United States District Court, D. Maine
ORDER ON MOTION FOR STAY OF VOLUNTARY SURRENDER AND FOR BAIL PENDING APPEAL
JOHN A. WOODCOCK, Jr., District Judge.
On January 16, 2015, the Court sentenced Patrick M. Curley to 24 months' imprisonment and ordered him to self-report on April 17, 2015. With that date approaching, Mr. Curley asks the Court to stay his voluntary surrender and for bail pending appeal to the First Circuit, pursuant to 18 U.S.C. § 3143(b). The Court denies his motion. Mr. Curley intends to raise two issues to the First Circuit that he says are substantial questions of law likely to result in a shorter term of imprisonment. As to the first issue, the Court denies his request because it is not a "close question." As to the second issue, the Court denies his request because Mr. Curley intends to raise a new issue and he has not met his burden to prove that the Court committed any error, much less "plain error."
A. Indictment, Change of Plea, Prosecution Version, Sentence, and Appeal
1. The Charge and Guilty Plea
On March 21, 2013, a federal grand jury indicted Patrick M. Curley on one count of extortion, in violation of 18 U.S.C. § 875(d). Indictment (ECF No. 2). On May 29, 2013, Mr. Curley entered a plea of not guilty. Minute Entry (ECF No. 10). On April 7, 2014, Mr. Curley entered a plea of guilty, which the Court accepted. Minute Entry (ECF No. 72).
2. The Admitted Prosecution Version and Sentencing Hearing Emails
According to the Second Revised Prosecution Version, on March 11, 2010, Mr. Curley applied for a security job at Vescom, a Maine-based company and, "[a]fter a series of e-mails and phone calls with Vescom Senior Vice President Pamela Treadwell, [Mr. Curley] met Ms. Treadwell and her husband, Dana Treadwell, in New York on April 21, 2010. Second Revised Prosecution Version at 1 (ECF No. 69). "After the three arrived at an agreed upon location, Mr. Treadwell excused himself and Ms. Treadwell interviewed" Mr. Curley. Id. Following the interview, Mr. Curley expressed interest in the position. Id.
On April 27, 2010, Mr. Curley sent an email to Ms. Treadwell, accusing her and Mr. Treadwell "of making condescending derogatory remarks against him and of proposing that he engage in a three-way sexual fantasy in exchange for a job offer." Id. Notably, he threatened to sue Vescom, stated he would send a notice of intent to the general counsel of Vescom, and threatened to notify "Vescom's president of her egregious, unprofessional, and illegal behavior.'" Id. On April 28, 2010, Mr. Curley sent a second email to Ms. Treadwell "in which he alleged he had been discriminated against, sexually harassed and ridiculed." Id. at 1-2.
Mr. Curley knew the allegations were untrue, and his "intent was to obtain money or something of value from Vescom to which he had no valid claim of right." Id. at 2. Subsequently, Mr. Curley made the same allegations via email and telephone to Charles Yesnick, general counsel of Vescom. Id. Mr. Curley hired an attorney, who "drafted and sent Mr. Yesnick a letter reiterating Defendant's claims and making a settlement demand to resolve the case." Id. Furthermore, Mr. Curley emailed Sharif Assal, president of Vescom, accusing Mr. Yesnick of "bad faith" and threatening to go public on his allegations. Id.
At the Rule 11 hearing, Mr. Curley admitted that "his intention when he threatened to sue Vescom for Ms. Treadwell's alleged misconduct, and threatened to disclose his claims to the media, was to obtain money or something of value from Vescom to which he had no claim of right." Id.
At the January 16, 2015 sentencing hearing, the Government introduced into evidence a series of emails between Attorney Grabell (Mr. Curley's attorney) and Attorney Yesnick and between Attorney Grabell and Mr. Curley. Gov't Ex. 6. These emails confirmed the substance of the Prosecution Version in this case. However, they also revealed that in late July or early August 2010, when no progress had been made in negotiations between Attorney Grabell and Attorney Yesnick, Mr. Curley emailed Mr. Yesnick and Vescom directly. Id . Email from Att'y Yesnick to Att'y Grabell (Aug. 12, 2010). In this email, Attorney Yesnick informed Attorney Grabell that Mr. Curley threatened to go to "major media" and expose this alleged scandal; Attorney Yesnick also wrote that "[w]hile Mr. Curley has attempted to call this freedom of speech, I believe the legal term for this is called blackmail." Id.
3. The Presentence Report and Its Guideline Calculations
On July 10, 2014, the Probation Office (PO) issued its final revision of the Presentence Report and recommended the following Guideline calculations:
The PO used United States Sentencing Guidelines (U.S.S.G.) § 2B3.3, the Guideline provision that addresses blackmail and similar forms of extortion. It started with a base offense level under § 2B3.3(a) of 9. It then applied the specific offense characteristic in § 2B3.3(b)(1):
If the greater of the amount obtained or demanded (A) exceeded $2, 000 but did not exceed $5, 000, increase by 1 level; or (B) exceeded $5, 000, increase by the number of levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to that amount.
U.S.S.G. § 2B3.3(b)(1). The PO concluded that the amount demanded exceeded $5, 000 and it therefore cross-referenced the loss table in § 2B1.1(b)(1). Specifically, the PO concluded that the amount demanded was $130, 000 and it fixed a ten-level enhancement under § 2B1.1(b)(1)(F). With a three-level reduction for acceptance of responsibility under § 3E1.1, the total offense level was 16. For a total offense level of 16 and a criminal history category of I, the Guideline ranges for imprisonment was 21 to 24 months, for fine was $5, 000 to $50, 000, for supervised release was not more than one year, and there was a mandatory special assessment of $100.00.
4. Presentence Conferences
The Court held a presentence conference on September 4, 2014. Minute Entry (ECF No. 78). Mr. Curley's counsel had interposed an objection to the PO calculations, in particular to the ten-level enhancement and, in view of defense counsel's request to obtain more information, the Court set another presentence conference for September 23, 2014, and that conference was dedicated to a discussion of whether the PO had correctly applied the ten-level enhancement. Minute Entry (ECF No. 82). Counsel agreed to file sentencing memoranda to assist the Court. Id.
5. The Defendant's Sentencing Memorandum
On November 24, 2014, Mr. Curley filed a sentencing memorandum. Def.'s Sentencing Mem. (ECF No. 84) ( Def.'s Mem. ). Mr. Curley agreed that "[t]he sentencing guideline for 18 U.S.C. § 875(d) offenses is found in U.S.S.G. § 2B3.3, and the base level offense is nine (9) pursuant to U.S.S.G. § 2B3.3(a)." Id. at 3. Mr. Curley attached a demand letter dated July 1, 2010 from his attorney, Matthew R. Grabell, to Attorney Charles Yesnick of Vescom, in which Attorney Grabell outlined Mr. Curley's allegations against Ms. Treadwell, including a recitation of a conversation between Ms. Treadwell and Mr. Curley that was later determined to have been simply dreamed up by Mr. Curley. The Grabell demand letter concluded:
Presumably, Vescom would prefer to avoid the costs and notoriety and adverse publicity associated with litigating Mr. Curley's meritorious claims. However, only a compensatory financial settlement will avoid this exposure, as well as the possibility of a jury verdict which could run well into the six, and even seven, figure range.
Toward that end, I have advised my client to delay filing a complaint in state court until you determine your response to our pre-litigation settlement "demand" of $130, 000.00, roughly one year of his expected salary plus attorneys' fees.
I must insist, under the circumstances, on a response within ten (10) days of your receipt of this correspondence.
Id. Attach. 1 Letter from Att'y Matthew R. Grabell to Charles Yesnick, Esq. at 2-3. On July 16, 2010, ...