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UNITED STATES v. HEIMBACH

October 20, 1992

UNITED STATES OF AMERICA
v.
BARRY R. HEIMBACH, SR.


HUYETT


The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW, AND ORDER

HUYETT, J.

 I. Findings of Fact

 1. A grand jury of the United States District Court for the Eastern District of Pennsylvania indicted Defendant Barry R. Heimbach, Sr., Barry R. Heimbach, Jr., and Phillip R. Stephen on charges of conspiracy in violation of 18 U.S.C. § 371 (Count One) and structuring financial transactions to avoid the currency transaction reporting requirements of 31 U.S.C. § 5313(a) in violation of 31 U.S.C. §§ 5234(3) and 5322(b) and 18 U.S.C. § 2 (Counts Two and Three).

 2. Defendant, along with the two other men, purchased two properties, one at Eagle Lakes Estates in Covington Township, Lackawanna County, Pennsylvania for approximately $ 51,000 and the other at Kriss Pines Estates, Franklin Township, Carbon County, Pennsylvania for approximately $ 77,000. Defendant purchased the Eagle Lakes property in July 1988 and the Kriss Pines Estates property in August 1988. Defendant used cashier's checks and money orders purchased in June 1988 to purchase the Eagle Lakes property and cashier's checks and money orders purchased in July 1988 to purchase the Kriss Pines property. Defendant structured the currency transactions by purchasing the checks and money orders in amounts of less than $ 10,000 so as to avoid the currency transaction reporting requirements of 31 U.S.C. 5313(a) (requiring commercial banks, loan associations, and other financial institutions to report any currency transaction in excess of $ 10,000).

 3. Defendant pleaded guilty to Counts One and Three of the indictment. The United States moved to dismiss Count Two. The Court granted the motion.

 4. On July 25, 1990 the Court sentenced Defendant to a term of imprisonment of thirty-seven months, supervised release for a term of three years, a fine of $ 50,000, and a special assessment of $ 100. The Court ordered Defendant to pay the special assessment immediately and to pay the fine within the first year of supervised release. The Court ordered that the sentence imposed run consecutive to the sentence imposed by Judge Cahn in Eastern District of Pennsylvania Criminal Action No. 89-464-03.

 5. A grand jury indicted Defendant on charges of conspiracy to distribute cocaine and distribution of cocaine in Criminal Action No. 89-464-03. Defendant pleaded guilty. Judge Cahn sentenced Defendant to a term of imprisonment of eighteen months.

 6. On June 30, 1992 Defendant sent the Court a letter in which he requested that he be "released or pardoned" from paying the $ 50,000 fine imposed by the Court in this case because of his poor health, his poor financial condition, and the limited prospects of his obtaining any substantial employment in the future.

 7. This Court treated Defendant's letter as a pro se motion for remission of the criminal fine, requested the comments of the United States Attorney's Office and the Probation Office, and scheduled a hearing.

 8. On September 15, 1992 the Court held an evidentiary hearing on Defendant's pro se motion. Defendant testified and the Court received into evidence a copy of the Presentence Report as Defendant Exhibit 1. On behalf of the United States, Special Agent Kim Keperling of the Internal Revenue Service testified. Through her testimony, the government read into evidence the transcript of the grand jury testimony of Deborah Quier given November 16, 1989 page 5, line 25 to page 7, line 19; and page 8, line 18 to page 10, line 12. Also through her testimony, the government read into evidence the transcript of the grand jury testimony of Russell S. Hampton, Jr. given November 16, 1989 page 4, line 1 to page 8, line 3; page 9, line 15 to page 10, line 16; and page 13, line 13 to page 14, line 1. The Court admitted into evidence, over Defendant's objection, the entire transcripts of both Quier's and Hampton's testimony as Government Exhibits 1 and 2, respectively. In addition, the Court received into evidence the Merchant's National Bank of Allentown Safe Deposit Box contract and record for Defendant's safe deposit box, marked as Government Exhibit 3. Finally, the Court admitted into evidence a list of purchases from Bennett Chevrolet Corporation made by Defendant from 1987 through 1988, marked as Government Exhibit 4. Counsel made arguments and, following the hearing, submitted proposed findings of fact and conclusions of law.

 9. Defendant is 48 years old and has served two years of his sentences. He is incarcerated in FCI-LaCuna, Anthony, New Mexico/Texas.

 10. Defendant has been diagnosed as a diabetic and takes medication three times daily to control the disease. Defendant has acute asthma for which he takes medication daily, and has cataracts in both eyes that restrict his vision.

 11. Defendant is currently in poor health.

 12. The Bureau of Prisons provides his medications and eyeglasses, but he does not have medical insurance upon his release from prison.

 13. Defendant has a General Equivalency Diploma, which he obtained while incarcerated, and is entering a computer training program in prison to gain computer skills.

 14. Prior to 1986 Defendant worked as a laborer in the construction industry and as a bartender in the Allentown area. He does not desire to return to these occupations after he is released from prison. From 1986 until his imprisonment, Defendant was ...


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