Opinion
No. S1 03 Cr. 919-01 (RWS).
December 12, 2005
SENTENCING OPINION
Defendant Jesse Hilsen ("Hilsen") has pleaded guilty to a charge of failure to pay court ordered child support obligations in violation of 18 U.S.C. § 228 (a) (3), a class B misdemeanor. For the reasons set forth below, Hilsen is sentenced to time served. In addition, Hilsen is sentenced to one year supervised release and shall be required to pay restitution in the amount of $161,975.
Prior Proceedings
An information was filed in the Southern District of New York on July 29, 2003, which charged that from June 1998 up to June 2004, Hilsen, who resided outside the United States, failed to pay at least approximately $161,975 in past-due payments for the support and maintenance of his son and daughter, as required by an order of the Supreme Court of the State of New York, New York County, dated on or about August 3, 1988. Hilsen voluntarily surrendered on June 19, 2004 and has been in custody since that date. On October 31, 2005, Hilsen appeared before this court and pleaded guilty to the above charges in accordance with a plea agreement entered into with the Government. The sentencing is scheduled for December 12, 2005.
The Sentencing Framework
In accordance with the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005) and the Second Circuit's decision in United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), the sentence to be imposed was reached through consideration of all of the factors identified in 18 U.S.C. § 3553(a), including the advisory Sentencing Guidelines (the "Guidelines") establishing by the United States Sentencing Commission. Thus, the sentence to be imposed here is the result of a consideration of:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for —
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . .;
(5) any pertinent policy statement . . . [issued by the Sentencing Commission];
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.18 U.S.C. § 3553(a). A sentencing judge is permitted to find all the facts appropriate for determining a sentence, whether that sentence is a so-called Guidelines sentence or not. See Crosby, 397 F.3d at 111.
The Defendant
Jesse Hilsen (birth name Jesse Hilzenradt) was reportedly born on May 28, 1940 in New York, NY. Hilsen stated that he was reared in the Bronx, NY, under lower middle-class economic circumstances by his parents. Hilsen stated that he shared a loving relationship with his family and that he enjoyed a normal, yet uneventful childhood.
Hilsen resided in the parental home until the age of 23, at which time he entered medical school, but resided intermittently at his parent's home.
Hilsen reportedly married Rita Finley in April 1965, in Niagara Falls, NY. According to Hilsen, they separated in 1984 and were granted a divorce in 1988. Hilsen asserted that their divorce was a result of Finley's abuse of sleeping pills, diet pills, alcohol, sever PMS rage, and just being difficult to live with. Three children were born to this union: Nicole, 38; Daryl, 36; and Erik, 31. Erik and Daryl are the subject of the child support matter. According to Hilsen, his children are aware of his incarceration as a result of the child support matter and are upset about it. Hilsen reports that they have remained supportive of the defendant.
Hilsen married Joan Packles during the late 1980's in the Dominican Republic, but this union was annulled in 1994. No children were born to this union.
Hilsen reported marrying Leona Grunenbaum in July 1996 in Jerusalem, Israel. They were divorced in April 2001, due to incompatibility problems. No children were born to this union.
Hilsen stated that he has resided throughout the world in search of a place where he could prosper. He reports feeling that he found prosperity in South Africa. He asserted that he returned to the United States to seek employment as a result of his ex-wife, Rita Hilsen, attaching his pension.
At the time of his arrest, Hilsen was residing at uncle's home in Walkill, NY, while recuperating from his open heart surgery. He intends to reside with his uncle upon release from custody.
Hilsen reports being in fair health, although he suffers from mitral valve prolapse, a condition in which heart valves do not function properly; sleep apnea; high blood pressure; and high cholesterol.
The defendant disclaims having been treated for any mental or emotional illnesses. He also disclaims ever having used any illicit substance or alcoholic beverages.
Hilsen stated that he earned a Doctor of Medicine from the University of Buffalo Medical School, Buffalo, NY, in 1965, graduated from City College, New York, NY, in 1961 with a Bachelor of Science degree in science, and graduated from Christopher Columbus High School, Bronx, NY in 1957.
Prior to being incarcerated in June 2004, Hilsen was unemployed and recuperating from open heart surgery. Prior to that, from September 2003, until December 2003, Hilsen was the doctor in charge of two children's units at St. Lawrence Psychiatric Center in Ogdensburg, NY. He earned $10,000 per month until he stopped as a result of his heart condition and subsequent surgery.
From 1994 until September 2003, Hilsen was basically unemployed as a result of his heart condition, and resided in Italy, Holland, South Africa, New York and Israel. Hilsen stated that he was seeking employment while living in Europe. He stated that he was also financially supported by social security benefits and his penion.
Hilsen reported having assets in totaling between $12,000 and $14,000. Hilsen stated that his accounts in South Africa were frozen by Rita Hilsen, as a part of the instant offense. He stated that he was uncertain of the balances in those accounts. With regard to liabilities, Hilsen admitted owing between $2 and $3 million, which stems from medical bills, and the balance in judgments to Rita Hilsen. Hilsen is expecting to receive %50 of the value of household items from his mother's estate.
Hilsen has no prior criminal convictions. The Offense Conduct
On August 3, 1988, Judge Myriam J. Altman ("Judge Altman") of the Supreme Court of the State of New York, County of New York, entered a final judgment of divorce between Hilsen and Rita Hilsen ("the divorce judgment"). The divorce judgment granted Rita Hilsen custody of second daughter, Daryl, and only son, Erik, and ordered Hilsen to pay $750 per week in lifetime spousal support, as well as $200 per week in child support, retroactive to January 1, 1987. The child support was to continue until Daryl reached the age of 21 (May 18, 1990) or graduated college, at which point the defendant's child support would be reduced to $125 per week and continue until Erik reached the age of 21 (October 16, 1995) or graduated from college.
On July 6, 1992, the Supreme Court of the State of New York, County of New York, found Hilsen in default of his child and spousal support payments, and ordered him to pay arrears of $140,176.16. On September 16, 1993, the Family Court of the City of New York, Count of New York ("Family Court") found Hilsen in further arrears of $34,500.
On March 24, 1994, the Family Court issued a warrant for the arrest of Hilsen. On June 16, 1994, Judge Leah R. Marks of the Family Court found that Hilsen had knowingly, consciously, and voluntarily disregarded his obligations under lawful Court orders and had willfully failed to pay $174,676.16 in child and spousal support payments, and accordingly held Hilsen in contempt of court.
Over a year later, Hilsen had still failed to pay these arrears in child and spousal support. Given that Hilsen's child support obligations represent, by the most conservative estimate, 14% of his total calculated arrears ($174,676.16), Hilsen had presently owed at least $24,454 in past due child support for Erik and Daryl.
Investigators learned that Hilsen was a licensed psychiatrist, who also worked from about 1988 to about June 1994, as the manager of a prominent rock band. The findings of the Hearing Examiner of the Family Court proceeding found that Hilsen received between $230,000 and $500,000 a year, in addition to undetermined amounts of cash, while employed by the rock band.
On July 1, 1987, Hilsen filed a petition for bankruptcy in the Southern District of New York. The bankruptcy court authorized Judge Altman to dispose of all issues in the divorce case. Judge Altman found that the facts of the case belied Hilsen's assertions of bankruptcy. Judge Altman further stated that Hilsen "deliberately dissipated moneys in order to devalue the marital assets."
On October 11, 1990, the Honorable Robert P. Patterson of the Southern District of New York, rendered a decision in connection with the bankruptcy action filed by Hilsen. That decision stated that "the record demonstrates unequivocally that Jesse Hilsen was using the bankruptcy process to avoid state court actions and to defraud his wife of her share of the parties' marital property."
Jesse Hilsen voluntarily surrendered to federal authorities on June 19, 2004, and he has been detained since that date.
Relevant Statutory Provisions
The maximum term of imprisonment that may be imposed for the sole Count is six months. See 18 U.S.C. § 228 (a) (1) and (c) (1).
If a term of imprisonment is imposed, the Court may impose a term of supervised release of not more than one year. See 18 U.S.C. § 3583 (b) (3).
The defendant is eligible for up to five years' probation.See 21 U.S.C. § 3561 (c) (2).
The maximum fine that may be imposed is $5,000. See 18 U.S.C. § 3571. A special assessment of $100 is mandatory. See 18 U.S.C. § 3013.
Full restitution to the victims is required under 18 U.S.C. §§ 3663A and 3664. Restitution in the amount of $161,975 is owed to Rita Hilsen (address on file with the U.S. Attorney's office).
The Guidelines
The November 1, 2004 edition of the United States Sentencing Commission Guidelines Manual ("the Guidelines") has been used in this case, in accordance with Guidelines U.S.S.G. 1B1.11(b)(1).
A conviction under 18 U.S.C. § 228(a)(1) and (c)(1) is a Class B Misdemeanor punishable by a maximum of six months confinement. Pursuant to U.S.S.G. § 1B1.9, the Sentencing Guidelines do not apply to such offenses. The commentary for that same section states that the Court may impose a sentence up to that authorized by statute. See id. The Sentence
In accordance with the above, Hilsen is hereby sentenced to time served.
Hilsen is also sentenced to one year supervised release. Hilsen shall report to the nearest Probation Office within 72 hours of release from custody, and supervision will be in the district of his residence.
As mandatory conditions of supervised release, Hilsen shall: (1) not commit another federal, state, or local crime; (2) not illegally possess a controlled substance; (3) not possess a firearm or destructive device; and (4) refrain from any unlawful use of a controlled substance.
The standard conditions of supervision are imposed in addition to the following special conditions: (1) the defendant shall comply with the order of the New York State Supreme Court and the Family Court of the State of New York, adhere to the child support payment agreement, and meet all monthly payments as directed by same; and (2) the defendant shall provide the probation officer with access to any requested financial information.
Hilsen shall also be required to make restitution payable to the Clerk, U.S. District Court, 500 Pearl Street, New York, NY 10007, for disbursement to Rita Hilsen in the amount of $161,975. The restitution shall be paid in monthly installments of 15% of gross monthly income over a period of supervision to commence thirty days after the date of the release from custody and shall be paid in full not later than three months prior to the termination of supervision. The factors in 18 U.S.C. § 3664 (f) (2) were considered in formulating the payment schedule.
Hilsen shall also pay to the United States a special assessment in the amount of $100, which shall be due immediately. Given the imposition of restitution, the fine in this case is waived.
It is so ordered.