United States v. Blarek

U.S. District Court, Eastern District of New York

7 F. Supp. 2d 192 (1998)


WEINSTEIN, Senior District Court Judge




Defendants Blarek and Pellecchia . . . were charged with Racketeering, 18 U.S.C. § 1962(c), Racketeering Conspiracy, 18 U.S.C. § 1962(d), and Conspiring to Launder Monetary Instruments, 18 U.S.C. §§ 371 and 1956(h) . . . . Blarek was additionally charged with one count of Interstate Travel in Aid of Racketeering. 18 U.S.C. § 1952(a)(1). By way of indictment, the government sought the forfeiture of defendants’ property traceable to their alleged criminality. Both defendants pleaded not guilty.

Blarek, while operating his own interior design firm in Coconut Grove, Florida, met Pellecchia in 1980. They worked together, and became intimate, cohabitating as homosexual partners.  Quickly they established a new decorating company. Blarek was President and Pellecchia Vice-President. The venture was successful. Defendants designed, remodeled, and renovated homes and offices for a broad range of private persons and businesses.

Beginning in the early-1980’s, the nature of defendants’ operation changed. From that time forward they worked almost exclusively for a single, ill-famed and powerful criminal client—José Santacruz Londoño.  Blarek met Santacruz by chance in 1979 during a visit to friends in Colombia. He agreed to work for Santacruz, designing the interior of the drug lord’s new ostentatious home. . . .

Other dealings with Santacruz followed. Over a twelve year period, the defendants designed and decorated a number of offices and living spaces for Santacruz, his wife, his mistresses, and his children. * * *

Defendants knowingly laundered tainted cash for Santacruz in the United States in order to continue exercising their own craft and to enhance their own lives. . . . Both Blarek and Pellecchia knew who José Santacruz was, what he did, and from where his money was derived. Yet, each voluntarily agreed to, and in fact did, “wash” his drug proceeds. * * *

Nearly all transactions between Santacruz and defendants were in cash. Defendants traveled to Miami, New York City, and other pre-determined locations to receive large sums of money from Santacruz’s couriers. Payments as high as one million dollars at a time were hand-delivered to defendants in piles of fifty and one-hundred dollar bills. Defendants moved the cash between cities, traveling by car or train to avoid airport searches.

Portions of the funds were deposited in defendants’ safe deposit boxes, or in bank accounts in amounts of less than $ 10,000 at a time to avoid federal bank transaction reporting requirements. See 31 C.F.R. § 103.22; see also 31 U.S.C. § 5324. In addition, defendants’ own accountant, who pleaded guilty to money laundering and testified as a government witness, converted some one million dollars of the drug cash into checks for the defendants, thus “cleaning” the money for routine use in defendants’ business operations. * * *

After a two week trial, in February, 1997, defendants were each found guilty of the Racketeering Conspiracy and Money Laundering Conspiracy counts. The jury also returned a verdict of Blarek’s guilt of Interstate Travel in Aid of Racketeering.

Following trial, defendants entered into a stipulation with the government, forfeiting nearly all of their property, including their home in San Francisco worth over two millions dollars, three Harley Davidson motorcycles, a Mercedes Benz automobile, approximately $ 75,000 worth of jewelry, and hundreds of thousands of dollars in bank accounts and safe deposit boxes.

According to the Presentence Reports prepared by the United States Probation Office, defendants’ offense conduct after 1986 involved at least $ 5.5 million dollars. In the process of “grouping” the counts, Guideline level 20 was used as an appropriate base offense level reflecting a determination that violation of section 1956(a)(1)(b)(i) of Title 18 of the United States Code was one of the underlying objectives of the conspiracies. See U.S.S.G. § 2S1.1(a)(2). Additionally, enhancements were made to the initial offense levels based upon defendants’ knowledge that the monies received were drug proceeds and for their supervisory role in the crimes.  Further upward adjustment to Blarek’s offense level was predicated upon obstruction of justice for his alleged false testimony at the trial.

Taking these factors into account, the Presentence Report indicates Blarek has a combined adjusted offense level of 33 based upon the three counts for which he was convicted. His criminal history category is I, since he has no prior record. His Guidelines imprisonment range would then be 135 to 168 months. A fine range for Blarek’s crimes of $ 20,000 to $ 14,473,063, as well as a required period of supervised release of at least two but not more than three years is also indicated.

Pellecchia’s combined adjusted offense level, according to the Presentence Report, is 33. He, too, was assigned a criminal history category of I by the Probation Office since he has no prior convictions. This assessment results in an imprisonment range of 135 to 168 months. The Presentence Report also indicates a fine range of $ 17,500 to $ 14,473,063 and a required period of supervised release of at least two but not more than three years. * * *




A. Sentencing Statute: 18 U.S.C. § 3553


1. Sufficient But Not Greater Than Necessary


Congress restructured the federal sentencing law in the 1980’s to create the current Guidelines-based system. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 211, 98 Stat. 1987, 1989-90 (1984). It expressly stated that courts “shall impose a sentence sufficient, but not greater than necessary,” to comply with the purposes of criminal sanctions.  18 U.S.C. § 3553(a). Harshness greater than that required is statutorily prohibited by this portion of the Sentencing Reform Act. Excessive leniency is also forbidden.


2. Seriousness of the Offense, Adequate Deterrence. Protection of the Public, and Correctional Treatment


The Sentencing Reform Act went on to explicitly delineate the purposes of criminal sanctions. Section 3551(a) provides that every defendant “shall be sentenced . . . so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case.”

Subparagraphs (A) through (D) of section 3553(a)(2) instruct courts to consider the necessity of the sentence imposed:


(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other, correctional treatment in the most effective manner.


. . . (A) above largely constitutes a summary of the just deserts theory and (B), (C), and (D) encompass utilitarian concerns. In creating the sentencing statutes, “Congress spelled out the four traditional justifications of the criminal sentence—deterrence, incapacitation, retribution and rehabilitation—and expressly instructed the sentencing court to keep these purposes in mind . . . “ Kenneth R. Feinberg, The Federal Guidelines as the Underlying Purposes of Sentencing, 3 Fed. Sent. Rep. 326, 326 (May/June 1991).

When enforcing the complex federal sentencing scheme, courts are required to consider six factors, subsidiary to the traditional sentencing rationales set out above. These are:


(a) “the nature and circumstances of the offense and the history and characteristics of the defendant”;

(b) “the kinds of sentences available”;

(c) “the kinds of sentence and the sentencing range established” by the Sentencing Guidelines;

(d) “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”;

(e) “any pertinent policy statement issued by the Sentencing Commission”; and

(f) “the need to provide restitution to any victims of the offense.”


18 U.S.C. § 3553(a)(1), (3)-(7).

To understand how these statutory provisions should be applied, a brief review of the theory and background of the purposes of criminal sentences is required.


B. Traditional Sentencing Rationales


Sentencing is a critical stage of a criminal prosecution. See Gardner v. Florida, 430 U.S. 349, 358, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977). It represents an important moment in the law, a “fundamental judgment determining how, where, and why the offender should be dealt with for what may be much or all of his remaining life.” Marvin E. Frankel, Criminal Sentences vii (1973). It is significant not only for the individual before the court, but for his family and friends, the victims of his crime, potential future victims, and society as a whole.

Four core considerations, in varying degrees and permutations, have traditionally shaped American sentencing determinations: incapacitation of the criminal, rehabilitation of the offender, deterrence of the defendant and of others, and just desert for the crime committed. . . .

Ascertaining priorities among these potentially conflicting notions has long been a point of contention amongst legislators, scholars, jurists, and practitioners. Somewhat oversimplifying, there are two basic camps. Retributivists contend that “just deserts” are to be imposed for a crime committed. Utilitarians, in their various manifestations, suggest that penalties need to be viewed more globally by measuring their benefits against their costs. . . .

Implied in this debate are questions about our basic values and beliefs:


Why do we impose punishment? Or is it properly to be named “punishment”? Is our purpose retributive? It is to deter the defendant himself or others in the community from committing crimes? Is it for reform? rehabilitation? incapacitation of dangerous people? Questions like these have engaged philosophers and students of the criminal law for centuries.


Frankel, supra, at 7.

In the nineteenth and most of the twentieth century American prison and punishment system reforms were designed primarily to rehabilitate the prisoner as a protection against further crime. In more recent years there has been a perception by many that attempts at rehabilitation have failed; a movement towards theoretically-based, more severe, fixed punishments, based upon the nature of the crime gained momentum. Two eighteenth and nineteenth century philosophers set the terms of the current . . . debate.


1. Kant’s Retributive Just Desert Theory


Immanuel Kant, born in East Prussia in 1724, [famously held that] “the moral worth of an action does not depend on the result expected from it, and so too does not depend on any principle of action that needs to borrow its motive from this expected result . . . .”  Immanuel Kant, Groundwork of the Metaphysics of Morals 68-69 (H.J. Paton ed. & trans., Hutchinson Univ. Library 3d ed. 1965)(1785) (italics omitted).

. . . . Kant’s anti-utilitarian thesis on criminal penalties is reflected in an oft-cited passage from his work, The Metaphysical Elements of Justice:


Juridical punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else and can never be confused with the objects of the Law of things . . .


Immanuel Kant, The Metaphysical Elements of Justice (Part I of The Metaphysics of Morals) 100 (John Ladd ed. & trans. 1965)(1797). It follows from this position that the sole justification for criminal punishment is retribution or “jus talionis.” See Leon Pearl, A Case Against the Kantian Retributivist Theory of Punishment: A Response to Professor Pugsley, 11 Hofstra L. Rev. 273, 274 (1982)(“Immanuel Kant . . . held that only a retributivist theory is properly responsive to the criminal’s dignity as a rational agent capable of moral conduct, a dignity which he retains despite his commission of a legal offense.”). * * *

For Kant and his adherents, “punishment that gives an offender what he or she deserves for a past crime is a valuable end in itself and needs no further justification.” Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw. U. L. Rev. 453, 454 (1997). “It is not inflicted because it will give an opportunity for reform, but because it is merited.” Edmund L. Pincoffs, The Rationale of Legal Punishment 7 (1966). Kantian “just deserts” theory, therefore, focuses almost exclusively on the past to determine the level of punishment that should be meted out to right the wrong that has already occurred as a result of the defendant’s delict. * * *


2. Bentham’s Utilitarian Theory


Jeremy Bentham, an English philosopher born in 1748, advocated a far different, more prospective approach through his “Principle of Utility.” For him, law in general, and criminal jurisprudence in particular, was intended to produce the “greatest happiness for the greatest number,” a concept sometimes referred to as the “felicity calculus.”

This is not to say that Bentham did not believe in sanctions. It was his view that punishment was sometimes essential to ensure compliance with public laws. See Jeremy Bentham, Bentham’s Political Thought 167-68 (Bhikhu Parekh ed. 1973)(“For the most part it is to some pleasure or some pain drawn from the political sanction itself, but more particularly . . . to pain that the legislator trusts for the effectuation of his will.”).

Unlike his contemporary, Kant, Bentham was not interested in criminal punishment as a way of avenging or canceling the theoretical wrong suffered by society through a deviation from its norms. Rather, a criminal sanction was to be utilized only when it could help ensure the greater good of society and provide a benefit to the community. Bentham’s writings in An Introduction to the Principles of Morals and Legislation explain this theory:


. . . all punishment is mischief: all punishment in itself evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil . . . in the following cases punishment ought not to be inflicted.

I. Where it is groundless: where there is no mischief for it to prevent: the act not being mischievous upon the whole.

II. Where it must be inefficacious: where it cannot act so as to prevent the mischief.

III. Where it is unprofitable, or too expensive:  where the mischief it would produce would be greater than what it prevented.

IV. Where it is needless: where the mischief may be prevented, or cease of itself, without it: that is, at a cheaper rate . . .


Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, in The Great Legal Philosophers: Select Readings in Jurisprudence 262, 270 (Clarence Morris ed., 1959).

Under the Benthamite approach, deterring crime, as well as correction and reformation of the criminal, are primary aspirations of criminal law. While “the theory of retribution would impose punishment for its own sake, the utilitarian theories of deterrence and reformation would use punishment as a means to [a practical] end—the end being community protection by the prevention of crime.” Charles E. Torcia, 1 Wharton’s Criminal Law § 1, at 3 (15th ed. 1993).


3. Sanctions in Strict Retributive and Utilitarian Models


Given the divergence in underlying assumptions and theory, the competing retributivist and utilitarian theories suggest opposing methods for ascertaining proper penalties. Under a Kantian model, the extent of punishment is required to neatly fit the crime. “Whoever commits a crime must be punished in accordance with his desert.” Pincoffs, supra, at 4.

In the case of murder, some believe that just desert is clear. A taker of life must have his own life taken. Even in the case of killings, however, there are degrees of mens rea, and over large portions of the world capital punishment is outlawed on a variety of just desert and utilitarian grounds. Cf. Alan I. Bigel, Justices William J. Brennan, Jr. and Thurgood Marshall on Capital Punishment: Its Constitutionality, Morality, Deterrent Effect, and Interpretation by the Court, 8 Notre Dame L.J. Ethics & Pub. Pol’y 11, 44 (1994) (statistics show that utilization of death penalty does not significantly lower murder rate).

For lesser offenses, reaching a consensus on the proper “price” for the criminal act under the Kantian approach is even more difficult. As one scholar has written:


The retributivist can perhaps avoid the question of how we decide that one crime is morally more heinous than another by hewing to his position that no such decision is necessary so long as we make the punishment “equal” to the crime. To accomplish this, he might argue, it is not necessary to argue to the relative wickedness of crimes. But at best this leaves us with the problem of how we do make punishments equal to crimes, a problem which will not stop plaguing retributivists.


Pincoffs, supra, at 16.

Two main theoretical problems are presented by this just deserts approach. The degree of the earned desert—that is to say the extent or length of the appropriate punishment—is subjective. The upper and lower limits of the punishment can be very high or very low, justified on personal views and taste. The “earned” punishment may be quite cruel and do more harm to society, the criminal, and his family, than can be justified on utilitarian grounds.

Determining the appropriateness of sanction differs under Bentham’s utilitarian approach, although it too poses challenging theoretical and practical tasks for the sentencer. Under this model, among:


the factors . . . [to be considered] are the need to set penalties in such a way that where a person is tempted to commit one of two crimes he will commit the lesser, that the evil consequences . . . of the crime will be minimized even if the crime is committed, that the least amount possible of punishment be used for the prevention of a given crime.


See id. at 23. Obviously, one problem with utilizing a system based only upon this approach is that “it is difficult . . . to determine when more good than harm has been achieved . . . “ United States v. Concepcion, 795 F. Supp. 1262, 1272 (E.D.N.Y. 1992).

As in the case of Kantian just deserts, the felicity calculation is subject to considerable difficulty and dispute. Another major problem with the utilitarian approach is that the individual criminal can be treated very cruelly, to gain some societal advantage even though the crime is minor—or very leniently, despite the shocking nature of the crime—if that will on balance benefit society.

Given these problems, it may make sense to continue to equivocate, oscillating between these poles, tempering justice with mercy, just deserts with utility calculations, in varying pragmatic ways. “Pragmatism,” one of the hallmarks of the American political and legal system, itself suggests a leaning toward utilitarianism. See Webster’s New Twentieth Century Dictionary (William Collins ed., 2d ed. 1979) (“in philosophy [pragmatism] . . . tests the validity of all concepts by their practical results”).


C. Utility and Retribution Under Sentencing Guidelines


The Sentencing Guidelines, written by the United States Sentencing Commission pursuant to the Sentencing Reform Act, see Pub. L. 98-473, § 217, 98 Stat. 1987, 2019 (1984), purport to comport with the competing theoretical ways of thinking about punishment. The Guidelines state that they [seek to] “further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation.” See U.S.S.G. Chap. 1, Pt. A(2). A systematic, theoretical approach to these four purposes was not, however, employed by the Commission:


A philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment. Most observers of the criminal law agree that the ultimate aim of the law itself, and of punishment in particular, is the control of crime. Beyond this point, however, the consensus seems to break down. Some argue that appropriate punishment should be defined primarily on the basis of the principle of “just deserts.” Under this principle, punishment should be scaled to the offender’s culpability and the resulting harms. Others argue that punishment should be imposed primarily on the basis of practical “crime control” considerations. This theory calls for sentences that most effectively lessen the likelihood of future crime, either by deterring others or incapacitating the defendant.


Id. at A(3). The Commission decided not to create a solely retributivist or utilitarian paradigm, or “accord one primacy over the other.” Id.

It is claimed that, “as a practical matter this choice [between the competing purposes of criminal punishment] was unnecessary because in most sentencing decisions the application of either philosophy will produce the same or similar results.” Id. This premise is flawed. In practice, results may vary widely depending upon theory. A penalty imposed based upon pure utilitarian considerations would hardly ever be identical to one that was imposed in a pristine retributive system. While it cannot be said that one is always harsher than the other, seldom would their unrestrained application produce the same sentence.


D. Deference to Sentencing Judge on Guidelines’ Critical Sentencing Issues


Since the Sentencing Commission did not say how competing rationales should shape individual sentencing decisions, courts are left to make that judgment.

* * *

In writing the initial Guidelines, the Commission “sought to solve both the practical and philosophical problems of developing a coherent sentencing system by taking an empirical approach that used as its starting point data estimating pre-guidelines sentencing practice.” U.S.S.G. Ch.1, Pt.A(3). It contended that this:


empirical approach . . . helped resolve its philosophical dilemma. Those who adhere to a just deserts philosophy may concede that the lack of consensus might make it difficult to say exactly what punishment is deserved for a particular crime. Likewise, those who subscribe to a philosophy of crime control may acknowledge that the lack of sufficient data might make it difficult to determine exactly the punishment that will best prevent that crime. Both groups might therefore recognize the wisdom of looking to those distinctions that judges and legislators have, in fact, made over the course of time. These established distinctions are ones that the community believes, or has found over time, to be important from either a just deserts or crime control perspective.


Id. This statistically based foundation has proven inadequate to administer individual criminal litigations except in “routine” cases upon which there may be a “consensus.”

* * *


E. Application of the Guidelines


Until broad-based transformation of the current complex federal system takes place, individual judges have a duty under the statutes to consider all traditional purposes of sentencing when determining an appropriate penalty. Such “purpose-based analysis by judges may be the best hope for bringing justification to sentences imposed in the federal guideline system.” Marc Miller, Purposes at Sentencing, 66 S. Cal. L. Rev. 413, 478 (1992).


1. Heartland


The Guidelines established base offense levels for criminal acts, representing an assessment of the quantity of punishment required for the “average” crime of that sort. As a result, “sentencing courts [are] to treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes.” U.S.S.G. Ch.1, Pt.A(4)(b). What this means, the Supreme Court has recently explained, is that “[a] district judge now must impose on a defendant a sentence falling within the range of the applicable Guideline, if the case is an ordinary one.” Koon v. United States, 518 U.S. 81, 92 (1996)(emphasis added).

The Guidelines, while intended to ensure “a more honest, uniform, equitable, proportional, and therefore effective sentencing system,” U.S.S.G. Ch.1, Pt.A(3), must not be interpreted as eliminating judicial sentencing discretion. See Koon, 518 U.S. at 92. The traditional task of imposing a just and fair sentence based upon an independent view integrating all philosophical, statutory, Guidelines and individual particulars of the case at hand remains the job of the . . . judge.


2. Departures


Congress provided for judicial departure from the Sentencing Guidelines whenever a “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.” 18 U.S.C. § 3553(b).

In the same way that the Commission could not have foreseen every type of criminal case, it could not have foretold every potential ground justifying departing from the Guidelines. Except perhaps for a limited few grounds that the Commission has expressly stated should not be considered as reasons for departing, it “does not intend to limit the kind of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.” U.S.S.G. Ch.1, Pt.A(4)(b).

* * *


Law Applied to Facts


A. Guidelines Computations

* * *

Probation’s Presentence Report recommends that defendant Blarek should incur an upward adjustment for obstruction of justice based upon perjury in his trial testimony. See U.S.S.G. § 3C1.1. The government’s argument supporting this view is rejected. Blarek appeared to be forthright in his presentation. Inconsistencies in his testimony might be attributed to the tricks memory often plays when a person wishes the past were different from what it was. See U.S.S.G. § 3C1.1 cmt.1 (“inaccurate testimony or statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all . . . reflect a willful attempt to obstruct justice”). An allegation of perjury is not supported. See U.S.S.G. § 3C1.1 cmt.3(b)(“committing, suborning, or attempting to suborn perjury” warrant obstruction of justice enhancement).

Based upon these findings, defendant Blarek’s total offense level should be reduced to 32, while defendant Pellecchia’s is reduced to 30. Blarek faces a period of imprisonment of 121 to 151 months. Pellecchia faces 97 to 121 months’ incarceration.

* * *


B. Traditional and Statutory Sentencing Rationales


1. Incapacitation


Incapacitation seeks to ensure that “offenders . . . are rendered physically incapable of committing crime.” Arthur W. Campbell, Law of Sentencing § 2:3, at 27-28 (1991). In colonial America, incapacitation was sometimes imposed in a literal sense. Id. at 28 (loss of organs). With the development of the penitentiary system, incarceration was seen as “a more reliable means of incapacitation.” Adam J. Hirsch, The Rise of the Penitentiary: Prisons and Punishment in Early America 44 (1992).

In the instant case, incapacitation is not an important factor. First, these defendants have no prior criminal record indicating any propensity towards crime. Second, their connection to the criminal world, Santacruz, is now deceased. Third, it does not appear that long term restriction is necessary to ensure that defendants do not reenter a life of crime.

Consistent with utilitarian-driven analysis, little would be gained if the sentences emphasized incapacitation.


2. Rehabilitation


Rehabilitation is designed to instill “in the offender proper values and attitudes, by bolstering his respect for self and institutions, and by providing him with the means of leading a productive life . . . “ Wharton’s Criminal Law, supra, at 18. Neither of these men is wayward or in need of special instruction on the mores of civilized society. They have in place strong communal support systems, as evidenced by the many letters submitted to the court by family and friends. They know how to live a law abiding life. It is not required that a penalty be fashioned that teaches them how to be moral in the future. This criterion, rehabilitation, therefore, is not one that is useful in assessing a penalty.


3. Deterrence


Of the two forms of deterrence that motivate criminal penalties—general and specific—only one is of substantial concern here.

Specific deterrence is meant to “disincline individual offenders from repeating the same or other criminal acts.” Campbell, supra, at 25. Such dissuasion has likely already occurred. Defendants regret their actions. The ordeal of being criminally prosecuted and publicly shamed by being denominated felons and the imposition of other penalties has taught them a sobering lesson.

General deterrence attempts to discourage the public at large from engaging in similar conduct. It is of primary concern in this case. Defendants’ activities have gained a great deal of attention. Notorious cases are ideal vehicles for capturing the attention of, and conveying a message to, the public at large. While it is not appropriate under just desert views for defendants in famous cases to be treated more harshly than defendants in less significant ones simply for the sake of making an example of them, under a utilitarian view the notoriety of a particular defendant may be taken into account by sentencing courts provided the punishment is not disproportionate to the crime.


4. Retribution


Retribution is considered by some to be a barbaric concept, appealing to a primal sense of vengeance. See Wharton’s Criminal Law, supra, at 24. It can not, however, be overlooked as an appropriate consideration. When there is a perception on the part of the community that the courts have failed to sensibly sanction wrongdoers, respect for the law may be reduced. This is a notion applicable under both just deserts and utilitarian balancing concepts that has had some resurgence with the current growth of the rights of victims to be heard at sentencing. See, e.g., 18 U.S.C. § 3555 (order of notice to victims). But see Susan Bandes, Empathy, Narrative, and Victim Impact Statements, 63 U. Chi. L. Rev. 361, 365 (1996)(“victim impact statements are narratives that should be suppressed because they evoke emotions inappropriate in the context of criminal sentencing”).

Should punishment fail to fit the crime, the citizenry might be tempted to vigilantism. This may be why, according to one group of scholars, “a criminal law based on the community’s perceptions of just desert is, from a utilitarian perspective, the more effective strategy for reducing crime.” Robinson & Darley, supra, at 454. “White collar” “victimless” offenses, such as the ones committed by these defendants, are harmful to all society, particularly since drugs are involved. It is important, therefore, that the imposition of a penalty in this case captures, to some rational degree, the “worth” of defendants’ volitional criminal acts.

5. Sufficient But Not Greater Than Necessary

Mercy is seldom included on the list of “traditional” rationales for sentencing. It is, however, evinced by the federal sentencing statute, 18 U.S.C. § 3553(a), which provides, as noted above, that the lowest possible penalty consistent with the goals of sentencing be imposed. See also United States v. Johnson, 964 F.2d 124, 125 (2d Cir. 1992)(“the United States Sentencing Guidelines do not require a judge to leave compassion and common sense at the door to the courtroom”).

The notion that undue harshness should be avoided by those sitting in judgment has long been a part of the human fabric and spirit. Lenity is often the desirable route.


C. Departures


To impose the harsh sentence suggested by Probation and the government under the Guidelines without appropriate downward departures would amount to an act of needless cruelty given the nature of the crimes committed and the personal circumstances of these defendants. Reasoned application of both sets of philosophical considerations—just desert and utilitarian—lead to amelioration.


1. Not a Heartland Case


This case is outside of the heartland of racketeering and money laundering conspiracy cases contemplated by the Guidelines. Under such circumstances the law requires the exercise of a large degree of discretion as bridled and channeled by the sentencing statutes and Guidelines.

Unlike those in most prosecutions in drug money laundering cases, the acts of these defendants were not ones of pure personal greed or avarice. While their manner of living did greatly improve with the receipt of their drug-tainted income, their state of mind was one that was much more complicated—driven largely by excessive artistic pride. So obsessed were defendants with creating art that they lost sight of reality. Abandoned was their previously unblemished law abiding life. In exchange for professional glory and economic freedom to create, they chose to live by the credo of the Cali drug cartel. Cf. Irving Stone, The Agony and the Ecstasy (New American Library 1996)(Medici family’s support [of] Michelangelo). Unfortunately for these defendants, in our world Mephistophelean deals are circumscribed by the law.

The unique motivations behind their crimes do make defendants’ acts somewhat different from those in the mainstream of criminality. While still morally culpable, the state of mind of these defendants must be taken into account when considering the various rationales behind criminal penalties. Because this and other factors “distinguishes the case from the ‘heartland’ cases covered by the guidelines in a way that is important to the statutory purposes of sentencing,” departure is encouraged. U.S.S.G. § 5K2.0.


2. Vulnerability of Blarek and Pellecchia


The defendants are homosexual lovers in a case that has been broadly publicized. The sexual proclivity of these men will likely be well known to fellow inmates and others in the correctional facilities. Their status will, no doubt, increase their vulnerability in prison.

The Guidelines purport to prohibit sex from being taken into account in the determination of a sentence. See U.S.S.G. § 5H1.10. No mention is made of sexual orientation. See id. Sexual orientation as a basis for departure has been questioned on constitutional grounds. See United States v. Lara, 905 F.2d 599, 603 (2d Cir. 1990)(“That the district court did not base its sentence upon the defendant’s bisexual orientation is of some significance because to have done so might have raised serious constitutional concerns.”); see also United States v. Wilke, 995 F. Supp. 828 (N.D. Ill. 1998)(collecting cases indicating “one’s status as a member of a particular group . . . cannot alone provide sufficient reason for departure from the otherwise applicable guideline range”).

While sexual orientation may not be an appropriate ground for departure, related ancillary issues presented in some such cases support a reduction in sentence. The reality is that homosexual defendants may need to be removed from the general prison population for their own safety. This would amount to a sentence of almost solitary confinement, a penalty more difficult to endure than any ordinary incarceration. See, e.g., United States v. Lara, 905 F.2d at 603 (“severity of [defendant’s] prison term is exacerbated by his placement in solitary confinement as the only means of segregating him from other inmates”).

There is ample authority for the proposition that the likelihood of a defendant being abused while in prison supports a downward departure. See Koon v. United States, 518 U.S. at 111-12 (departure based upon “susceptibility to abuse in prison”); United States v. Gonzalez, 945 F.2d 525, 527 (2d Cir. 1991)(departure based upon defendant’s small frame and feminine looks resulting in extreme vulnerability in prison). Because these defendants will be especially vulnerable to abuse in prison given their sexual orientation as well as their demeanor and build, downward departure is warranted.


3. Pellecchia’s Medical Condition


Defendant Pellecchia is HIV positive and has been for fifteen years. While he currently appears to be in stable condition and has not developed discernable AIDS related symptoms, there is no question that this defendant suffers from a serious medical condition. See Reid J. Schar, Comment, Downward Sentencing Departures for HIV-Infected Defendants: An Analysis of Current Law and a Framework for the Future, 91 Nw. U. L. Rev. 1147, 1154 (1997)(“although the [HIV-positive] individual may feel fine, the infected patient is capable of spreading the disease and the patient’s immune system is deteriorating”). This defendant has an extraordinary and unpredictable impairment. See, U.S.S.G. § 5H1.4 (“extraordinary physical impairment may be a reason to impose a sentence below the applicable guidelines range”).

Defendant represents that much of his relative well-being is attributable to a special regimen to which he has adhered. He has maintained a strict diet, exercised regularly, received acupuncture frequently, and taken a combination of vitamins and other natural supplements under the close supervision of a medical professional. Following a similar holistic plan within a correctional facility will likely be impossible. Federal prisons do provide appropriate medical care to those who are infected by HIV. Nevertheless, there will be no substitute for his present living arrangements.

While the government may be correct that it can not be proven that defendant’s unique treatment has contributed to his stable condition, defendant believes that it has. Since cruelty and its perception is as much a state of mind as a physical reality, he will suffer at least emotionally from the deprivation of his choice of treatment.

The extent to which inmates are exposed to diseases such as tuberculosis in prison is well documented. See Schar, supra, at 1156-57(“The incidence of TB in prisons has recently been on the rise, and not surprisingly, those who tend to suffer most are HIV-infected prisoners.”). Despite federal authorities’ concern for prisoners’ welfare, incarceration is likely to be detrimental to this defendant’s health, resulting in a lessening of his present life expectancy. On this ground a reduction in defendant Pellecchia’s sentence is required.

* * *


D. Individual Sentences


The final task is weighing the sentencing considerations already delineated, with particular emphasis on general deterrence and imposition of a punishment that can be viewed as deserved in light of the seriousness and danger to society of the crimes. While defendants have [surrendered] most of their property to the government via forfeiture, and do deserve a downward departure from the Guidelines, a stiff fine to eliminate all assets as well as a substantial period of incarceration is required.


1. Blarek


Blarek, whose actions indicate a somewhat greater culpability than do Pellecchia’s, begins with a computed offense level of 32. For reasons already indicated, the sentence imposed should reflect a downward departure of six levels to offense level 26. Blarek is sentenced towards the lower end of the Guidelines’ range for level 26 to a concurrent term of 68 months’ incarceration for his conviction on the three counts. A lesser or greater departure would not be appropriate in view of the facts and law.

In addition, Blarek is fined a total of $ 305,186, which represents his approximate total net worth after his forfeiture of over $ 2,000,000 in cash and property to the government, and his payment of attorney’s fees. See 18 U.S.C. §§ 1956(a)(1), 1963(a), and U.S.S.G. 5E1.2(c)(4).

The maximum period of supervised release, three years, is imposed. U.S.S.G. §§ 5D1.1(a), 5D1.2(a)(2). During the time that defendant is under supervision, he may not work for any clients or employers outside of the United States to ensure that he is not tempted again into money laundering. A mandatory special assessment of $ 150 is also imposed.  18 U.S.C. 3013(a)(2)(A) and U.S.S.G. § 5E1.3.


2. Pellecchia


Pellecchia’s total offense level is computed at 30. The sentence should reflect a downward departure of seven levels to offense level 23. This represents the same six level departure granted for defendant Blarek with an addition level of downward departure based upon defendant’s health as well as his lesser culpability. A concurrent term of incarceration of 48 months, at the lower end of offense level 23, is imposed for his conviction on two counts. A lesser or greater departure would not be sufficient on the facts or the law.

No fine has been imposed for Pellecchia since he will have a negative net worth of over $ 100,000 after payment of attorney’s fees.

Three years of supervised release is ordered. U.S.S.G. §§ 5D1.1(a), 5D1.2(a)(2). Like his co-defendant, Pellecchia may not be employed by anyone outside of this country during his period of supervision to minimize chances of his being tempted again into money laundering. A special assessment of $ 100 is also imposed.  18 U.S.C. § 3013(a)(2)(A) and U.S.S.G. § 5E1.3.