Gall‟s case, „a sentence of imprisonment may work to promote not respect, but derision, of the
law if the law is viewed as merely a means to dispense harsh punishment without taking into
account the real conduct and circumstances involved in sentencing.” A community service
component would be proper in Ms. Shoffner‟s case. She has spent her entire life as a promotor
and assistant to her community.
Defendant‟s Counsel asks that the Court not forget Ms.
Shoffner has been successful in making a positive difference in her community and in people‟s
individual lives. Ms. Shoffner still has skills and talents that could be put to use as a community
service component of punishment for this offense. This is a much better option, also less
expensive for the taxpayers, than placing Ms. Shoffner in a prison while she deteriorates both
physically and mentally.
15
Please refer to the two electronic political advertisements provided to the Court for its consideration in an
electronic message, todays date, and file with the Clerk as Electronic Exhibit 1.
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The receipt of $36,000.00 was illegal, as well as the favoritism shown to one broker over
others. Ms. Shoffner recognizes and accepts that the Court is duty-bound to assess punishment
and only hopes that it will consider the uniqueness of the punishment that she has already
received. She believes that this Court will do all that is in its power to fashion a just and
reasonable sentence, recognizing that the prosecution of Ms. Shoffner has promoted a respect for
the law and provided significant punishment for Martha Shoffner.
A sentence below the
recommended guideline range will provide adequate deterrence to future criminal conduct by
Ms. Shoffner. A harsh sentence is not needed to afford deterrence to conduct such as her own.
4. The Sentencing Range Set Forth in the Advisory Guidelines and the Need to Avoid
Unwarranted Sentencing Disparities Among Defendants.
Defendant‟s Counsel strongly contests the advisory guideline range of 188 months to 235
months, as suggested by the U.S. Probation Office in the Presentence Investigation Report.16
Defendant‟s Counsel argues for a below-guideline sentence but suggests to the Court that an
application of the Guidelines without a downward departure and/or variance would result in a
total offense level of 22 (41-51 months). It must be noted that Ms. Shoffner has not gotten rich
like another individual involved in this case who escaped prosecution and kept the alleged fruits
of the crime. Similarly, Ms. Shoffner asks the Court to consider the relatively small amount of
money she obtained through wrongful conduct, in this case. Ms. Shoffner respectfully believes
that an appropriate split sentence punishment can be imposed by the Court based upon both law
and the facts which satisfies the legal mandate of sufficiency of sentence envisioned by the
guidelines yet avoids excessive harshness.
16
Please refer to the Defendant’s Objections to the Presentence Investigation Report, filed with the Court.
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5. The Kinds of Sentences Available -3553(a)(3)
This factor is intended to allow flexibility by allowing alternatives to incarceration where
necessary. See United States v. K, 160 F.Supp.2d 421, 431 (E.D. N.Y. 2001). The Court can
choose to grant a sentence variance or departure or sentence Ms. Shoffner to home detention and
community service. In United States v. Wadena, 470 F.3d 735 (8th Cir. 2006), the Eighth Circuit
held that there is no prohibition to variance to probation, even when the Guidelines call for
imprisonment. That kind of categorical, mandatory approach to sentencing on the basis of
judicially-found facts is precisely the type of sentencing regime the Supreme Court rejected in
Booker. More and more courts are recognizing that in certain cases, sentences other than
absolute incarceration, including home imprisonment, community service, or a combination
thereof, can provide a just punishment that is sufficient, but not greater than necessary to satisfy
the § 3553 factors.
B. Downward Departure Based on Totality of the Circumstances Is
Warranted
A sentence reduction is also permitted pursuant to U.S.S.G. § 5K2.0 based on the
combination of factors presented herein. The guidelines do suggest that the totality of the
circumstances and circumstances “not adequately taken into account in Guidelines” may serve as
a basis for a departure. A variance would also be appropriate based on the considerations
discussed herein. A downward variance or departure is appropriate in this case based on the
unique combination of circumstances found in Ms. Shoffner‟s case.
III.
SUGGESTED SENTENCE
For the foregoing reasons, the sentencing guidelines fail to account for Ms. Shoffner‟s
long history of public service, personal characteristics, and the unique nature of this case.
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Defendant‟s Counsel respectfully requests a 12- 18 month variant sentence with up to nine
months to be served in a community correction institution such as a half-way house and the
remaining half to be served in home detention, with a rigorous community service term. A
sentence based upon the sentencing guidelines is simply unjust and would heighten the disparate
treatment of Ms. Shoffner and her alleged co-conspirator, Steele Stephens.
Serious community service is a just alternative to lengthy confinement, in this case.
Sentencing Courts have chosen a community service option even in cases where Guidelines
suggested lengthy prison terms. Examples follow:
-Tom Coughlin, former Walmart CEO convicted of misappropriating company funds,
was sentenced in the Western District of Arkansas to five years of probation, including
57 months of home detention and 1500 hours of community service, despite a Guidelines
range of 27 to 33 months. United States v. Coughlin, 2008 U.S. Dist. LEXIS 11263, 06CR-20005 (W.D. Ark. Feb 1, 2008).
-Ty Warner, associated with the Beanie Babies franchise, was found guilty of tax evasion
and sentenced to 500 hours of community service, along with probation and a fine,
despite a Guidelines range of 46-57 months. The Court stated that one of its
considerations was “whether society would be better off with Mr. Warner in jail or
whether it would be best served by utilizing his talents and beneficence to help make this
a better world.” United States v. Warner, 1:13-cr-00731 (N.D. Ill. Jan. 14, 2014).
-Thomas Whitehead was convicted of selling over $1,000,000 of counterfeit “access
cards” to access DirecTV‟s digital satellite feed and, despite a Guidelines range of 41 to
51 months, the District Court sentenced him to 1000 hours of community service, a large
restitution order, and five years of supervised release. The Ninth Circuit upheld the
sentence, finding no abuse of discretion where the crime “did not pose the same danger to
the community as many other crimes.” United States v. Whitehead, 532 F.3d 991, 993
(9th Cir. 2008).
IV.
CONCLUSION
Counsel for the Defendant believe that the combined factors of personal history, age,
uniqueness and disparity of punishment, as well as the the truth that there was zero financial loss
incurred by the State of Arkansas as a result of the conduct addressed in the prosecution of Ms.
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Shoffner, are all extremely important factors for the Court to consider in granting a nonguideline punishment.
It is unprecedented that any public official receive the punishment
proposed in the Presentence Investigation Report, not to mention such a harsh sentence that has
already been enhanced by way of intense, crass, and relentless public attention and media
coverage. Such is the situation where Martha Shoffner finds herself. Public vilification for her
actions has already punished her in a manner that erodes her basic sense of decency. She is all
but branded as evil.
She has been ostracized, shunned, and brought to feel humiliation that is callous and
without charity, understanding, or mercy. Counsel‟s attempts to keep up with the newscasts,
articles, and all other forms of electronic or print media were given up long ago. The
punishment of Martha Shoffner began when she was arrested, and treated unlike any other
individual who is not a safety threat and charged with a similar nonviolent crime. Ms. Shoffner
was handcuffed and transported from Newport to the Pulaski County jail. She was put in general
population under FBI hold, it must have been understood that she would not be released without
FBI approval until Monday morning. She was stripped, sprayed for lice, booked, given prison
garments, one blanket, a steel cot with a steel mattress, and a placed on suicide watch with a
severely limited diet throughout Saturday, Saturday evening, all day Sunday, and Sunday
evening. Except for the two female matrons and their kindnesses, the experience would have
been a nightmare.
In spite of all the vilification and humiliation, Martha Shoffner and the good life she has
lived can be seen in the attached letters submitted in her support. She is respectfully deserving of
a sentence that encompasses the Court‟s fashioning of a split sentence. Using the combinations
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of home detention, community service, and halfway house, the ends of justice and the goals of
sentencing can be fairly and mercifully applied.
Respectfully Submitted,
MARTHA ANN SHOFFNER
By:
/s/ Grant Ballard
CHARLES A. BANKS (73004)
GRANT BALLARD (2011185)
BANKS LAW FIRM, PLLC
100 Morgan Keegan Drive
Little Rock, Arkansas 72202
Telephone: (501) 280-0100
Facsimile: (501) 280-0166
CERTIFICATE OF SERVICE
I hereby certify that on May 1, 2015, I electronically filed the foregoing with the Clerk of
the Court, via CM/ECF, which shall send electronic notification of such filing to the following:
Jana Harris
[email protected]
/s/ Grant Ballard
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