Opinion
Crim. File No. 00-29(2) (PAM/ESS).
July 25, 2001.
STATEMENT OF REASONS FOR IMPOSING SENTENCE
I. FINDINGS OF FACT
Pursuant to the Federal Rules of Criminal Procedure, the United States Probation Office has conducted an extensive presentence investigation ("PSI") and has submitted a presentence report ("PSR") in this matter.See Fed.R.Crim.P. 32(c); 18 U.S.C. § 3552. Both parties raise objections to the factual statements and conclusions contained in the PSR. Prior to addressing those objections, the Court feels compelled to comment on what it considers to be a disturbing and unacceptable trend in federal criminal prosecutions. As occurred in this case, law enforcement officers working as case agents on criminal cases often become directly involved in every aspect of a criminal prosecution, including sentencing. Law enforcement officers are improperly given access to the highly confidential PSRs prepared by the Probation Office and often contact the probation officer in an effort to influence the final content of the PSR. This practice is patently improper. Law enforcement officers have no legitimate role in the sentencing of a criminal defendant. Our system of criminal justice requires that the parties to a criminal prosecution perform their respective roles without encroaching on the roles of others in the system.
In determining and administering the proper sentence, the Court is aided by the Probation Office, an arm of the Court. When one contacts a probation officer in connection with a sentencing, he or she is in essence contacting the Court. Such contact by participating attorneys is proper, as they must argue points of law and issues of fact to the Court to ensure the administration of a fair and accurate sentence under the Guidelines. Without question, however, it is inappropriate for law enforcement officers to contact the Court to express an opinion as to sentencing or to guide the Court in a particular direction as to the sentence. Indeed, no law enforcement officer has ever directly approached this Court in such a manner. Law enforcement officers must understand that contacting a probation officer in connection with a sentencing is no different than contacting the Court ex parte. This clearly improper practice must stop.
Once a law enforcement officer investigates a matter and assists in the trial, if called upon to do so, his or her part in the process is concluded. The officer shall not play any role in the determination of sentence, and certainly may not use his or her connection with the case to unduly influence the Court, either directly or indirectly. The Court will simply not tolerate such encroachments that, in this Court's view, severely undermine our system of justice.
A. Defendant's Position
Defendant first argues that the loss attributable to him should be limited to the losses associated with his counts of conviction. According to Probation and the Government, a total loss amount of $465,161 is attributable to Defendant as relevant conduct under U.S.S.G. § 1B1.3(a)(1)(A). (See PSR ¶ 30.) After reviewing the parties' submissions and given the Court's familiarity with the facts of this case, the Court concludes that it would be improper to attribute the total amount of loss in this case to Defendant.
The mail fraud counts for which Defendant was convicted involved a total of $2,500. The Government proved the conspiracy count against Defendant by presenting evidence that he, along with his co-Defendant Merna Sunde, controlled the assets of Dream Visions, Inc. According to the PSR, a total of $75,410 of victims' money was funneled through Dream Visions, Inc. (PSR ¶ 10.) Evidence was also presented that Defendant used $4,500 of the funds derived from the scheme to defraud as well as a 1989 Ford Bronco paid for by such funds. Thus, in total, no more than $82,410 is directly attributable to Defendant in calculating his guideline range.
Section 1B1.3(a)(1)(A) provides that "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant" shall be included in determining the defendant's total offense level. In this case, no evidence was presented that Defendant was in any way involved in any acts beyond those of his conviction. That is, there is no evidence that Defendant aided and abetted, or was otherwise involved in his co-Defendant's larger scheme to defraud. The Court simply will not hold Defendant accountable for actions in which he was not involved. As such, no more than $82,410 is attributable, either directly or indirectly, to Defendant.
Defendant also argues that he should be treated as a "minimal" rather than "minor" participant in the fraud. See U.S.S.G. § 3B1.2. Probation designated Defendant as a "minor" participant because he actively aided his co-Defendant in the furtherance of the scheme to defraud. (PSR ¶ 35.) A minimal participant is one who is "plainly among the least culpable of those involved in the conduct of a group." § 3B1.2, comment. (n. 1). A "defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal participant."Id. After having presided over the trial in this case, the Court is left with the firm conviction that Defendant's role was indeed minimal compared to that of his co-Defendant. There has been no concrete evidence presented indicating that Defendant was ever aware of the broad scope and truly devious nature of his co-Defendant's scheme to defraud. The Court therefore finds that he is most accurately classified as a "minimal" participant for sentencing purposes. Defendant is granted a 4-level reduction in his offense level pursuant to § 3B1.2(a). Moreover, because Defendant was a minimal participant in the overall scheme to defraud, the Court concludes that Defendant shall owe no more than $82,410, the amount directly attributable to him, in restitution. The Court therefore rejects the Government's request that Defendant be ordered to pay restitution for the full amount of the fraudulent scheme.
Defendant next objects to Probation's inclusion of a 4-level increase because the offense involved more than minimal planning, § 2F1.1(b)(2), and because the scheme involved the use of mass marketing, § 2F1.1(b)(3). (PSR ¶¶ 32-33.) Defendant denies ever participating in the planning of the fraud or personally placing advertisements in magazines. While that may be true, Defendant has been found guilty of mail fraud and conspiracy to launder money, for which more than minimal planning and use of mass marketing were necessary predicate acts. The Court therefore denies Defendant's objections on this basis.
Although Defendant does not object to ¶ 15 of the PSR, the Court strikes that paragraph as irrelevant and unduly prejudicial.
B. The Government's Position
The Government first seeks to have Defendant's listed net worth in the PSR amended to specifically include the amount of Dream Visions, Inc. inventory. (See PSR ¶ 75.) The Government believes that this information is necessary for the Court to determine whether a fine should be imposed in this case. Once Defendant has fulfilled his obligation to pay restitution in this case, the Court does not believe that he will have adequate funds with which to pay a fine. Accordingly, the Court declines to require Defendant to pay a fine. The Government's request is denied.
The Government also seeks a modification of the Court's Forfeiture Order dated November 13, 2000. In that Order, the Court rejected the Government's request to hold Defendant liable in forfeiture for $310,000, the total proceeds of the scheme and artifice to defraud. Instead, the Court held that only the sum of $4,500 and the 1989 Ford Bronco constituted forfeitable property pursuant to 18 U.S.C. § 982(a)(1). The Court stands by the reasoning and conclusions in its previous Order. The Government's request for modification is denied.
That amount has since been increased to $465,161.
II. PURPOSES
Defendant was found guilty of mail fraud and conspiracy to launder money, in violation 18 U.S.C. § 1341 and 1956(h), respectively. The sentence that the Court imposes is intended to punish the Defendant and deter him and others from committing crimes in the future.
III. APPLICATION OF THE GUIDELINES
The Court determines that the applicable guidelines are as follows:
Total Offense Level: 17 Criminal History Category: I Imprisonment Range: 24 to 30 months Supervised Release: 2 to 3 years Fine Range: $10,000 to $100,000 Special Assessment: $600
At the sentencing hearing, the Court determined that the total offense level was 18. On further review, the Court finds that a miscalculation occurred, and that a total offense level of 17 is in fact accurate. For purposes of clarity, the Court's final total offense level calculation is as follows:Group I: Mail Fraud 2F1.1 2F1.1 3B1.2Group II: Conspiracy to Launder Money 2S1.1 2S1.1 3B1.2 3D1.4
IV. SENTENCE
24 months' imprisonment. Supervised release for 2 years. Special assessment of $600.
Given the Court's error in calculating the guideline range, the Court will not stand by its 27-month sentence imposed at the sentencing hearing. Had the Court realized the error at the time of the sentencing hearing, it would have imposed a sentence at the bottom of the correct guideline range: 24 months. The Court is satisfied that such a sentence is just and appropriate under the circumstances of this case. Accordingly, pursuant to Fed. Crim. R. 35(c), the Court corrects the sentence imposed at the sentencing hearing, and sentences Defendant to 24 months' imprisonment.
V. STATEMENT OF REASONS
Defendant moves for a downward departure on two grounds: (1) that his conduct in this case constituted aberrant behavior within the meaning of § 5K2.20; and (2) the loss amount in the PSR overstates the seriousness of his offenses. Because the Court lowered the amount of loss attributed to Defendant, the latter ground for departure is essentially moot. In addition, at the sentencing hearing, the Court rejected Defendant's argument that his conduct in this case was "aberrant" within the meaning of § 5K2.20. The Court therefore imposes sentence within the range applicable to this Defendant and for this offense because the facts found are of the kind contemplated by the Guidelines. The Court also finds that no aggravating or mitigating circumstances exist that were not adequately considered by the Sentencing Commission.
Mandatory restitution in the amount of $82,410 is owed jointly and severally with his co-Defendant Merna Sunde. This restitution is due to the victims as indicated in the attached schedules. Payments of not less than $100 per month are to be made over a period of 3 years commencing 30 days after release from confinement. Payments are to be made payable to the Clerk, U.S. District Court, for disbursement to the victims. Pursuant to 18 U.S.C. § 3612(f)(3)(A), the Court waives the interest requirement. The Court recommends that Defendant participate in the Inmate Financial Responsibility Program while incarcerated. During the period of supervised release, Defendant shall abide by the standard conditions of supervised release recommended by the Sentencing Commission. He shall not commit any crimes, federal, state, or local. In addition, he shall refrain from possessing a firearm, destructive device, or other dangerous weapon. Because Defendant does not have a history of drug abuse, he is not required to undergo mandatory drug testing as set forth in 18 U.S.C. § 3563(a) and 3583(d).
Defendant shall provide the probation officer access to any requested financial information. He shall be prohibited from incurring new credit charges or opening additional lines of credit without approval of the probation officer. He shall have no contact with the victims (including letters, communication devices, audio, or visual devices, visits, or any contact through a third party) without prior consent of the probation officer
The Court recognizes that after Defendant fulfills his restitution requirement he will be indigent. Therefore, the Court does not order him to pay a fine or costs of supervision. However, he is required to pay the $600 special assessment immediately.
Defendant is neither violent nor a flight risk. The Court therefore strongly recommends that he be placed by the Bureau of Prisons in the Federal Prison Camp at Duluth, Minnesota. Because the Defendant is not a flight risk, he is an appropriate candidate for voluntary surrender. He shall surrender himself to the Office of the United States Marshal in Minneapolis or at such other place as the Marshal shall designate on Monday, August 13, 2001, at or before 11:00 a.m.
Base Offense Level: 6 (§ (a)) Specific Offense Characteristics: +1 (§ (b)(1)(B)) +2 (§ 2F.1.1(b)(2)) +2 (§ 2F.1.1(b)(3)) +2 (§ 2F.1.1(b)(6)(C)) -4 (§ (a)) Adjusted Offense Level 9 Base Offense Level: 20 (§ (a)(2)) Specific Offense Characteristics: +0 (§ (b)(2)(A)) -4 (§ (a)) Adjusted Offense Level 16 Pursuant to § , the multiple count adjustment, the final total offense level is 17.