U.S. v. Grandmaison
| Decision Date | 03 October 1995 |
| Docket Number | No. 95-1674,95-1674 |
| Citation | 77 F.3d 555 |
| Parties | UNITED STATES, Appellee, v. Philip GRANDMAISON, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Appeal from the United States District Court for the District of New Hampshire; Steven J. McAuliffe, Judge.
Martin G. Weinberg, with whom Oteri, Weinberg & Lawson, Boston, MA, Cathy J. Green, Manchester, NH, and Kimberly Homan, Sheketoff & Homan, Boston, MA, were on brief, for appellant.
Peter E. Papps, First Assistant United States Attorney, with whom Paul M. Gagnon, United States Attorney, were on brief, for appellee.
Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, and KEETON, * District Judge.
On February 8, 1995, pursuant to a plea agreement with the government, defendant-appellant Philip Joseph Grandmaison ("Grandmaison") pled guilty to a one count information charging him with utilizing the mail system to defraud Nashua, New Hampshire, citizens of their right to the honest services of their public officials, in violation of 18 U.S.C. §§ 1341, 1346. Grandmaison now appeals the eighteen-month sentence of imprisonment he received, contending that the district court failed to depart downward from the minimum prison term mandated by the Sentencing Guidelines ("Guidelines") because of the erroneous view that it lacked authority to do so. We agree that the district court misapprehended its authority to depart downward on aberrant behavior grounds. See Federal Sentencing Guidelines Manual Ch. 1, Pt. A, Introduction p 4(d) (1994). Accordingly, we vacate the sentence and remand to the district court for a determination of whether a downward departure on the basis of aberrant behavior is warranted in this case. Jurisdiction stems from 18 U.S.C. § 3742.
We consider the facts as set forth in the unobjected-to portions of the Presentence Investigation Report ("PSR"), the information to which defendant pled guilty, and the sentencing hearing transcript. See, e.g., United States v. LeBlanc, 24 F.3d 340, 342 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 250, 130 L.Ed.2d 172 (1994); United States v. Brewster, 1 F.3d 51, 52 (1st Cir.1993). Grandmaison served as an "at-large" member on the Nashua Board of Alderman ("Board") from 1986 to 1993. The Board consists of fifteen members--six of whom are elected at-large and nine of whom are elected from one of Nashua's nine electoral wards--and functions as Nashua's chief legislative arm, enacting municipal legislation and approving all financing and municipal construction projects. Grandmaison served on the Board's Secondary School Coordinating Committee ("SSCC") and the Joint Special School Building Committee ("JSSBC").
Like many of his aldermanic colleagues, Grandmaison also had a full-time job. He was employed as Marketing Director of the Eckman Construction Company ("Eckman Construction"), a Bedford, New Hampshire-based company, from 1989 to 1993. In addition to his job as Eckman Construction's Marketing Director, Grandmaison participated in a number of charitable activities.
In 1990, the Board began seeking construction bids for a $6.3 million project, the renovation of Nashua's sixty-year old Elm Street Junior High School. Both the SSCC and the JSSBC, the two committees on which Grandmaison served, play integral roles in selecting a school construction contractor and in overseeing the construction process. The SSCC, inter alia, preselects school construction contractors, oversees school construction or renovation work, and makes recommendations concerning contractor expenditures and payments. The JSSBC, which is comprised of both alderman and Nashua School Board members, reviews the SSCC's recommendations regarding contractors, payments, and contract modifications.
Eckman Construction submitted a bid for the lucrative Elm Street School Project contract. In spite of the conflict in interest, Grandmaison remained on both the SSCC and the JSSBC for months after Eckman Construction submitted its bid. He publicly recused himself from both committees on January 9, 1991, but only after questions were raised about his connections to Eckman Construction. The subcommittee vacancies created by Grandmaison's departures were filled by Alderman Thomas Magee ("Magee"), an at-large member of the Board and purported construction aficionado.
After recusal from the SSCC and JSSBC, Grandmaison continued as an at-large member of the Board. He also secretly took steps to manipulate the contacts he enjoyed as an alderman to Eckman Construction's advantage. From February 1991 until shortly before the Elm Street Project was completed, Grandmaison lobbied three of his aldermanic colleagues--Magee, Steve Kuchinski ("Kuchinski"), and Anne Ackerman ("Ackerman"), SSCC chairperson--on Eckman Construction's behalf. Grandmaison distributed informational materials and video cassettes about Eckman construction to both Ackerman and Magee. At the behest of Hal Eckman ("Eckman"), president of Eckman Construction, Grandmaison gave gratuities, gifts, and other things of value to Kuchinski, Magee, and Ackerman before and after major contract selection votes. These gratuities and gift items included pay-per-view sporting events, dinners, money, campaign contributions, and promises of future political support. Grandmaison also extended Ackerman a personal loan and steered Eckman Construction printing jobs to the printing business she owned.
These lobbying efforts eventually bore fruit. In June 1991, the Board awarded the Elm Street Project contract to Eckman Construction by a vote of eight to seven, with Kuchinski casting the tie-breaking vote. The project contract, which the Board subsequently mailed to Eckman Construction, served as the basis for the charges brought against Grandmaison. The government charged Grandmaison with violating 18 U.S.C. §§ 1341, 1346, the mail fraud statute. Specifically, it maintained that Grandmaison utilized the mail system to forward a fraudulent scheme in violation of the oath of honest, faithful, and impartial service he took before becoming an alderman and a host of state and local laws pertaining, inter alia, to conflicts of interest, influencing discretionary decisions by public servants, and acceptance of pecuniary benefits by public officials. See New Hampshire Revised Statutes Annotated 640 et seq. (1986 & Supp.1994); Nashua, N.H., Rev. Ordinances §§ 2-273, 2-274, 2-276, 2-278; and Nashua, N.H., Rev. Ordinances §§ 7:56, 7:59. The government also prosecuted Magee and Kuchinski for their roles in this case.
Pursuant to a plea agreement with the government, Grandmaison pled guilty to a one count information charging him with utilizing the mail system to defraud Nashua citizens of their right to the honest services of their public officials. The district court scheduled a sentencing hearing and prior thereto received a PSR from the Probation Department. The PSR prepared by the Probation Department recommended a total adjusted guideline offense level of fifteen. This recommendation reflects an eight level increase in the base offense because a public official in a decision making position committed the crime and a three level decrease for acceptance of responsibility. See U.S.S.G. §§ 2C1.7(b)(1)(B), 3E1.1(a) and (b). Because Grandmaison had no prior criminal record, the Probation Department placed him in Criminal History Category I, resulting in a sentencing range of eighteen to twenty-four months.
At the sentencing hearing, Grandmaison requested a downward departure to an offense level of eight, which corresponds to a sentencing range of zero to six months. Grandmaison based this request on three interrelated grounds: 1) his criminal conduct constituted "aberrant behavior" within the meaning of Guidelines Manual Ch. 1, Pt. A, Introduction p 4(d); 2) his extraordinary contributions to family, friends, and the community were not adequately addressed by the Guidelines; and 3) the facts of his case warranted a downward departure by analogy to section 2C1.3 of the Guidelines. The defense also submitted one hundred letters attesting to Grandmaison's good deeds and character at the sentencing hearing. Based on these letters and Grandmaison's prior record, the government agreed that downward departure on aberrant behavior grounds was appropriate and recommended a reduced prison sentence of twelve months and one day.
The district court declined to depart downward on any of the three grounds advanced by Grandmaison. The court, citing our decision in United States v. Catucci, 55 F.3d 15, 19 n. 3 (1st Cir.1995), as support, found that a "downward departure based on 'aberrant behavior,' " though generally available under the Guidelines, "was not available as a matter of law" in this case. It concluded that Grandmaison's conduct did not fall within the definition of aberrant behavior. The definition adopted by the court required a showing of first-offender status, behavior inconsistent with otherwise good or exemplary character, and spontaneity or thoughtlessness in committing the crime of conviction.
Next, the court concluded that the facts did not warrant downward departure on the basis of Grandmaison's contribution to family, friends, and the community. It did not make a specific finding on the section 2C1.3 claim raised by Grandmaison, but did state that "no other grounds ... advanced [by defendant or the government] ... would justify departure downward." Accordingly, the court adopted the PSR's factual findings and offense calculations in full. Honoring the government's request for leniency, the court selected the lowest end of the applicable guideline range and sentenced Grandmaison to an eighteen month term of imprisonment and two years of supervised release. The court also assessed Grandmaison $50.00, as required by statute.
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