U.S. v. Sullivan, 97-CR-490.
| Decision Date | 23 November 1998 |
| Docket Number | No. 97-CR-490.,97-CR-490. |
| Citation | 28 F.Supp.2d 1365 |
| Parties | UNITED STATES of America, Plaintiff, v. Jerome R. SULLIVAN, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Mark Schnapp, Jane Moskowitz, Miami, FL, for Defendant.
SENTENCING ORDER
On January 27, 1998, the Defendant, Jerome Sullivan, pled guilty to a Ten Count Superseding Information which charged him with Embezzlement of Government Funds (Counts One, Four, Five Six, Seven, and Eight), in violation of 18 U.S.C. Section 641; Making False Statements (Counts Two, Nine, and Ten), in violation of 18 U.S.C. Section 1001, and Obstruction of Justice (Count Three), in violation of 18 U.S.C. Section 1512(b)(3). The relevant criminal activity occurred over approximately five years. The time frame for Counts One and Two is between June 10, 1992 and May 10, 1993; for Count Three, between February 14, 1994 and September 14, 1994; for Count Four, between February 1, 1994 and June 7, 1994; for Count Five, between August 16, 1995 and October 31, 1996; for Count Six, between August 14, 1996 and May 31, 1997; for Count Seven, between August 29, 1996 and May 31, 1997; for Count Eight, between February 13, 1997 and May 31, 1997; for Count Nine, on May 15, 1997; and for Count Ten, on May 19, 1997 [hereinafter the "Relevant Dates"]. Following the plea, the Probation Officer prepared a Pre-Sentence Investigation Report ["PSR"] determining a total offense level of 24 and a criminal history category of I, resulting in a recommended guideline sentence OF between 51 to 63 months.
Defendant has filed objections to the PSR. He objects (1) to the statement of Special Agent Paul E. Mallet, Jr.; (2) to various groupings of crimes for sentencing purposes; (3) to his base offense level being increased by two levels pursuant to U.S.S.G. § 3C1.1; and (4) to the amount of restitution. Defendant requests that his adjusted offense level be decreased by three levels for having accepted responsibility pursuant to U.S.S.G. § 3E1.1. He further requests a downward departure, because either alone or in combination: (a) Defendant suffered from a significantly reduced mental capacity which contributed to the commission of the offense; (b) Defendant is a likely target of abuse in the prison system; and (c) Defendant has sought to rehabilitate himself since his arrest. Essentially, Defendant requests the Court to reduce his offense level category from 24 to 9, and to impose home detention instead of incarceration.
In response, the Government opposes each objection and all requests for downward departure. After holding extensive evidentiary hearings, and upon fully considering the arguments of counsel, for the reasons set forth below, the Court concludes that Defendant's objections his and requests for downward departure should be denied, except as to restitution.
Defendant contends that because the PSR will accompany him to the facility where he will serve his sentence, the inclusion of the statement in the PSR may cause him to suffer unfair prejudice while at the facility. The Court summarily rejects this objection. Pursuant to Fed.R.Crim.P. 32(b)(4)(D), the United States Probation Office is statutorily mandated to investigate a victim's impact resulting from Defendant's crimes and to include that information in the PSR. In his response to this objection, the Probation Officer notes that inclusion of such a Victim Impact Statement complies with Publication 107 of the Administrative Office of the United States Courts. Pursuant to this publication and the Victim and Witness Protection Act of 1982, as amended, the victim's statement is properly presented in the PSR. Nothing contained in the victim's statement is so prejudicial as to compel the Court to ignore the statutory obligations.
Defendant argues that, pursuant to U.S.S.G. § 3D1.2, there is no basis to include the conduct charged in the Information and the relevant conduct [as stipulated to the Plea Agreement] into three separate groups pursuant to U.S.S.G. § 3D1.2. According to Defendant, all of his relevant offense conduct should be grouped together pursuant to U.S.S.G. § 3D1.2(b), because all counts of conviction and other relevant conduct involve "the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan." As a result, Defendant contends that the proper total offense level should be 16 instead of 24.1
In the PSR, Counts Two, Nine, and Ten have been grouped together pursuant to § 3D1.2(b),2 and then additionally grouped with Counts One, Four, Five, Six, Seven, and Eight pursuant to § 3D1.2(c).3 Defendant argues that these groupings constitute error. He contends that, pursuant to § 3D1.2(b), the counts involving false statement (Counts Two, Nine, and Ten) should be grouped with the counts involving embezzlement (Counts Four, Five, Six, Seven, and Eight), since they are part of the same common scheme. Defendant also objects to Paragraph 49, which provides a two level increase pursuant to § 3C1.1 based on the conduct charged in Counts Two, Nine, and Ten (False Statements) of the Information.
In his Addendum to the PSR, the Probation Officer acknowledges that the counts charging False Statements can be grouped pursuant to U.S.S.G. § 3D1.2(b), and that all counts assigned to Group One are part of the same scheme, i.e., the Defendant embezzled the money and then lied about it. However, because one or more of the counts charging False Statements rise to the level of obstruction of justice as defined in § 3C1.1, the counts are properly grouped pursuant to U.S.S.G. § 3D1.2(c), resulting in a two level increase. The Court rejects Defendant's arguments to the contrary.
First, the Probation Officer's grouping is not "double counting." According to Defendant, the Probation Officer "double counted" because he applied a Section 3C1.1 obstruction of justice enhancement to the false statements and representations relating to the Group One embezzlement conduct, and then separately grouped the obstruction of justice in Count Three and the stipulated sentence reduction fraud. The Defendant further asserts that, pursuant to Section 3D1.2(c), the conduct giving rise to the obstruction of justice enhancement in Group One should be considered a "specific offense characteristic" of the other obstruction of justice charge in Count Three and the stipulated sentence reduction fraud. Then, Defendant contends, to prevent "double counting," all conduct must be treated as a separate group.
Impermissible double counting occurs when one part of the guidelines is applied to increase a defendant's sentence to reflect the kind of harm that has already been fully accounted for by another part of the guidelines. United States v. Dudley, 102 F.3d 1184 1186 (11th Cir.1997). Double counting under separate guidelines is permitted if the Sentencing Commission intended that result, and if each section concerns conceptually separate notions relating to sentencing. United States v. Aimufua, 935 F.2d 1199, 1200-01 (11th Cir.1991).
Here, the Defendant received the two-level enhancement pursuant to § 3C1.1 in the Group One embezzlement conduct, because the natural effect of his false statements and representations [as charged in Counts Two, Nine, and Ten] was the thwarting of the ongoing official investigation into missing FBI funds embezzled by Defendant. This conduct is not part of the same scheme. It represents a separate harm from both the obstructive conduct assigned to Groups Two and Three, and the obstruction of justice resulting from the sentence reduction fraud in a completely separate case.
Second, Defendant objects to the two-level enhancement pursuant to § 3C1.1.4 He claims the false statements charged in Counts Two, Nine, and Ten do not rise to the level of obstruction of justice, since the statements were not made during an "official investigation" and were not "a willful attempt to obstruct or impede the administration of justice in relation to the instant offense." In support, Defendant cites United States v. Kirkland, 985 F.2d 535 (11th Cir.1993). Defendant's reliance on Kirkland is misplaced.
The court in Kirkland held that a bank examiner's investigation into an employee's embezzlement was not an "official investigation," and consequently, false statements that the employee induced a third party to make to the examiner in the course of his investigation could not serve as the basis for an enhancement under U.S.S.G. § 3C1.1, because "[n]o official investigation connected to law enforcement or any other government entity had been initiated." Id. at 537. However, the Kirkland court noted that cases which have extended the application of this guideline beyond conduct occurring during the pendency of some judicial proceedings have one common factor: they all involve some type of law enforcement or other action by government employees acting within the course and in furtherance of their official duties. See id. (citations omitted).
This is precisely the point in the instant case. As proffered at the plea proceedings, Defendant acknowledged making material false statements and representations to FBI personnel in an attempt to conceal his embezzlements and to steer investigators away from the truth.
Like false testimony before a grand jury, the false statements made to government agents or agencies, whether or not under oath, are not excluded from criminal liability. United States v. Veal, 153 F.3d 1233, 1241 (11th Cir.1998). Investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of...
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...arising from a common scheme—implicitly countenancing the violations as discrete offenses. See, e.g., United States v. Sullivan, 28 F.Supp.2d 1365, 1368 (S.D.Fla.1998) (discussing the proper grouping of various counts, including five counts of embezzlement). Therefore, the Court does not tr......
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...didn't seem to have trouble remembering a lot of the details." Sentencing Hr'g Tr., 90:7-10, Dec. 4, 2017. In United States v. Sullivan, 28 F. Supp. 2d 1365, 1370 (S.D. Fla. 1998), the court found that a defendant—an FBI Supervisory Special Agent who was aware that the FBI was investigating......
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...arising from a common scheme—implicitly countenancing the violations as discrete offenses. See, e.g., United States v. Sullivan, 28 F. Supp. 2d 1365, 1368 (S.D. Fla. 1998) (discussing the proper grouping of various counts, including five counts of embezzlement). Therefore, the Courtdoes not......