Sentencing Memorandum
People v. Dupont
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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THE PEOPLE OF THE STATE OF NEW YORK Indictment No. 4995/80
:
-against- DEFENDANT'S PRE-SENTENCE
: MEMORANDUM
RICHARD DUPONT,
:
Defendant.
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Introduction
This memorandum is submitted pursuant to S319.40 of the
Criminal Procedure Law setting forth information which the
defendant deems pertinent to the question of sentence. Annexed
hereto are certain letters and exhibits which are relevant to the
points made.
POINT ONE
THE DEFENDANT HAS MANY CLOSE FRIENDS AMONG WHOM HE HAS
A HIGH REPUTE.
The defendant, contrary to the picture in the
probationary report, has many friends of substance among whom he
enjoys a high repute.
Attached hereto and marked EXHIBITS ONE through FIVE
are the following letters of reccommodation:
EXHIBIT ONE: letter from Alfred J. Lippman,
Chair man of the Board of the Mexican Chamber of
Commerce dated November 11, 1981;
EXHIBT TWO letter of Raymond Lewis dated November
12, 1981.
EXHIBT THREE letter dated November 11, 1981 from
David M. Strasberg, M.D.
EXHIBIT FOUR letter dated November 13, 1981 from
Mrs. Joseph Kates.
EXHIBIT FIVE a copy of a letter dated November 10,
1981 from Frank A. Harris, Municipal Escrow and Title
Company Inc., Washington D.C.
These letters demonstrate that the defendant is a
person who is worthwhile and worthy of redemption. The letter of
Mr. Lewis explains in some detail how a person friend view the
effect of the trauma of Big Gym upon him. Defendant submitts
these matters should be taken in litigation and they present a
far different, and more accurate picture of defendant, then the
recitation of COHN's story contained in the probation report.
POINT TWO
THE PSYCHIATRIC REPORT ON DEFENDANT INDICATES
THAT A SENTENCE OF IMPRISONMENT MAY BE A
SENTENCE OF DEATH
At the direction of the court a psychiatric examination
has been peformed on the defendant. One result of that
examination is the opinion of the psychiatrist is that there is a
danger defendant will become suicidal if incarcerated.
Putting aside for the moment, the fact that the
principal complaining witness openly boasts of his connections
with organized crime and his willingness to seek favors from
organized crime as discussed infra; closing our eyes to the
statement of Gordan Liddy in his book Will, that in an American
prision the cost of a man's life is a carton of Kools cigarettes;
an even averting our gaze from the fact that homosexuals are more
prone to violence and murder in prisons then the average inmate;
the report of the courts own psychiatrist is that there is a risk
of the defendant's self-destruction if he is incarcerated.
The defendant is not guilty of any crimes of violence
nor does his records show that he's violence prone. Given the
psychiatric report therefore, and the chance that psychiatric
care outside of a prision habitat may benefit the defendant, only
if the court feels this is an extremely aggravated case should
the defendant be incarcerated.
In deciding whether or not the defendant should be
incarcerated or not, the court should, of course, act only upon
what the defendant has been convicted of and not what the court
may suspect. Significantly, in acquitting the defendant of the
NINTH COUNT, the jury rejected attempts to circumstantially tie
the defendant to items such as the publication of newspaper
advertisements. As a matter of fact, for each count the
defendant was convicted, there was evidence other than the
testimony of COHN as to some contact by the defendant.
Therefore, the court in considering an appropriate sentence
should consider what the defendant has been convicted of and not
what it might be suppect that he did.
He has been convicted of no violent crime, he has no
violence in his background and given the psychiatric report a
sentence of incarceration may well be a death sentence.
POINT THREE
THE DEFENDANT DESERVES APPROBATION FOR REVEALING
TO THE PUBLIC PREVIOUSLY HIDDEN ACTS CONCERNING
COHNS PREYING ON THE PUBLIC AND HIS CLIENTS.
It is not the purpose of this memorandum to justify the
total contents of either edition of "Now East". Putting those
magazines aside, however, it is amply clear from the evidence
already before the court that this defendant has played a
substantial role in bringing into the public arena evidence of
COHN's misconduct as an attorney and as a citizen.
Defendant in December 1980 sought to dismiss the
indictment on the grounds that it was not in the interest of
justice to proceed because of the actions and habits of COHN and
his associates who are the principal complaining witnessess in
this case. (That motion, its affirmation, memorandum and
exhibits will hereinafter be referred to as the "prior motion.")
The court did not find in these matters sufficient basis do
dismiss the indictment. However, the prior motion is hereby
incorporated by reference. The appropriate parts of my previous
affirmation which described the operations of COHN with reference
to the EXHIBITS as were attached to the prior motion papers are
as follows:
COHN's Method Of Doing Business
21. BIG GYM is not the first time that COHN
has mixed his legal practice with private investment.
It may be one time when he actually used his own money
for the investment. Certainly, that COHN should have
acquired an interest in a client's business should come
has no surprise to this particular District Attorney,
ROBERT M. MORGENTHAU. Although there are many publicly
reported and litigated examples of this particular
technique of COHN, three documented examples interact
with personalities involved in this case. The defendant
would rspectfully draw the Court's attention to the
voyage of the "Defiance", the takeover of Universal
Money Order and takeover by "Dolphin Brothers" of por
nographic theatres in Irvington and Cherry Hill, New
Jersey.
22. The following EXHIBITS illuminate the
COHN method of doing business:
EXHIBIT G: Extract of Testimony, People v. Dupont,
N938360/79
EXHIBIT K: Don't Mess with Roy COHN, Esquire Fort-
nightly, December 5, l978,
Cover, pages 39 et seq.
EXHIBIT L: Extract, N. Y. Daily News, December 16,
l979, page 5 et seq.
EXHIBIT M: Extract, N. Y. Daily News, December 17,
l979, page 5 et seq.
EXHIBIT N: Extract, N. Y. Daily News, December 18,
l979, page 5 et seq.
EXHIBIT O: Extract, N. Y. Daily News, December 19,
l980, page 5 et seq.
EXHIBIT P: Extract of Brief of Defendants-Appellants,
Bader & Bader et al v. Henry Ford II et al, Appellate
Division, First Department, Supreme Court, N. Y. County
Index No. 7189/78.
EXHIBIT Q: Extract, Village Voice, December 10, l980,
page 5.
The Defiance
23. A single connecting thread through all of
these incidents is DANO. On the surface, the Defiance
was a yacht owned by an independent corporation called
Pied Piper Yacht Charter Corp.("PIED PIPER"). As a
matter of fact, as it appears in the decision of the
court cited in EXHIBIT P, PIED PIPER was a personal
business vehicle for SAXE and COHN. The yacht was sup-
posedly being held in escrow pursuant to an order in an
SEC injunction proceeding. The Defiance mysteriously
sank. COHN and his cohorts collected insurance proceeds
and pocketed them. The officer of PIED PIPER who
endorsed the insurance check for deposit was PAUL DANO.
The court's opinion of about the actions of COHN in
this matter is cited at length in EXHIBIT P.
Universal Money Order
24. In the Universal Money Order bankruptcy,
DANO, acting with money acquired in part with HOWARD
PFEFFER, purchased the interest of a bankrupt company,
the principal of which was represented by COHN in a
related criminal matter. In addition, SAXE was also
representing a creditor in the bankruptcy proceeding.
This matter is discussed in EXHIBIT L, and is also the
subject of cross-examination in EXHIBIT G, p. 30 et
seq. Not coincidently HOWARD PFEFFER is the grand jury
witness that Mr. Dupont is accused of tampering with.
25. The relation of COHN'S business activi-
ties through DANO and even his political and judicial
activities is demonstrated by EXHIBIT Q. It is noted
that it was DANO'S corporation, United States Bank
Note, that contributed $5,000 to the Manhattan Borough
President the day after a favaorable vote by the Man-
hattan Borough President for another COHN favorite,
LEWIS KATZ.
Pornographic Theaters
26. In the case of the New Jersey pornographic
theaters which is discussed in the Daily News EXHIBIT
N, RUSSELL ELDRIGE makes an appearance. In addition to
his duties with BIG GYM, ELDRIGE also worked for DANO
at the Cherry Hill theater at a time when DANO and
ELDRIGE had bedrooms in COHNS' townhouse. Again, the
close relationship of COHN, SAXE, DANO and the business
enterprise involved in a bankruptcy is clearly demon-
strated by the publicly known facts. It was DANO's
dimness as to his relationship to ELDRIGE that occa-
sioned caustic critism by the Court in the earlier
criminal case against DUPONT. EXHIBIT G, p. 24 et seq.
27. The EXHIBITS presented are a part of the
"totality of circumstances" surrounding the indictment
of the defendant. This totality of circumstance not
only supports defendant's contention that COHN was his
business partner and that the FIRST COUNT of the in-
dictment is indeed a fairy tale but impeach the credi-
bility of the principal complaining witness COHN.
28. Defendant submits that at the very least the
Grand Jury minutes must reflect an honest attempt by
the prosecuting attorney to lay before the Grand Jury
the known facts concerning COHN's lack of veracity and
unethical conduct as setforth in the judicial decisions
cited in EXHIBIT P.
Dupont's in role in bringing the Universal Money Order
to public attention in the Philadelphia bulletin was testified to
by Howard Pfeffer. Incredibly in the Bill of Particualars dated
March 26, 1981 p.3 |7 the District Attorney charged that one of
Dupont's communications with the Philidelphia Bulletin
constituted harrassment of COHN. The District Attorney did not
attempt to demonstrate this at trial, but clearly if we accord
Pfeffer's testimony any weight it was Dupont who caused to be
brought to public attention the fraud and misconduct of COHN in
the Universal Money Order situtation.
That Dupont was responsible for authorities in Chicago
ridding themselves of a COHN-Dano scam on Chicago parking lots we
have from the lips of Roy COHN himself. During cross-examination
COHN somewhat heatedly claimed that Dupont telephoning the
railroad in Chicago with his "lies" was the cause of them
receiving a 48 hours notice to quit. These "lies" were
allegations of fraudulent practices by COHN's partners in the
counting of cars in the lots. By concealing the true number of
cars parked they were able to avoid paying lawful rent. The fact
of Dupont's telephone calls to the railroad in Chicago is
demonstrated by the tolls on his telephone which are in evidence.
Certainly Dupont is to be credited to be stopping this
scam. But COHN and DANO have cheated New York City taxpayers in
the same manner. Also attached hereto and marked EXHIBIT SIX is
an extract from audit of the controller of the City of New York
of one of Dano's parking operations in the City of New York
Heliport Interprises Inc. Dano's acquisition of Heliport is
discussed in EXHIBIT M of the prior motion. EXHIBIT SIX
demonstrates that on April 16, 1980 the controller found Heliport
was guilty of essentially the same practices that Dano National
Services was guilty of in Chicago. As a matter of fact Heliport
this month been evicted from the Staten Island parking lots.
Dano's relationship to Heliport was described in the Daily News
(EXHIBIT M of the prior motion) as follows:
BETWEEN 1974 AND 1979, Dano moved in and out of
other concessions in financial transactions that can
best be described as casual. In 1976 for example, Dano
took over a 760 car parking lot at the ferry terminal
on Staten Island, suddenely emerging as president of
Heliport Enterprises, Inc., the company that owned the
lot. Dano says he can't remember how he got into the
corporation, why the previous owner, Edward Jacobson,
got out or even whether any money changed hands.
"I know the deal wasn't a plum, but I can't say
right now how all that took place," Dano said.
This despite the fact that when Jacobsen was
president and Dano was vice president, the company was
doing business out of COHN's office. Dano continues to
conduct much of his own affairs there.
Dano often has memory prolems when it comes to his
dealings with COHN. When he was asked, for example,
whether he owned a home in Acapulco often used by COHN
and friends as a vacation retreat, he chuckled and
said:
"The reason I'm laughing is because that deal was
in Spanish. I'll gave to get back to you."
When he did he said he didn't own the home, after
all.
Dano doesn't own the Staten Island lot anymore.
He sold it, last July to Richard Cantarella, a truck
driver and holder of several concessions, and John
Blanco, a sales manager. The purchase price was
$35,000 and Cantarella, who arranged the deal, told
the News that he didn't bother to look at the books
beforehand. He seemed uncertain as to whether Dano
retained an interest.
"I'm taking it for granted that Paul Dano is out
completely. That's what my lawyer told me."
Last week Canterella may have had some second
thoughts about not perusing the books. The City
notified Heliport Enterprises that its lease was being
cancelled, that it owed the city at least $119,000 in
back rent, most of it run up under Dano, officials
said.
Attached hereto as EXHIBIT SEVEN is a report from the
Daily News concerning the attempt of COHN's clients Rubel and
Shrager to blackmail the government into a lenient sentence by
attempting to implicate Hamilton Jordan the President's assistant
in the use of cocaine. COHN's disingenuous claims of
non-involvement in the blackmail attempt are hardly worth
crediting. If anything, this trial has demonstrated that Roy
COHN is not one who tells the truth even under oath. However,
Dupont testified and it is clear from the record that he was
called down to the Special Prosecutors office and did cooperate
in that investigation.
This memorandum will make no attempt to justify the
sexual aspects of "Now East". However there can be no question
that much of the information contained in "Now East" was true and
indeed was first revealed in those publications. For example,
there is the affair of Buddy Jacobson. Prior to the appearance
of "Now East" COHN's interest in Buddy Jacobson was a carefully
guarded secret. It was only in "Now East" that it was reported
that COHN was working with Jacobson and that his payoff would be
interest in Jacobson's real estate. The story seems far fetched.
However, we have attached EXHIBIT EIGHT an article by COHN's
friend Claudia Cohen which verifys that Dano acquired at a cut
rate price real property of Jacobson and we know from COHN's
Grand Jury testimony that his business deals are regulary
referred to Dano because he conducts no business in his own name.
(See again EXHIBIT M).
The purpose of this recitation is to demonstrate that
Dupont has played a role in bringing to the public view
heretofore concealed misconduct of Roy COHN. This is a factor
that should weigh on his behalf in the sentencing.
POINT FOUR
THE FAILURE OF APPROPRIATE AUTHORITIES TO
TAKE ACTION AGAINST COHN IS A MITIGATING
FACTOR ON DEFENDANT'S BEHALF. HAD APPRO-
PRIATE AGENCIES DISCHARGED THEIR DUTIES A
DECADE AGO, COHN WOULD NOT BE PRACTICING
LAW.
COHN's notorious flaunting of the cannons of ethics has
resulted in judicial determinations of misconduct that have been
ignored by appropriate authorities. The following recitation is
drawn from the defendant's memorandum of law submitted in support
of his prior motion:
In re Estate of Rosenstiel, No. 76-436(Fla. Cir. Ct.
Dade Co. June 24, 1976) a proceeding was instituted in
the Florida courts to revoke probate of a second
codicil to the will of Lewis Rosenstiel, a
multmillionaire, which would have appointed COHN and
others as excutors and trustees of the will. The pro
ceeding was initiated when it came to light that Mr.
COHN had entered the hospital room of the dying man,
and lied to him in order to obtain signature on the
codicil. The court revoked the order admitting the
codicil to probate on the basis of its finding that
"ROY M. COHN misrepresented to the decedent, LEWIS S.
ROSENSTIEL, the nature, content and purpose of the
document that he offered to Mr. ROSENSTIEL for
excution."
According to the opinion of the Honorable Frank B.
Dowling, Circuit Judge, COHN had in fact misrepresented
to the dying man that the codicil being presented by
COHN for Rosenstiel's signature was a document that
could save Rosenstiel's exwife from prison.
SEC v. Pied Piper Yacht Charters Corp.; No. 71 Civ.
5341 (S.D.N.Y. Feb 25, 1976) involved a motion to hold
COHN and his law firm (at the time known as Saxe,
Bacon, Bolan & Manley) in civil contempt for breaching
their fiduciary duties as court-ordered escrow agents
by failing to protect, and improperely disbursing, the
escrow corpus. In seeking to avoid contempt, COHN de
nied any knowledge of the terms and requirements of the
escrow order, which denial the court viewed "with
suprise bordering on stupefaction." The court stated:
"The evidence ... establishes beyond any doubt not only
Mr. COHN's awareness of the terms and conditions of the
escrow order ... but his responsibility for its re
peated violation."
Commenting on COHN's veracity, Judge Palmieri
observed,
"[n]ine months after making his unfulfilled
promise to supply the SEC with facts... COHN
continued his tactic of obfuscation by bold
assertions of half-truths and untruths."
The court found COHN'S testimony on point
after point "not credible", "contrary to the
overwhelming weight of the evidence" and "undermined
and destroyed." The COHN firm was ordered to
repay all monies taken from the escrow fund ($219,000)
within twenty days or be deemed in civil contempt.
United States v. Johansson, 477 F.2d 702 (5th Cir
1971), involved an action by the Government to collect
back taxes owed from the proceeds of the third Floyd
Patterson-Ingemar Johansson heavyweight championship
fight. The court held COHN and his law partner Thomas
a. Bolan personally liable for the back taxes in the
amount of $135,769.94, stating:
"[W]e cannot escape a conclusion that both
Bolan and COHN were directly and personally
responsible for causing Feature Sports, Inc.2
to violate the courts orders..." (id. at 707),
"[W]e do not hestitate to affirm the district
court's determination that appellants
[including COHN and Bolan] have violated the
court's order's orders." Id. at 706.
In EC v. Fifth Ave Coach Lines, Inc., 289 F.
Supp. 3 (S.D.N.Y. 1968), aff'd, 435 F.2d 510 (2d Cir.
1970), the SEC sought to enjoin various illegal prac-
tices engaged in by, among others, Messrs. Bolan and
COHN. The court found that Mr. COHN and others had
participated in a conspiracy to use Fifth Avenue Coach
Lines Inc. ("Fifth") for their own purposes and that
"COHN benefited from the use of Fifth's money to pay
the loans made to him by" other directors. Id. at 41.
The Court also noted that Mr. COHN attempted to "cover
up" the involvement of two other directors in ratifying
questionable corporate transactions. Id. at 42 n.24.
Believing that there was "a real danger that unless an
injunction is issued, the sort of activities which have
taken place heretofore will be repeated" (id. at 41),
the court enjoined Mr. COHN and others from violating
the securities laws. Id. at 41-42. As to Mr. Bolan,
who was President of Fifth, the court found that the
evidence did not jusify a finding that he personally
participated and declined to enjoin him. However, the
court appointed a receiver, saying:
"Bolan is the senior partner of Saxe,
Bacon & Bolan. He is so closely associated
with COHN that he allows COHN to sign his
name to important documents. Saxe, Bacon &
Bolan and COHN have been and are closely
connected with Fifth, much more intimately
than in the normal attorney-client
relationship...."
"The court feels that in fairness to Fifth's
stockholders, it simply cannot take a chance
on Bolan...." Id. at 42.
To that recitation we can now add Universal Money
Order. Mr. Pfeffer testified among other things that his
associate paid COHN large amounts of cash for Universal Money
Order fee and that COHN used Pfeffer's money to buy the interest
on behalf of Paul Dano. COHN told Pfeffer that he could not have
an interest because he was somehow related to Scarron. How then
could Scarron's attorney COHN represent the buyer and be involved
in the sale in this way?
As a matter of fact, defendant's attorney can recite
one explanation of why the Bar Association and the appropriate
disciplinary authorities have not reacted to COHN. In 1973, I
had a chance conversation with a former attorney for the SEC.
When he learned that I had been previously an associate counsel
the Committee on Grievances of the Association of the Bar of the
City of New York he began to chide me for the Committee's
failures to take action on COHN. He was knowledgeable with the
SEC's case against COHN and handled liaison with the Bar
Association. He told me that the problem was that the attorney
from the Bar Association was "one of the dumbest attorneys who I
ever met". That particular associate counsel is no longer with
the Bar Association so his name is irrevelant to this discussion.
The fact remains that for whatever reason, be it incompetence or
lack of nerve, despite the findings of Rosenstiel, Fifth Avenue
Coach, Pied Piper and Johansson, not one disciplinary step has
been taken against COHN.
EXHIBIT K of the prior motion of December 16, was an
article by Ken Aulletta concerning COHN. In fact, it was the
cover story and it was this magazine that was brandished by COHN
in one of his discussions with Dupont. COHN boasted of being
"the legal executioner." The concluding paragraph of that
article bears note: "Whatever complaints or judgements are
registered against COHN, no Bar Association has ever banned him.
Evil he may be, but as Roy reminds vistors, he is a member in
good standing. Like an outlaw, Roy may have notches in his gun,
but no one has dared ask him to leave town."
Had authorities taken appropriate action against COHN a
decade ago this dispute would never arisen because he could not
have been defendant's lawyer. He would have been long disbarred.
The question was asked of Mr. Dupont why didn't he take
his complaints about COHN to the Bar Association. Need there be
anymore discussion.
COHN's deliberate attempts to play upon his reputation
for the sinister is displayed also in July 1981 Penthouse
Magazine which published the Peter Manso interview of COHN. A
copy of the cover of Penthouse is attached hereto and marked
EXHIBIT NINE. Attached further and marked EXHIBIT TEN is an
extract from the article and the court's particular attention is
drawn to COHN's discussion of representing members of organized
crime, the fact that he feels Tony Salerno is not as underhanded
as the Kennedys or Rockerfellers and that as a matter of course
he refers clients to organized crime members for favors, if "it's
legal and legitimate." What legal and and legitimate favors a
person would expect from organized crime members are not
specified.
The court's further attention is directed towards an
article appearing in that same issue entitled the Mud Club by
Cathy Lowery which appears on page 62 et seq. The article in
include pictures of men with genitals exposed, a woman engaged in
fellatio upon a man and recounts the story of a naked man in the
men's room covered with cocaine selling the right to lick the
cocaine off his body. The pictures appear in full color. This
article is in it's contents and depictions more obscene and gross
and pornographic than anything that appears in "Now East".
Except for one thing, the picture of Roy COHN and Steve Rubell
which appeared in "Now East" was cropped from the New York
Magazine of October 15, 1979 and was taken at the Mud Club. This
is COHN's natural milieu.
The article on the Mud Club is disgusting, COHN's com-
ments in Penthouse are disgusting. But this is the milieu that
ROY COHN has chosen for himself. It is a factor in mitigation of
the sentence that COHN has chosen to depict himself this way and
that his milieu is one of drug-soaked culture at its worst.
POINT FIVE
THE PUBLIC INTEREST IN THIS CASE ARGUES
STRONGLY AGAINST INCARCERATION. THE
CRIME OF WHICH THE DEFENDANT HAS BEEN
CONVICTED IS NOT A VIOLENT CRIME. HE
POSES NO THREAT TO THE PUBLIC AT LARGE.
NOONE OTHER THAN ROY COHN HAS TESTIFIED
TO BEING HARRASSED BY HIM AND THE JURY
OBVIOUSLY DISBELIEVES MUCH OF MR. COHN'S
TESTIMONY.
a. No public danger
The first criteria for the imposition of a
sentence of probation rather than imprisionment is:
"Intitutional confinement for the term authorized by
law of the defendant is or may not be necessary for the
protection of the public." Penal Law S65.00 (1) (a)
(i)
Of the charges of which the defendant has been
convicted the protection of the public is not necessary for
imprisonment.
b. The crowded prision conditions make confinement
against the public interest in this case.
There's no question that the New York City jail system
is in a present state of crisis; highlighted by the recent
rejection of the bail bond issue. In announcing the support of
bail bond issue by the Association of Justices of the Supreme
Court of the State of New York, the Association noted it's fears
that violent criminals will be "released precipitiously because
of the unavailability of prision cells" (Daily News, page 10,
October 27, 1981). The District Attorney of New York County has
warned that jail overcrowding may result in the release of
"dangerous criminals" (Daily News March 16, 1981 page 5).
In the instant case the court must weigh the impact of
incarceration of Dupont upon the criminal justice system as a
whole. One factor which must be weighed is whether confinement
in an overcrowded jail of this defendant convicted of non-violent
crimes will occupy space needed for the incarceration for
individuals who form a genunine threat to the community.
It is clear that the approach needed in this case is
one centering on Dupont's mental health and not his mere
temporary segregation from society in an overcrowed jail at the
potential cost of occupying space needed for other individuals.
On Sunday November 15, 1981, the relationship of
violence to the crowded conditions of the prisons were subject to
yet another editorial comment, Daily News November 15, 1981 page
51. See EXHIBIT ELEVEN attached.
References to the statements of editorials and public
officials are not given to the court for the purpose of
suggesting the court should not yield the popular passion.
However, it is quite clear that the crowded conditions of our
prisons make it essential that they be reserved for those
individuals who truly form a threat to the public. Given the
lack of violence from defendant's background there is no need for
the protection of the public by defendant's incarceration and
given the overcrowding of jails, the spaces that are availabe
should be reserved for violent criminals. This in an important
public interest.
POINT SIX
THE PRE-SENTENCE REPORT BY THE PROBATION
DEPARTMENT UNLAWFULLY USES DEFENDANT'S
PRIOR NAME.
On page ten of the pre-sentence report from the
Probation Department a skeptical reference was made to the
defendant's statement that his name has been legally changed. In
fact, the report is entitled Richard Sampson a/k/a Richard
Dupont. As a matter of fact in 1972 defendant's name was legally
changed by order of the court and it is a violation of the
defendant's civil rights for the Probation Department to refuse
to address him by that name. Attached hereto and marked EXHIBIT
TWELVE is a copy of the order and proof of publication of that
order.
POINT SEVEN
THE PRE-SENTENCE REPORT SHOWS A BIAS
TOWARD THE COMPLAINING WITNESS AND AN
ACCEPTANCE OF HIS VERSION OF FACTS WHICH
THE JURY PLAINLY DID NOT BELIEVE AND
WHICH WAS CLEARLY FALSE.
The pre-sentence report is highly a prejudicial
document and of little aide to the court in sentencing the
defendant. As a matter of fact, it accepts at face value
statements of COHN which are at variance with his sworn testimony
in this case, his sworn testimony before the Grand Jury and sworn
testimony of PAUL DANO in the earlier case against defendant. On
page nine of the pre-sentence report COHN is reported as saying:
"Essentially COHN states that his firm had made an
advance of $10,000 to protect the interest of the other
clients and this is why they had the defendant sign
over some shares. COHN points out that these shares
were essentially worthless and that the firm has never
recovered the $10,000."
As a matter of fact at the trial of this case COHN
states that the money was advanced for the account of PAUL DANO
and that he himself did not invest in the enterprise. He denied
any knowledge of the purpose of the stock except that it might
have been for Russel Eldrige.
Before the Grand Jury COHN again testified that the
money was put on PAUL DANO's account. PAUL DANO, however,
testified at Dupont's first trial he had no interest in Dupont's
business and never went into business with him.
The statements of DANO and COHN indicate that one or
both of them committed perjury in their testimony in the various
proceedings concerning Dupont. Now COHN has changed his story
for the probation report. Yet the probation department accepts
COHN story at face value. The probation department also
apparently accepted at face value COHN'S statement that it was
the threat to children that caused him to file complaint in this
case. As a matter of fact, there is no evidence to defendant
linking distribution of "Now East" to children. Moreover, the
District Attorney now concedes political forces of Lindon
LaRouche were probably behind the publication of "Now East".
Thus Mr. Dupont is being asked to take criminal responsibility
for the actions for a political organization containing hundreds
if not thousands of members who apparently according, to District
Attorney's new version, were actively involved in the publication
of "Now East."
The probation report is extremely superficial, although
it runs several pages. It appears the Probation Department
interviewed COHN, received a letter from COHN's partner Mr. Rosen
and interviewed the defendant. It makes caustic reference to his
physical appearance (pg. 12) and the only other action taken was
to verify his earnings for the past two years to be between 15
and $18,000 total.
Incarceration was recommended under the following
basis:
1. Outrageous series of criminal harrassments
which created nuisances and embarrassment.
2. That Dupont caused Saxe, Bacon & Bolan to
suffer financial expenses.
3. Distribution of "Now East" to children.
Many of the harrassing actions claimed by COHN were not
found by the jury to be defendant's responsiblity. There's been
no evidence of any financial loss to the COHN firm. No evidence
that defendant was personally responsible for distributing "Now
East" to children or did he ever intended children to receive it.
It should be also noted in this regard that in
acquitting the defendant of criminal responsiblity for COUNT
FIVE, the jury found the defendant to have a legitimate purpose
in his call to Manufacture Hanover. The contents of the call
and, the fact that the defendant made the call were not disputed.
The only thing disputed was the legitimated purpose of the call.
Obviously, the probation department had ignored the implications
of the defendant's acquittal to many of the charges in reaching
its reccomendation. Moreover, the probation department does not
report upon the effects of the defendant's actions in Chicago or
his conduct involving Universal Money Order. There is no
specification of what financial damage has caused the complaining
witness and therefore, there is no way to answer such a charge.
POINT EIGHT
BY REASON OF SIX WEEK TRIAL NECESSITATED BY THE
FELONY CHARGES OF WHICH HE WAS ACQUITTED, THE DEFEN-
DANT HAS ALREADY BEEN EFFECTIVELY INCARCERATED.
The defendant was charged with two felony counts for
which he was acquitted. Prior to his indictment, the District
Attorney, according to Mr. Wilson, had been willing to accept a
plea to a misdemeanor, but after indictment, because of a prior
conviction ten years old, such a plea was not possible because of
the felony charges. The defendant was on trial for six weeks with
his attendance required in court on a daily basis. Effectively,
although he slept at his home, he was incarcerated.
The length of the trial and the defendant's daily
attendance thereat, are factors in mitigation of his sentence.
CONCLUSION
The defendant has no record of violence, public
interest demands that the defendant should receive a sentence of
probation or a conditional discharge conditioned upon his seeking
psychiatric care.
Dated: New York, New York
November 16, 1981
JOHN C. KLOTZ
Attorney for Defendant
1350 Avenue of the Americas
Twenty-fifth Floor
(212) 664-0656
