U.S. v. Malpeso, 96 CR 170 (JBW).

• Court: U.S. District Court — Eastern District of New York
• Writing for the Court: Weinstein
• Citation: U.S. v. Malpeso, 943 F.Supp. 254 (E.D. N.Y. 1996)
• Decision Date: 23 October 1996
• Docket Number: No. 96 CR 170 (JBW).,96 CR 170 (JBW).
• Parties: UNITED STATES of America, Plaintiff, v. Louis MALPESO, Jr., Defendant.

943 F.Supp. 254

UNITED STATES of America, Plaintiff, v. Louis MALPESO, Jr., Defendant.

No. 96 CR 170 (JBW).

United States District Court, E.D. New York.

October 23, 1996.

Zachary Carter, United States Attorney by Andrew Weissman, David James, Rebecca Berg (Law Student Intern), Brooklyn, New York, for U.S.

Margaret E. Alverson, New York City, for Defendant.

WEINSTEIN, Senior District Judge:

                              TABLE OF CONTENTS
                   I. FACTS .................................................... 256
                  II. GENERAL STATUTORY AND SENTENCING GUIDELINE REQUIREMENTS .. 256
                 III. PRISON ................................................... 257
                

  IV. RESTITUTION .............................................. 257
                   V. FINE ..................................................... 259
                  VI. COST OF IMPRISONMENT ..................................... 260
                 VII. SPECIAL ASSESSMENT ....................................... 260
                VIII. SUPERVISED RELEASE ....................................... 260
                  IX. CONCLUSION ............................................... 260
                

For the reasons set out below, defendant, who pled guilty to one count of extortionate collection of credit, 18 U.S.C. § 894, is sentenced to 27 months in prison, a $50 assessment, and a fine in the amount of $10,000. While the issue appears to be a novel one, the court also has the power to order restitution to the Federal Bureau of Investigation (F.B.I.) for the cost of relocating the victim and his family. Payment of $19,016.14 for this purpose is ordered.

I. FACTS

In 1995, defendant loaned John Burnham $100,000 in cash. The money was supplied by a consortium for which defendant acted. Burnham agreed to pay back that sum and an usurious interest payment of $3,000.00 per week — a rate of 156% per annum.

To force Burnham to pay, defendant not only threatened extreme violence, including murder, but struck Burnham. When Burnham fell further behind on payments, defendant (while somewhat inebriated) threatened to kill his wife and children. The victim and his family fled. Defendant hired a private investigator to track them down. Finally, Burnham sought help from the F.B.I. which recorded some of defendant's threats. Burnham and his family were relocated by the F.B.I. at an actual and reasonable cost of $19,016.14.

At the sentencing hearing defendant's ill wife testified. Defendant is a good husband and father to his infant and three year old daughter. He and his wife share a home with an equity of about $50,000. This is almost their sole asset. Defendant is promised a job by a prospective employer who appeared at sentencing.

II. GENERAL STATUTORY AND SENTENCING GUIDELINES REQUIREMENTS

Section 3553 of Title 18 of the United States Code details the factors the court must consider at sentencing. Exercising "traditional sentencing discretion," Koon v. United States, ___ U.S. ___, ___, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996), it must "impose a sentence sufficient, but not greater than necessary, to comply with purposes set forth" in the statutes. 18 U.S.C. § 3553(a). These purposes include deterrence, just punishment, incapacitation, rehabilitation, and restitution. The court

shall consider — ...

(2) the need for the sentence imposed —

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; [and] ...

(7) the need to provide restitution to any victims of the offense.

Id. Other relevant factors and purposes include the nature of the offense, the history and characteristics of the defendant, the kinds and ranges of sentences available under the applicable Sentencing Guidelines, policy statements of the Sentencing Commission, and the desirability for relative uniformity in sentencing. 28 U.S.C. § 3553(a)(1), (3)-(6). See United States v. Ferranti, 928 F.Supp. 206, 213 (E.D.N.Y.1996); United States v. Concepcion, 795 F.Supp. 1262, 1271 (E.D.N.Y.1992) (the Sentencing Guidelines do not obviate the court's sentencing burden with respect to the statutory directives under 18 U.S.C. § 3553(a)), disapproved on other grounds, United States v. DeRiggi, 45 F.3d 713 (2d Cir.1995).

III. PRISON

Sentencing for extortion is controlled by Sentencing Guideline section 2E2.1, providing a base offense level of 20. Adjusting for acceptance of responsibility, three levels are subtracted, leaving a total offense level of 17. The defendant's criminal history places him in criminal history category II, resulting in a range for imprisonment of 27 to 33 months.

Defendant seeks a downward departure pursuant to Guideline section 5K2.0 on account of the extreme family hardship which would be occasioned by his absence from the home. See U.S.S.G. § 5H1.6. Incarceration has had, and will continue to have, a particularly deleterious effect upon his wife and young children. The three year old shows signs of emotional distress. Unable to find competent, affordable full-time day care for the children, defendant's wife has not been able to obtain employment. The family is already encountering financial difficulties.

Family hardship imposed by defendant's absence can be considered by the sentencing court which is "reluctant to wreak extraordinary destruction on dependents...." United States v. Londono, 76 F.3d 33, 36 (2d Cir.1996); see also, United States v. Johnson, 964 F.2d 124, 128-129 (2d Cir.1992) (extraordinary family circumstances are a valid reason for a downward departure).

The seriousness of the offense and the need for general and specific deterrence and for incapacitation here overrides the compassionate factors. Defendant's conduct related to his offense involved violence. He liberally resorted to extravagant and graphic threats to extract payments from the victim.

Defendant is sentenced to 27 months, which is within the Guidelines range.

IV. RESTITUTION

One of the purposes of sentencing is to provide restitution to victims of the offense. 18 U.S.C. § 3553(a)(7). Restitution has gained wide approval in recent years. The obligation to consider restitutory needs within the context of the criminal sentencing process has increased. See e.g., Victim and Witness Protection Act of 1982, Pub.L. 97-291, 1982 U.S.Code Cong. & Admin.News 2515 ("the Act"); United States v. Ferranti, 928 F.Supp. 206, 217-219, 220-221 (E.D.N.Y. 1996) (discussing in detail the role and value of pecuniary penalties in the French system, the history of restitution, and its increasing acceptance in the United States); see also U.S.S.G. § 5E1.1(a) ("The court shall — (1) enter a restitution order if such an order is authorized under 18 U.S.C. §§ 3663-3664 ...") (emphasis added).

Section 3663 of the Act gives the court broad discretion in fashioning a restitution order. United States v. Ferranti, 928 F.Supp. 206, 221 (E.D.N.Y.1996); United States v. Grundhoefer, 916 F.2d 788, 793 (2d Cir.1990); United States v. Casamento, 887 F.2d 1141, 1177 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990). For example, in the case of an offense involving bodily injury, a court may order payment for medical expenses, including psychological treatment and other costs related to the healing process, and, where death results, reimbursement for funeral and related services. 18 U.S.C. § 3663(b)(2), (3). The defendant may be required to "reimburse the victim for lost income and necessary child care, transportation, and other expenses related to the participation in the investigation or prosecution of the offense ..." Id. § 3663(b)(4).

Restitution to "any" victim is authorized. 18 U.S.C. § 3663(a)(1); United States v. Grundhoefer, 916 F.2d 788, 794 (2d Cir. 1990). The word "victim" is interpreted broadly. See, e.g., United States v. Durham, 755 F.2d 511, 512-13 (6th Cir.1985); United States v. Ferranti, 928 F.Supp. 206, 224 (E.D.N.Y.1996) (restitution to insurance underwriters). A government entity can be a victim. See e.g., United States v. Ferranti, 928 F.Supp. at 224 (E.D.N.Y.1996) (restitution to New York Fire Department); United States v. Helmsley, 941 F.2d 71, 101 (2d Cir.1991) (restitution to the I.R.S. and the State of New York), cert. denied, 502 U.S. 1091, 112 S.Ct. 1162, 117 L.Ed.2d 409 (1992); United States v. Sunrhodes, 831 F.2d 1537 (10th Cir.1987) (restitution to the Indian Health Service).

Where the costs to the victim have been advanced by a third party, that party can be reimbursed for the advances. See United States v. Ferranti, 928 F.Supp. 206, 224 (E.D.N.Y.1996) (advance of the New York City Fire Department to the widow of a fireman killed in an arson case and insurance payments to the owner of a building damaged by the arson were reimbursed pursuant to 18 U.S.C. § 3664(e)(1)).

Before ordering restitution, the court must take into account (1) the amount of loss sustained by the victim as a result of the offense, (2) the financial resources available to the defendant, (3) the financial needs and earning ability of the defendant and his or her dependents, and (4) any other factors the court deems appropriate. 18 U.S.C. § 3664(a). It need not set forth its findings in detail, but the record must reflect its consideration of these statutorily mandated factors. United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993); see also United States v. Roy William Harris, 79 F.3d 223 (2d Cir. 1996) (court must consider the financial needs of defendant and his dependents before ordering payment of restitution), cert. denied, ___ U.S. ___, 117 S.Ct. 142, 136 L.Ed.2d 89 (1996); United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.) (an affirmative act or statement on the part of the court demonstrating its consideration of the defendant's...