U.S. v. Jasper, S1 00 CR. 0825(PKL).
| Decision Date | 10 November 2003 |
| Docket Number | No. S1 00 CR. 0825(PKL).,S1 00 CR. 0825(PKL). |
| Citation | 291 F.Supp.2d 248 |
| Parties | UNITED STATES OF AMERICA, v. Barbara Renor JASPER, Defendant. |
| Court | U.S. District Court — Southern District of New York |
James B. Comey, United States Attorney for the Southern District of New York, (Daniel A. Braun, of counsel), New York City, for U.S.
Roger Bennett Adler, New York City, for Defendant Barbara Renor Jasper.
On March 21, 2003, following a two-week jury trial, defendant Barbara Renor Jasper was convicted of one count of embezzlement, in violation of 18 U.S.C. § 657. On July 22, 2003, this Court denied defendant's motion for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure and defendant's motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Having fully reviewed the detailed submissions of the government, the defendant and the probation office regarding the proper sentence for the defendant, the Court now sentences Jasper to 37 months of imprisonment, followed by three years of supervised release. The Court further orders her to pay $433,615 in restitution as well as a $100 mandatory assessment.
The defendant is a native of Trinidad who came to the United States in 1978 for medical treatment of a congenital heart problem. (United States District Court Southern District of New York Probation Office, Presentence Investigation Report at 9 (Sept. 10, 2003) ("PSI")). Defendant later received permanent resident status and ultimately became a naturalized citizen in 1988. Since 1979 she has resided in Brooklyn, New York. (Id.)
From April 2, 1984 to May 19, 2000 the defendant was employed by the United Nations Federal Credit Union ("Credit Union") in Manhattan. (Id. at 12.) The Credit Union is a cooperative financial institution for employees and retirees of the United Nations and affiliated agencies. The Credit Union has approximately 1.6 billion dollars in assets and operates two branch offices in Manhattan, known as the DC 2 Branch and the Secretariate Branch, both located in the vicinity of the United Nations headquarters. The Credit Union also operates seven automated teller machines ("ATMs"), two of which are located at the Secretariate Branch. The Credit Union initially hired Jasper as a bank teller in 1984 and later promoted her to branch manager of the Secretariate Branch. (Id. at 12.) On August 4, 2000, a grand jury indicted Jasper, charging that between 1997 and May 15, 2000 she embezzled funds from the Credit Union while performing routine ATM replenishments in violation of 18 U.S.C. § 657.
At trial, the government introduced extensive evidence, including documents, witness testimony and a videotape. The chief witness for the government was James W. Fenimore, the Credit Union's Vice President for Finance during the relevant time period. Mr. Fenimore testified that in early 2000, as the result of questions raised by an external audit of the Credit Union, he began to investigate the amount of money contained in the Credit Union's ATMs. This investigation led him to conclude that over $600,000 was missing from the ATM accounts and prompted him to further investigate the shortfall. Mr. Fenimore's investigation, detailed in testimony and documentary evidence introduced by the government, revealed that on more than 200 occasions between September of 1997 and May 15, 2000 the defendant under-reported the amount of money she removed from the Secretariate Branch ATMs. He also found that the defendant failed to submit the proper paperwork for her ATM replenishments, which would have readily shown the discrepancy. Mr. Fenimore's investigation concluded that the total amount under-reported by the defendant was in excess of $400,000.
In addition to Mr. Fenimore's testimony and the documentary evidence supporting his investigation, the government introduced a videotape taken from the security camera at the Secretariate Branch, purporting to show the defendant stealing money from an ATM on May 15, 2000. This videotape was also offered to show that the defendant performed the ATM replenishment alone that day, rather than with another employee as required by the Credit Union's dual control procedure for replenishing ATMs. Credit Union Employees who testified on behalf of the government further explained that when they were assigned to replenish ATMs with the defendant, the dual control policies often were not followed and that Jasper would sometimes instruct the teller assigned to dual control to return to her teller duties. It was the government's theory of the case that this left Jasper alone to replenish the ATM, skim cash for herself, and alter the Credit Union's records to cover her tracks.
The defendant's case consisted largely of character witnesses who testified to Jasper's reputation for truthfulness and honesty. These witnesses included a senior political affairs officer for the United Nations, an inspector for the U.N. security service, and a former co-worker, as well as individuals who knew Jasper in a social context. In addition, Jasper took the stand and testified that she had followed Credit Union procedures in replenishing the ATMs, suggesting that mistakes by other Credit Union employees led to the missing cash. She further testified that she did not knowingly alter Credit Union records nor did she embezzle money from the ATMs.
At the conclusion of the trial, the jury found Jasper guilty of embezzling cash from the Credit Union. The U.S. Attorney's Office, the Probation Office, and the defendant have now submitted papers regarding the proper sentence for the defendant's crime under the Sentencing Guidelines ("Guidelines") and have appeared before the Court at today's sentencing hearing. The parties' submissions reflect considerable disagreement over the appropriate offense level under the Guidelines and, accordingly, the appropriate sentence for the defendant. In particular, there are disputes as to 1) the total loss resulting from the defendant's crime for the purposes of determining the offense level, 2) whether the offense level should be increased because of the degree of planning involved, 3) whether the offense level should be increased because the defendant abused a position of private trust, 4) whether the offense level should be increased because the defendant obstructed justice, and 5) whether the Court should grant a downward departure in sentencing due to the defendant's medical condition. Defendant further asks that her term of incarceration not begin until after the Christmas/New Year holiday and that her prison term be served at a facility near New York City to facilitate visits with her family and consultation with counsel regarding her appeal.
Jasper was convicted of a single count of embezzling funds in excess of $1000 from the Credit Union from 1997 through May 15, 2000 in violation of 18 U.S.C. § 637. Where the amount embezzled exceeds $1000, section 637 authorizes a sentence of up to thirty years and a fine up to $1,000,000. In addition, pursuant to 18 U.S.C. § 3583(b)(1), if the Court orders a term of imprisonment, it may further order a term of supervised release of up to five years. Full restitution of the loss that directly and proximately results from the offense conduct is required under 18 U.S.C. §§ 3663A and 3664, as is a special assessment of $100 under 18 U.S.C. § 3013.
Of course, the Court's discretion in sentencing matters is largely constrained by the Sentencing Guidelines, and, not surprisingly, that is where the action is in terms of determining an appropriate sentence for the defendant.1 Ordinarily, the Guidelines in effect at the time of sentencing apply; however, where the Guidelines in effect at the time the offense is committed are more favorable to the defendant, courts apply the version in effect at the time of the offense conduct. See U.S. Sentencing Guidelines Manual § 1B1.11(b)(1) (2002) (hereinafter "U.S.S.G."); United States v. Fitzgerald, 232 F.3d 315, 318 (2d Cir.2000). In such cases, if the defendant is convicted for an offense that occurred over a period of time, the last date on which the conduct occurred determines the applicable version of the Guidelines. See U.S.S.G. § 1B1.11, cmt. n. 2; Fitzgerald, 232 F.3d at 318-19. Here, because the 1998 version of the Guidelines in effect at the time Jasper committed her offense is more favorable to the defendant than the current version, the 1998 version of the Guidelines governs her sentence.
II.A. OFFENSE LEVEL
Under the 1998 Guidelines, the base offense level for embezzlement in violation of 18 U.S.C. § 657 is four. U.S.S.G. § 2B1.1(a) (1998). The government seeks a twelve-level increase to the offense level because the offense conduct, including relevant conduct, caused a total loss in excess of $500,000, see id. § 2B1.1(b)(1)(M); a two-level increase because the offense involved more than minimal planning, see id. § 2B1.1(b)(4)(A); a two-level increase because the defendant abused a position of private trust, see id. § 3B1.3(b); and a two-level increase because the defendant attempted to obstruct justice by committing perjury during her trial, see id. § 3C1.1. The defendant disputes each of these determinations.
As an initial matter, there is no need for an evidentiary hearing to determine any of these issues. The type of procedure necessary to resolve disputed sentencing issues, including the need for a full-blown evidentiary hearing, is entrusted to the district court's discretion. United States v. Slevin, 106 F.3d 1086, 1091 (2d Cir.1996). The government, the probation office, and the defendant rely on evidence introduced at trial in making their respective arguments. The government further submits that the sentencing determination can be made based on the existing record, (see Letter from Daniel A. Braun, Esq. to Hon. Peter K. Leisure of 10/3/03 at 2 ...
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