US v. Finley, 87 CR 364-1.

• Decision Date: 17 December 1991
• Docket Number: No. 87 CR 364-1.,87 CR 364-1.
• Citation: 783 F. Supp. 1123
• Parties: UNITED STATES of America, Plaintiff, v. Morgan FINLEY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

783 F. Supp. 1123

UNITED STATES of America, Plaintiff, v. Morgan FINLEY, Defendant.

No. 87 CR 364-1.

United States District Court, N.D. Illinois, E.D.

December 17, 1991.

Michael J. Shepard and Jacqueline Stern, Asst. U.S. Attys., Chicago, Ill., for plaintiff.

Louis B. Garippo and Susan G. Feibus, Kane, Obbish, Propes & Garippo, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ILANA DIAMOND ROVNER, District Judge.

I. INTRODUCTION

Defendant Morgan Finley was Clerk of the Circuit Court of Cook County, Illinois from 1974 through 1988. On July 3, 1989, a jury convicted Finley on charges of racketeering, interstate travel to promote unlawful activity, and extortion. On August 25, 1989, the Court sentenced Finley to serve a ten-year period of incarceration and ordered him to pay a $50,000 fine and restitution in the amount of $25,000. Finley's conviction and sentence were affirmed on appeal. United States v. Finley, 934 F.2d 837 (7th Cir.1991). Pending before the Court is Finley's motion, presumably pursuant to "old" Fed.R.Crim.P. 35¹, for reduction and correction of his sentence. For the reasons set forth below, Finley's motion is granted in part and denied in part.

II. DISCUSSION

Finley's motion addresses three aspects of the Court's judgment order: the term of incarceration, the payment of interest upon his fine, and the requirement that he pay restitution. The Court takes each matter in turn below.

A. Term of Incarceration

Finley has been incarcerated at the federal prison camp in Oxford, Wisconsin since November 6, 1989. Under current parole guidelines, Finley will be eligible for release after he serves one-third, or 40 months, of his ten-year sentence. Finley argues that his sentence of ten years should be reduced to an amount less than five years so that his period of actual incarceration will be reduced to the slightly more than two years he has already served. In the alternative, Finley asks that he be permitted to serve the last six months of his incarceration in a halfway facility.

Finley cites three circumstances in support of a reduction of his prison term. First and foremost, Finley relies upon the precarious state of his wife's health. Betty Jane Finley was diagnosed as suffering from breast cancer shortly after her husband was incarcerated. She underwent surgery in May of 1990, followed by a year of intensive chemotherapy and radiation treatment. Given the extent to which the cancer had spread by the time Mrs. Finley had surgery, her doctors believe there is a significant likelihood that the cancer will recur. Finley seeks early release so that he may spend time with his wife in what he believes may be her final days.

In addition to his wife's illness, Finley cites his own remorse for the criminal conduct which led to his conviction. Finley writes:

I know that two years ago following a long and difficult trial for all involved, the Court imposed a sentence which it believed was appropriate. I know, too, that in the aftermath of that ordeal, I may not have appeared as repentant as I might have. However, in the two years since my conviction, I have come to terms with my misconduct. I realize this situation was brought about by my succumbing to the temptation to take "easy money" being thrown my way. I not only violated my oath but ruined my family name. I am truly sorry for what I did.

(Motion for Reduction and Correction, Ex. G at 2.)

Finally, Finley notes that his behavior during incarceration has been exemplary. The progress report prepared by his case manager in February of 1990 discloses that Finley has been gainfully employed at the prison camp since his arrival. Finley works in the Education Department, performing a variety of clerical duties, and, in addition, tutoring other inmates in adult basic education and G.E.D. coursework. According to his counsel, Finley also serves as the camp's law librarian and photographer, among other informal duties. His case manager reports:

Finley is considered to be a dependable employee who requires little supervision in completing his assigned tasks. He has maintained an outstanding response to supervision and relates very well with his peers. His initiative is considered to be good, and he displays a great deal of interest in his job. He takes a great deal of interest and pride in his work.

(Motion for Reduction, Ex. C at 1 ¶ C.)

The Court commends Finley for the contributions he has made to the community at Oxford and for his acceptance of responsibility for the crimes which brought him to that community. His evident interest in the affairs of the prison camp and the betterment of his fellow prisoners speak well of his humanity and compassion for others. The letter he has written to the Court in support of his motion speaks of his regret and remorse, and the Court accepts these feelings as genuine.

The Court's heart goes out to Mrs. Finley for the challenges she has faced in the past year. No judge could better understand what a tremendous test of faith and will a life-threatening illness like cancer poses to the body and spirit. To be forced to meet such a challenge without the companionship and assistance of one's spouse must make that test all the more painful and overwhelming. The Court feels enormous sympathy for her.

As much as it pains the Court to do so, however, it cannot reduce Finley's sentence by more than half as he requests. Any period of incarceration represents a heavy price for a human being to pay for his misdeeds. That Finley's imprisonment separates him from his wife at a time when she is struggling to overcome a grave illness is truly regrettable. Yet, however tragic this situation is, it cannot be forgotten that Finley is the individual responsible for it. Finley's crimes were reprehensible. By accepting bribes, he betrayed the public trust in his office. The fact that Finley was a highly powerful official within the Cook County court system rendered that betrayal all the more grave. Honesty and integrity are expected of all public officials, but most especially of the courts, whose power and efficacy depend upon the public's ability to trust them as fair and neutral arbiters of the law. Having sold his position as the head of the nation's largest unified court system, Finley must not only receive, but serve, a substantial term of imprisonment. Furthermore, Finley's sentence includes time imposed for threatening the lives of an FBI agent's children on two occasions. The Court found this behavior incomprehensible and deserving of particularly severe sanctioning. To reduce his sentence from ten to less than five years, as compelling as Finley's circumstances might be, would gloss over the severity of his offense and vitiate the deterrent value in the penalties imposed upon him.

The Court will, however, reduce Finley's sentence to a term of eight years. The sole circumstance which has persuaded the Court to grant this partial modification of the sentence is Mrs. Finley's illness. The gravity of his crimes precludes a more substantial reduction on this or any other ground.

The Court will also grant Finley's request for a recommendation that the last six months of his imprisonment be spent in a halfway facility. Indeed, the Court will request such a placement for the last 12 months of Finley's incarceration. Again, this request will be made only in light of Mrs. Finley's difficult situation. The Court's authority does not extend beyond the ability to request this placement, but the Court will do what it can in this regard.

B. Interest on Fine

Finley paid the full amount of the $50,000 fine imposed by this Court on July 11, 1991, approximately three weeks after the court of appeals issued its mandate affirming his conviction and sentence. Shortly thereafter, however, he learned of the government's position that he owed approximately $16,500 in interest on the fine for the period following sentencing during which it remained unpaid. See 18 U.S.C. § 3565(c)(1) (repealed; applicable to offenses committed prior to Nov. 1, 1987) (imposing interest on past due fines at the rate of 1.5 percent per month). Finley argues that he was unaware interest was accruing in the interim that the fine remained unpaid and that he should either be relieved of the interest entirely or that it should be calculated at the lower rate which applies to offenses after the date on which his occurred. See 18 U.S.C. § 3612(f)(2) (applicable to offenses committed on or after Nov. 1, 1987) (imposing interest at rate equal to coupon issue yield equivalent of auction of United States Treasury Bills).

Although the judgment order in this case is silent as to when Finley was required to pay the fine, the Court finds him obligated to pay interest nonetheless under the relevant statutory provisions. The now-repealed version of the statute applicable to Finley's offense provides:

A judgment imposing the payment of a fine or penalty shall —

(A) provide for immediate payment unless, in the interest of justice, the court specifies payment on a date certain or in installments....

18 U.S.C. § 3565(b)(1) (repealed). Unfortunately, this Court's judgment order failed to specify whether the fine was payable immediately or at a later date. In light of the statutory requirement that one date or another be specified, the order was therefore ambiguous as to when the fine would become "past due" for purposes of the interest provisions set forth in § 3565(c)(1). Compare 18 U.S.C. § 3572(d) (payment of fine due immediately unless court provides for payment on a date certain or in installments). Under these circumstances, were it the case that interest did not accrue upon fines which are deferred, the Court would be inclined to relieve Finley of the obligation to pay interest. However, the statute provides that interest at the "past due" rate must be assessed even when the sentencing court explicitly provides for payment at a later date. 18 U.S.C. § 3565(b)(...