U.S. v. Lallemand

Decision Date29 March 1993
Docket NumberNo. 92-2178,92-2178
Citation989 F.2d 936
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Sienky LALLEMAND, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Andrew B. Baker, Jr., Asst. U.S. Atty., Dyer, IN (argued), for plaintiff-appellee.

Mark A. Thiros, Merrillville, IN (argued), for defendant-appellant.

Before CUDAHY, POSNER, and RIPPLE, Circuit Judges.

POSNER, Circuit Judge.

The defendant pleaded guilty to extortion and was sentenced to 18 months in prison. His appeal presents interesting questions concerning the application of the federal sentencing guidelines.

The defendant lived in Calumet City, Illinois, near a forest preserve that he knew was frequented by homosexuals who appeared, from their dress and cars, to have money. He was unemployed and decided that blackmailing a married homosexual would be a good way of raising money to help defray the expenses of his wife's pregnancy. One day, while his wife was at work, he concealed a video camera trained on a mattress in the living room of their apartment. He then went to the forest preserve, and was approached by a man driving a Honda. They talked, and when the defendant discovered that the man was married he invited him to his apartment, where they engaged in a sexual act that was recorded by the concealed camera. They then parted.

The man's car had an Indiana license plate. The defendant took down the number on the plate and was able with his wife's assistance to obtain the name and address of the prospective blackmail victim from the Indiana Bureau of Motor Vehicles. The defendant and his friend Jackson began following the victim and his family, verified that he was married, and found out where he worked. The defendant then mailed a copy of the videotape to the victim at his office, with a demand that he leave $16,000 in a locker in a shopping mall. When the demand was not met, the defendant sent another letter to the victim, repeating the demand and fixing a new date for the drop off of the cash--and at the same time mailed another copy of the tape, this time to the victim's home, in Gary, Indiana, where it was opened by his wife. The victim then called the FBI.

Several days earlier the defendant had given Jackson a briefcase containing the master tape and drafts of the blackmail letters. According to evidence that was contested but which the district judge was entitled to and did believe, the defendant told Jackson to destroy the briefcase and its contents in the event that the defendant was arrested.

When the defendant went to pick up the cash on the date fixed in his second blackmail letter, the FBI was waiting and arrested him. He confessed forthwith, consented to a search of his home, and called Jackson to tell him not to destroy the briefcase and its contents after all--but Jackson had already destroyed the contents, although it is not clear exactly when he did so. Jackson was not charged with any crime.

The victim of the blackmail attempt, a government employee who had two adult children and was active in church and civic affairs, attempted suicide after, and apparently because of, the attempt.

Sentencing under the guidelines begins with the "base offense level," that is, the base level for a specified offense or group of offenses. For "blackmail and similar forms of extortion," punished mainly by 18 U.S.C. § 873, the base offense level is 9. U.S.S.G. § 2B3.3(a). After the base offense level is determined, adjustments are made for the presence of aggravating and mitigating factors. When the process of adjustment is complete, the sentencing range is read off from the sentencing table, a matrix of offense levels and criminal histories; and the judge then picks a sentence within the range unless he decides to make an upward or downward departure. Among the adjustments made here that yielded the final offense level of 14 (which translates into a sentencing range of 15 to 21 months for a first offender, as this defendant was) were two 2-level increases, for obstruction of justice and particularly susceptible victim, respectively, and a 2-level reduction for acceptance of responsibility. The defendant challenges the two increases; the government does not challenge the reduction.

We begin with the obstruction of justice. An upward adjustment is required "if the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense." § 3C1.1. The defendant makes two arguments. The first is that this provision cannot apply because as soon as he was arrested he began to cooperate with the government, for which he was duly rewarded with a 2-level reduction for acceptance of responsibility. That is not a persuasive argument. The act constituting an obstruction or attempt to obstruct occurred before his arrest, when he told his accomplice to destroy incriminating evidence if he was arrested. The acts constituting acceptance of responsibility did not begin until he was arrested. You can have the act of obstruction or attempt to obstruct at time t, and the acceptance of responsibility at time t + 1. There is no logical or practical incompatibility, and no barrier in the language of the guidelines. An application note, moreover, indicates that while "ordinarily" a finding of obstruction of justice precludes a finding of acceptance of responsibility, there may be "extraordinary cases in which [both] adjustments ... may apply." U.S.S.G. § 3E1.1, Application Note 4. The present case is an even stronger one for offsetting obstruction and acceptance adjustments than United States v. Bogas, 731 F.Supp. 242, 250-52 (N.D.Ohio 1990), where the judge increased the defendant's sentence because of an obstruction of justice, while granting him a downward adjustment for acceptance of responsibility because the defendant had cooperated with the authorities before and after making the false statement constituting the obstruction.

The defendant's second argument concerning obstruction of justice is that, to be used to enhance a sentence, the obstruction must occur during the investigation, prosecution, or sentencing, whereas here the order to the accomplice came before the investigation began. It is true that the obstruction, whether attempted or completed, must by the terms of the guideline be obstruction of the investigation, prosecution, or sentencing. But it can be set in train before the investigation begins. Suppose the defendant had told Jackson that in the event the victim went to the authorities Jackson was to kill the victim and any other witnesses. That order would be an attempt to obstruct justice, because the actual obstruction, if it occurred, would disrupt the investigation. Moreover, if Jackson committed an actual obstruction of justice by destroying the contents of the briefcase after the FBI's investigation began (and it seems he did, although the chronology is unclear), then the defendant was his accomplice and therefore was himself guilty of obstructing justice during the investigation.

The more difficult question presented by the appeal is whether Lallemand's victim, by virtue of being a married homosexual, could as the district court determined be thought "unusually vulnerable due to age, physical or mental condition, or ... otherwise particularly susceptible to the criminal conduct." § 3A1.1. The guideline requires that the defendant know or have reason to know that his victim is unusually vulnerable or particularly susceptible, as the case may be ("particularly susceptible" is the term applicable to this case, since being a married homosexual is not aptly described as a physical or mental condition). That requirement is satisfied here, provided a married homosexual is by virtue of that status particularly susceptible to blackmail, because the defendant knew that his victim was married and that he engaged in homosexual sex.

The purpose of an upward adjustment is to take account of an aggravating factor not already taken into account in the base offense guideline. Otherwise there would be double counting. The guidelines do not authorize double counting, United States v. Lamere, 980 F.2d 506, 516 (8th Cir.1992)--not generally, at any rate, for like most legal generalizations this one has exceptions. For example, a judge is allowed to use a factor taken into account in a guideline to justify an upward departure from the guideline. U.S.S.G. § 5K2.0; United States v. Aimufua, 935 F.2d 1199 (11th Cir.1991) (per curiam). But that is not a consideration in this case.

There are fewer offense guidelines than there are offenses; and if the guideline covers a wide range of offenses, as does § 2B1.1, which assigns a base offense level of 4 to larceny, embezzlement, and other forms of theft, it may be possible, without double counting, to apply an upward adjustment to all perpetrators of a particular offense. For example, all postal carriers who steal mail might be thought to have abused a position of trust (§ 3B1.3), because § 2B1.1 lumps together in base offense level 4 forms of theft that do with forms of theft that do not involve an abuse of a position of trust. Since nothing in the guideline itself adjusts for this aggravating factor, postal carriers who steal mail would be underpunished if the adjustment for abuse of trust were confined to cases in which the defendant was more culpable than others who had committed the same crime, as distinct from others who had committed offenses within the same guideline.

However, unlike the guideline applicable to theft, the guideline applicable to blackmail is narrow. It is limited to blackmail itself, whether charged under the blackmail statute or under an extortion statute, and to other forms of extortion that do not involve a threat of force or...

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