7
F. Supp. 2d 192 (1998)
WEINSTEIN,
Senior District Court Judge
Facts
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
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
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
Nearly
all transactions between
Santacruz and defendants were in cash. Defendants traveled to
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
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. * * *
Law
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
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
.
. . . 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
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
. . . “
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.
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.”
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.
*
* *
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
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.
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
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
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.”
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
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
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.,
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.
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
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.