Case 3:12-cr-00168-AWT Document 22

Filed 12/18/12 Page 1 of 11

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA vs. AMY KUHNER : : : CRIMINAL NO. 3:12CR168(AWT) December 18, 2012

DEFENDANTS MEMORANDUM IN AID OF SENTENCING Introduction In 1995 Amy Kuhner was a student at the Yale Divinity School when she had a vision of establishing a program and place for children suffering from long term illnesses or facing death. For more than a decade she then devoted herself, heart and soul, to establishing just such a program, which came to be known as Sunshine House. In 2001 Sunshine House was awarded a federal grant to assist in construction of a specially designed facility with childrens and familys needs in mind. Despite tireless efforts of Ms. Kuhner, progress was slow but steady: planning progressed to the point of detailed architectural drawings and site plan approval by the Town of Madison and purchase of an ideal property. In 2007 Sunshine House was asked to account for its expenditures of the grant funds and Amy Kuhner caused false information to be submitted that gave rise to the charge of making a false statement to which she pled guilty and awaits sentencing. Beyond her profound remorse for having committed this offense, Ms. Kuhner remains devastated by the failure of the Sunshine House project. Her vision evolved into a mission and for many years became her sole focus and purpose in life. Its failure, however, was not caused by Amy Kuhner or by her false statement in 2007. Moreover, her post-grant false statement did not cause financial loss that can be used under the Sentencing Guidelines as a measure of the seriousness of her offense. As the Presentence Report (PSR) comments, Ms. Kuhners criminal conduct may qualify as aberrant conduct under the Guidelines. PSR 67. Outside the confining rubric of the Guidelines, her criminal conduct was aberrant in the true sense of being out of character, as attested by the many character letters written by persons who have known and worked with Amy Kuhner for many years.

Case 3:12-cr-00168-AWT Document 22

Filed 12/18/12 Page 2 of 11

-2The law authorizes a sentence of imprisonment of up to five years but it permits a sentence of probation. The law requires that the sentence be sufficient to achieve basic goals of sentencing and, for the reasons stated here and upon the entire record, a sentence of imprisonment is not needed to achieve those goals, which can be fully and better served through a sentence of probation. Discussion 1. The Nature of the Offense Apart from the disputed statement of claimed loss from the Health Resources Services Administration (HRSA), PSR 15-22, the Presentence Report accurately summarizes the offense conduct. In 2001 Sunshine House was awarded a federal grant in the amount of $836,190 by HRSA to fund in part construction of Sunshine House. PSR 8-9. Thereafter, the grant funds were drawn down, beginning in September of 2003 and ending about September 27, 2006 when the last grant funds were drawn down. PSR 10. A year later, in late July of 2007, HRSA asked Sunshine House to document its costs incurred as of September 30, 2006, the closing date of the grant. PSR 11. As Ms. Kuhner admitted when she pled guilty, as the parties agreed in their Stipulation of Offense Conduct, and as summarized in the Presentence Report, Ms. Kuhner falsely described how the grant funds had been expended . . . [and] sent or caused to be sent to HRSA documents that falsely indicated that Sunshine House actually incurred architectural and engineering costs to date in the amount of $594,225. PSR 12. Further, the document sent to HRSA omitted the material fact that through September 30, 2006, the defendant had received a gross salary of $417,932 and health insurance benefits totaling $22,294, and that most of the salary and benefits had been paid using grant funds. PSR 12. The offense, of course, was the post-grant false statement about how funds had been spent. The salary paid to Ms. Kuhner was approved by the Sunshine House board of trustees. There can be no real question about whether Ms. Kuhner earned the authorized salary while working as executive director. The Presentence Report largely accepts HRSAs claim that Ms. Kuhners salary and benefits constitutes Guidelines loss because it is considered unallowable because reimbursement of these costs was not

Case 3:12-cr-00168-AWT Document 22

Filed 12/18/12 Page 3 of 11

-3the intended purpose of the grant. PSR 18. The PSR fully adopts the governments position that loss under the Guidelines totaled $582,131 representing salary and healthcare benefits taken between September 23, 2003 and September 27, 2006 . . . in excess of what was permitted by the grant. PSR 26. However, even if salary was not intended by HRSA to be the purpose of the grant, the erroneous reimbursement of salary for work done for the Sunshine House project predated by a year the false statement, was not caused by the false statement, was not per se criminal, and cannot be characterized either as intended loss or as loss resulting from the subsequent false statement. Fundamentally, the reimbursements for salary and benefits may have been contrary to the terms of the grant, but that does not make them either criminal or losses attributable to the false statement in the retrospective accounting. The statement of Amy Kuhner, submitted to provide broader context to her acceptance of responsibility for the false statement she made in July of 2007, speaks of almost 15 years of her work to turn a dream into reality. From 1995, when she first conceptualized a center to provide children with respite and end-of-life care, and continuing into 2010, Ms. Kuhner, virtually single-handed, shepherded Sunshine House through a series of steps needed to achieve the goal. As described by a close friend who knew of Ms. Kuhners plan from its beginning, Amys vision for Sunshine House grew slowly, but she had an almost missionary drive to put together the necessary documents, funding and supporters to accomplish this mission. See Letter of Irmegard R. Wessel, attached as Exhibit A. Long before receiving the federal grant, she worked to obtain legislative approval for this pilot program. After receiving the grant she was responsible for locating a suitable site, for designing buildings and the site, for collaborating with an architect in preparing detailed site plans, for obtaining engineering plans, for obtaining town zoning approval, and for putting together professional teams to seek funding for the construction phase. What she did not do was rely on others to give her needed guidance and critical professional support in managing the financial side of this project. Had she done so, this out-ofcharacter offense would have been unimaginable.

Case 3:12-cr-00168-AWT Document 22

Filed 12/18/12 Page 4 of 11

-42. Amy Kuhners History and Characteristics Amy Kuhner is an extraordinary woman, now haunted by the taint as a felon from an offense that all who know her struggle to understand, and ultimately recognize as something completely out of character for the person they know well. From a childhood infected by her parents marital problems, separation and her mothers alcoholism, PSR 36-39, see Letter of Rev. W. Joseph Hambor (attached as Exhibit B), Ms. Kuhner was driven to seek meaning and success outside her home. She spent a summer and her junior year of high school abroad, PSR 40, then, after one year of college in her native Ohio, she completed her college education at Georgetown University, where she was a member of the crew team. PSR 47. Her strong personal drive led her to obtain an MBA from UCLA in 1988, PSR 48, but after graduating and working in the field for several years she came to Connecticut to attend the Yale University Divinity School from 1993-96. PSR 50. While completing her field study at the divinity school, she interned at the Connecticut Hospice, PSR 50. Through her studies at Yale University and her internship experiences at Connecticut Hospice and Yale-New Haven Hospital, she saw a need and developed a vision, informed and confirmed by her travels to childrens hospices in the United Kingdom, that became her mission and defined her life for many years. Friends and colleagues see in Amy Kuhner a fundamental trait of dedication to helping others: Her driving force remains to offer her life in service of others, and to use her tremendous skills and intelligence to help those in need . . . . My experience of Amy is that of a true minister: always looking beyond her own comfort zone to offer compassion and kindness, and someone capable of listening deeply and offering trustworthy comfort and vision. She is caring, deep, generous, and thoroughly devoted to service. Rev. David B. Wallace (letter attached as Exhibit C) [B]eing a caregiver is at the core of Amy Kuhners life. Rev. Sally Steenusen Bailey (letter attached as Exhibit D)

Case 3:12-cr-00168-AWT Document 22

Filed 12/18/12 Page 5 of 11

-5 In the 16 years I have known Amy, Ive seen a most dedicated, devoted, hardworking, honest person whose missionary spirit has remained with her as she is starting a new phase of her life. Irmegard R. Wessel (letter attached as Exhibit A) Amy Kuhner is a unique individual with a gift for incredible passion and caring for others, particularly dying children and their families. Eileen Gillan, MD (letter attached as Exhibit E) Amy did an outstanding job as a chaplain resident. I experienced her as caring, compassionate and responsible. We have high expectations of accountability and professionalism for our chaplain residents, and Amy met these expectations. Despite the challenging schedule of ministering in this intense medical environment, and being on call at night, awakened to be with a dying person or a large upset family whose loved one was in a car accident, she was a caring and trustworthy team member. Over the course of a year, she grew to be a highly competent hospital chaplain. Her ability to be present to the pain and suffering of patients, families and staff deepened, and her ability to hear, and seek out, feedback about her work, and implement changes as a result, also grew a great deal. I came to know Amy as a deeply caring and sensitive person who has a strong desire to care for suffering people in a meaningful way. Rev. Hancella Newberry (letter attached as Exhibit F) I know from my work with Amy that her dedication and commitment to people facing end-of-life issues is very deep in her soul, and I have heard many positive things about her work from others. Rev. W. Joseph Hambor (letter attached as Exhibit B) Amy Kuhners future is unwritten, but there should be no doubt about how she will live it. The former Director of Support Services at Connecticut Hospice, Rev. Sally Steenusen Bailey (letter attached as Exhibit D), offers her well-founded prediction: What I do know is that whatever adversity comes before Amy, because of her moral integrity, resolve, physical strength, and intelligence, she wants to walk the path

Case 3:12-cr-00168-AWT Document 22

Filed 12/18/12 Page 6 of 11

-6of integrity and service to others. The experiences of the past two years which include losing so much of her life also show how she has used the time to persevere, continue her education and develop the credentials to serve in hospital chaplaincy. These experiences have deepened her Christian faith, character and openness to accept and work with and minister to persons of varied backgrounds. I only regret that the vision of Sunshine House could not have become a reality in the state of Connecticut. From henceforth I do not doubt that Amy will go forth and contribute greatly to society wherever she may go. 3. Sentencing Factors The challenge in all sentencings is to achieve the elusive goal of fashioning a sentence, tailored to the individual offender and the specific offense, that is sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of [18 U.S.C. 3553(a)]. Those purposes are: (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[.] These goals must be considered in the context of the nature and circumstances of the offense and the history and characteristics of the defendant. The Court must also calculate and consider the applicable advisory Sentencing Guidelines range. A sentence of imprisonment is not needed to protect the public from further crimes of Amy Kuhner. This offense was out of character, was the first and last such misconduct in Ms. Kuhners life, and will not be repeated. Nor does Ms. Kuhner require any form of correctional treatment that can best be provided in a custodial setting. The goal of general deterrence can always be argued to justify a punitive sentence of imprisonment, but that is inconsistent with the overarching command to impose a sentence no greater than needed to achieve the goals of sentencing. Finally, this offense, even if the

Case 3:12-cr-00168-AWT Document 22

Filed 12/18/12 Page 7 of 11

-7Court concludes that a loss can be attributed to the false statement, is not of such seriousness that the only just punishment would be a term of imprisonment. Indeed, for many offenders, particularly first offenders like Amy Kuhner, the fact alone of forever being a felon is significant punishment, and the added restriction on basic liberty entailed by probation makes that punishment a constant reminder. In authorizing the establishment of a Sentencing Commission charged with the responsibility of crafting the sentencing guidelines, Congress explicitly addressed the appropriateness of using probation as a sanction: The Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense[.] 28 U.S.C. 994(j). This command is noted in the Sentencing Guidelines: The Comprehensive Crime Control Act of 1984 makes probation a sentence in and of itself. U.S.S.G. 5B1.1, Intro. Comm. The relative seriousness of criminal offenses is measured in two basic ways: by statutory classification and range of authorized sentences and by offense level calculation under the Sentencing Guidelines. In this case, the criminal offense of making a false statement, a violation of 18 U.S.C. 1001(a)(2), carries a maximum sentence of five years imprisonment, which makes it a Class D felony. 18 U.S.C. 3559(a)(4). Under the Sentencing Guidelines, the base offense level for a false statement is six. U.S.S.G. 2B1.1(a)(2). PSR 25. Under the Sentencing Guidelines the seriousness of an offense can be mitigated and reduced by various factors, such as acceptance of responsibility, which has been demonstrated in this case. PSR 23, 31. Conversely, the Guidelines measure of seriousness can be increased by various factors. In this case the Presentence Report has recommended increasing the base offense level, the basic measure of the seriousness of the offense without aggravating factors, by 14 levels under U.S.S.G. 2B1.1(b)(1)(g) because [b]etween September 23, 2003, and September 27, 2006, she withdrew $665, 630 in salary and health care benefits, a total of $582,131 in excess of what was permitted under the grant. PSR 26. The effect of this adjustment would be to increase the advisory imprisonment range from 0-6 months to 24-30 months. PSR 57 (the Report erroneously states that total offense level is 15 and the range is 18-24 months).

Case 3:12-cr-00168-AWT Document 22

Filed 12/18/12 Page 8 of 11

-8The Presentence Report errs in finding any loss, let alone a loss of over half a million dollars, and recommending an upward adjustment of 14 levels. Loss under U.S.S.G. 2B1.1 is measured in two ways: actual loss, which is defined as reasonably foreseeable pecuniary harm that resulted from the offense, or intended loss, which is defined as pecuniary harm that was intended to result from the offense. U.S.S.G. 2B1.1, App. Note 3(A)(i) and (ii). Additionally, the phrase reasonably foreseeable pecuniary harm is defined as pecuniary harm that the defendant knew, or under the circumstances, reasonably should have known, was a potential result of the offense. U.S.S.G. 3(a)(iv). The second definition of loss, intended loss, should not apply insofar as Amy Kuhner had no intent of causing a financial loss. See PSR 74. Moreover, both definitions, by their very language, look forward from the time of the offense to identify and measure loss. Here, the draw downs of funds treated as loss in the Presentence Report predated the criminal offense by a year and do not meet the Guidelines definition of loss. With no loss under the Guidelines, the total offense level would be 4 and the advisory sentencing range, appropriate in this unusual case, would be 0-6 months, a range that authorizes a sentence of probation. Even if the Court concludes that a loss of some amount resulted from Ms. Kuhners false statement and finds that there is an advisory Guidelines sentencing range that would call for a sentence of imprisonment in the ordinary case, this is not such a case. The Presentence Report suggests the possibility of a downward departure for aberrant conduct under U.S.S.G. 2K2.20. PSR 67. As discussed earlier, outside the confines of the Guidelines but well within the statutory consideration of a defendants background and character, this offense was fundamentally aberrant in being completely out of character. See Letter of Rev. W. Joseph Hambor (attached as Exhibit B) ([A]t this point, she has learned so much about the value and strength of asking for help that I cannot envision her ever being involved in anything illegal of any nature. It wasnt in her character to begin with to do wrong intentionally.). This Court should recognize this mitigating factor, either as a departure within the Guidelines or as sound basis for a variance from the Guidelines, and should accord it significant weight. Another fundamental factor that weighs against a sentence within a possible Guidelines range that would call for a term of imprisonment is that this is not a heartland loss case where the seriousness

Case 3:12-cr-00168-AWT Document 22

Filed 12/18/12 Page 9 of 11

-9of the offense should be measured by the amount of money unlawfully spent. The background commentary to U.S.S.G. 2B1.1 states that loss serves as a measure of the seriousness of the offense and the defendants relative culpability and is a principal factor in determining the offense level under this guideline. This measure may make some sense where, consistent with the Guidelines definition of loss, a defendant intends to cause loss or causes loss that should have been foreseen. This is not that case, and within the construct of the Guidelines, it fundamentally is not a heartland case for which the standardized measure of seriousness under U.S.S.G. 2B1.1(b)(1) should apply. See U.S.S.G. 1A1.1, Intro. Note 4(b)(The Commission intends the sentencing courts to treat each guideline as carving out a heartland, a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.). What Amy Kuhner did in falsely stating how grant funds had been spent was wrong and it was criminal, but it was not the typical false statement intended to cause financial loss and loss was not foreseen by Ms. Kuhner. The Presentence Report comments that [t]he defendants conduct in the instant offense appears to be more of a consequence of her self-described compulsion to over-achieve than any criminal intent. That factor is not considered in the applicable Guideline or in the range that results if a loss is attributed to the post-hoc false statement, and it should take this case out of the heartland that might otherwise call for a sentence of imprisonment. Conclusion By instructing courts to consider the nature of the offense and the background and characteristics of the offender in imposing a sentence sufficient but not greater than necessary to achieve the specified statutory goals of sentencing (which it must be recognized can be in conflict and cannot always be fully served in a given case), 18 U.S.C. 3553 recognizes the enduring guiding principle that the punishment should fit the crime and the criminal. Amy Kuhner is now and forever will be defined as a felon as a result of her unguided and uncharacteristic poor judgment in July of 2007. She will suffer the enduring

Case 3:12-cr-00168-AWT Document 22

Filed 12/18/12 Page 10 of 11

- 10 pain and humiliation that follows from her criminal action, and will strive both to better understand her own shortcomings and to better fulfill her abiding mission to help others: This whole matter has been devastating to Amy personally, and indirectly devastating to the hospital/hospice patients who now have been deprived of the availability of Amys deeply compassionate spirit and human-ness as a chaplain. Thats the upside of living with alcoholism: one comes to know, and appreciate, how important understanding and compassionate listening are to the lives of any of us facing health crises. Amy is a master at such compassionate listening and care-giving, and Im sure she will find opportunities to continue to be of service to others. The world is in deep need of ministers like her. Rev. W. Joseph Hambor (letter attached as Exhibit B) Respectfully, a sentence of imprisonment is not needed to punish her, to promote respect for the law, to reflect the seriousness of her offense, or to deter others from similar out-of-character misconduct. Respectfully submitted, THE DEFENDANT, Amy Kuhner FEDERAL DEFENDER OFFICE

Dated: December 18, 2012

/s/ Paul F. Thomas Paul F. Thomas Assistant Federal Defender 265 Church Street, Suite 702 New Haven, CT 06510 Phone: (203) 498-4200 Bar no.: ct01724 Email: paul_thomas@fd.org

Case 3:12-cr-00168-AWT Document 22

Filed 12/18/12 Page 11 of 11

- 11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on December 18, 2012, a copy of the foregoing Defendants Memorandum in Aid of Sentencing was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent to all parties by operation of the Courts electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Courts CM/ECF System.

/s/ Paul F. Thomas Paul F. Thomas

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 1 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 2 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 3 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 4 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 5 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 6 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 7 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 8 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 9 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 10 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 11 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 12 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 13 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 14 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 15 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 16 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 17 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 18 of 19

Case 3:12-cr-00168-AWT Document 22-1

Filed 12/18/12 Page 19 of 19