Sentencing Is Near in Map Theft Case
By JAMES KINSELLA
Federal authorities have asked that E. Forbes Smiley 3rd of Chilmark serve more than four years in prison and be fined at least $10,000 for stealing a rare 1578 map.
U.S. Attorney Kevin O'Connor said that although the court should take Mr. Smiley's cooperation into account when sentencing the felon next Wednesday, the court should not depart from standard sentencing guidelines.
Under those guidelines, Mr. Smiley, who admitted stealing 98 rare maps between 1998 and 2005, can be sentenced to between 57 and 71 months in prison, and fined between $10,000 and $100,000.
In June, Mr. Smiley acknowledged that he stole a 1578 rare map titled Vninersi Orbis, sevterreni glo, from Beinecke Library at Yale University in June 2005. Under law, the theft of the map, a piece of cultural heritage more than 100 years old and worth more than $5,000, is a federal felony.
Mr. Smiley is scheduled to appear for sentencing on Wednesday before U.S. District Judge Janet Arterton in federal court in New Haven.
In asking Judge Arterton to stay within the guidelines, the government has steered a middle ground between Mr. Smiley's attorney, Richard Reeve of New Haven, who asked that the court impose a more lenient sentence of between 30 and 36 months, and the British Library's attorney, Robert Goldman of Philadelphia, who requested that the court sentence Mr. Smiley to between 78 to 97 months in prison.
In a sentencing memorandum filed with the court on Wednesday, Mr. O'Connor said Mr. Smiley deserves punishment for his actions.
"The government joins the victim institutions in condemning the defendant's reprehensible conduct in the theft of 98 antique maps, six of which will likely never be recovered and a number of the remaining maps altered from their original condition," he wrote. "The government also calls for punishment on behalf of the victim dealers who Smiley defrauded by selling them stolen maps and who have suffered severe financial and institutional harm."
But Mr. O'Connor states that the court also should consider Mr. Smiley's extensive cooperation with authorities.
That cooperation, Mr. O'Connor states, includes substantial efforts made and evidence provided to exculpate others, including victim dealers and collectors; to identify as many as 80 maps that he stole that otherwise would not have been recovered; to agree to make restitution to victim dealers and collectors; and to turn over interests in real estate and personal property for sale to make restitution.
The government, however, said that cooperation, along with a number of other grounds advanced by Mr. Reeve, was not enough to warrant a sentence more lenient than the guidelines.
Mr. Reeve, in his sentencing memorandum, called on the court to show leniency toward Mr. Smiley. He cited Mr. Smiley's cooperation; his family ties and responsibilities; his charitable activities; his medical condition; and his mental and emotional conditions.
Mr. Reeve wrote that Mr. Smiley, who was arrested in June 2005 after he was caught stealing maps from the Beinecke Library at Yale University, could have admitted only those thefts that could be proven and remain silent on his other stealing.
"He chose, instead, what was and is in some ways a far more difficult path, one which has required him to face the full scope of what he has done, admit it to the authorities and his family, and work very hard to assist in the identification of all stolen maps and their recovery," Mr. Reeve wrote.
"He made this decision for a number of reasons, but a principal one was because he wanted to see as many maps as possible returned back to the institutions to which they belonged," Mr. Reeve stated.
Indeed, Mr. Reeve wrote, Mr. Smiley's cooperation identified far more stolen maps than either the Federal Bureau of Investigation, which investigated his crime, or the seven institutions from which he stole, were aware.
"The government has conceded that, absent Mr. Smiley's admission, it lacked proof of his theft of 80 of those 98 maps," he wrote. "Indeed, the FBI investigation established that the relevant institutions were unaware that 40 of these 80 maps were even missing before Mr. Smiley admitted their thefts, despite lengthy internal investigations by the institutions themselves."
In his memorandum, Mr. Reeve listed other mitigating factors, including:
* Mr. Smiley's family ties and responsibilities. The felon, 50, is the father of a six-year-old son. The length of sentence, Mr. Reeve wrote, would have a great impact on a young man with a very close bond to his father.
* Mr. Smiley's charitable efforts. Those efforts, Mr. Reeve said, including supporting a pre-school in Chilmark; the restoration and reopening of the post office in Sebec, Maine, where he has owned property; Covenant House, which helps young runaways who arrive in New York city; and shelters and soup kitchens in New York city.
* Mr. Smiley's medical condition. He had quadruple bypass surgery at the age of 43 and has four slipped discs in his lower back.
* Mr. Smiley's mental and emotional conditions. Mr. Reeve declined to identify these conditions in his memorandum, but said they partly help to explain his actions.
Both the Reeve and O'Connor memorandums take aim in general at the contention of victim institutions that Mr. Smiley took more maps than admitted, and in particular at the British Library memorandum, which argues that Mr. Smiley should be punished more severely than the sentencing guidelines.
Mr. Reeve wrote: "Our hope and belief is that the court will sentence Mr. Smiley on the basis of what he had in fact done, including his cooperation, and not on the basis of what some speculate he might have done."
Mr. O'Connor wrote: "Having now spent a considerable time with the defendant, the government has found him to be open and diligent in his efforts to recall his past thefts. The government's best assessment is that he is making his best efforts to be truthful, but that at the margin there may be a theft that he cannot recall and thus a map not returned."
Giving weight to that observation, Mr. O'Connor wrote, are factors such as admitting of many thefts that could not be pinned on him, and the severe financial consequences of admitting those thefts.
Mr. O'Connor and Mr. Reeve devoted large sections of their memoranda to attacking the British Library sentencing recommendation.
"The government is concerned that the library's analysis, as presently presented, is legally flawed and, if followed, would created a risk of reversal on any appeal by the defendant," Mr. O'Connor wrote.
In particular, Mr. O'Connor said the library's argument for a more severe sentence was based on earlier court rulings that overrode less stringent sentencing guidelines then in effect.
In his memorandum, Mr. Reeve writes, "The British Library sentencing memorandum is replete with factual and legal errors, and in many instances presents highly misleading arguments."
Mr. Reeve also writes, "The British Library's rhetoric neglects an important and fundamental truth: the Apian World Map will soon be back in its collection."
Quoting but contradicting the library's argument, Mr. Reeve writes, "All ‘students, scholars, academics, the general public and individuals yet to be born' then will be able to utilize the map."