U.S. v. Greene, 94-2572
| Decision Date | 29 November 1994 |
| Docket Number | No. 94-2572,94-2572 |
| Citation | 41 F.3d 383 |
| Parties | UNITED STATES of America, Appellee, v. David Isser GREENE, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Nathan Lewin, Washington, DC, argued (Alison E. Grossman, on the brief), for appellant.
Douglas R. Peterson, Asst. U.S. Atty., argued (Jon M. Hopeman, Asst. U.S. Atty., on the brief), for appellee.
Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.
David Isser Greene, an Orthodox Jewish rabbi, appeals the district court's sentence imposed under the Federal Sentencing Guidelines (hereinafter U.S.S.G.). Greene pleaded guilty to mail fraud and to providing a prohibited object to a federal prisoner, stemming from his agreement to arrange a Jewish divorce (also known as a "get") for a federal prison inmate. Greene entered into a plea agreement which, among other things, set forth the sentencing guidelines recommendations of the parties that the amount of the fraud equaled $5,500 and that Greene did not abuse his position of trust or use a special skill.
The district court, however, rejected this sentencing guideline aspect of the plea agreement. Thereafter, the district court, without holding an evidentiary hearing and relying on and adopting the findings of the probation officer, determined that Greene intended to inflict a loss of approximately $50,000 and abused his position of trust or used a special skill at the time he perpetrated his scheme. The district court sentenced Greene to five months of imprisonment, five months of home detention and two years of supervised release.
Greene appeals, arguing that the district court erred by determining the amount of loss he intended to inflict and that he abused his position of trust without holding an evidentiary hearing. For the reasons that follow, we reverse and remand for resentencing.
Since 1988, appellant David Isser Greene, a thirty-one-year-old rabbi, has served as director of the Chabad-Lubavitch Hospitality House of Rochester, Minnesota. Initially, Greene provided volunteer services for federal prison inmates at the Rochester Federal Medical Center ("FMC Rochester"). In 1990, he became a contract rabbi at a weekly salary of $50, providing Jewish religious services to the inmates at FMC Rochester.
Samuel Dagan, an inmate at FMC Rochester, attended religious services arranged by Chabad-Lubavitch at FMC Rochester. Greene agreed to arrange a get for Dagan. A Jewish divorce requires that a document be specifically handwritten by a scribe and signed by two witnesses on the express direction of the husband.
According to Greene, Dagan independently agreed to contribute $50,000 to the Chabad-Lubavitch organization. Andrew Reisini, a paralegal for Dagan's attorney Michael Atkin, was handling Dagan's finances and stated that Greene had called Atkin, requesting a "contribution" on behalf of Dagan in the amount of "at least $2,000."
In February 1993, during a meeting between Dagan and Greene in the chapel at FMC Rochester, Greene confirmed Dagan's $50,000 pledge. Dagan represented that the money would soon be available because of an imminent settlement with a Connecticut bank. On May 8, 1993, Reisini met with Greene at the Holiday Inn in Rochester and gave Greene $500 in cash. On May 23, 1993, Reisini sent Greene a $5,000 cashier's check payable to "Chabad-Lubavitch of Rochester, Rabbi Greene, Director." An envelope containing a $100 bill was included with the check. On May 25, 1994, Greene met with Dagan at FMC Rochester and gave him the envelope containing the $100 bill. During the meeting, Dagan signed the purported last page of a release that would make funds available from the Connecticut bank.
Greene advised Reisini that he was going to attend his sister's wedding and see to Dagan's divorce proceedings in Israel. Greene claimed that, while in New York before traveling to Israel, he would proceed with the detailed and intricate religious procedure of procuring the get, complicated by the fact that Dagan was in jail and his wife lived in Israel.
After Greene returned to the United States, he met with Reisini at the Minneapolis-St. Paul International Airport. Reisini gave Greene a cashier's check made out to "Chabad-Lubavitch of Rochester, Minnesota" in the amount of $45,000. Greene was then arrested and charged in a four-count indictment alleging three felonies and one misdemeanor.
Greene pleaded guilty to mail fraud, in violation of 18 U.S.C. Sec. 1341 and to smuggling U.S. currency into a federal prison, in violation of 18 U.S.C. Sec. 1791(a)(1), (b)(4), and (d)(1)(E). Greene signed a plea agreement, agreeing to plead guilty to one felony count and one misdemeanor count. In the plea agreement, the parties specified the amount of loss for guidelines purposes at $5,500 and without any enhancement under U.S.S.G. Sec. 3B1.3 for abuse of position of trust or use of special skill. The plea agreement stated that the position of the parties as to the applicable guidelines did not bind the court and that Greene could not withdraw his plea if the court rejected the recommendations of the parties regarding the sentencing factors.
The presentence report, however, found that the amount of loss was at least $50,000 and recommended that Greene's offense level be increased two points for the facts "suggesting" an abuse of a position of trust and use of a special skill. On April 27, 1994, Greene moved for an evidentiary hearing on the presentence report, objecting to the determination that the amount of loss equaled $50,000 and to the recommendation for a two point enhancement for abuse of trust or use of a special skill.
The district court, however, did not hold an evidentiary hearing, and stated that an evidentiary hearing is only necessary or appropriate where there is a dispute over the facts. The district court concluded that, in this case, there was no dispute over the facts themselves, but a dispute over the application of the facts to the law. Therefore, the district court deemed an evidentiary hearing unnecessary. At sentencing, the district court, adopting the conclusions of the presentence report, determined the amount of fraud at $50,000 and increased Greene's offense level by two points for abuse of a position of trust and use of a special skill.
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