efraim diveroli: 1-10-11 sealed sentencing hearing diveroli

8/18/2019 Efraim Diveroli: 1-10-11 Sealed Sentencing Hearing Diveroli

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iuuzzEn STATES olsTRzcT couRrsourHEnx ozszRzcz os FLORIDA JAN l 2211

M IAM I D IVI S ION syEvENU LARIMORE

CASE 0 8 -2 0 57 4 '-CRIMINAL-LENA D CLERK U S DIST cT. s. D. of Iké. - MlkMI

UNITED STATES OF AMERICA, Miami r Florida

Plainti f f , January 3, 20 11

EFRA IM DIVEROLI and AEY , INC . ,

De f endants . Pages l to 15

9

SEM ED SENTENCING HEARINGHEL D BEFORE THE HONORABLE JOAN A . LENARD,

UNITED STATES DISTR ICT JUDGE

APPEARANCES :

FOR THE GOVERNMENT : ELOISA FERNANDEZ , ESQ . , andFM NK TAMEN, ESQ .ASSISTANT UN ITED STATES ATTORNEYS

99 Northeast Fourth StreetMiami , Florida 33132

FOR THE DEFENDANT HOWARD SREBNICK, ESQ . rEFM IM DIVEROLI : BLACK, SREBNICK , KORN SPAN STUM PF, PA

201 South Biscayne BoulevardSuite 1300Miami , Florida 33131

- and-CYNTHIA HAWKINS , ESQ .150 North Orange Aven ue , 4 14Orlando, Florida 32801

FOR THE DEFENDANT HY SHAPIRO , ESQ . r andAEY , INC . : MARKO CERENKO , ESQ .

HOGAN r GRE ER SHA PIRO24 00 South Dix ie HighwayS u i t e 2 0 0Miami r Florida 33133

t

Case 1:08-cr-20574-JAL Document 1054 Entered on FLSD Docket 01/10/2011 Page 1 of 15


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FOR US PROBATION : SARA GARCIA

REPORTED BY : LISA EDWA RDS , CRR , RM ROfficial Court Reporter40O North Miami AvenueTwelfth FloorMiami , Florida 33128(305) 523-5499



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(REPORTER 'S NOTE: The following contains

proceeding s from the above-captioned sentencing hearing which

have been ordered sealed by the Courto

MR . SREBNICK ; Than k you for accommoda ting us , Jud ge.

THE COU RT : Okay . The cou rtroom is now sealed .

DR . STRUMWASSER : My name is Dr . Steven Strumwasser,

licensed clinical psychologist/certified addictïon

professional .

And again , than k you for allow ing me to participate i

this extremely important sentencing process .

Your Honor , believe that what I have to say is very

relevant to the sentencing of Mr . Diveroli .

I was asked to speak on acceptance of responsibility ,

which is an ongoing process for Mr . Div eroli . It is with any

individual with menta l health and drug addiction issues .

Howev er , over the years, Mr . Diveroli has made great

strides .

The following is just a quantity of the information

gath ered dur ing the last two and a half yea rs that I 've been

treating Mr . Dive roli . I will not repe at the info rmation that

was in the PSI I wil l try be as br ief as possible, but I

think will take a few moments .

I believe this information , again, is useful

determ ining his sentence .

The PSI is just drop of grain -- is just a grain of



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sand in the number of mental health and substance abuse and

psycholog ica l issues of this man .

I began to provide service s to Mr . Div eroli on

July 21st --

THE COURT : Well , 1et me direct you to the issue that

I have to decide now --

DR . STRUMWA SSER ; Yes r m a 'am .

THE COU RT : which is wheth er or not he should be

given two levels off for acceptance of responsibility of the

advisory guidelines

So , really , wou ld like you to direct your -- I 've

read the PSI and the information that you supplied in the PSIR

regarding his mental health and addiction issues .

So this hearing is really limited to how that

information relates acceptance of responsibility .

DR . STRUMWA SSER : Unfortunate ly , your Honor, I was

neve r asked to participate in the PSI . The information that I

hav e is not in th e PS I . For whatev er re ason , wa s not asked .

I have been in constant cont act up until

Mr . Dive roli 's arrest with Laura Esqu ivel , senior US probation

officer . But for what ever reason , was nev er asked to even

provide any information to the PSI

But I understand your point and will -- believe I

will try to be as brie f as possible . Inte rrupt me when ever you

think necessary .



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THE COURT : will .

DR . STRUMWASSER : Okay . I will also try speak --

if I 'm speaking too fast -- I 'm goin g try to speak fast

please 1et me know .

THE COURT : Don rt spea k too fast . Tt 's very difficu l

for the court repo rter , please .

DR . STRUMWA SSER : As Efraim ent ered ear ly adolescence

his behaviors became even more disparaging and self-defeating.

He retained he obtained constant failing grades in school .

There was great discord at home and he was unable cope with

his situation . He became severely depressed without any

solution .

Unfortunately , as many individuals do, he was

introduced to alcohol and marijuana by his peers. And,

unfortunate ly, due his very, very severe issues involving

his problem-solving, learning capacitie s, other issues that

presented learning difficulties , which were never diagnosed , he

continued to deteriorate .

His parents were -- unfortunately, Efraim grew up in

an environment where , in his home , the re was so much chao s and

conflict and other psycholog ical and emotional issues of the

parents that , unfortunately, Mr. Dive roli was not attended to .

Their attempts resolve his problems were to send

him away schools, which failed because they ,

unfortunately and this is one of the reasons that



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Mr . Srebnick asked the courtroom to be sealed -- his parents

did not believe that there were any psycho logical problems or

psychiatric problem s, which were more than clear with this

particular individual .

This put him in a horrific situation without the

coping skill s or any of the mechanisms or any of the

intervent ions or any of the strategies that were available .

He was -- and his family, from my observations , is

predisposed depression, debilitating anxiety, mood swings,

very inadequate cop ing skills . And, unfortunate ly , the school

produced a horrific impact. They just failed -- continued to

fail him .

Efraim unfortunately was sent away to California at a

very , very ear ly age becau se nobody could cope with him. At

that part icular time, Efraim found something incredib ly

important . He had a skill to sell. This prov ided him the only

sense of value and self-worth that he ever achieved .

This was another incredible turning point in his life

be cause r as you can -- as I'm sure that you are aware, th is is

an individual that not -- did not engross himself with luxury

automobiles and penth ouse s and so on . This was he would

work 15, 16, hours a day just to make money so he could

appear to othe rs of value and worth . And this is a critical ,

critical component in this individual 's behavior and what drove

it .



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l Simultaneously , the use of drugs and alcohol that wer

2 so entwin ed and enmeshed in his life caused him to drown .

3 Those were the issues -- he was medicating issues through his

4 sub stance abuse and chem ical dependency .

5 I 'm almost done .

6 Mr . Diverol i's issues dramatical ly came to light

7 during his early preadolescent years . He was strugg ling with

8 his fami lial , psycholog ical and psychia tric problems and, in

9 addition , the env ironment which he grew up in was poorly

10 equipped and unwilling to hand le any of his issues and actually

11 provided no other intervent ion than sending him away .

12 It 's easy to forget that this -- that this young man

13 sitt ing here was 20 year s o1d when he was arre sted for

14 participating in contracts of unbelievable amounts of money .

15 This sheer scope of this is unimag inable, how a

16 zo-year-old immature and obviously psychiatrical ly and

17 psycholog ically impacted, uneducat ed and terribly meager

18 social -skil led indiv idual could become invo lved these highly

19 sophisticated and professional and carefully managed military

20 business dealings . It is completely bewildering.

21 Mr . Divero li 's intense financia l pursuits were

22 immature and evolved at him needing recognition , respect from

23 others , admiration from his peer s, love from his parents and

24 society as a whole at any cost or risk to himself.

25 Efra im 's severe act ing-out behavior was really a cry



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1 for help and attent ion from a severely disturbed young man due

2 to untreated mental health and developm ental problems,

3 substance abuse, chemical dependency and so on .

4 The st atements that I -- that I made before is not

5 intended to blame the parents. However, psycholog ically, this

6 type of parental child-rearing and modeling results in

7 deleter ious psychological consequenc es to the child, especially

8 to an individual who 's genet ically predisposed to menta l

9 il lness , as th is family is .

10 Simu ltan eously , a11 during our the rapy , Mr. Diveroli

11 con tinued to take resp onsibil ity for his act ions . However , he

12 was drowning in his own problem s.

13 Your Honor , I 'm almost done .

14 I'm a licensed clinical psychologist/certified

15 addiction counselor approved to provide psychological services

16 to federa l probationers in Dade , Broward and Palm Beach

17 Counties , to prov ide psychological services to federal inmates

18 in those counties as well , sworn as an expert witn ess ,

19 consultant to atto rney s, probation offi cers in tho se three

20 counties and have provided over 50,000 documented hours of

21 individual group and family therapies .

22 I 've direc ted and supervised contracts with the

23 Florida Department of Corrections and the Federal Bureau of

24 Prisons, and I've clinical ly supervi sed a 45-bed federal

25 halfway house .



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Your Honor, believe that now we have an opportun ity

to change this person 's life . Efraim needs not only

rehab ilitation , but habilitation . He never real ly learned how

to cope appropr iate ly . He needs rehabil itation to stop

depending on unhealthy substances as a crutch that only further

debilitates his life.

I believe Efraim could effect ively utilize residentia

treatment at A lina Lodge, an excellent and successful long-ter

residential habilitation and rehabilitation facility in

Pennsylvan ia, accredited by the Am erican Correctional

Associat ion , and it 's established over 50 years . have used

them successfully for over the last 15 years.

THE COURT : Wel l, 1et me ask you a question .

DR . STRUMWASSER : One more parag raph . Yes .

THE COURT : Wel l, let me ask you a question . Because

you are directing al1 of this towa rds ultimate sentence, and

I 'm not the re yet . Okay ?

There ls a very distinct and discret e process that goe

on in a federa l sen tenc ing hearing . The fir st is the

adoption or lack of adoption but adopt ion in some manner,

normally , of the advi sory presentence investigat ion report .

The issue that I now have decide is whether or not

Mr . Diveroli should be granted acceptance of responsibility .

And the real issue -- there's no don 't think there 's

any questi on that he began to cooperate after he was arrested



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for this offense . I don 't thin k the Government wou ld dispute

that . He was listed as a witness . And I know , qu ite frankly,

the Government intended to call him in the trial of Ralph

Merrill . I don 't think they would dispute that .

The real issue is that , after he was arrested, after

he pled guilty , while he was out on bond, he went and committed

another offense , selling ammunition in Northern Florida .

I hav e to now put that into perspect ive as to why

why not that subsequent conduct would allow him or not allow

him to receive an acceptance-of-responsibility reduction in the

determination of the advisory guidelines in this case .

DR . STRUMWA SSER : Well r your Honor, as I see th is ,

Mr. Diveroli , since I have met him , has accepted responsibility

as best as one in his condit ion can .

He has made great strides. Simu ltaneously, this is a

long and arduous path for an individual who not only needs

rehabilitat ion , but needs habilitation .

So I believe --

THE COU RT : ''Habilitat ion '' mean ing what?

DR . STRUMWA SSER : Hab ilitat ion is -- to habilitate

well , to rehabi litate is to bring an individual back to a level

of

THE COURT : You rre saying he has to first learn

societal norm s?

DR . STRUMWA SSER : Correc t .



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1 This is an ind ividual that dropped out of school at

2 16; but several years prior to that, his parents just moved hi

3 from school to scho ol to school .

4 Th is is a ve ry , very -- you know , for me, an

5 interest ing and extremely complex case because this individual

6 does not -- did not display normal behavior for his age and

7 intelligence and it was due to that he was either preoccupied

8 or , similar to othe r of his family members , is pred isposed to

9 severe mental health issues.

10 He has -- was going to , you know , read more . Bu t h

11 has been on over 20 regimens of psych iatric medications in the

12 last sev eral yea rs .

13 Unfortunately, this individual also utilized

14 substances which confounded some of that , but this individual

15 really never received the beginning interventions and treatment

16 that most kid s -- if you will , most kid s receive on Miami

17 Beach .

18 His issues were never recogn ized early on ,

19 unfortunately , by his parents. And because of the type of

20 schools that he was in, they just kicked him out without any

21 typ e of plan any organized plan , any int ervent ion . The y

22 just saw him and labeled him as unruly and a malcontent. And

23 that is not correct .

24 I hav e seen th is man weep . I have seen th is man take

25 responsibility for his actions . I have seen this man so



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disturbed at his behavior --

THE COURT : Well , 1et me as k you a que stion .

Why would he go and commit the offenses in Northern

Florida and selling ammunition after he already pled guilty to

this case?

DR . STRUMWASSER : I believe that he got caught up in

his grandiosity and need to play the ''big guy '' role because the

truth is he really didn 't have any solid foundation underneath

his feet . I believe that this was a move out of grandiosity

and thin king that ''I 'm smarter than others '' and ext remely

immature .

You know, it 's such an exce llent question, because

99.99 percent of individuals would not do that . He 's also

easily lured by other individuals into doin g things . That has

been one of his major problems as well.

He , Mr . Dive roli , for as long as I know him, had a

te rrible issue with saying ''no .'' And if somebody wants

something from him, they get it And, also , interestingly , it

is not just someone that he was dealing with Orlando.

Mr. Diveroli is an individual that also and I thin

others will talk about this today -- would give money to

strangers. He would help people off the street and put them in

a hote l because he felt bad for them . He identifie s with other

individuals ' severity of their plight and their sense of

helplessness.



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1 I th ink that Mr. Diveroli is awa ke . He has spent the

2 last five months incarcerated without any probability of --

3 THE COURT : Maybe we made a m ista ke lett ing him out o

4 bond initially .

5 That seemed to be the wake-up call , don 't you think?

6 DR . STRUMWASSER : The wake-up ca ll? I 'm sorry .

7 Aga in , please?

8 THE COURT: The wake-up call was being put in jail --

9 DR . STRUMWA SSER : Yes .

10 THE COURT : -- if , indeed, there was a wake-up cal l,

11 because it certainly didn 't work while he was out on bond .

12 DR . STRUMWA SSER : He needed more time --

13 THE COURT : He certainly wasn 't taking very seriously

14 the cha rge s that he now stand s befo re me to be sentenced for .

15 DR . STRUMWASSER : He actually took them ext remely

16 seriously , your Hon or, and was extremely frightened , like a

17 child, and acted out accordingly .

18 And inappropriate behavior is based on poor

19 decision-making and a lack of appropriate, healthy and mature

20 problem -solving skills .

21 These la st five months , he has grown up more than he

22 has in the la st 24 year s of his life .

23 THE COURT : Right. Because he was forced to . He was

24 in limited circum stances. He could no longer be lured , could

25 no longe r go and say : I 'm going to be the big guy and sell



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ammunition . I 'm go ing to do this . I'm going to do tha t. I 'm

going to -- whatever he was going to do. He's in jail.

What more limiting circumstance can there be in life?

DR . STRUMWA SSER : However -- that is co rrect .

Howeve r, the re can be a -- dimini shing returns for a

young man like this with his vulnerability emotionally and --

THE COURT : Well , we rre not the re yet .

DR . STRUMWASSER : -- psychologically .

THE COURT : We 're not there yet .

We 're talking about acceptance of responsibility .

That 's the issue I have to decide now .

DR . STRUMWASSER : He is there , you r Honorr in my

opinion .

THE COURT : Any questions by did you want to ask

him any further questions, Mr. Srebnick?

MR . SREBNICK : Nor Judge .

THE COURT : Any quest ions from the Government?

M S . FERNAN DE Z : N o , you r H onor .

THE COURT : Thank you , sir .

DR . STRUMWA SSER : Thank you very much .

THE COURT : Can we reopen the cou rt room?

MR . SREBNICK : Please .

THE COURT : You can unsea l the court room , please .

(End of sealed proceedings.)



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C E R T I F I C A T E

I hereby certify that the foregoing is an accurate

transcription of the proceedings in the above-entitled matter .

U s/Lisa EdwardsDA E LISA EDWAR DS , CRR, RMR

Official United States Court Reporter

400 North Miami Avenue , Twelfth FloorMiami, Florida 33128(305) 523-5499


efraim diveroli: 1-10-11 sealed sentencing hearing diveroli

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