U.S. v. Morin

• Decision Date: 05 April 1996
• Docket Number: 95-5300,Nos. 95-5242,s. 95-5242
• Citation: 80 F.3d 124
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andrew Scott MORIN, a/k/a Scott Morris, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Andrew Scott MORIN, a/k/a Scott Morris, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 124

80 F.3d 124

UNITED STATES of America, Plaintiff-Appellee, v. Andrew Scott MORIN, a/k/a Scott Morris, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Andrew Scott MORIN, a/k/a Scott Morris, Defendant-Appellee.

Nos. 95-5242, 95-5300.

United States Court of Appeals Fourth Circuit.

Argued Jan. 29, 1996.

Decided April 5, 1996.

Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (CR-94-375-A)

ARGUED: Lisa Bondareff Kemler, Moffitt, Zwerling & Kemler, P.C., Alexandria, Virginia, for Appellant. Vincent L. Gambale, Assistant United States Attorney, United States Attorney's Office, Alexandria, Virginia, for Appellee. ON BRIEF: John Kenneth Zwerling, Moffitt, Zwerling & Kemler, P.C., Alexandria, Virginia, for Appellant. Helen F. Fahey, United States Attorney, William Graham Otis, Senior Litigation Counsel, United States Attorney's Office, Alexandria, Virginia, for Appellee.

Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge, and BLAKE, United States District Judge for the District of Maryland, sitting by designation.

Affirmed in part, vacated and remanded in part by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge HAMILTON and Judge BLAKE joined.

OPINION

WILKINSON, Chief Judge:

Andrew Scott Morin was convicted of murder-for-hire, 18 U.S.C. § 1958(a), and sentenced to 21 months imprisonment. Morin contends that because the murder would have taken place outside the United States, it would have violated no federal or state law, a necessary element of § 1958(a). We disagree. Morin's intended murder would have violated at least one federal law and two Virginia laws.

The government, meanwhile, appeals the district court's substantial downward departure pursuant to the Sentencing Guidelines. The district court found three grounds for downward departure: (1) that the victim had engaged in wrongful conduct; (2) that the circumstances of Morin's offense fell outside the heartland of murder-for-hire cases; and (3) that Morin suffered from diminished capacity. We hold the district court erred in departing downward on the grounds of victim misconduct as well as on the circumstances of Morin's offense. We therefore affirm Morin's conviction but vacate and remand this case for resentencing.

I.

In 1984, when Morin was 10 years old, he began to take martial arts lessons from Dr. Armando Soto-Bararra ("Dr. Soto"). Eventually, Dr. Soto became Morin's mentor and friend. Their friendship was such that Morin spent most of his free time working with Dr. Soto at his California home. In early 1994, Dr. Soto left his wife and daughter in California and travelled to the Philippines to manage a clinic. While Dr. Soto was away, Morin stayed with and was to look after Dr. Soto's family.

Morin claimed that during this stay, Dr. Soto's wife, Raghnild Perstolen, seduced him. Ms. Perstolen, however, has denied any sexual relationship with Morin. Whatever the case, Morin stated that he fell in love with Perstolen and that Perstolen later told him that she was being abused by Dr. Soto. Morin concluded that the only way to protect Perstolen was to hire a hit man to kill Dr. Soto.

Morin began his search for a hired killer by telephoning an acquaintance in New York, who referred Morin to Steve Hartman, a Virginia private investigator. Morin met with Hartman in Virginia and attempted to hire Hartman to kill Dr. Soto. Following this meeting, Hartman contacted the FBI. The FBI provided an undercover agent to pose as an assassin, and Hartman referred Morin to the agent. Morin subsequently telephoned the agent, discussed the plan to murder Dr. Soto, and mailed the agent a 13-page letter listing "Target Information/Pictures" and "Proposed Scenarios" for Dr. Soto's murder, including "one large caliber shot to the back of the head." Morin eventually flew to Virginia, met with the undercover agent, and provided him with $1,400 in cash and an airline ticket to the Philippines. The agent then arrested Morin.

Morin was charged with three counts of murder-for-hire, 18 U.S.C. § 1958(a), and one count of mailing a threatening communication, 18 U.S.C. § 876. At his bench trial, Morin offered an insanity defense. His psychiatrist testified that Morin was delusional and that the alleged affair between Morin and Perstolen had never occurred. The district court concluded that while Morin suffered from a "severe mental illness which included a delusional motivation for illegal conduct ... [Morin] appreciat[ed] the nature and quality of wrongfulness of his acts." Morin was ultimately found guilty on all counts.

Under the Guidelines, Morin's base offense level was 32. Because Morin had accepted responsibility for his actions, he received a three level Guidelines reduction to 29. This resulted in a sentencing range of 87 to 108 months. The Presentence Report also noted three other factors that might warrant a downward departure in Morin's sentence: (1) Dr. Soto's alleged misconduct; (2) the unusual circumstances of this case; and (3) Morin's diminished capacity. The district court found that all three of these departures were appropriate, reduced Morin's offense level to 15 (with a recommended sentencing range of 18 to 24 months), and sentenced Morin to 21 months imprisonment. Both Morin and the government now appeal.

II.

The federal murder-for-hire statute requires an "intent that a murder be committed in violation of the laws of any State or the United States." 18 U.S.C. § 1958(a) (emphasis added). ¹ Morin argues that this element has not been satisfied because the murder of Dr. Soto was to occur in the Philippines, outside the jurisdiction of the United States. Even so, however, Morin's intended murder would have violated both federal and Virginia law.

First, the murder of "a national of the United States, while such national is outside the United States" is a federal offense punishable "by death or imprisonment for any term of years or for life." 18 U.S.C. § 2332(a). Morin seeks to escape this offense by alleging that Dr. Soto was not a national of the United States, but rather, a Mexican citizen. Citizenship, however, is not the sine qua non of "nationality." A "national of the United States" may also be "a person who, though not a citizen of the United States, owes permanent allegiance to the United States." 8 U.S.C. § 1101(a)(22). The district court found that because Dr. Soto was a permanent resident alien of the United States who had applied for United States citizenship, he was indeed "a national of the United States." We agree--an application for citizenship is the most compelling evidence of permanent allegiance to the United States short of citizenship itself. Accordingly had Morin succeeded in killing Dr. Soto, the murder would have violated § 2332(a). ²

Second, Morin's intended killing would also have violated Virginia law. The Virginia Code includes within its definition of "Capital Murder" the "willful, deliberate, and premeditated killing of any person by another for hire." Va.Code § 18.2-31(2). This is exactly what Morin intended to accomplish. It is without consequence that Morin intended for the killing to take place in the Philippines, because the hiring of the killer took place in Virginia and this is sufficient to violate the Virginia statute. See, e.g., Johnson v. Commonwealth, 220 Va. 146, 255 S.E.2d 525, 527 (1979) (Person who "conceived and instigated a murder for hire, and who procured" the killer violates the Virginia capital murder statute).

In fact, the government need not demonstrate that the murder of Dr. Soto would have violated the Virginia capital murder law. Section 1958(a) requires only that there be a "violation of the laws of any State or the United States." An intended murder may well violate laws other than those specifically prohibiting homicide. Here, Virginia has a separate crime of conspiracy to commit capital murder. Va.Code § 18.2-22. Even if Morin could not have been charged by Virginia with a murder that took place in the Philippines, both Morin and his assassin, because they conspired to kill Dr. Soto in Virginia, would have committed the Virginia crime of conspiracy to commit capital murder. See Stevens v. Commonwealth, 14 Va.App. 238, 415 S.E.2d 881, 883 (1992) ("[t]he crime is 'committed when the agreement to commit the offense is complete' and no overt act in furtherance of the underlying crime is necessary") (quoting Johnson v. Commonwealth, 8 Va.App. 34, 377 S.E.2d 636, 638 (1989)). ³

As Morin's intended murder of Dr. Soto would have violated at least one federal and two Virginia laws, Morin's conviction satisfied the requisite elements of § 1958.

III.

We next turn to Morin's sentence. After the three-level reduction for acceptance of responsibility, Morin's Guidelines range fell between 87 and 108 months imprisonment. The district court, however, substantially departed from this recommended sentence because of: (1) Dr. Soto's alleged misconduct (USSG § 5K2.10); (2) the unusual circumstances of this case (USSG § 5K2.0); and (3) Morin's supposed diminished capacity (USSG § 5K2.13). Morin was ultimately sentenced to 21 months in prison, a punishment well below the usual range for murder-for-hire.

A.

The district court found that Morin's "viewing Soto as posing a serious physical threat to Ms. Perstolen is a significant circumstance the Court must consider [because Soto's] perceived conduct played a part in this case" (emphasis added). The Sentencing Guidelines, however, explain that the victim misconduct departure is appropriate only "[i]f the victim's wrongful conduct contributed significantly to provoking the offense." USSG § 5K2.10 (emphasis added). The plain meaning of this provision contemplates that the victim must actually have done something wrong. See United States v. Desormeaux, 952 F.2d 182, 186 (8th Cir.1991) (victim's conduct must be more...