Columbia, SC (WLTX) -- Attorneys for Rachel Duncan, the woman who plead guilty to embezzling hundreds of thousands of dollars from the South Carolina Hospitality Association, are pushing to get her a reduced prison sentence.
Back in April, Duncan pleaded in federal court to charges that she took $480,000 from the lobbing group. Prosecutors said she took the money over several years, and used much of the money for internet gambling.
Duncan's lawyers say that her prison sentence should be "sufficient but not greater than necessary."
Attorneys say that Duncan knows she is going to prison but other than a destructive gambling addiction, she has led a law-abiding life and worked hard to raise responsible, well-adjusted children. They say a shorter sentence would "promote respect for the law."
Duncan is scheduled to be sentenced this Tuesday.
Read below for the legal document obtained from Duncan's lawyers:
The Defendant, Rachel Duncan, by and through her undersigned counsel, hereby moves for a variance from the advisory sentence recommended by the United States Sentencing Guidelines. The Defendant respectfully submits that a reduced prison sentence is "sufficient but not greater than necessary" to achieve the statutory purposes of punishment, as required by 18 U.S.C. § 3553(a). For the past decade or so, the Defendant has suffered from a severe gambling addiction that drove her to compulsive behavior. She seeks the Court's understanding of her illness as grounds for a variance under the § 3553(a) factors.
I. BACKGROUND
Rachel Duncan was born on June 15, 1970, the middle sister of three girls in Auburn, N.Y. Her older sister, Teresa, is mentally disabled and still lives with their mother at home in New York. In high school, Duncan was an honor roll student, cheerleader, and a member of the ski team. Despite her façade of normalcy and success, the family hid terrible secrets.
Duncan's father sexually abused her as a child, although she only recently told her mother about the abuse. When Duncan was 12 years old, her father left their family. Her mother raised the girls by herself and struggled with financial instability. Duncan worked at the local
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grocery store, in addition to her school activities, in order to help the family's finances. Duncan does not remember many details from her early childhood. She may have blocked out aspects of her memory as a way of coping with the sexual abuse.
After graduation, Duncan attended Niagara University in Niagara Falls, N.Y. She majored in life sciences, but left the university to get married after she became pregnant with her first child. She and her husband lived in Buffalo, NY for the first few years of their marriage.
She worked in physical therapy at Maplewood Healthcare Center, an adult assisted living facility and nursing home. Several times, she was selected as employee of the month. Duncan also volunteered at a local church and worked at a homeless center three times a week making meals, reading to the residents, and helping them learn marketable skills.
The family moved to Columbia, SC in 1995, seeking a new start in a more livable part of the country. Duncan, her husband, and their daughter attended St. Joseph's Catholic Church in the Shandon neighborhood and started to build a new community of friends and neighbors.
However, the family fell apart after Duncan and her husband divorced. After the divorce, Duncan worked two jobs to keep her young daughter and herself afloat. She worked for a few years at the Columbia Jewish Federation before answering an advertisement for the South Carolina Hospitality Association in 2001. The Hospitality Association hired her as an administrative assistant and bookkeeper. Later, she became the Director of Accounting and Membership Services.
In the late 1990s, Duncan was introduced to video poker at various bars and restaurants where she went with friends. She became captivated with the game, and she started to play more and more frequently. Eventually, video poker devices were banned from bars and restaurants in South Carolina, but for Mrs. Duncan, the ban came too late. Without video poker to play in bars
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and restaurants, she turned to online gambling. Scratch-off games also became a hobby, but nothing fueled her more than the secret life she lived through online video poker gambling. At first, she only used her own money. But Duncan's money was limited, and she had a difficult time hiding her gambling addiction from her new husband.
Rachel married James Duncan in 1999. They had a daughter in 2003, moved to Lexington, bought a home, and had a son in 2008. Once again, the family façade appeared normal, but Mrs. Duncan's secrets ran deep. She played video poker and slots almost every night after she put her children to bed, and while her husband worked the night shift. Sometimes, she played at work when she thought she could hide it from co-workers. Duncan started thinking about how and when to gamble when she woke up in the morning. She stayed up many nights, unable to turn off the computer. She played poker every opportunity she could find.
At some point, Duncan figured out a plan that would fan the fire of her addiction. She started to write checks from Hospitality Association of South Carolina ("HASC") accounts to herself, which she then deposited into a personal bank account known only to her. Duncan used the vast majority of the embezzled funds for online gambling with offshore entities, transferring funds from her bank accounts to various shell companies around the world, which served as payment processors for Silver Oak Casino.com, an Australian online casino.
An analysis of Duncan's bank records by law enforcement authorities showed hundreds of diverted HASC checks and credit card refunds as well as hundreds of offshore wires to gambling payment processors. PSR, page 6, paragraph 13. By 2012, the amount of money that Duncan embezzled and failed to report as income swelled into the hundreds of thousands of dollars. Duncan confessed her crime to U.S. Secret Service agents on January 31, 2012 during a "knock and talk" at her office when she was confronted with the bank records. PSR, page 6,
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paragraph 13. Since then, Duncan has met with U.S. Secret Service agents many times to fully explain her knowledge of the murky world of on-line gambling. She also explained how she embezzled the funds, and she was able to clear the honor and good name of her boss, Tom Sponsellor, the director of HASC.
III. VARIANCE
A. A variance is justified based on application of the § 3553(a) factors and the imperative that a sentence be "sufficient but not greater than necessary."
The Supreme Court's decision in Booker made the U.S. Sentencing Guidelines advisory, returning to judges the discretion to fashion an appropriate sentence. United States v. Booker,
543 U.S. 220 (2005). After Booker, the sentencing court still calculates the applicable guideline range under the advisory guidelines. United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).
However, the district court also must consider whether a sentence within that range serves the statutory factors described in 18 U.S.C. § 3553(a), and if not, select a sentence that appropriately serves those factors. The statute, as modified by Booker:
[C]ontains an overarching provision instructing district courts to impose a sentence sufficient, but not greater than necessary to accomplish the goals of sentencing, including to reflect the seriousness of the offense, to promote respect for the law, 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. The statute further provides that, in determining the appropriate sentence, the court should consider a number of factors, including the nature and circumstances of the offense, the history and characteristics of the defendant, the sentencing range established by the Guidelines, any pertinent policy statement issued by the Sentencing Commission pursuant to its statutory authority and the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. In sum, while the statute still requires a court to give respectful consideration to the guidelines, Booker permits the court to tailor the sentence in light of other concerns as well.
Kimbrough v. United States, 552 U.S. 85 (2007)(internal citations omitted).
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As the Court determines a sentence based on a consideration of the Guidelines and the §
3553(a) statutory factors, it must be mindful that no special weight is to be given to the advisory guidelines as opposed to the other factors mentioned in 18 U.S.C.A. § 3553(a). See Rita v.
United States, 551 U.S. 338 (2007) (holding that a sentencing court does not enjoy the benefit of a legal presumption that the guideline sentence should apply); see also, United States v. Biheiri,
336 F. Supp. 2d 589, 594 (E.D. Va. 2005) (finding no individual factor is singled out as having greater weight; instead the richness of factual diversity in cases calls on sentencing judges to consider all of the factors and to accord each factor the weight it deserves under the circumstances).
In addition, the district courts no longer are required to consider first whether a departure is appropriate before considering a variance. United States v. Diosdado-Star, 630 F.3d 359, 365-
66 (4th Cir. 2011). As the Fourth Circuit explained in Diosdado-Star, "the method of deviation from the Guidelines range - whether by a departure or by varying - is irrelevant so long as at least one rationale is justified and reasonable." Id. If the sentence falls outside the Guidelines range, the court should explain its reasons pursuant to 18 U.S.C. § 3553(c)(2). United States v.
Green, 436 F.3d 449, 455 (4th Cir. 2006). Most importantly, the Court should "consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue." Gall v. United States, 552 U.S. 38, 52 (2007).
Although the Court must consider the guidelines and statutory factors, the most important requirement of the sentencing judge is that he impose a sentence that is sufficient, but not greater than necessary, to meet the purposes of sentencing as defined in the statute. In analyzing the
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statutory factors below, Duncan respectfully submits that a variance from the guidelines is needed in this case to achieve such an appropriate sentence.
B. Consideration of the § 3553(a) factors
18 U.S.C. § 3553(a)(1) - History and Characteristics of the Defendant Duncan is a 42-year-old mother of three with no prior criminal history. Other than her destructive gambling addiction, she has led a law-abiding life and worked hard to raise responsible, well-adjusted children, despite her own difficult childhood. Her young children need her as a stabilizing force in their lives. She is the foundation of her family. Duncan's oldest daughter, child A, finished two years of Midlands Technical College and will enroll this fall at the University of South Carolina. Her 9-year-old daughter, child B, is an honor roll student and active soccer player. Her four-year-old son, child C, will start 4K this fall. They are active in the Corpus Christi Catholic Church in Lexington, and are good neighbors in their community.
Until she began stealing funds for her gambling addiction, she had worked hard to overcome the many obstacles in her life, including sexual abuse by her father, a painful divorce, and tough financial times. Duncan is a good mother, a hard worker at many jobs she has held and a valuable member of her family and community. See Letters of Support, Exhibit A.
18 U.S.C. § 3553(a)(1) - Nature and Characteristics of the Offense Rachel Duncan is mortified by her conduct and she admits the significance of her illegal actions. She realizes that she took advantage of the trust she was given in her job to embezzle hundreds of thousands of dollars from the accounts at HASC. She understands the impact her crime has had on the Hospitality Association of South Carolina, its employees, the bars and restaurants throughout the state, and the investigators who worked to get to the bottom of it all.
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For Duncan, however, this was a first-time non-violent offense. U.S. Department of Justice officials have stressed to Congress and the public that the toughest federal sentences should be aimed principally toward violent and repeat offenders. See e.g., Testimony of Principal Deputy Attorney General William Mercer to Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary, United States House of Representatives, at 14 (March 16, 2006) (explaining that tough federal sentences are properly not focused on "non-violent first offenders"); Testimony of Assistant Attorney General Christopher Wray to Subcommittee on Crime, Terrorism and Homeland Security of the Committee on the Judiciary, United States House of Representatives, at 8-9 (Feb. 10, 2005) (stressing that most federal prisoners "are in prison for violent crimes or had prior criminal record before being incarcerated"); Letter to the Editor from Dan Bryant, Assistant Attorney General. WASH. POST, Dec. 24, 2005, at A25 (asserting that "[t]ough sentencing makes Americans safer by locking up repeat and violent offenders").
The records analyzed by federal investigators show that the money Duncan embezzled went to feed her addiction. She did not buy fancy things or take expensive vacations. She poured nearly all of the stolen funds into the online gambling schemes that fed her illness. Her problem was one of addiction, not greed.
Since March 2012, she has been in counseling with Hannah Latta of First Baptist Church of Lexington, S.C. According to Ms. Latta, Duncan sought counseling to learn to how to cope with her myriad problems, including the sexual abuse by her father, her volatile and occasionally abusive relationship with her second husband, and her gambling addiction. Ms. Latta observed that Duncan's gambling is a destructive method she used to cope with her terrible shame of being sexually abused, and her inability to recall many childhood memories. According to Ms. Latta,
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the defendant's diagnosis is Pathological Gambling, with an additional Anxiety Disorder Not Otherwise Specified. PSR, page 15, paragraph 73, Exhibit B, Letter of Hanna Latta.
Starting with her confession at a "knock and talk" by agents at her job prior to even having an attorney, Duncan has cooperated with U.S. Secret Service agents fully. Her cooperation continued during several meetings with U.S. Secret Service agents and included information about the embezzlement, on-line gambling, as well as everything she knew about the highly publicized disappearance of Tom Sponseller, the Executive Director of HASC. Like many people who knew Sponseller, Duncan was horrified to learn of his death. She has worked hard to clear his good name, and to show that he had no knowledge or involvement in her crimes.
In Part F of the PSR, under Factors that May Warrant a Sentence Outside of the Advisory Guideline System at page 21 paragraph 12, the Report says: "Paragraph Twelve of the written plea agreement states that the attorneys for the government stipulated and agreed not to oppose a one-level downward variance for the defendant based upon early information she provided regarding the fraud and loss, as well as online gambling entities with which she dealt." Duncan respectfully asks the Court to grant her the one-level variance outlined in the PSR as well as any other consideration that the Court sees fit.
18 U.S.C.A. § 3553(a)(2)(A) - (C) -- The need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide for just punishment for the offense, to afford adequate deterrence to criminal conduct, and to protect the public from further crimes of the defendant.
Duncan knows she is going to prison. While it is hard for her to imagine a life away from her children, she is not trying to avoid the consequences of her actions. The loss amount is significant and Duncan acknowledges the seriousness of her offense. A reduced prison sentence still will promote respect for the law and provide just punishment. It also will provide sufficient deterrence to others. She will bear the consequences of being a convicted felon for the rest of her
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life, making future employment very difficult for a woman whose family relies on her ability to work and take care of them. Finally, there is no risk of recidivism in this case, especially now that she is receiving counseling for her gambling addiction. When she is released, she will live under supervised release for a period of time. She also will leave prison making every effort she can to create a better life for her young children and husband.
18 U.S.C. § 3553(a)(2)(D) -- The need for the sentence imposed to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner These factors are not directly on point in the sentencing of Duncan. However, Duncan will take advantage of whatever training, medical care, counseling or other correctional treatment is available to help her overcome the causes of her gambling addiction by the time of her release.
18 U.S.C. § 3553(a)(7) -- The need to provide for restitution Restitution of a significant amount will be ordered in this case. Duncan will comply with Court orders to pay back as much as she is able to repay once she is released from prison. She would not be able to pay any meaningful restitution while in prison for a lengthy time.
CONCLUSION
Based on the foregoing authorities and evidence presented at sentencing, including consideration of the § 3553(a) factors, we respectfully submit that a sentence of imprisonment less than Duncan's advisory guideline range is "sufficient but not greater than necessary" to meet the goals of sentencing.