U.S. v. Altman

Citation901 F.2d 1161
Decision Date19 April 1990
Docket NumberNo. 831,D,831
PartiesUNITED STATES of America, Appellee, v. John ALTMAN, Defendant-Appellant. ocket 89-1479.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Joel Martin Aurnou, White Plains, N.Y., for defendant-appellant.

Theodore E. Chervin, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty. for the Southern District of New York, Joan McPhee, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before FEINBERG, CARDAMONE, and MINER, Circuit Judges.

MINER, Circuit Judge:

Defendant-appellant John Altman appeals from a judgment entered on September 18, 1989, in the United States District Court for the Southern District of New York (Leisure, J.) imposing a ten-year term of imprisonment for sexual exploitation of a minor and a ten-year term of imprisonment for interstate transportation of a minor for illegal sexual activity, the terms to run concurrently, and a five-year term of imprisonment on each of two counts of wire fraud, those terms also to be served concurrently. The ten-year term and the five-year term were imposed to run consecutively, for a total of fifteen years. Altman contends that the district court erred in applying the Sentencing Guidelines by increasing his base offense levels for obstruction of justice and the vulnerability of the victims, by not crediting his acceptance of responsibility, and by considering a state misdemeanor conviction in determining his criminal history category. We conclude that the court erred in failing to consider key evidence bearing on the enhancement of sentence for obstruction of justice and relevant to the denial of credit for acceptance of responsibility. Therefore, we vacate the sentence and remand for resentencing in a manner consistent with this opinion.

BACKGROUND

Altman was charged with, and pleaded guilty to, one count of sexual exploitation of a minor, in violation of 18 U.S.C. Sec. 2251 (1988); one count of interstate transportation of a minor with intent to engage in illegal sexual activity, in violation of 18 U.S.C. Sec. 2423 (1988); and two counts of wire fraud, in violation of 18 U.S.C. Sec. 1343 (1988). Altman posed as an owner of a modeling agency and induced women to pay him money to become his models. He then plied the women with the amphetamine diet pill Didrex, had intercourse with them, and took sexually explicit photographs of them. One of the women Altman In accordance with Sentencing Guidelines section 3D1.2, the probation department established in its presentence investigation report two groups of counts. It combined in one group the first two counts, sexual exploitation of a minor and interstate transportation of a minor for illegal sexual activity. Counts three and four, the two wire fraud counts, were combined in the other group. 1 The first count had a base offense level of 25. United States Sentencing Commission, Guidelines Manual, Sec. 2G2.1 (Nov.1989) (hereafter "Sentencing Guidelines"). A two-level enhancement for the known vulnerability of the victims, id. Sec. 3A1.1, and a two-level enhancement for obstruction of justice, id. Sec. 3C1.1, increased the offense level to 29. The second count had a base offense level of 16 and an internal enhancement of four levels for the use of drugs to coerce a victim. Id. Sec. 2G1.2(a) & (b)(1). The addition of the two-level enhancement for obstruction of justice resulted in an offense level of 22 for the second count. The probation department then used the greater of the two adjusted base offense levels, that of the first count, to calculate the offense level for the group consisting of the first two counts. See id. Sec. 3D1.3 & application note 3. The base offense level of 15, assigned to the wire fraud counts, was not considered in determining the combined offense level. See id. Sec. 3D1.4(c). Since Altman attempted to engage in obstructive conduct and took only partial responsibility for his criminal acts, the probation department recommended that he not receive credit for accepting responsibility. Id. Sec. 3E1.1 (two-level credit).

victimized was seventeen-year-old Karen Bridges, the minor referred to in the first two counts of the indictment. Altman brought Bridges from a nude bar in Tampa, Florida, to New York City, where he sexually abused her and took sexually explicit photographs of her. At sentencing, Altman claimed that all of the women subject to his abuse were adult nude or topless dancers and were willing models. He also asserted that he used the women to obtain prescriptions for Didrex for his personal use and that each woman took only a prescribed dosage of three diet pills per day. In conducting this scheme, Altman made nearly 500 long-distance calls, two of which were charged in the wire fraud counts of the indictment.

The probation department then calculated Altman's criminal history category. Altman's history included a May 1989 New York State misdemeanor conviction for sexual misconduct, to which he had pleaded guilty while in federal detention, and for which he received a sentence of six months to be served concurrently with another state sentence. A criminal history category of VI was indicated. Id. Sec. 4A1.1(b). The sentencing range for an offense level of 29 and a criminal history category VI is 151 to 188 months. See id. Ch. 5, Pt. A sentencing table.

The government urged the court to adopt the two-level enhancement in Altman's sentence for obstruction of justice and described Altman's conduct in its Sentencing Memorandum. While in federal custody awaiting sentencing, Altman called one witness and instructed her to tell the police that they only went on a date. Prior to his guilty plea, he told one of the victims when he would be released, offered to pay her for her lost wages for the time she was in New York, and asked her to send him her photograph. He also wrote to another victim and requested that she not testify against him. Altman offered a cooperating witness money, credit cards, and a partnership in a scheme similar to the fake modeling agency to coax that witness into changing his testimony. Based on this record, the court found that Altman "took an active role of trying to influence various witnesses through telephone and letters."

At the sentencing proceeding, Altman asserted that his obstructive acts were not willful and therefore objected to the probation department's finding that he had obstructed justice and consequently was not entitled to a reduction for acceptance of responsibility. He explained that prior to his arrest he was taking medication for The court accepted the sentence recommended by the probation department in its pre-sentence report, agreeing with the probation department and the government in denying Altman credit for acceptance of responsibility. The court sentenced Altman to concurrent terms of imprisonment of ten years on the first two counts and concurrent terms of imprisonment of five years on the two wire fraud counts, with the two sets of concurrent terms to run consecutively, for a total of fifteen years. Altman also was sentenced to supervised release for a term of five years on all counts and directed to pay a special assessment of $200.

manic depression and a chemical imbalance but was denied that medication while in federal custody. He claimed to have engaged in the obstructive conduct while suffering from these ailments, which, his counsel argued, completely deprived him of impulse control. In support of his contentions, Altman produced at his sentence hearing Dr. Harvey Lothringer, the Westchester County Jail Psychiatrist who examined and treated him while he awaited sentencing. Altman asserted that the doctor's testimony would establish that his obstructive behavior was the result of his mental and physical condition. Altman claimed that the pre-sentence report misquoted Dr. Lothringer as saying that Altman manipulated legal proceedings by refusing to take his medication. The district court did not allow the testimony of Dr. Lothringer, who was present in the courtroom during the sentencing proceeding, but determined that it would not consider the misquoted material contained in the pre-sentence report. Altman also claimed that his pre-arrest restitution to the victims and his guilty plea proved that he had accepted responsibility. He also pointed to his cooperation with the authorities as proof that he did not obstruct justice. He then denied that he knew Bridges was seventeen years old and claimed that she, like the other women he photographed, was a...

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