U.S. v. Cusack
| Decision Date | 17 September 1999 |
| Docket Number | No. 98 CR. 691(DLC).,98 CR. 691(DLC). |
| Citation | 66 F.Supp.2d 493 |
| Parties | UNITED STATES of America, Plaintiff, v. Lawrence X. CUSACK Jr., a/k/a "Lawrence X. Cusack III," a/k/a "Lex Cusack," Defendant. |
| Court | U.S. District Court — Southern District of New York |
Paul A. Engelmayer, Peter G. Neiman, Assistant United States Attorneys, United States Attorney, Southern District of New York, New York City, for plaintiff.
Maranda E. Fritz, Fritz & Miller, P.C., New York City, Robert F. Katzberg, Kaplan & Katzberg, New York City, for defendant.
After a jury trial, defendant Lawrence X. Cusack ("Cusack") was convicted on April 30, 1999, of thirteen counts of wire and mail fraud in violation of 18 U.S.C. §§ 1341, 1343 for his role in a fraudulent scheme involving the sale of a number of documents that he claimed contained the handwriting of President John F. Kennedy and other prominent figures. On May 26, 1999, the Government gave notice of several sentencing adjustments and departures. Subsequently, on June 28, 1999, the Court also gave notice of several possible adjustments and departures and set a schedule for the briefing of those issues by the parties. In particular, the Court required the parties to address a possible adjustment for abuse of trust, a possible criminal history category departure based on the defendant's conduct, and the appropriateness of any adjustment or departure based on the defendant's wearing of a military uniform. At a conference with the parties on July 12, 1999, the Court indicated that the conduct cited as a basis for a criminal history departure would also be considered as a basis for a departure under Section 5K2.0 of the Sentencing Guidelines.
On August 24, 1999, the Probation Department issued a Presentence Investigation Report (the "PSR"). The PSR calculated an adjusted offense level of twenty-eight as follows: a base offense level of six, an increase of fourteen levels based on a total loss of $7 million, an increase of two levels for more than minimal planning under Section 2F1.1(b)(2), an adjustment of four levels for Cusack's role in the offense under Section 3B1.1(a), and an adjustment of two levels for obstruction of justice based on the provision of handwriting exemplars under Section 3C1.1.
By letter dated September 3, 1999, counsel for defendant indicated that it was only objecting to the obstruction of justice adjustment. By a series of letters, counsel for defendant has also objected to the adjustments and departures not included in the PSR that have been noticed by the Government and the Court. Finally, on September 13, 1999, the defendant moved for a downward departure based on the defendant's diminished mental capacity.
The evidence at trial overwhelmingly established the following. In 1993, Cusack was working as a paralegal at the law firm founded by his father, Cusack & Stiles, and was earning between $25,000 and $35,000 a year. His wages at the firm were being garnished because of a number of judgments obtained against him by creditors. Months earlier, Cusack had met John Reznikoff, a dealer in autographs and stamps, and had learned how valuable the autographs of famous people could be. Cusack told Reznikoff that he had found documents in his father's files that contained the writing and signatures of President John F. Kennedy, Marilyn Monroe, and Robert F. Kennedy (the "Cusack Documents"). According to Cusack, his father, Lawrence Cusack Sr. ("Cusack Sr."), had for years been a secret adviser and confidant to President Kennedy.
According to Cusack and as "corroborated" by the Cusack Documents, Cusack Sr. assisted President Kennedy with a number of intrigues that included (1) the payment of hush money to Marilyn Monroe to cover up an extramarital affair; (2) the cover-up of a supposed secret marriage and subsequent secret divorce prior to Kennedy's marriage with Jacqueline Kennedy; (3) the cover-up of Kennedy's interactions with organized crime figures; (4) Kennedy's attempts to prevent J. Edgar Hoover, the former director of the FBI, from blackmailing him; and (5) Kennedy's addiction to pain killers. The documents depicted prominent figures in the Catholic Church, including Cardinal Spellman, as facilitators of these intrigues.
Cusack represented himself to Reznikoff as a lawyer and as a decorated former Navy lieutenant commander who had served in Vietnam and Cambodia. In one of their early meetings, Cusack wore a bomber jacket with a three-leaf colonel's cluster. The two eventually traveled to Annapolis together where Cusack appeared in full military dress and exchanged salutes with naval officers. On this occasion, Cusack wore a number of awards on his chest, including a Navy cross, one of the military's highest honors. As their friendship developed, Cusack began to share the documents with Reznikoff, and the two eventually entered into an agreement whereby Reznikoff would act as Cusack's agent. Cusack and Reznikoff then enlisted Thomas Cloud, a dealer in rare documents with access to rich clients, to sell the documents. The three believed that the Cusack Documents could be privately placed with investors and later resold in an auction after they were made public through a book or movie. To attain the high prices for the documents that they sought, the three located a number of collectors of Kennedy memorabilia to "authenticate" the Cusack Documents. In the ensuing years, the three sold between 250 and 275 documents for a total of approximately $7 million. Cusack earned approximately $5 million from the sales, which he invested in a life of luxury.
In time, Cusack came into contact with journalists who were interested in the Cusack Documents. Pulitzer prize-winning author Seymour Hersh wanted to include the Cusack Documents in his new book on the Kennedy presidency. The television network ABC and a producer named Mark Obenhaus wanted to do a documentary on the documents. Once these efforts intensified in 1997, however, the journalists discovered that the documents were forgeries and refused to proceed. In the process, the Cusack Documents were exposed to the public as fakes and Cusack, Reznikoff and Cloud were forced to cease selling the documents. In 1997, the scheme came to a close.
The evidence at trial conclusively demonstrated that all of the Cusack Documents are indeed fakes and were authored by Cusack. As a paralegal at Cusack & Stiles, Cusack stole documents from his father's files, the files of Cusack & Stiles, the Surrogate's Court, and the Archdiocese of New York. Cusack altered and embellished these documents with the forged handwriting of President Kennedy and others and sold them as the Cusack Documents.
Several different types of proof supported these conclusions. First, many of the documents are highly implausible on their face. For example, an index card containing a citation to a tax practitioner's article was altered to suggest that Cusack Sr. and President Kennedy shared a grin over how the article could help them foil Hoover. Second, several of the documents contain zip codes which were not in use until after President Kennedy's death. Third, expert analysis revealed that the typefaces used in many of the documents did not exist at the time the documents were supposedly authored. Fourth, additional expert analysis concluded that the handwriting on the documents did not belong to President Kennedy and was likely a forgery made by Cusack. Finally, evidence showed that only Cusack had the ability and opportunity to carry out the fraud.
The evidence at trial also established that the stories Cusack invented about himself and others were false. Cusack Sr. had never had any relationship, professional or otherwise, with President Kennedy. Cusack himself was not a lawyer and had never served in the military.
The Government argues that an obstruction of justice adjustment is appropriate on either of two grounds: (1) the defendant's disguising of his handwriting in exemplars provided to the Government in response to a subpoena, and (2) the filing of a pair of civil suits by the defendant against potential witnesses. Cusack disputes that the handwriting exemplars show he intended to obstruct justice. With respect to the filing of civil suits, Cusack argues that there is no evidence of threats by him against any witness and that the record is insufficient to support a finding of specific intent to obstruct justice.
Section 3C1.1 of the Sentencing Guidelines authorizes a two-point adjustment:
If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense ....
U.S.S.G. § 3C1.1.1 In November 1998, in order to clarify the relationship between the obstruction and the offense, language was added to require explicitly that "the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense ...." U.S.S.G. § 3C1.1 (1998). See also United States v. McKay, 183 F.3d 89, 95 (2d Cir.1999).
The willfulness requirement in the text of Section 3C1.1 requires that "the defendant consciously act with the purpose of obstructing justice." United States v. Case, 180 F.3d 464, 467 (2d Cir.1999) (internal quotation omitted) (emphasis in original). See also United States v. Reed, 49 F.3d 895, 900 (2d Cir.1995). In order to impose an adjustment for obstruction of justice, a "specific finding of intent" must be made by the sentencing court where the defendant raises the issue of his state of mind. United States v. Bradbury, 189 F.3d 200, 204 (2d Cir.1999) (internal quotation omitted). This finding of intent may be based on circumstantial evidence. United States v. Sisti, 91 F.3d 305, 313 (2d Cir.19...
To continue reading
Request your trial
-
U.S. v. Emmenegger
...make their parents proud. Few resemble the defendants in United States v. Merritt, 988 F.2d 1298 (2d Cir.1993), or United States v. Cusack, 66 F.Supp.2d 493 (S.D.N.Y.1999), whose characters were so reprehensible as to suggest a higher sentence than that provided by the applicable While it i......
-
Cusack v. 60 Minutes Div. of CBS, Inc.
..."[t]he evidence at trial conclusively demonstrated that all of the Cusack Documents are indeed fakes and were authored by Cusack." (66 F. Supp.2d 493, 498). While rejecting the prosecution's argument that Cusack obstructed justice by commencing this action, as well as a similar action again......
-
U.S. v. Cox, Docket No. 01-1459.
...or the expansive language of the guideline itself, creating an apparent tension within our precedent. See United States v. Cusack, 66 F.Supp.2d 493, 506-07 (S.D.N.Y.1999), aff'd, 229 F.3d 344 (2d Two considerations allow us to resolve this tension. First, the broad language of Chunza-Plazas......