U.S. v. Glick

• Decision Date: 23 October 1991
• Docket Number: No. 91-5505,91-5505
• Citation: 946 F.2d 335
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Barry David GLICK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 335

946 F.2d 335

UNITED STATES of America, Plaintiff-Appellant, v. Barry David GLICK, Defendant-Appellee.

No. 91-5505.

United States Court of Appeals Fourth Circuit.

Argued June 7, 1991.

Decided Oct. 8, 1991.

As Amended Oct. 23, 1991.

Dale Preston Kelberman, Asst. U.S. Atty., Baltimore, Md., argued (Breckinridge L. Willcox, U.S. Atty., on brief), for plaintiff-appellant.

Nancy Luque, Washington, Perito & Dubuc, Washington, D.C., argued (Robert Plotkin, Anne Pings, on brief), for defendant-appellee.

Before SPROUSE and WILKINS, Circuit Judges, and JOSEPH F. ANDERSON, JR., District Judge for the District of South Carolina, sitting by designation.

OPINION

WILKINS, Circuit Judge:

Barry David Glick pled guilty to interstate transportation of stolen property. 18 U.S.C.A. § 2314 (West Supp.1991). The sentencing court departed downward from the sentencing guidelines range on the bases of Glick's aberrant behavior and diminished capacity, and sentenced him to five years probation. The government appeals the downward departure. We reverse in part, affirm in part, and affirm as to the result.

I.

Prior to oral argument, Glick moved that I recuse myself because I presently serve as the Chairman of the United States Sentencing Commission. The motion is denied by a unanimous vote of the panel.

The Sentencing Reform Act requires that at least three of the seven members of the United States Sentencing Commission be federal judges. 28 U.S.C.A. § 991(a) (West Supp.1991). The Supreme Court has upheld the constitutionality of permitting federal judges to serve on the Commission. Mistretta v. United States, 488 U.S. 361, 397-408, 109 S.Ct. 647, 667-673, 102 L.Ed.2d 714 (1989).

In an earlier case involving the appeal of a sentence, Chief Judge Stephen G. Breyer, United States Court of Appeals for the First Circuit, and former member of the Sentencing Commission, sua sponte raised the question whether he should disqualify himself from hearing that appeal. United States v. Wright, 873 F.2d 437, 445 (1st Cir.1989) (Breyer, J., writing separately). Judge Breyer, who was extensively involved in the drafting and promulgation of the guidelines and policy statements that applied to the sentence in question, concluded that it would be proper for him to continue to participate in appeals in "typical Guidelines cases, unless they involve a serious legal challenge to the Guidelines themselves." Id. at 447 (emphasis in original). I agree.

A judge must recuse himself from a "proceeding in which his impartiality might reasonably be questioned." 28 U.S.C.A. § 455(a) (West Supp.1991). "The inquiry is whether a reasonable person would have a reasonable basis for questioning the judge's impartiality...." In re Beard, 811 F.2d 818, 827 (4th Cir.1987). When there is no reasonable basis for questioning a judge's impartiality, it would be improper for the judge to recuse himself. See In re M. Ibrahim Khan, P.S.C., 751 F.2d 162, 164 (6th Cir.1984).

The United States Sentencing Commission promulgates guidelines and policy statements that have general application. The Supreme Court recognized in Mistretta that the promulgation of these guidelines "is an essentially neutral endeavor and one in which judicial participation is peculiarly appropriate." 488 U.S. at 407, 109 S.Ct. at 673. The Court also recognized that the fact "[t]hat federal judges participate in the promulgation of guidelines does not affect their or other judges' ability impartially to adjudicate sentencing issues." Id. at 406-07, 109 S.Ct. at 672. Cf. Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 444, 66 S.Ct. 242, 246, 90 L.Ed. 185 (1946) ("The fact that this Court promulgated the rules [of civil procedure] as formulated and recommended by the Advisory Committee does not foreclose consideration of their validity, meaning or consistency.").

Appellant argues that a judge-commissioner would have difficulty basing a decision on the text of the guidelines, commentary, and policy statements alone and that the knowledge of the guidelines promulgation process possessed by a judge-commissioner could improperly influence such a decision. Judges, however, are often called upon to compartmentalize their knowledge of information surrounding a case. For example, during a bench trial a judge is required to rule on the admissibility of evidence, and then to render a verdict without considering the inadmissible evidence. See, e.g., Fed.R.Evid. 403. Importantly, in ruling on guidelines issues, a judge-commissioner, like all judges, is statutorily confined to "consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." 18 U.S.C.A. § 3553(b) (West Supp.1991).

Appellant also questions the propriety of a judge deciding guidelines cases and simultaneously serving on the Commission because of the role a commissioner might play in subsequently amending the guidelines and policy statements. This possibility has no bearing on a judge's ability to be impartial. Any future amendment would have no effect on a defendant previously sentenced, except possibly to qualify the defendant for a sentence reduction. United States Sentencing Commission, Guidelines Manual, § 1B1.10, p.s. (Nov. 1990).

Because no special circumstances that would cause a reasonable person to question my impartiality are presented by this appeal, I shall not recuse myself. Indeed, because recusal is not required, I am obligated to participate.

II.

While working for Arbitron Company, Glick mailed an anonymous letter containing confidential information to Arbitron's principal competitor, A.C. Nielsen Company. Glick offered to become a consultant for Nielsen and suggested that Nielsen place an advertisement in a trade journal requesting information on Galapagos marine iguanas if Nielsen was interested in his proposal. Glick mailed three more letters containing similar confidential information during the next month. The Federal Bureau of Investigation, having been asked to investigate the communications, placed an advertisement in the trade journal as directed by Glick. Glick then mailed Nielsen a fifth anonymous letter containing more confidential information and offering equipment developed by Arbitron.

Glick had no previous convictions and stipulated in his plea agreement that his offense level was 18, which, combined with a criminal history category I, yielded a sentencing guidelines range of 27-33 months. At his sentencing hearing, Glick offered the testimony of a psychiatrist who had evaluated him and had concluded that Glick suffered from a significantly reduced mental capacity at the time he committed the offense and that his reduced mental capacity significantly contributed to his actions. The government elected not to present any testimony to refute the psychiatrist's conclusions. The sentencing court determined that a departure from the guidelines was warranted because of Glick's diminished capacity and because the commission of this offense was aberrant behavior. The court sentenced Glick to five years probation with certain conditions.

III.

The government contends that the sentencing court erred in finding that Glick was entitled to a departure sentence for either aberrant behavior or diminished capacity. When reviewing a departure sentence, this court will

first examine de novo the specific reasons cited by the district court in support of its sentence outside the Guidelines range to ascertain whether those reasons encompass factors "not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." If the sentencing court identified one or more factors potentially warranting departure, we apply a clearly erroneous standard and review the factual support in the record for those identified circumstances. Upon ascertaining that there is an adequate factual basis for the factors, we apply an abuse of discretion standard to determine if, on balance, the cited departure factors are of sufficient importance in the case such that a sentence outside the Guidelines range "should result." Similarly, we apply an abuse of discretion standard to determine if the extent of departure was reasonable.

United States v. Hummer, 916 F.2d 186, 192 (4th Cir.1990) (quoting 18 U.S.C.A. § 3553(b) (West Supp.1990)) (citations omitted), cert. denied, --- U.S. ----, 111 S.Ct. 1608, 113 L.Ed.2d 670 (1991). The sentencing guidelines explicitly state that neither factor relied upon by the district court was considered by the Sentencing Commission when formulating the guidelines and either factor may be a ground for a departure sentence under appropriate circumstances. U.S.S.G., Ch. 1, Pt. A, 4(d), p.s. (departure permitted for "single acts of aberrant behavior"); U.S.S.G. § 5K2.13, p.s. (departure permitted for diminished capacity). Thus, our analytical review begins with whether there is factual support in the record for each ground identified by the district court as justification for departure.

A.

The government argues that Glick's offense does not constitute a single act of aberrant behavior as contemplated by the sentencing guidelines. Glick's conduct involved sending five separate letters containing misappropriated, confidential information over a course of ten weeks and devising a code to use in communicating through a national trade publication. Among items officers discovered in Glick's home were equipment stolen from Arbitron and a list of names and addresses of officers of Nielsen. The government contends that his attempt to remain anonymous...