U.S. v. Jacobson

• Citation: 15 F.3d 19
• Decision Date: 19 January 1994
• Docket Number: D,No. 1856,1856
• Parties: UNITED STATES of America, Appellee, v. Stanley JACOBSON, Nora Jacobson, Maureen Conlan, Richard Fromme, Gerhard Plaut, Osvaldo Stejmberg, Alan Jacobson, Lawrence Galina, Kenneth Cohen, Steven Goldfarb, Charles Berliner, Paul Berger, Nicholas Lobasso, Michael Bouer, John Mahon, Lawrence Nemeroff, Richard Lippman, Steven Rodman, James Bozzi, Defendants, and Andrew Kogut, Defendant-Appellant. ocket 93-1217.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 19

15 F.3d 19

UNITED STATES of America, Appellee, v. Stanley JACOBSON, Nora Jacobson, Maureen Conlan, Richard

Fromme, Gerhard Plaut, Osvaldo Stejmberg, Alan Jacobson,

Lawrence Galina, Kenneth Cohen, Steven Goldfarb, Charles

Berliner, Paul Berger, Nicholas Lobasso, Michael Bouer, John

Mahon, Lawrence Nemeroff, Richard Lippman, Steven Rodman,

James Bozzi, Defendants,

and

Andrew Kogut, Defendant-Appellant.

No. 1856, Docket 93-1217.

United States Court of Appeals, Second Circuit.

Argued Aug. 11, 1993.

Decided Jan. 19, 1994.

Susan E. Brune, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., S.D.N.Y., Nelson W. Cunningham, Asst. U.S. Atty., of counsel), for appellee.

Jerry D. Bernstein, New York City (Michele C. Cacioppo, Bernstein & Maffeo, of counsel), for defendant-appellant.

Before: WINTER, MINER, and WALKER, Circuit Judges.

WINTER, Circuit Judge:

Andrew Kogut appeals from Judge Duffy's imposition of a sentence of twelve months' imprisonment, three years' supervised release, and a $10,000 fine following his guilty plea to one count of conspiracy, 18 U.S.C. Sec. 371 (1988), to receive misbranded and adulterated drugs in interstate commerce and to commit wire fraud. Although Kogut's plea agreement waived his right to appeal his sentence, Kogut challenges the length of his sentence compared with those of his co-conspirators as a denial of due process, U.S. Const. amend. V, based on Judge Duffy's reference to Kogut's national origin at the sentencing hearing. After oral argument, we asked Judge Duffy to supplement the record within twenty-one days regarding the disparity in sentences among the co-conspirators but retained jurisdiction. Judge Duffy thereafter filed an opinion questioning his power to act while we retained jurisdiction but explaining his reasons for the sentencing disparity. We address the proper procedure for supplementing the record and hold that Kogut has not waived his right to appeal from an arguably unconstitutional sentence. However, we affirm.

Kogut, a licensed pharmacist, pled guilty to participation in a drug diversion scheme in which he purchased black-market drugs at a discount and resold them to consumers. The drugs were obtained through Medicaid fraud, illegal use of samples, or outright theft. Purchasers were defrauded and endangered because the drugs lacked control numbers and expiration dates necessary to ensure the efficacy and safety of the medications. The government and Kogut agreed to an offense level of 11 and a criminal history category of I, dictating a sentence in the range of eight to fourteen months. In the plea agreement, Kogut and the government agreed not to appeal if the sentence was within that range.

At the sentencing hearing, Judge Duffy stated:

You [Kogut] come to this country from behind what was then the Isron [sic] Curtain.... You come here and one thing you have going for you is brains.... You have brains, you have an opportunity given to you by the new country. The one that you left certainly would never give you anything like this opportunity.... Maybe it is a failing in the generation from which I came. We always believed that if we got something, we were obligated to give something back, something of value. You don't seem to believe that. You got all kinds of things, you got freedom, you got an opportunity to use your brains, you had a damned good life; and for peanuts you were willing to screw it up without regard to the people whose lives you might be smashing. You had as much feeling for them as the Romanian secret police might have for people who are enemies of society--nothing whatsoever.

Judge Duffy then sentenced Kogut to twelve months' imprisonment.

Subsequent to Kogut's sentencing, his co-conspirators, who were sentenced at the same Guidelines level, received more lenient sentences, most splitting between four or five months of imprisonment and equal time in home detention. In particular, two co-conspirators whom the government considered more culpable than Kogut received shorter jail terms, six months and eight months respectively, although their fines were four times as large. The government conceded at oral argument that Kogut's status as a naturalized citizen was not a valid basis for a disparity in sentences and that Judge Duffy's remarks at sentencing gave no basis other than that status for Kogut's sentence.

We entered an order requesting Judge Duffy to supplement the record within twenty-one days regarding his reasons for Kogut's sentence. We retained jurisdiction, however, and there was no formal remand.

In his opinion elaborating on the reasons for the sentence, Judge Duffy stated that he imposed a harsher penalty on Kogut because of his intelligence and lack of remorse rather than because of his naturalized status. In this regard, Judge Duffy pointed to his statements at sentencing that: "You come here and the one thing you have going for you is brains" and "You have brains, you have an opportunity given to you by the new country" and "You got all kinds of things, you got freedom, you got an opportunity to use your brains." Moreover, Judge Duffy found that Kogut did not display a "sufficient degree of remorse" to escape the imposition of a harsher sentence than those accorded his co-conspirators. Judge Duffy also questioned the basis for our retaining jurisdiction over the matter.

Before turning to the merits, we address the issue of our procedure of requesting supplementation of the record while retaining jurisdiction. We address this issue both because of Judge Duffy's skepticism regarding the procedure used and because our clerk's office has raised a question as to whether a mandate should be issued in such cases. Because of the institutional importance of the question, this opinion was circulated to the entire court before filing.

The procedure of seeking supplementation of a record without a formal remand or the need for a new notice of appeal before the appellate panel acts on the supplemental record is established in the caselaw of this and other circuits. In IIT v. Vencap, Ltd., 519 F.2d 1001, 1019 (2d Cir.1975), Judge Friendly's opinion invoked the court's broad power under 28 U.S.C. Sec. 2106 to "require such further proceedings to be had as may be just under the circumstances," to retain jurisdiction while remanding to the district court to supplement the record with further findings and conclusions. In In re Lomas Financial Corp., 932 F.2d 147, 151-52 (2d Cir.1991), we directed the parties to seek "a supplemental statement" from the bankruptcy court as to whether its order necessitated further proceedings in that court and retained jurisdiction to rule on the merits pending receipt of that statement. In Gulliver v. Dalsheim, 739 F.2d 104, 106 (2d Cir.1984), the panel retained jurisdiction in a habeas case while remanding to allow the district court to apply intervening decisions of this court. In FDIC v. Grella, 553 F.2d 258, 264 (2d Cir.1977), the panel retained provisional jurisdiction of the case with instructions to the district court to dismiss the case should the parties comply with its ruling. See also Easley v. University of Michigan Bd. of Regents, 853 F.2d 1351, 1358 (6th Cir.1988) (...