U.S. v. Griffin

• Decision Date: 06 June 2007
• Docket Number: Criminal Action No. 05-10175-WGY.
• Citation: 494 F.Supp.2d 1
• Parties: UNITED STATES of America, Plaintiff, v. Nadine GRIFFIN, Defendant.
• Court: U.S. District Court — District of Massachusetts

Page 1

494 F.Supp.2d 1

UNITED STATES of America, Plaintiff, v. Nadine GRIFFIN, Defendant.

Criminal Action No. 05-10175-WGY.

United States District Court, D. Massachusetts.

June 6, 2007.

Christopher Maietta, U.S. Dept. of Justice, Tax Division, Washington, DC, for Plaintiff.

SENTENCING MEMORANDUM

YOUNG, District Judge.

One of the most striking aspects of the United States "Constitution is its aspirational goal. The Framers of the Constitution, and the public who ratified it, sought not only to create a novel structure to govern democratically and justly, but to do so humbly with a vision of evolving towards a "more perfect Union."¹ The Constitution, as a document, may thus be viewed as the scaffolding of our Nation, undergirding our progress toward embodying the many intangible and amorphous but universally understood ideals that bind us together as Americans.

Yet the Constitution is not purely aspirational; in fact, it is not largely so. Its purpose is not simply to enshrine the symbolic and lofty goals of our country — a position rightly ascribed to the Declaration of Independence² — instead, it serves a practical function cognizant that change does not always equal progress.³ It is this purpose as a Great Contract that ought resonate most strongly within our society because it reminds us and binds us to a time when we feared losing the very liberties we call "rights" today. This compact presents not only a magnetic north for society's navigation but the rudder for stable travel.⁴

Contract theory views the Constitution and its amendments as an exchange by the American people of their individual sovereignty in consideration of a federal union where the people's liberties are redrawn as rights and memorialized in a written compact. No right in the Constitution more fully expresses this perspective than the right to trial by jury. Indeed, only the United States of America — out of all the states and empires over the long course of the world's history — considers its jurors full constitutional officers in the discharge of their fact-finding function.⁵

The compact theory extends to Sixth Amendment jurisprudence as well.⁶ Indeed, the impulse behind the adoption of the Sixth Amendment is found in its historical roots where the jury trial was viewed as the people's administrative safeguard against the government.⁷ Thus concerns about the dilution of the role of the jury in criminal proceedings is real,⁸ for it is this right that prevents the strong penalogical hand of governmental power from descending on an individual but for the collective agreement of his or her peers.

Yet, sadly, this right is not one of daily, expressive quality. Its scope may be reshaped and restricted without boisterous objection from Americans distanced from judicial action. Further, this reshaping may be done by the one person who stands to gain the power taken from the collective will of the people — the judge.⁹

The modern struggle over the shaping of the right to trial by jury is waged over federal criminal sentencing.¹⁰ It is one that began with the passage by Congress of mandatory sentencing guidelines that stripped from the individual the right to have, as the foundation for every day in prison, facts found by the uniform judgment of his peers beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 363-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). From the passage of these guidelines to the present day, sentencing law has been in flux¹¹ as the federal district courts have struggled to give the Congressional mandate the greatest deference allowed under the Constitution, ever mindful that its restraints severely undermine the vitality of that legislation. The current struggle is not one between the power of Congress and the power of Federal Judges, but one between Congress and the people, with the judge the interested referee. The result of this struggle has been confusion and seismic shifts from year to year of the interpretation of the constitutional mandates.¹² Lost in this confusion is the faith, albeit a reluctant one, of the criminal defendant that she has. received the punishment that the community of her peers adjudged befitted the transgression.¹³

But just as it has been said that "the arc of the moral universe is long but it bends toward justice,"¹⁴ so too has the jurisprudence of the right to trial by jury recently arced toward more complete actualization. In the recent decision in Cunningham v. California, ___ U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), Justice Ginsburg, while speaking for a six justice majority of our United States Supreme Court, issued this ringing reminder:

This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely a preponderance of the evidence.

Id. at 864, 127 S.Ct. 856.¹⁵

Here this Court endeavors to apply the recent Supreme Court decision in Cunningham in light of all controlling law from that Court and this Circuit that may possibly survive its holding, and to do so grounded in the specific facts found and procedures followed in this specific case.

I. Statement of Facts

On July 13, 2005, the government indicted Nadine Griffin ("Griffin") on two counts of filing false income tax returns in violation of 26 U.S.C. § 7206(1). The government alleged that Griffin failed to report on her taxes the gross receipts she earned as a salesperson for Global Prosperity — a multi-level marketing company that sold materials and held seminars for offshore customers. Griffin Indictment [Doc. No. 1] ¶¶ 2-5. Count 1 concerned tax returns filed in 1998, and Count 2 addressed the 1999 tax returns. Id. ¶¶ 6-7.

On August 11, 2005, the Court entered a plea of not guilty on. Griffin's behalf. Trial by jury commenced on July 11, 2006. After eight days of trial, this Court charged the jury. Trial Tr. Vol. VIII at 61:14-95:24. The Court instructed the jury on the law and provided a jury verdict form in compliance with this session's standing procedures as described in United States v. Kandirakis, 441 F.Supp.2d 282, 319-329 (D.Mass.2006).¹⁶ In accordance with those procedures, this Court charged the jury concerning the relevant sentencing enhancements under the now advisory guidelines at sentencing. See Trial Tr. Vol. VIII at 84:5-86:3. The jury verdict form reflected this Court's use of the jury in both the traditional, mandatory manner as to guilt and in its advisory role as to sentencing. See Jury Verdict [Doc. No. 124].

Question One of the verdict form asked for a determination of "not guilty" or "guilty" for each of the two tax years at issue. Id. at 1. The second question asked for a determination whether the government had proved beyond a reasonable doubt that "sophisticated means of concealment" were employed. Id. at 2. Finally, the third question asked the jury to specify the amount of the aggregate tax loss that the government had proved beyond a reasonable doubt. Id. If the jury could not provide an exact number, the jury could check one of seven ranges of tax loss — each of which corresponded to a sentencing guideline range. See id. The Court further instructed the jury that if it could not determine that the government proved a range of tax loss beyond a reasonable doubt, it could return question three blank. Trial Tr. Vol. VIII at 85:22-86:3.

The jury took two and a half days to deliberate before returning a verdict. The jury could not reach a unanimous verdict on Count 1. See Jury Verdict at 1 (showing that the jury left both the "not guilty" and "guilty" box unchecked). The jury found Griffin guilty as to Count 2. Id. In its advisory role, the jury determined that the government proved beyond a reasonable doubt that sophisticated means of concealment were used and that Griffin's actions resulted in "more than $30,000, but less than $80,000" of tax loss.¹⁷ Id. at 2. The Court declared a mistrial on Count 1. Trial Tr. Vol. X at 19:7-8. On September 5, 2006, the government dismissed that count in light of the partial guilty verdict.

II. Griffin's Initial Sentencing

On January 16, 2007, the Court convened to conduct the sentencing of Griffin. As a result of requiring the government to try the enhancement issues of sophisticated concealment and the amount of tax loss to the advisory jury, the Court benefitted in its preparation for the hearing from a record well-developed by the evidentiary presentations of the government and the testing of that evidence by the defense.

This Court conducted the sentencing pursuant to 18 U.S.C. § 3553(a). The Sentencing Guidelines, though pronounced advisory by the Supreme Court, United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), are still required to be calculated, considered, and given substantial weight when fashioning an individualized sentence, see United States v. Jimenez-Beltre, 440 F.3d 514, 518 (1st Cir.2006) (en banc); United States v. Vazquez-Rivera, 470 F.3d 443, 449 (1st Cir.2006).

To assist the Court in understanding how much deference to give the Sentencing Guidelines, it began its sentencing colloquy as it customarily does with a collection and recital of the various data points relative to Griffin's tax offense crime. Sentencing Tr. at 4:6-5:8. The nationwide average sentence was 20 months. Id. at 4:20-21. The First Circuit average was 18 months. Id. at 4:21-22. The average sentence in the District of Massachusetts was 15 months. Id. at 4:22-23. Finally, the average sentence in this Session was 11 months.¹⁸ Id. at 4:25-5:2. Once the Court determined these averages, it turned to the data contained in the Presentence Investigation Report ("PSR").

The data in the PSR was used to...