U.S.A. v. O'Connell, 99-1904
| Decision Date | 02 January 2001 |
| Docket Number | No. 99-1904,99-1904 |
| Citation | 252 F.3d 524 |
| Parties | (1st Cir. 2001) UNITED STATES OF AMERICA, Appellee, v. MICHAEL M. O'CONNELL, Defendant, Appellant. Heard |
| Court | U.S. Court of Appeals — First Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
[Copyrighted Material Omitted] Lois M. Farmer, with whom Garnick & Scudder, P.C., was on brief, for appellant.
Joshua S. Levy, Assistant U.S. Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.
Before Torruella, Chief Judge, Boudin and Lynch, Circuit Judges.
Appellant Michael M. O'Connell appeals the sentence imposed pursuant to his plea of guilty for five counts of making, possessing, and uttering counterfeit and forged securities in violation of 18 U.S.C. § 513(a). Specifically, he alleges that he was denied his right to allocution during the sentencing hearing, that the district court erred in applying a two-point enhancement for abuse of trust, and that the district court abused its discretion in sentencing him at the high end of the Guideline range. We reject each of these claims and affirm the sentence imposed by the district court.
Michael M. O'Connell worked as an office manager and bookkeeper for Pyramid Textiles (Pyramid), an international fabric wholesale company located in Billerica, Massachusetts. O'Connell was hired by Pyramid in 1993, because the owners, John and Deborah Leavitt, were close family friends. John Leavitt, also the president of Pyramid, traveled extensively on business, and delegated much of the responsibility for the financial operations to O'Connell. While O'Connell did not have the authority to sign Pyramid checks, he would prepare them for Leavitt's signature. In addition, O'Connell was authorized to transfer funds from an $850,000 line of credit to Pyramid's checking account.
On January 21, 1998, Leavitt held a meeting with a Fleet Bank representative about increasing Pyramid's line of credit to $2 million. The Fleet representative informed Leavitt that the checking account was overdrawn by $140,000 and the entire $850,000 line of credit was exhausted. Shocked, Leavitt confronted O'Connell, who ultimately admitted that he had been stealing from Pyramid since 1995 in order to finance his gambling addiction. Through a scheme of making out Pyramid checks to himself, and forging Leavitt's signature, O'Connell had stolen $723,107.97 from Pyramid in the three-year period.
After an information was filed against O'Connell charging him with five counts of making, possessing, and uttering forged and counterfeit securities in violation of 18 U.S.C. § 513(a), he negotiated a plea agreement with the government. Pursuant to that agreement, O'Connell elected to waive indictment and to plead guilty to the five counts. The government recommended a sentence of twenty-one months, which fell in the middle of the Guideline range of eighteen to twenty-four months of the agreed-upon offense level of 15. At a hearing on March 25, 1999, the district court accepted O'Connell's guilty plea, ordered a presentence report to be prepared, and set sentencing for June 22, 1999.
At the disposition hearing on June 22, the district court informed O'Connell and the government that he had read the presentence report and concluded that an additional two levels should be added to the offense level calculation for abuse of a position of trust. U.S.S.G. Manual § 3B1.3 (2000). The district court also noted that he was considering an upward departure based on a letter from Deborah Leavitt detailing the additional harm that O'Connell's actions had caused. For one, the Leavitts had to pay interest and penalties for late payment of real estate taxes -- as O'Connell had delayed the forwarding of these tax payments at various times. The Leavitts were also in the process of trying to restore their line of credit and had undergone several audits of their finances. Finally, the Leavitts were at a risk of losing the business, which would result in fourteen employees losing their jobs. From this, the district court suspected that the actual monetary loss was much greater than the $723,000-plus that had been counted for purposes of sentencing. The district court rescheduled sentencing and offered both sides the opportunity to respond to both the abuse-of-trust increase and the upward departure.
The rescheduled sentencing hearing was held on Julya28, 1999. The government, pursuant to the plea agreement, declined to take a position on the abuse-of-trust increase or the upward departure. O'Connell's counsel argued against the abuse-of-trust enhancement, stating that O'Connell did not fall within the Guideline definition of position of trust, because (1) he was not authorized to sign Pyramid checks in either his or John Leavitt's name; and (2) his actions were overseen by an accountant. As such, O'Connell's counsel characterized his status as comparable to that of a bank teller, in having access to sensitive documents but not the authority to take the actions (forging Leavitt's signature) that O'Connell did. The district court rejected this argument and applied the two-point adjustment. This put O'Connell at an offense level of 17, which provides for a range of twenty-four to thirty months imprisonment.
Turning to the upward departure, the district court informed the parties that further communication with the Leavitts had revealed that they were not interested in pursuing additional punishment of O'Connell. Based on that, on the possibility that other factors may have contributed to Pyramid's demise, and on the fact that O'Connell's actions were precipitated by his gambling addiction, the district court decided not to make an upward departure from the Guidelines.
Then the government and counsel for O'Connell offered their views on an appropriate sentence, both advocating a sentence at the bottom of the range. In conclusion, O'Connell's attorney stated: "Mr. O'Connell would like to address the Court." The district court replied: "Mr. O'Connell, I will hear from you, please." O'Connell accepted responsibility for his actions, apologized to his family and to Mr. Leavitt, pledged to repay the money that he took, and thanked his attorneys. He also thanked the court for giving them (he and his attorneys) the opportunity "to address the issues that we felt that we wanted to address." The court thanked O'Connell and sentenced him to thirty months imprisonment, the highest sentence under the Guidelines. The district court commented that the sentence reflected an "intuitive feeling" that more than $723,000 had been lost as a result of O'Connell's actions.
O'Connell appeals his sentence on three bases: (1) the district court denied him his right of allocution prior to sentencing; (2) the district court committed legal error in applying the two-point abuse-of-trust enhancement; and (3) the district court considered improper factors in sentencing at the high end of the Guideline range.
The right of allocution, while "ancient in law," United States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir. 1994), is currently articulated in Federal Rule of Criminal Procedure 32(c)(3)(C), which states that before imposing sentence, the court must "address the defendant personally and determine whether the defendant wishes to make a statement and to present any information in mitigation of the sentence." Rule 32(c)(3)(C) has not been found to require that any specific language be used by the district court, Green v. United States, 365 U.S. 301, 303-04 (1961), provided that "the court, the prosecutor, and the defendant must at the very least interact in a manner that shows clearly and convincingly that the defendant knew he had a right to speak on any subject of his choosing prior to the imposition of sentence." De Alba Pagan, 33 F.3d at 129.
Although we have cautioned that "functional equivalency should not lightly be assumed," id., we hold that O'Connell did exercise his right of allocution at the time of his sentencing. After O'Connell's counsel expressed his views on an appropriate sentence, he announced that: "Mr. O'Connell would like to address the Court." The court replied, "Mr. O'Connell, I will hear from you, please." O'Connell made his apologies, pledged to reform himself and repay the Leavitts, and thanked his attorneys and the district court for assisting him and giving him the opportunity to "address the issues that we felt that we wanted to address."
This sequence of events, as we read it in the transcript, implies a full awareness on the part of O'Connell...
To continue reading
Request your trial
-
U.S.A v. Rivera-rodrÍguez
...a criminal defendant was not explicitly invited by the district court to speak on any subject of his choice. See United States v. O'Connell, 252 F.3d 524, 528 (1st Cir.2001)(holding that the record demonstrated “clearly and convincingly” that criminal defendant “knew of his right to speak p......
-
U.S. v. Sicher
...application of § 3B1.3 to the facts). In other cases, we have described the standard of review as de novo. United States v. O'Connell, 252 F.3d 524, 528 (1st Cir. 2001); see also United States v. Parrilla Roman, 485 F.3d 185, 190 (1st Cir.2007). To the extent that determination depends upon......
-
U.S. v. Vazquez-Molina
...midpoint in the GSR, it is entirely possible that we lack appellate jurisdiction to consider that assertion. See United States v. O'Connell, 252 F.3d 524, 529-30 (1st Cir. 2001) (explaining that when a district court sentences a defendant at any point within the appropriate GSR, the court o......
-
U.S.A. v. Dewire
...would apply equally to a district court's denial of a motion by the government to depart upward. 4. In United States v. O'Connell, 252 F.3d 524, 530 n.2 (1st Cir. 2001), we acknowledged that the issue was unresolved in this Circuit, but did not on the facts of that case, think its considera......