United States v. Harris

• Decision Date: 20 November 2018
• Docket Number: 18-CR-00011
• Citation: 349 F.Supp.3d 221
• Parties: UNITED STATES of America v. Pamela HARRIS, Defendant.
• Court: U.S. District Court — Eastern District of New York

349 F.Supp.3d 221

UNITED STATES of America

v.Pamela HARRIS, Defendant.

18-CR-00011

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

Signed November 20, 2018

Erik David Paulsen, Assistant United States Attorney, Eastern District of New York, 271 Cadman Plaza East, Brooklyn, NY 11201-1820, 718-254-6135, For United States

Joel Cohen (Retained), 180 Maiden Lane, New York, NY 10038, (212) 806-5400; Jerry H. Goldfeder, 180 Maiden Lane, New York, NY 10038, (212) 806-5400, For Defendant

Amended Statement of Reasons Pursuant to 18 U.S.C. § 3553(c)(2)

Jack B. Weinstein, Senior United States District Judge:

Table of Contents

I. Introduction...222

II. Offense Pled To...224

A. Count One: Scheme to Defraud the City in 2015...224

B. Count Two: Scheme to Defraud the City in 2016...225

C. Count Four: Scheme to Defraud FEMA...225

D. Count Eleven: Witness Tampering...225

E. Additional Criminal Conduct...226

III. Guilty Plea...226

IV. Specific Sentencing Issues...226

A. Videotaping...226

B. Right to Collaterally Attack Unconstitutional Sentence...226

C. Sealing...228

D. Revocation or Suspension of Driver's License and Registration...228

V. Guidelines Range...229

VI. Law...229

VII. 18 U.S.C. § 3553(a) Considerations...230

VIII. Sentence...233

IX. Conclusion...235

I. Introduction

This tragic case presents complex and difficult sentencing issues. The defendant, Pamela Harris, is a former New York State Assemblywoman—a position she resigned from when threatened with the instant prosecution. She has suffered extraordinarily harsh and repeated blows: as a teenager, an abusive mother who beat her with a belt at least twice a week resulted in her leaving her family home and dropping out of high school; she never met her biological father; the unexpected death of her only child was followed by a period of despair when she was living on the street, addicted to crack cocaine and prostituting herself to support her drug habit; a brutal beating by an inmate while she worked as a corrections officer in Riker's Island prison created great pain and stress; diagnosed with breast cancer

at 44, she underwent a radical mastectomy and three invasive reconstructive surgeries; a car accident required multiple surgeries; and she is burdened with diabetes and other serious medical problems.

Harris has exhibited a remarkable capacity to rehabilitate herself: she earned a G.E.D. in 1995, an associate's degree in 2004, a bachelor's degree in 2007, and a master's degree in 2013. She became a leader in the Coney Island community, particularly in instructing children and steering them away from criminal conduct; and universal respect resulted in her election as an assemblywoman. She married a supportive husband and maintained good relations with all her family. She is sincerely remorseful for her crimes.

The likelihood of criminal behavior in the future is low. The probability of her assisting people in the community, and ex-convicts, is high.

Her crimes are serious. They reflect a pattern of deliberate and calculated criminal behavior from 2012 to 2017. She executed various schemes to defraud the public of funds allocated for vulnerable members of society: she stole $45,600 in City funds from a not-for-profit organization she ran for at-risk adolescents in Coney Island and $24,800 in federal flood disaster relief funds set aside for individuals displaced from their homes by Hurricane Sandy. She defrauded bankruptcy creditors of $10,000. She forged signatures and submitted fabricated documents to City and federal agencies. She interfered with the prosecution of her crimes by inducing people to commit perjury.

Harris did not use her position as an elected official to execute her crimes. But, by continuing to engage in criminal conduct while she served in the Assembly, she contributed to the erosion of the public's faith in government. Cf. Jeet Heer, New York is the Most Politically Toxic Place in America , The New Republic (May 9, 2018), https://newrepublic.com/article/148337/new-york-politically-toxic-place-america (describing a culture of corruption in New York State politics).

Deviation from defendant's prior law-abiding conduct is so great as to suggest that she is still suffering from the psychic scars of her dreadful past. See United States v. Rivera , 281 F.Supp.3d 269, 288 (E.D.N.Y. 2017) (finding that the defendant's "upbringing[ ] and mental health status serve as mitigating factors for sentencing"). She is unlikely to receive adequate treatment in prison for her past traumas and mental and physical medical problems, exacerbating her suffering in a long painful incarceration. Emily Frances Musson, Comment, Cruel & Unusual Pathways to Crime: A Call for Gender– And Trauma–Informed Correctional Care , Brook. L. Sch., 26 J.L. & Pol'y 713, 727passim (2018) (discussing the need to reform correctional mental health care to taking trauma and gender into account).

As a former prison guard, she is likely to be in danger from some inmates. See, e.g. , United States v. Lara , 905 F.2d 599, 603 (2d Cir. 1990) (holding that "extreme vulnerability of a criminal defendant [in prison] is a proper ground for departure"); United States v. LaVallee , 439 F.3d 670 (10th Cir. 2006) (affirming downward departure based on former prison guards' susceptibility to abuse in prison which was compounded by public and emotional outrage at offense); United States v. D.W. , 198 F.Supp.3d 18, 146 (E.D.N.Y. 2016) (finding that the defendant's "high risk of being abused while incarcerated ... would compound [his] already serious mental health problems, making readjustment upon his eventual release from custody less likely"). Harris has a better chance at rehabilitation on the outside than on the inside of a prison.

On the one hand, the Guideline for incarceration of thirty-three to forty-one months is too severe in this unique case. A long incarceratory Guideline sentence might well destroy defendant's ability to rejoin her free community and to exercise her capacity for helping people.

On the other hand, a sentence of no incarceration might send a wrong message to the community. Cf. James S. Bowman, Ethics in Government: A National Survey of Public Administrators , 50 Pub. Ad. Rev. 345, 345 (1990) ("[T]he citizenry has come to expect higher standards [in public officials] .... People must have confidence that [government] will protect the public interest, since representative democracy rests on officials and the trust they engender."); Jerome Michael & Herbert Wechsler, A Rationale of the Law of Homicide II , 37 Colum. L. Rev. 1261, 1307 (1937) ("[H]ow lenient can we be ... without risking nullification ... because [people] regard the penalty as too lenient."). Government officials have an obligation to demonstrate high ethical conduct. If we are to survive as a democracy under the rule of law, people must retain faith in the honesty of their representatives.

Harris is sentenced to a term of imprisonment of six months, restitution payment for all the money she stole, community service, and strict supervised release of three years. See, infra , Part VIII (discussing the sentence in detail).

Sentencing is at the heart of federal criminal law. There are few trials; the parties are encouraged to seek guilty pleas. Robert J. Anello and Richard F. Albert, The Vanishing Federal Criminal Trial , N.Y.L.J., Oct. 11, 2018 (quoting former United States District Judge for the Eastern District of New York John Gleeson) ("Once the centerpiece of our criminal justice ecosystem, the trial is now spotted so infrequently that if we don't do something to bring it back, we will need to rethink many other features of our system that contribute to fair and just results only when trials occur in meaningful numbers."). The present case illustrates some of the difficulties in sentencing based on a plea of guilty and wide discretion of the trial judge.

II. Offense Pled To

A. Count One: Scheme to Defraud the City in 2015

Defendant served as the Executive Director of the not-for-profit organization Coney Island Generation Gap ("CIGG"). PSR ¶ 117. It worked well to inspire youngsters. It introduced teenagers and young adults in the community to media arts and provided them with training and mentoring services. Id. ¶ 10.

But, beginning sometime before 2014, defendant began to steal CIGG's funds. See id. ¶¶ 19–25. She applied for and was awarded $58,750 in New York City Council discretionary funds to support CIGG's work in the fiscal year 2015. Id. ¶¶ 19, 22. These funds were administered by the New York City Department of Youth and Community Development ("City").Id. ¶¶ 12, 20.

Before receiving money, CIGG was required to detail its intended use. Id. ¶ 20. Harris falsely represented that CIGG was going to use $22,800 to rent a studio in Coney Island for operations. Id. In support of the application, Harris created a fake rental agreement, forging the landlord's signature, and submitted the fraudulent agreement to the City. Id. ¶¶ 21–22.

Based on the defendant's false representations, the City deposited funds into CIGG's account in March 2015. Id. ¶ 23. Harris then misappropriated the purported rent payments. Id. She wrote a check to herself for $22,800 from CIGG's account, deposited the check into her personal account, and used the money for personal expenses—including online shopping bills, her own home mortgage payments, and airline and cruise tickets. Id. To conceal her fraud, she submitted a program expense report in July 2015, in which she falsely represented that the funds had been paid to the studio's landlord for "rental space." Id. ¶ 24.

Defendant stole $22,800 in fiscal year 2015. Id. ¶ 25.

B. Count Two: Scheme to Defraud the City in 2016

Defendant continued to defraud the City after her election to the New York State Assembly in November 2015. See id. ¶ 9, 26. She had the assistance of a co-conspirator, the new Executive Director of CIGG. Id. ¶ 26; Ltr. from Assistant United States Attorney ("Gov't's Br.") at 4, ECF No. 24, Oct. 4, 2018.

In April 2016...