US v. Hart

• Decision Date: 27 August 1992
• Docket Number: No. 91-CR-80136-DT.,91-CR-80136-DT.
• Citation: 803 F. Supp. 53
• Parties: UNITED STATES of America, Plaintiff, v. William L. HART, Defendant.
• Court: U.S. District Court — Western District of Michigan

803 F. Supp. 53

UNITED STATES of America, Plaintiff, v. William L. HART, Defendant.

No. 91-CR-80136-DT.

United States District Court, E.D. Michigan, S.D.

August 27, 1992.

COPYRIGHT MATERIAL OMITTED

Stephen J. Markman, U.S. Atty. by Alan Gershel, Craig Weier, Patrick Foley, Detroit, Mich., for plaintiff.

Thomas W. Cranmer, Miro, Miro & Weiner, Bloomfield Hills, Mich., for defendant.

THE COURT'S OPINION RE: DEPARTURE FROM THE SENTENCE RANGE UNDER THE SENTENCING GUIDELINES

GADOLA, District Judge.

The defendant, William L. Hart, had a tenure of almost 40 years in the Detroit Police Department, culminating in his appointment as Chief of Police by Mayor Coleman A. Young on September 28, 1976, a position which he continued to hold until he was indicted in this matter. He subsequently resigned from the police department immediately following his conviction herein on May 7, 1992.

The defendant was convicted by jury verdicts of the following charges:

Count Two: Embezzlement, Wrongful Conversion, or Intentional Misapplication of City of Detroit Funds. 18 U.S.C. § 666.

Count Three: Embezzlement, Wrongful Conversion, or Intentional Misapplication of City of Detroit Funds. 18 U.S.C. § 666.

Count Six: Making and Subscribing a False U.S. Individual Income Tax Return for the Calendar Year 1986. 26 U.S.C. § 7206(1).

Count Seven: Making and Subscribing a False U.S. Individual Income Tax Return for the Calendar Year 1987. 26 U.S.C. § 7206(1).

The verdicts followed a trial which commenced January 21, 1992 and which was preceded by five days of selection of jurors, commencing January 6, 1992.

The Probation Department has concluded that the sentencing guidelines in this case indicate a sentencing range of 51 to 63 months, and the court, following a hearing on the defendant's 37 objections to the Presentence Report herein, has concluded that the sentencing range under the sentencing guidelines is indeed 51 to 63 months.

Defense counsel has requested a departure downward from the sentencing range under the guidelines, and has proposed that the defendant be given "a probationary sentence, coupled with a significant number of hours of community service." Defendant's Sentencing Memorandum, p. 20.

The government has, on the other hand, requested an upward departure and has proposed that the court "impose the maximum custodial sentence permitted by statute (18 U.S.C. 66), ten years incarceration." Government's Sentencing Memorandum, p. 24.

DEPARTURE FROM THE SENTENCING RANGE

18 U.S.C. § 3553(b) provides, in pertinent part:

The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4)¹ unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the sentencing commission.

Congress, therefore, left discretion to the sentencing court to depart from the guidelines in extraordinary cases. The Sentencing Commission recognized this discretion, and the limitations inherent in the sentencing guidelines, in a policy statement:

Circumstances that may warrant departure from the guidelines pursuant to this provision 18 U.S.C. § 3553(b) cannot, by their very nature, be comprehensively listed and analyzed in advance. The controlling decision as to whether and to what extent departure is warranted can only be made by the courts. ------Any case may involve factors in addition to those identified that have not been given adequate consideration by the Commission. Presence of any such factor may warrant departure from the guidelines, under some circumstances, in the discretion of the sentencing court. Similarly, the court may depart from the guidelines, even though the reason for departure is taken into consideration in the guidelines (e.g., as a specific offense characteristic or other adjustment), if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate.

U.S.S.G. § 5K2.0. Thus, although Section 5, Part K of the guidelines manual sets forth various grounds for departure, the Sentencing Commission recognized that it could not possibly set out all potential reasons for departure, and the Court is not limited to those factors in its determination.

However, the sentencing court's departure discretion is not unlimited. In this Circuit, a district court's decision to depart upward must satisfy three requirements: (1) the circumstance(s) relied on by the district court must be sufficiently unusual to warrant departure, that is, of a kind or to a degree not adequately taken into consideration by the guidelines; (2) the circumstance(s) relied on by the district court in its decision to depart must actually exist; and (3) the direction and degree of departure must be reasonable. United States v. Joan, 883 F.2d 491, 494 (6th Cir.1989) (adopting the test first enunciated in United States v. Diaz-Villafane, 874 F.2d 43 (1st Cir.1989)).

The first of these requirements, i.e., whether the circumstance relied upon is sufficiently unusual to warrant departure, is a question of law. 883 F.2d at 494. The existence of the circumstance, the second requirement, is a factual determination which may not be set aside absent clear error. Id. The last requirement, whether the departure is reasonable in direction and degree,

"... involves what is quintessentially a judgment call. District courts are in the front lines, sentencing flesh-and-blood defendants. The dynamics of the situation may be difficult to gauge from the antiseptic nature of a sterile paper record. Therefore, appellate review must occur with full awareness of, and respect for, the trier's superior `feel' for the case. We will not lightly disturb decisions to depart, or not, or related decisions implicating degrees of departure."

883 F.2d at 494, quoting from United States v. Diaz-Villafane, 874 F.2d at 49. For those reasons, Joan held that:

Necessarily, the trial judge's determination must be given great deference, and, unless there is little or no basis for the trial court's action in departing, it must be upheld, provided the trial court has recognized that departure is the exception, and has adequately articulated its reasons for departure.

883 F.2d at 496.

We have here a situation in which both parties maintain that there are factors not adequately taken into consideration by the guidelines and which, so it is claimed, justify departure therefrom, either upward or downward.

This court does find a number of factors unique to this case which are not, in the court's estimation, adequately addressed in the guidelines, and which factors will now be addressed and assessed.

I. DURATION AND REPETITIVENESS OF THE CRIMINAL CONDUCT

The guidelines do purport to take into consideration the repetitive nature of criminal offenses committed over a span of time. In fact, in this case, the Probation Officer assessed a two-level increase in the total offense level by reason of a finding that there was "more than minimal planning" of the offenses, under § 2B1.1(b)(5). More than minimal planning is defined as: "more planning than is typical for commission of the offense in a simple form ----" and also is "deemed present in a case involving repeated acts over a period of time----". See Application Note 1(f) under § 1B1.1.

Thus, the guidelines do purport to consider the repetitive nature of offenses over time.

Nevertheless, as hereinafter set forth, the court may depart upward if the guideline sentencing range is inadequate in light of the circumstances of the case.

In the court's opinion, the very lengthy duration and extremely repetitive and frequent nature of defendant's acts of embezzlement are factors weighing heavily in favor of an upward departure from the sentencing range.

The criminal conduct involved in the Count Two embezzlement commenced July 11, 1986 and concluded October 13, 1988. See Ex. 111-164 and 264.

The criminal conduct involved in the Count Three embezzlement offense commenced July 23, 1982 and continued until December 4, 1989. See Ex. 11-108, 110 and 110A.

Thus, defendant's acts of embezzlement, conversion and misapplication of funds covered a period of more than 88 months, or, stated differently, just over seven and one-third years! While the indictment charges that the Count Three offense of embezzlement involved acts committed from March 1986 through December 1989, the evidence at trial established, by a clear preponderance of the evidence, that the acts of embezzlement of public funds perpetrated by drawing checks on the Secret Service Fund of the Detroit Police Department payable to cash, and then causing those checks to be cashed and the proceeds thereof wrongfully converted to the use of persons other than the rightful owners (the citizens of Detroit), and intentionally misapplied, actually commenced July 23, 1982.

The embezzlement offenses in Count Two consisted of 54 different specific instances of the defendant drafting checks payable to various sham corporations or phony business entities created by Kenneth Weiner, none of which payments were for any legitimate police or public purpose, and which checks totaled $1,292,305.00 in money which was in practical effect stolen from the people of the City of Detroit ($299,500.00 in 1986, $571,325.00 in 1987 and $421,480.00 in 1988).

The embezzlement offenses in Count Three, together with the other items of like embezzlement by the defendant, were committed by drawing checks payable to cash, which checks were then cashed and with the cash being embezzled, stolen, knowingly converted to the use of persons other than the rightful owners ...