US v. Bellrichard, Crim. No. 4-91-25.

• Decision Date: 29 July 1992
• Docket Number: Crim. No. 4-91-25.
• Citation: 801 F. Supp. 263
• Parties: UNITED STATES of America, Plaintiff, v. Loren Francis BELLRICHARD, Defendant.
• Court: U.S. District Court — District of Minnesota

801 F. Supp. 263

UNITED STATES of America, Plaintiff, v. Loren Francis BELLRICHARD, Defendant.

Crim. No. 4-91-25.

United States District Court, D. Minnesota, Fourth Division.

July 29, 1992.

Elizabeth de la Vega, Asst. U.S. Atty., for plaintiff.

Scott Tilsen, Federal Public Defender, Minneapolis, Minn., for defendant.

MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

I.

On October 9, 1991, the jury returned a verdict finding defendant guilty on five counts of mailing threatening communications in violation of 18 U.S.C. § 876, not guilty on nine counts of mailing threatening communications, and not guilty on two counts of damaging buildings with an explosive device in violation of 18 U.S.C. § 844(i). On November 27, 1991, 779 F.Supp. 454, defendant's motion for judgment of acquittal on count 14 was granted on constitutional grounds, and that count was dismissed. Defendant's motion for judgment of acquittal or a new trial was denied on the other counts of conviction.

There followed a lengthy pre-sentence investigation and a court-ordered psychological and psychiatric examination of the defendant by Dr. Carl Malmquist. After Dr. Malmquist's report was received, together with the report of his consulting psychologist, Dr. Owen Nelson, the parties submitted their positions with respect to sentencing, including a motion for a downward departure by defendant and a motion for an upward departure by the government. The government also requested an evidentiary hearing to address the issue of the defendant's dangerousness as it relates to the likelihood that he will commit future crimes. This request was denied prior to receipt of a report by the government's proposed witness, Dr. Park Elliott Dietz, but an evidentiary hearing was subsequently held on June 29 and 30, 1992. At the hearing, the government called Dr. Dietz to testify. The defendant called Dr. David Lykken as his witness; he also submitted written reports by Dr. Lykken, Dr. Dennis Philander, and Dr. Daniel E. Dossa. The court called Dr. Malmquist. At the conclusion of the hearing, counsel presented oral argument concerning their positions on the sentencing guidelines and possible departure issues.

There is an extended record in this case which the court has carefully studied. It includes the evidence from the four week trial, correspondence from the defendant and others, expert reports and sentencing testimony, and the arguments of counsel.

II.

After the presentence report (PSR) was received, the defendant objected to its conclusions about the applicable guidelines.¹ Objections were not received from the government.

Defendant has three basic quarrels with the calculations. He disputes paragraphs 44-47 involving adjustments to the offense level. He argues that the base offense level should be adjusted downward 4 points for counts 7 and 9 because the letters in those counts were single instances evidencing little deliberation. He disputes paragraphs 40, 48, 54, 60 and 66 involving obstruction of justice. He argues that a two level enhancement for obstruction of justice should not apply because his letters to the prosecutor and court personnel simply protested his innocence and made no direct threats. He also disputes paragraphs 83-86 and 90 involving criminal history. He argues that his prior conviction in state court for harassment is related to his offense conduct here and should not be counted in determining his criminal history category.

The letters which are the subject of counts 7 and 9 are not single instances evidencing little or no deliberation warranting a four level reduction under guideline section 2A6.1(b)(2). The defendant may have impulsively decided to write Lee Leubbe (count 7) and law enforcement officials (count 9), but the process of obtaining an address, conveying his thoughts onto paper, taking that paper to a mailbox, and mailing the letter shows the deliberation that was involved. This process is different than making a single oral threat on the spur of the moment, or other conduct which might warrant the reduction. Moreover, given the volume and nature of defendant's written communications, the conduct in either of these counts could hardly be viewed as a "single instance" under the guidelines.

Defendant should receive a two level enhancement on each count for obstruction of justice. His extensive communications to the prosecutor and court personnel appropriately include his critical commentary on the justice system and the law; they also contain protestations of innocence. The communications go far beyond this, however. For example, defendant wrote to the prosecutor, "Now drop all the charges or God will drop you." "If you don't drop the charges then do not blame me if and or when the shit hits the fan. `Boom'! may go your house if you do not listen to my wise words like Bill Nierengarten and Jim Mork foolishly didn't." "I love you too much to wish to see you killed you can run (all of you) but you can't hide. God knows you framed me." His writings to the court while awaiting sentencing include the following: "You either be merciful or you'll be dead." "You have until November (before Thanksgiving) to save your home and ass by freeing me totally without any restrictions. I have spoken. Give me liberty or God will give you death!" "You've got nothing to fear as long as I'm free by April 1, 1992. Not everybody is willing to let me get framed without a counterattack apparently. God and God's helpers are looking out for me. Free me and live!" Guideline section 3C1.1 applies when a defendant willfully attempts to obstruct or impede the administration of justice during the investigation, prosecution, or sentencing of an offense. Defendant has by such acts obstructed justice within the meaning of the guidelines.

Defendant's prior conviction for harassment is not related to this case under the guidelines and should be counted in calculating his criminal history. A case is related if it is "part of a single common scheme or plan." Guideline section 4A1.2, application note 3. Both the prior case and the present involve threatening or harassing letters, but the victims were different, the letters were written and mailed at different times, and they involve different subjects. Defendant's prior case was not a related case under guideline section 4A1.2(a)(2) and should be included in his criminal history computation.²

After full consideration the court agrees with the manner in which the PSR has calculated the guidelines.

III.

The government moves for an upward departure to the maximum sentence permitted by statute, 5 years on each count to be served consecutively for a total of 20 years. The government presents five arguments in support of this motion. It contends that the guidelines do not adequately reflect the egregious nature of the defendant's attempt to obstruct justice through letters to the prosecutor, judge, and victims. It argues that the guidelines did not foresee the volume or prolonged period of time over which the victims here were subjected to threatening letters. It contends that the timing of letters in proximity with the bombings increased the perceived likelihood that defendant would carry out his threats. It argues that the guidelines do not account for the situation where letters are sent to state judges and prosecutors, who are not the type of victim noted in the official victim adjustment provision. Finally, the government argues that an upward departure is appropriate because defendant's criminal history does not adequately reflect the likelihood that he will commit future crimes.

Under the guidelines, obstruction of justice includes threatening witnesses and jurors, suborning perjury, producing counterfeit documents during investigation, destroying or concealing evidence, and providing materially false information to the court or a law enforcement officer. Guideline section 3C1.1, application note 3. While defendant's attempt to obstruct justice by threats has been serious, so are these other forms of obstruction listed in the guidelines. Defendant's guidelines have been enhanced two levels on each count. This recognizes the seriousness of the threatening behavior, but it also must be remembered that much of his communication consists of protected speech. The enhancement already calculated is sufficient to address that conduct found obstructive.

The court is sympathetic to the concerns expressed by recipients of defendant's threatening or disturbing letters, but nevertheless believes that the calculated guideline range is sufficient recognition of the seriousness of the offense behavior in respect to timing or volume. The range reflects a considerable period of incarceration. Although the guideline section for threatening communications, section 2A6.1, includes a six level enhancement if the defendant engaged in any conduct evidencing an intent to carry out his threats, this enhancement does not apply because of the absence of sufficient proof.

Neither is an upward departure warranted based on the fact that certain victims were public officials not included in the guidelines enhancement, section 3A1.2, which covers law enforcement officers but not state court judges or county prosecutors. This three level enhancement has already been applied to count 9, the letter to Austin police officers John Carlin and Larry Moeykens. Under guidelines chapter 3, part D (multiple counts), even if the enhancement were applied to the other three counts, it would not increase defendant's total adjusted offense level. The guidelines state that for certain high level official victims not covered by section 3A1.2, for example the President or Vice-President, a three level upward departure should be made. On the other hand, as defendant argues, writing public officials is important to the democratic process and of particular concern under the First Amendment. The motion for an upward departure based on...