U.S. v. Baird, 96-1342
| Decision Date | 07 April 1997 |
| Docket Number | No. 96-1342,96-1342 |
| Citation | 109 F.3d 856 |
| Parties | UNITED STATES of America, Appellee, v. John BAIRD, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Elizabeth K. Ainslie, (argued), Ainslie & Bronson, Philadelphia, PA, for Appellant John Baird.
Michael R. Stiles, United States Attorney, Walter S. Batty, Jr., Assistant United States Attorney, Chief of Appeals, and William B. Carr, Jr., (argued), Assistant United States Attorney, Philadelphia, PA, for Appellee United States of America.
Before: BECKER, McKEE, and GARTH, Circuit Judges.
This is a sentencing appeal. Appellant John Baird is a former Philadelphia police officer who was assigned to the infamous 5 Squad of the 39th district. The 5 Squad was responsible for breaking up drug trafficking operations in an area of Philadelphia in which drug dealing has been epidemic. Instead of working to uphold the law, Baird, and those of his police officer colleagues who were also corrupt, systematically broke it. Over the course of a number of years, and in instances too numerous to chronicle here, they executed illegal searches, detained individuals without legal cause, employed excessive force against detainees, caused the false prosecution of numerous individuals, and stole money and property from persons they were investigating. A seven-count indictment details at least forty-five such instances.
As of this writing, the City of Philadelphia is still endeavoring to right all the wrongs caused by the 5 Squad. Victims of 5 Squad corruption have lodged numerous civil suits against the police department and the city, and settlements are costing the city large sums. The District Attorney has been reviewing prosecutions arising from 5 Squad activities. That review has led to the release from prison of a number of innocent persons whose convictions rested on evidence wrongfully obtained or fabricated by 5 Squad officers. A recent newspaper article reported that, as a result of this corruption, the Philadelphia District Attorney has dismissed 160 cases and the city has paid out more than $3.5 million. 1
Pursuant to a plea bargain, Baird pled guilty to three counts of the indictment. The calculation of Baird's sentence under the Sentencing Guidelines produced an adjusted offense level of 29 and a criminal history category of I for a sentencing range of 87 to 108 months. The district court might have departed downward from the range pursuant to the government's motion under § 5K1.1 of the Guidelines to reward Baird's substantial assistance to authorities. Baird's cooperation was in fact very great, for he produced evidence against his 5 Squad co-conspirators, leading to numerous arrests. The district court nonetheless effectively denied the § 5K1.1 motion; it also factored Baird's cooperation into the sentence in an unusual manner. Instead of departing downward, the district court departed upward, imposing a sentence of 156 months (13 years), while making it clear that it would have imposed an even greater sentence but for Baird's cooperation. Importantly for this appeal, the court, in fashioning the upward departure, relied upon conduct underlying dismissed counts.
Baird, sorely aggrieved by the perception that his cooperation netted him not a decrease but an increase in his sentence, has appealed on three grounds. First, he contends that the district court erred in considering in connection with the upward departure the conduct underlying counts dismissed as part of a plea agreement. Second, he submits that the upward departure was itself improper. Third, he challenges the extent of the upward departure as unreasonable in light of the treatment of analogous situations under the Sentencing Guidelines.
Although it would seem that after almost ten years of experience under the Guidelines the dismissed counts issue should have been resolved, unfortunately it has not. There exists a circuit split on the issue, and our own jurisprudence, though generally recognizing the appropriateness of using conduct underlying dismissed counts, is clouded by a recent decision suggesting the opposite. Moreover, whatever the general rule, Baird argues that the plea bargain sections of the Guidelines proscribe the use of dismissed conduct to support an upward departure in the case of a bargained plea. We conclude, however, that even in the plea bargain context, conduct underlying dismissed counts may support an upward departure. We have no difficulty with the remaining issues, believing that an upward departure was warranted in this case, and that the extent of the upward departure was not unreasonable. Accordingly, we affirm.
As we have noted, Baird pled guilty to three counts of the indictment. Count Two charged Baird and his codefendants with Hobbs Act robbery, see 18 U.S.C. § 1951, in connection with an illegal search of a house. During the search, the officers seized cash from those present, including from suspected drug dealer Edwin Scott. The officers never reported the seizure. Count Five charged Baird with conspiracy to violate the civil rights of another while acting under the color of state law. See 18 U.S.C. § 241. During this incident, Baird and a codefendant illegally detained Arthur Colbert, threatened him, physically assaulted him, and then conducted an illegal search of his apartment. Count Six charged Baird with obstruction of justice. See 18 U.S.C. § 1503. This count is based on Baird's attempt to mislead investigators into believing that a codefendant was not involved in the 5 Squad corruption.
The terms of the plea agreement made explicit Baird's sentencing exposure. A maximum prison term of 20 years accompanied Count Two; a maximum of 10 years accompanied Count Five; and a maximum of 5 years accompanied Count Six. In all, according to the plea agreement itself, "the total maximum sentence which could be imposed is a term of imprisonment of 35 years...." Moreover, the plea agreement specifically noted that "[n]o one has promised or guaranteed to the defendant what sentence the Court will impose." The government did, however, agree that it would move to allow the sentencing court to depart from the Sentencing Guidelines pursuant to § 5K1.1 if, in its sole discretion, the government determined that Baird fully and truthfully cooperated with the prosecution in its investigation into the activities of the 5 Squad. Because of Baird's extensive cooperation, the government made such a motion.
The computation of Baird's sentence under the Sentencing Guidelines is complicated because it involves the grouping of counts. We need not concern ourselves with the intricacies of this process, however, except to note those specific offense characteristics and adjustments the district court took into account at sentencing. They include the following: a five-level increase under § 2B3.1(b)(2)(C) for the use of a handgun; a four-level increase under § 2H1.1(b)(1) because Baird was a public official at the time of the offense; a two-level increase under § 3A1.3 for restraining the victim of an offense; a two-level increase under § 3B1.1(c) for a supervisory role in the offense; a two-level increase under § 3B1.3 for abuse of a position of trust; a two-level increase under § 3C1.1 for obstruction of justice; and a three-level decrease under § 3E1.1(a), (b) for acceptance of responsibility. The calculation led to a total offense level of 29. Because Baird had no prior criminal history, his criminal history category was I. Under the relevant Sentencing Guidelines, an offense level of 29 with a criminal history category of I yields an adjusted guideline range of 87 to 108 months imprisonment.
In fashioning its sentence, the district court focused heavily on the significant disruption of governmental functions caused by Baird's activities, finding it so great as to justify a departure under § 5K2.7, which provides:
If the defendant's conduct resulted in a significant disruption of a governmental function, the court may increase the sentence above the authorized guideline range to reflect the nature and extent of the disruption and the importance of the governmental function affected.
For example, the court observed that "every time a search is undertaken in violation of the Constitution, that is a significant disruption of Governmental function." As further evidence of the disruption, the court cited the many convictions that have been set aside because they were based on illegally obtained evidence, and the civil litigation that has resulted from these wrongful prosecutions. It concluded that the drafters of the Sentencing Guidelines simply did not foresee police corruption of the type and colossal extent involved here. Therefore, it departed upward and sentenced Baird to 156 months for Count Two, 120 months for Count Five, and 60 months for Count Six. The sentences were to run concurrently, so that Baird's total sentence was 156 months, or 13 years.
It will be instructive to recite the relevant portions of the district court's reasoning:
I have considered the guidelines. I do find that there has been a significant disruption of a Governmental function here. I find there to have been many significant disruptions of many Governmental functions. And in my view, every time a search is undertaken in violation of the Constitution, that is a significant disruption of Governmental function.
When somebody chooses to squish the Bill of Rights into the mud, that is a significant disruption of Governmental function, whatever one thinks about the exclusionary rule, and sage people have debated all sides of that issue, our Supreme Court has spoken on that. And when one does that and does that repeatedly, each and every such event constitutes a significant disruption of a Governmental function, whether somebody...
To continue reading
Request your trial
-
Kikumura v. U.S.
...III beyond the clear and convincing standard to beyond a reasonable doubt, even where the departure is extreme. United States v. Baird, 109 F.3d 856, 865 n. 8 (3d Cir.1997) ("In rare circumstances ... the sentencing hearing may become the `tail which wags the dog of the substantive offense.......
-
United States v. Payano
...It was entitled to consider, for example, the "conduct underlying [his] dismissed [drug distribution] count," United States v. Baird , 109 F.3d 856, 863 (3d Cir. 1997), which, but for the Government's decision to dismiss it after Payano's successful suppression motion, could have subjected ......
-
U.S. v. Grier
...the Government conceded that a clear-and-convincing standard was proper for the nine-level departure it sought); United States v. Baird, 109 F.3d 856, 865 n. 8 (3d Cir.1997) (holding that a five-level departure did not "present the rare circumstance" presented in Kikumura); United States v.......
-
U.S. v. Angel-Martinez, Criminal No. 97-300.
...a set of typical cases embodying the conduct that each guideline describes." U.S.S.G. Ch. 1, Pt. A, intro., 4(b); see United States v. Baird, 109 F.3d 856, 870 (3d Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 243, 139 L.Ed.2d 173 (1997). However, "[w]hen a court finds an atypical case, one ......
-
Trial
...because those acts were not sufficiently related to sale of methamphetamine for which defendant was convicted); United States v. Baird , 109 F.3d 856, 864-70 (3d Cir. 1997) (temporal relation only is insufficient). Rather than seek an upward departure, prosecutors are more likely to seek a ......
-
Sentencing
...justified because defendant’s attempt to avoid prosecution by faking death diverted substantial government resources); U.S. v. Baird, 109 F.3d 856, 861-72 (3d Cir. 1997) (upward departure justified because defendant-police officer’s corruption required reopening of numerous investigation......