U.S. v. Kramer
| Decision Date | 11 October 1991 |
| Docket Number | 89-6240 and 90-5378,Nos. 89-6229,s. 89-6229 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Marc KRAMER, August Zona, Charles Clayton Stevens, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. James J. MARREN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Barry KRAMER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Lawrence N. Rosen, Miami, Fla., for Marc Kramer.
Bradley R. Stark, Miami, Fla., for August Zona.
Kenneth M. Swartz, Asst. Federal Public Defender, Miami, Fla., for Charles Clayton Stevens.
William M. Norris, Miami, Fla., for James J. Marren.
Mary Catherine Bonner, Ft. Lauderdale, Fla., for Benjamin Barry Kramer.
Robert J. Bondi, Asst. U.S. Atty., Miami, Fla., for the U.S.
Appeals from the United States District Court for the Southern District of Florida.
Before HATCHETT and DUBINA, Circuit Judges and CLARK, Senior Circuit Judge.
Appellants, Benjamin Barry Kramer ("Ben Kramer"), Marc Kramer, James J. Marren ("Marren"), Charles Clayton Stevens ("Stevens"), and August Zona ("Zona"), appeal their sentences for attempting to effect Ben Kramer's escape from prison. Marren also appeals his conviction. For the reasons which follow, we affirm Marren's conviction and the appellants' sentences, but remand the case to the district court for disposition of certain ministerial matters.
Ben Kramer and Marren were incarcerated together in the Williamson County Jail in Marion, Illinois, awaiting trial on related drug trafficking charges. In October 1988, Ben Kramer was found guilty of conducting a continuing criminal enterprise and conspiracy to distribute more than 1,000 pounds of marijuana, for which he was sentenced to life imprisonment without parole. Following the conclusion of the proceedings in Illinois, Ben Kramer was scheduled to be transferred to prison in Florida to face charges of RICO conspiracy, marijuana importation, and filing a false tax return. 1
In late October 1988, Marren wrote two letters to Stevens, with whom Marren had worked prior to the events pertinent to this case. Marren asked Stevens to come to Illinois to see him in prison, advised Stevens that he should plan to go to Miami, Florida, after he visited Marren, requested that Stevens bring his pilot's license, informed Stevens that all of his expenses would be paid, and emphasized the importance of keeping their meeting a secret. After receiving Marren's letters, Stevens went to Illinois. During their visit, Marren pointed out Ben Kramer to Stevens as Kramer walked by. Marren also supplied Ben Kramer's brother, Marc, with a letter of introduction to Stevens.
Stevens met Marc Kramer in Illinois, and they then traveled together to Miami, where they began to plan Ben Kramer's escape from prison and transport to Columbia. While in Miami, Stevens took reconnaissance photographs of prisons where Ben Kramer was likely to be held awaiting trial, began looking for a helicopter, and began taking lessons to learn to fly a helicopter. All of his expenses were paid by Marc Kramer. Stevens eventually located and purchased a helicopter and a twin-engine airplane. The plane sustained wing damage during a routine maintenance operation, so he purchased a second plane. Stevens paid for the aircraft with approximately $135,000 in cash provided to him by Marc Kramer. Stevens continued to take flying lessons from the initial planning stages of the escape until the plan was put into effect. Marc and Ben Kramer maintained telephone contact during this time, often utilizing coded phrases in their conversations.
After Ben Kramer was tried and sentenced in Illinois, he was transported to Florida to face trial. He was held in E Unit at the Metropolitan Correctional Center in Miami ("MCC").
The plan developed by the appellants called for Ben Kramer to be lifted out of MCC by helicopter. 2 Stevens was to fly the helicopter to the prison and land in the exercise yard, where Ben Kramer would be waiting. Stevens was to then fly him to a nearby car containing a false compartment in which he would be hidden. Zona, an employee of a business owned by Ben Kramer, was scheduled to drive the car to a safe house Zona had rented in Crystal River, Florida. The twin-engine airplane, which had been fitted with extra fuel tanks, was located near the safe house. As the final part of the escape, Stevens was to fly Ben Kramer to Columbia.
On April 17, 1989, Ben Kramer spoke by telephone with Marc Kramer. Marc Kramer then telephoned Stevens and directed him to put the plan into action. Stevens flew the helicopter to MCC and landed in the E Unit exercise yard. Ben Kramer was able to get into the helicopter, but as it lifted off, the helicopter began to spin, its tail hit the concertina wire, and it catapulted over the fence, crashing in the prison grounds outside the exercise yard. Both Ben Kramer and Stevens suffered extensive injuries in the crash.
The appellants were indicted for conspiracy to effect the escape of an inmate in violation of 18 U.S.C. § 371 (Count 1). In addition, Ben Kramer was charged with attempting to escape from the custody of the Attorney General in violation of 18 U.S.C. §§ 751(a) and 2 (Count 2), and the other four appellants were charged with aiding and assisting Ben Kramer's attempt to escape from custody in violation of 18 U.S.C. §§ 752(a) and 2 (Count 3). A superseding indictment also charged Ben Kramer with obtaining a helicopter to facilitate his escape from prison in violation of 18 U.S.C. §§ 1791(a)(2) and 2 (Count 5), and the remaining four appellants with providing a helicopter to Ben Kramer in violation of 18 U.S.C. §§ 1791(a)(1) and 2 (Count 4).
Marc Kramer and Zona pled guilty to Counts 1, 3, and 4 and Counts 1 and 3, respectively, pursuant to written plea agreements. Stevens pled guilty to Counts 1 and 4 pursuant to a plea agreement in which he agreed to testify for the United States. Marren proceeded to trial and was convicted on Counts 1, 3, and 4. Thereafter, Ben Kramer pled guilty to Counts 1, 2, and 5.
The United States sought upward departures from the Sentencing Guidelines for all appellants except Zona. 3 Each appellant except Stevens filed objections to his Presentence Investigation Report ("PSI"). Marc Kramer, Marren, and Zona were sentenced together, but separate sentencing hearings were held for Stevens and Ben Kramer, each of whom adopted the testimony presented and arguments raised at the sentencing hearing of their co-conspirators.
The district court determined that the Base Offense Level for each appellant was 13. U.S.S.G. § 2P1.1. It then announced the following upward departures applicable to all appellants:
+ 1 level for property damage. Testimony adduced by the government indicated damage to the MCC fence valued at $4,000-$6,000. The appellants presented testimony indicating that the damage was substantially less. The district court gave the appellants the benefit of the doubt and departed on the basis that the damage was less than $1,000.
+ 2 levels on the basis of more than minimal planning. The district court found that the appellants engaged in elaborate preparations for the escape attempt.
+ 3 levels for disruption of government function. The district court found that the attempted escape created an extensive disruption for MCC.
+ 4 levels for endangering public welfare and safety. The district court found that the helicopter's landing in the E Unit significantly endangered several persons, including other inmates, in and around the area.
The district court also found that the factors on which it based its upward departures were not adequately taken into consideration by the Sentencing Commission, which did not contemplate a helicopter's flying into a correctional facility to extricate a prisoner.
The district court made certain adjustments as to individual appellants, calculated a total offense level and criminal history category for each, and sentenced each appellant as follows:
Ben Kramer
Base Offense Level: 13
k 4 levels for his role as an organizer of an extensive
criminal activity
- 2 levels for acceptance of responsibility
k10 levels applied to all appellants
----
Total Offense Level: 25
Criminal History Category V
Sentence imposed: 60 months each on Counts 1 and 2, plus 5 months on Count 5, to be served consecutively to the extent necessary to produce a total period of incarceration of 125 months. This prison term was also consecutive to the other sentences he was already serving. In addition, the court imposed 3 years supervised release, a fine of $100,000, and a $150 special assessment.
Marc Kramer
Base Offense Level: 13
k 4 levels for his role as an
organizer of an extensive
criminal activity
k 2 levels for obstruction of
justice 4
Sentence imposed: 45 months each on Counts 1 and 4 to be served...
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