US v. Berkowitz, 88 CR 873.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Citation712 F. Supp. 707
Docket NumberNo. 88 CR 873.,88 CR 873.
PartiesUNITED STATES of America, Plaintiff, v. Marvin BERKOWITZ, Defendant.
Decision Date26 May 1989

Anton R. Valukas, U.S. Atty. by Jacquelin Stern and Ted S. Helwig, Asst. U.S. Attys., Chicago, Ill., for plaintiff.

William T. Huyck, Robert E. Gordon, Gordon & Gordon, Ltd., Chicago, Ill., for defendant.

ORDER

BUA, District Judge.

On January 9, 1989, the jury in this case found defendant Marvin Berkowitz guilty on all charges contained in the indictment. The court must now sentence Berkowitz for the crimes of which he has been convicted. As a basis for Berkowitz's sentence, the court makes the following findings of fact and conclusions of law.

I. FINDINGS OF FACT
A. Personal Background

Berkowitz was born on March 4, 1947, in Munich, Germany. Shortly thereafter, he moved with his parents to San Francisco, where he spent his formative years and attended high school. After graduating from the University of California at Berkeley, Berkowitz attended the Ner Israel Rabbinical College located in Baltimore, where he studied but did not receive a degree.

In January 1971, he married his wife, Rena Berkowitz (nee Weil), in Chicago. He took a job at the Loop Synagogue in Chicago, where he worked for five years managing the synagogue's daily affairs. Berkowitz left his employment at the synagogue in 1976. Since then, he has been self-employed as a real estate and equipment leasing specialist. Mrs. Berkowitz is employed as a food service supervisor at a nursing home. The Berkowitzes have five children, whose ages range from six to sixteen.

Berkowitz faithfully practices the Orthodox Jewish religion. He is physically fit. In addition, he has never sought or received the help of a psychiatrist or other mental health professional. He is a social drinker who has never abused alcohol or drugs to excess. He has no juvenile record. However, he was charged with uttering a forged document in Crown Point, Indiana, in 1977. In addition, on April 13, 1988, he was indicted on mail fraud and tax fraud charges by a federal grand jury in the Northern District of Illinois. Those charges are still pending before Judge Marshall.

B. Charges and Conviction

The indictment alleged that Berkowitz stole and destroyed certain government tax documents which he knew were material to the prosecution of the mail fraud and tax fraud charges pending against him. According to the indictment, Berkowitz stole the documents from the United States Attorney's Office while conducting discovery concerning the fraud charges on which he had previously been indicted. At the time, he was out on bond. Count I of the indictment alleged that Berkowitz obstructed justice, in violation of 18 U.S.C. § 1503, by stealing the documents. Count II charged Berkowitz with further obstructing justice, in violation of 18 U.S.C. § 1503, by destroying some of the documents. Count III charged Berkowitz with stealing property of the United States in violation of 18 U.S. C. § 641.

Berkowitz pled not guilty to all three counts and demanded a jury trial. During the trial, which lasted five days, the government presented evidence which showed that Berkowitz had the motive, opportunity, and ability to steal the documents. The evidence also showed that Berkowitz had many of the documents in his possession when he was arrested at his home on November 7, 1988. After hearing the evidence, the jury convicted Berkowitz on all charges.

II. CONCLUSIONS OF LAW
A. Application of the Federal Sentencing Guidelines

Since the offenses Berkowitz committed occurred after November 1, 1987, the Sentencing Reform Act of 1984, as amended, 18 U.S.C. § 3551 et seq. (1982 ed., Supp. IV) and 28 U.S.C. §§ 991-998 (1982 ed., Supp. IV), is applicable. Therefore, Berkowitz must be sentenced pursuant to the federal sentencing guidelines, which the Supreme Court held constitutional in Mistretta v. U.S., ___ U.S. ___, 109 S.Ct. 647, 102 L.Ed. 2d 714 (1989). Pursuant to the guidelines, two factors essentially determine the applicable sentencing range in a particular case: the "total offense level" and the defendant's "criminal history category." See § 1B1.1(g) of the United States Sentencing Commission Guidelines Manual. (All references hereinafter are to the Manual.) After making these two determinations, the court simply refers to the sentencing table contained in the guidelines for the applicable sentencing range.

The guidelines provide a step-by-step procedure which this court will follow in determining Berkowitz's total offense level. First, the court will determine the adjusted offense level of each charge in the indictment. § 1B1.1(a)-(d). The court will then calculate the combined offense level by considering the aggregate effect of the multiple charges. § 1B1.1(d). Finally, the court will determine the total offense level by deciding whether Berkowitz has accepted responsibility for the offenses. § 1B1.1(e). Once the total offense level is established, the court will then determine the defendant's criminal history category, apply the sentencing table, and select the appropriate sentence. § 1B1.1(f), (g).

1. The Offense Level For Each Charge
a. Counts I and II

Under the guidelines, the base offense level for obstruction of justice is 12. § 2J1.2(a). The offense level is increased by 8 levels where, as here, the defendant has obstructed the administration of justice by causing physical injury to property. § 2J1.2(b)(1). In addition, the offense level is increased by 2 levels where the defendant willfully impedes the administration of justice during the investigation or prosecution of the offense with which he is charged. § 3C1.1. In the instant case, the court finds that Berkowitz impeded the administration of justice by committing perjury at his trial. Therefore, Berkowitz must receive the offense level adjustment provided for in § 3C1.1, which raises the adjusted offense level for Counts I and II to 22.

The government argues that the offense level should be further increased, pursuant to § 3B1.3, because Berkowitz abused a position of "private trust." The court finds, however, that Berkowitz did not abuse any position of trust. He simply took advantage of an opportunity. Therefore, an increase pursuant to § 3B1.3 is not warranted.

The government also claims that the court should apply § 2X3.1, which results in a higher offense level for Counts I and II. Section 2X3.1, however, is inapplicable. That section is entitled, "Accessory After the Fact." Applying § 2X3.1 in the instant case would result in treating Berkowitz as an accessory to his own alleged tax fraud and mail fraud. The official comments to § 2J1.2 indicate that such an application of § 2X3.1 is not appropriate. Therein, the Commission explains that § 2X3.1 is applied in obstruction of justice cases "because the conduct covered by the obstruction of justice guideline is frequently part of the effort to assist another person to escape punishment for a crime he committed." (Emphasis added.) Since Berkowitz did not commit obstruction of justice to assist another person, § 2X3.1 is inapplicable. Therefore, the adjusted offense level for Counts I and II is 22.

b. Count III

Theft carries a base offense level of 4. § 2B1.1(a). Where the theft results in a loss of between $100,001 and $200,000, the offense level is increased by 8 levels. § 2B1.1(b)(I). In this case, the government has submitted that the cost of replacing the lost documents will amount to more than $100,000. Therefore, the Count III offense level is increased by 8 levels. The offense level is increased by an additional 2 levels because the offense involved more than minimal planning. § 2B1.1(b)(4). In addition, the court finds that the defendant committed perjury during trial. Therefore, the offense level is increased by another 2 levels, raising the total to 16. As with Counts I and II, the court rejects the government's argument that the offense level should be further increased because of Berkowitz's position of "private trust." Therefore, the offense level for Count III is 16.

2. The Combined Offense Level: Considering Multiple Counts

Where the defendant is charged with multiple counts, the next step under the guidelines requires the court to group the related counts, determine the applicable offense level for each group, and then determine the combined offense level based on the groupings. § 1B1.1(d). In the instant case, all three counts are closely related. They involve substantially the same harm because they relate to the same victim and the same criminal objective. Therefore, they are properly grouped together. § 3D1.2.

The government argues that Count III should not be grouped with Counts I and II because the victim in Count III is different from the victims in the other counts. The government contends that the victims in Counts I and II are "society at large" and the court system, while the victim in Count III is the U.S. Attorney's Office. The court rejects this argument. With respect to all counts, the victim is society. The U.S. Attorney's Office, as a representative of society, cannot reasonably be construed as a victim separate from society with respect to any offense committed by Berkowitz. Accordingly, Count III is properly grouped together with Counts I and II.

Pursuant to § 3D1.3, the offense level for any group is the highest offense level of any count in the group. In the instant case, Counts I and II have the highest offense level—22. Thus, that level applies to the group. In addition, since all of the charges in Berkowitz's indictment constitute a single group, level 22 represents Berkowitz's combined offense level. Due to the single grouping, Berkowitz's combined offense level is not adjusted upward, even though he is charged with separate counts. § 3D1.4.

3. Acceptance of Responsibility

Pursuant to § 3D1.5 of the guidelines, Berkowitz's combined offense level...

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