U.S. v. Bart

• Decision Date: 27 August 1997
• Docket Number: Criminal No. SA-94-CR-244.
• Parties: UNITED STATES of America, Plaintiff, v. Yechiel BART and Arthur Stewart, Defendants.
• Court: U.S. District Court — Western District of Texas

973 F.Supp. 691

UNITED STATES of America, Plaintiff, v. Yechiel BART and Arthur Stewart, Defendants.

Criminal No. SA-94-CR-244.

United States District Court, W.D. Texas, San Antonio Division.

August 27, 1997.

Christopher L. Varner, U.S. Dept. of Justice, Fraud Section, Criminal Div., Boston, MA, James A. Baker, U.S. Dept. of Justice, Fraud Section, Criminal Div., Washington, DC, for U.S.

Roy R. Barrera, Sr., Roy R. Barrera, Jr., Nichols & Barrera, P.C., San Antonio, TX, for Arthur Stewart.

Ronald F. Ederer, Reed, Ederer & Moore, P.C., San Antonio, TX, for Yehiel Bart.

AMENDED SENTENCING ORDER FOLLOWING REMAND FROM THE FIFTH CIRCUIT COURT OF APPEALS

BIERY, District Judge.

The matters before the Court are the sentences to be imposed on the defendants Yechiel Bart, formerly of Israel and now living in New Jersey and Arthur Stewart, of Hondo, Texas, who were convicted by a jury of non-violent, non-drug related white collar crimes. Since the original judgments of December 1, 1995, two events have occurred necessitating and affecting the amended judgments herein:

1) The Fifth Circuit Court of Appeals correctly observed this Court was overly vague in its reasons for the extremely rare downward departures granted these defendants. United States v. Bart, No. 96-50007, op. at 4, 117 F.3d 1416 (5th Cir. May 29, 1997). The Court pleads guilty to brevity and vagueness in its original judgments and offers in mitigation the burgeoning caseload visited upon this and other federal trial courts as a result of continuing federalization of the criminal and civil law. Nevertheless, the Court will set forth in extensive detail its reasons for the sentences imposed.

2) The United States Supreme Court in the Koon v. United States decision, ___ U.S. ___, ___, 116 S.Ct. 2035, 2045, 135 L.Ed.2d 392 (1996), restored a modicum of discretion to the federal trial bench in rendering just sentences within the spirit of the law as opposed to the hypertechnical "how many angels fit on the head of a pin" approach of those who worship at the altar of the letter of the law.

To seek justice, to address the appellate court's concerns, to apply the discretionary standards delineated in Koon, and to cure the insomniac, the arguments and evidence proffered by both sides have been considered and this opinion is delivered as a part of the judgments in this case.

HISTORICAL ROOTS

Because of a statistically supported perception of disparity in sentences within the statutory ranges of punishment and a good faith desire to seek more perfect justice, Congress enacted the federal sentencing guidelines. 18 U.S.C. § 3553(a)(2)(A) to (D) (Sentencing Reform Act of 1984 provides for development of guidelines which further basic goals of criminal punishment: deterrence, incapacitation, just punishment, rehabilitation); see United States Sentencing Commission, Guidelines Manual, Ch. 1, Pt. A, intro. comment, at 1 (November 1995) Experience shows the overwhelming majority of defendants are in fact sentenced within the guideline ranges and it is a rarity for the federal trial bench, which is after all in the best position to decide, to depart upwardly or downwardly (unless on motion of the government because of substantial assistance). See 1995 U.S. SENTENCING COMM'N ANN. REP. table 31, at 90 (Fifth Circuit: 5.1% downward departures).

One might argue inferentially from these numbers, and this author affirmatively believes, the sentencing guideline system works well only slightly less than 100% of the time. But the Judeo-Christian roots spread to our modern law have rejected the Pharisees' view exalting only the letter, unbalanced by the spirit, of the law. If federal courts are to be more than a mere modern version of the Sanhedrin, those roots must necessarily be nourished and nurtured with the water of common sense, society's interests, mercy and a macro, as opposed to micro, view of the purposes of criminal punishment. In the details of the trees of technical rule-making to achieve the admirable goal of avoiding disparities in sentencing, we should not lose sight of the forest of justice. To do otherwise through a rote, computer application of the guideline grid would cause the flavor of justice to become like tasteless store bought tomatoes compared to the summer joy and plumpness of homegrown.

THE ANALYTICAL TRELLIS FOR DISCRETION IN SENTENCING AFTER KOON

The Fifth Circuit traditionally used the review power given it under the Sentencing Reform Act to reverse downward departures absolutely. Notably, the appellate court changed this practice in 1996 when it affirmed a downward departure in a money laundering case. In United States v. Walters, 87 F.3d 663, 664 (5th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 498, 136 L.Ed.2d 390 (1996), an insurance agent and a member of the governing body of a Louisiana parish were convicted by a jury of mail fraud, money laundering and conspiracy for failing to disclose payment of a solicitation fee. The government appealed the agent's twenty-four month sentence for money laundering. Id. at 671. The Fifth Circuit found the downward departure reasonable and not disproportionate in the light of the district court's conclusion the guideline calculation overstated the seriousness of the offense. See id. at 671-72. Ten days after the Fifth Circuit issued its less restrictive standard regarding downward departure in the Walters money laundering case, the United States Supreme Court similarly enlarged the amount of discretion afforded the sentencing judge. Koon, ___ U.S. at ___, 116 S.Ct. at 2043.

In Koon, the Supreme Court created a framework for analyzing when departures may be appropriate. See Paul J. Hofer, Discretion to Depart after Koon v. United States, 9 FED. SENT. REP. 8 (July/August 1996); see also Larry Allen Nathans, Grid & Bear It, THE CHAMPION, July 1997, at 31. A court must inquire into the following matters when considering a downward departure:

* What features of this case potentially take the case outside of the guidelines' heartland and make it a special or unusual case?

* Has the Sentencing Commission forbidden departures based on those features?

* If not, has the Sentencing Commission encouraged departures on those features?

* If not, has the Sentencing Commission discouraged departures based on those features?

Koon, ___ U.S. at ___, 116 S.Ct. at 2045. To resolve this inquiry, the totality of the circumstances must be considered, including the many facts which bear on the outcome of the case. Id. at ___, 116 S.Ct. at 2046. The sentencing court must identify any "special" features of the case which may form the basis for departure. See id. If the guidelines forbid departures based upon a feature, a court cannot grant a departure.¹ If the guidelines encourage departures based upon a special factor, a court may depart if the applicable guideline does not already account for the factor.² If the special factor is a discouraged factor³, or an encouraged factor already taken into account by the guidelines, a court should depart only "if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present." Koon, ___ U.S. at ___, 116 S.Ct. at 2045. If the factor is not identified in the guidelines, a court must determine if the factor takes the case outside the heartland. Id. The sentencing guidelines allow a court to depart downward from the guideline range if the court finds an aggravating or mitigating circumstance which was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines and which should result in a sentence different than that described. 18 U.S.C. § 3553(b). In determining whether a circumstance was adequately taken into consideration by the Commission, the sentencing judge shall consider the sentencing guidelines, as well as policy statements and official commentary of the Sentencing Commission. Koon, ___ U.S. at ___, 116 S.Ct. at 2044. This analysis considers the structure and theory of the relevant guideline and the guidelines as a whole. Id. at ___, 116 S.Ct. at 2045. Whether a factor is present to a degree not adequately considered by the guidelines, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are questions determined in large part by comparison with the facts of other guideline cases. United States v. Wells, 101 F.3d 370, 374 (5th Cir.1996). The factors warranting departure in a particular case do not exist in isolation, but may well converge to create the unusual situation not contemplated by the Commission. United States v. Parham, 16 F.3d 844, 848 (8th Cir.1994). Koon makes clear "[t]he appellate court should not review the departure decision de novo, but instead should ask whether the sentencing court abused its discretion." ___ U.S. at ___, 116 S.Ct. at 2043.

THE FRUIT OF THIS COURT'S EXPERIENCE

Recognizing the sentencing judge to have the perspective of seeing the humanity involved in a criminal trial, as opposed to a paper record, the Supreme Court in Koon deferred to the sentencing court's discretion based on the experience of judicial trial officers. "To ignore the district court's special competence — about the ordinariness or unusualness of a particular case — would risk depriving the Sentencing Commission of an important source of information, namely, the reactions of the trial judge to the fact-specific circumstances of the case." Koon, ___ U.S. at ___, 116 S.Ct. at 2047 (citation omitted). Former Commissioner Breyer, writing as Chief Circuit Judge in United States v. Rivera, 994 F.2d 942, 951 (1st Cir.1993), emphasized the importance of deferring to the sentencing judge's "superior feel for the case," which, when reduced to writing, "can help the Commission determine whether, and how, Guidelines revision should take place."

In the past three and one-half years, the...