U.S. v. Paster

• Decision Date: 19 April 1999
• Docket Number: No. 98-7270,98-7270
• Citation: 173 F.3d 206
• Parties: UNITED STATES of America, v. Mitchell Frederick PASTER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 206

173 F.3d 206

UNITED STATES of America, v. Mitchell Frederick PASTER, Appellant.

No. 98-7270.

United States Court of Appeals, Third Circuit.

Argued Dec. 15, 1998.

Decided April 19, 1999.

Shalom D. Stone (Argued), Walder, Sondak & Brogan, Roseland, NJ, for Appellant.

Wayne P. Samuelson (Argued), United States Attorney's Office, Williamsport, PA, for Appellee.

Before: SLOVITER and COWEN, Circuit Judges, and OBERDORFER, District Judge. ^*

OPINION OF THE COURT

OBERDORFER, District Judge.

We here review sentencing decisions rendered by the District Court below in a very troubling case of murder on a federal reservation. On August 28, 1996, a federal grand jury returned an indictment charging Mitchell Frederick Paster with premeditated murder of his wife, Dr. Margaret Bostrom, by stabbing her repeatedly with a butcher knife. 18 U.S.C. §§ 7(3), 1111. At arraignment, Paster pled not guilty, and later noticed his intention to plead insanity. Thereafter, the government indicated that it would not seek the death penalty authorized by 18 U.S.C. § 1111(b). On the eve of trial, the government and Paster agreed that he would plead guilty to second degree murder. At the hearing preliminary to his acceptance of the plea, the District Judge elicited from the probation officer and the prosecutor their best estimate that, as of that time, Paster would face imprisonment ranging from 168 to 210 months. After a two-day presentence hearing, the District Court ordered Paster confined for 365 months.

On this appeal, Paster challenges four aspects of the sentencing decision: 1) denial of a downward departure on account of Dr. Bostrom's allegedly provocative conduct; 2) denial of a downward departure on account of Paster's arguably aberrant behavior; 3) denial of an additional one-level downward adjustment for Paster's alleged acceptance of responsibility; and 4) imposition of a nine-level upward departure for "extreme conduct." For the reasons stated herein, we affirm the District Court with respect to issues one and two, reverse with respect to issue three, and remand for resentencing after the District Judge has an opportunity to reconsider his resolution of issue four in light of our opinion. See Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

I.

The presentence investigation report ("PSR") and Paster's testimony at the presentence hearing disclosed, and the District Court found, that Paster and Margaret met in 1985 and married in 1994. At the time of the murder they lived in Lewisburg, Pennsylvania, where she worked as a psychologist at the United States Penitentiary. In the months immediately preceding the August 1996 stabbing, the couple experienced serious marital problems. One night in July 1996, after Margaret went out with her supervisor and did not come home, Paster left Lewisburg for his parents' home in New Jersey. While there, Paster was served on July 25 with divorce papers filed by his wife on July 18. ¹ Thereafter the two reportedly reconciled by telephone. However, on August 12, 1996, after Margaret revealed that she was having an affair with her supervisor, Paster returned to his parents' home.

After further efforts to reconcile, on the night of August 15 Paster returned home, only to find that his wife was not there. According to him, she drove by their home on two separate occasions that night. When she returned the following morning, he confronted her about where she had been. She apparently became upset, and telephoned the warden at the Lewisburg Penitentiary, to whom Paster had revealed the ongoing affair. Margaret handed Paster the telephone receiver, and instructed him to retract his prior statement to the warden. Paster told the warden that he would not retract the statement, despite being pressured. After hanging up the phone, Margaret mentioned that she had a friend on the reservation who kept weapons at his house, and that if Paster did not retract his statement she would entice the friend "to do whatever she wanted." She then told Paster that she had had between forty and fifty affairs during their relationship, and planned to continue to pursue the relationship with her supervisor. Thereupon she went upstairs to take a shower, leaving Paster downstairs.

At one point, Paster went outside and conversed with a neighbor, who reported later that Paster was "very calm, pleasant, and very soft-spoken." PSR at 9. Minutes later, however, he went back inside, retrieved a knife from the butcher block in the kitchen, proceeded upstairs, and then, as Margaret emerged from the shower, stabbed her with the knife numerous times. According to an autopsy report prepared by Dr. Samuel Land, a forensic pathologist, she died of multiple stab wounds to various vital organs. Specifically, Dr. Land counted sixteen stab wounds--nine of which were life-threatening and six of which were to the heart--and eleven slash wounds indicative of defensive action. Dr. Land also reported that one stab wound completely penetrated Margaret's sternum, and that one wound penetrated her body and the floor tile beneath her. At the sentencing hearing, Dr. Land testified that Margaret's death "was a very violent" one, and that it "was one of the most severe cases I've seen." Appendix ("App.") at 189.

After the murder, Paster telephoned his mother at her place of employment. He then called 911 and reported that he had stabbed his wife in the chest. He told the emergency operator his name, his telephone number, and his address, and described the location of the bloody knife. He remained on the phone until authorities arrived. First on the scene were personnel from the Bureau of Prisons. He told them that he had stabbed his wife and that she was in the upstairs bathroom. The BOP personnel found her body in the bathroom; she was lying naked on the floor in a pool of blood--dead.

Later that afternoon, agents of the Federal Bureau of Investigation arrested Paster and took him to the Lewisburg Penitentiary Training Center for questioning. At first, he said that he could not remember what happened upstairs; later in the interview, however, he responded that he did not want to talk about the events that had transpired. According to a February 25, 1998 presentence investigation report, he "remain[ed] unable to recall the actual murder, but acknowledged his involvement in the offense." PSR at 10. Meanwhile, he filed, and the District Court denied, a motion to suppress statements that he made to investigators on the theory that the FBI agents induced his statements by promising that he would be able to call his mother.

In response to Paster's notice of an insanity plea, Dr. Robert Sadoff, a psychiatrist, concluded after two examinations that Paster "did not deliberate or premeditate this killing," and that "[t]he outward explosion of violence was atypical and foreign" for him. App. at 44. Dr. Sally Johnson, Chief Psychiatrist for the Mental Health Division at FCI Butner, concluded that "[t]here was no indication that [Paster] had formulated any plan to harm his wife," and that his reported symptoms of memory loss were consistent with dissociative amnesia. Id. at 60-61. Dr. Sadoff further concluded that, in his opinion, there was no insanity defense. Thereafter, on the eve of trial and pursuant to the plea agreement, Paster pled guilty to second degree murder, and the case entered its sentencing phase.

In calculating Paster's sentence, the District Judge began from the base offense level of 33 for second degree murder. United States Sentencing Guidelines ("U.S.S.G.") § 2A1.2. He then granted a two-level reduction for acceptance of responsibility; denied enhancements for premeditation and use of a weapon; imposed a nine-level upward departure for extreme conduct; denied a downward departure for aberrant behavior; denied a downward departure for victim's conduct; and denied an additional one-level reduction for acceptance of responsibility. The District Court calculated an offense level of 40. Having no prior criminal record, Paster was in criminal history category I, and therefore subject to a guideline incarceration range of 292-365 months. The District Court imposed the maximum for the offense level: 365 months, or thirty years and five months. Paster appeals.

II.

Paster first argues that the District Court erred by denying his motion for a downward departure pursuant to § 5K2.10 of the guidelines. That section permits a downward departure "[i]f the victim's wrongful conduct contributed significantly to provoking the offense behavior." U.S.S.G. § 5K2.10. Paster argued to the District Court that his wife's revelation of past infidelity exposed wrongful conduct and was the sole provocation for the fatal stabbing. The District Court rejected Paster's argument, reasoning that "[t]here is no confirmation of Paster's [sic] statements as to any prior affairs," and that "[t]hose allegations even if true do not indicate that the victim substantially provoked her murder." United States v. Paster, 17 F.Supp.2d 345, 351 (M.D.Pa.1998). Thus, the District Court wrote: "Even though we have the authority to depart for victim misconduct the conduct of the victim in this case does not warrant a departure." Id. We review for clear error. United States v. McQuilkin, 97 F.3d 723, 730 (3d Cir.1996).

By its terms, § 5K2.10 hinges a departure on two criteria: 1) the victim must have committed "wrongful conduct;" 2) and such conduct must have "contributed significantly to provoking the offense behavior." The policy statement instructs that

[i]n deciding the extent of a sentence reduction, the court should consider: a) the size and strength of the victim, or other relevant physical characteristics, in comparison with those of the defendant; b) the persistence of the victim's conduct and any efforts by the defendant to prevent confrontation; c) the danger reasonably perceived by the defendant, including the victim's...