UNITED STATES of America, v. Frank SERAFINI.
Nos. 99-3994, 00-3005.
United States Court of Appeals, Third Circuit.
Argued July 20, 2000. Filed Nov. 28, 2000.
233 F.3d 758
A partial new trial “may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice.” Vizzini v. Ford Motor Co., 569 F.2d 754, 760 (3d Cir.1977) (quoting Gasoline Prods. Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 75 L.Ed. 1188 (1931)). The grant of a partial new trial is appropriate “only in those cases where it is plain that the error which has crept into one element of the verdict did not in any way affect the determination of any other issue.” Romer v. Baldwin, 317 F.2d 919, 922-23 (3d Cir.1963) (citation and quotation marks omitted). Having looked at the manner in which evidence of Elcock‘s damages was presented at trial, we must acknowledge the possibility that the jury did not keep the award of non-economic damages distinct and separate from the award of economic damages.
For instance, at trial, Copemann offered not only an opinion as to Elcock‘s vocational disability, the basis of her recovery for lost earnings and lost earning capacity, but also testified about the extent of Elcock‘s psychological and physical injuries, a principal factor in her pain and suffering award. In light of Copemann‘s testimony, the jury may have considered it appropriate to base its pain and suffering award in part on evidence of Elcock‘s lost earning capacity. There are other possible areas of overlap. Both Copemann and Pettingill opined that Elcock was substantially, if not completely, impaired in her ability to work. Pettingill‘s lost earnings model assumed that Elcock was 100 percent disabled, and Copemann specifically noted that, following her injury, Elcock was no longer fit for the one job for which she was qualified. From these opinions of complete disability, the jury may have inferred that Elcock suffered a significant loss in her enjoyment of life, and increased her non-economic damage award accordingly.
Because we cannot confidently conclude that the flaws in Elcock‘s evidence of economic damages did not affect the jury‘s determination of her non-economic damages, the general presumption against partial new trials recognized in Vizzini and Romer guides our decision. We therefore hold that a new trial must be had on the entire damage issue.14
VII. Conclusion
For the foregoing reasons, the judgment of the District Court will be affirmed in part and reversed in part, and the case remanded for a new trial on the issue of damages. Parties to bear their own costs.
Sal Cognetti, Jr., [Argued], Foley, Cognetti, Comerford & Cimini, Scranton, PA; and Daniel T. Brier, Donna A. Walsh, Myers, Brier & Kelly, Scranton, PA, Counsel for Appellant/Cross-Appellee Frank Serafini.
Before: RENDELL and ROSENN, Circuit Judges, and O‘NEILL, Senior District Judge.*
OPINION OF THE COURT
RENDELL, Circuit Judge.
In this appeal, Frank Serafini challenges his conviction and sentence for one count of perjury in violation of
We conclude that Serafini received a fair trial in all respects and will affirm his conviction. We further conclude that the District Court‘s enhancement and downward departure were not an abuse of its discretion, but that its confinement recommendation was subject to question. We will nonetheless affirm Serafini‘s sentence.
I. Facts and Procedural History4
Serafini was subpoenaed to testify before a grand jury that was investigating possible violations of the Federal Election Campaign Act (FECA),
Serafini allegedly had a close and longstanding connection with Michael and with Empire, a landfill located in Pennsylvania. At the time of the events in question, approximately 80 to 90 percent of the waste dumped at Empire originated from out of state, see A. at 1737-38, but legislation was pending in the United States Senate that would have prohibited or restricted the importation of out-of-state waste, see A. at 1784. Empire lobbied Senator Dole, the Senate majority leader, to alter or block this legislation. See A. at 1798-1804. Serafini had both personal and financial connections to Empire: his nephew Michael was Empire‘s second-in-command, and Serafini was himself a 50 percent owner of a family partnership that had sold Empire the land on which it operated and that received a $1.50 royalty for each ton of waste disposed at Empire. See A. at 1711, 1897, 2484, 2798, 3442-46,
Serafini was called before the grand jury to answer questions about Michael‘s having solicited Serafini for a $1,000 contribution and allegedly having reimbursed him for that contribution. When he first appeared before the grand jury, Serafini invoked his Fifth Amendment rights and was excused. See A. at 226-27. The government then sought and received an order immunizing Serafini so that the government could compel his testimony before the grand jury; the resulting subpoena ordered him to produce “[a]ll documents relative to political contributions you were reimbursed for.” A. at 234. During Serafini‘s appearance before the grand jury, the Assistant U.S. Attorney informed him that he could be prosecuted if he provided false testimony. See A. at 326. Although Serafini did acknowledge that Michael had solicited and obtained from him a $1,000 contribution to Dole, see A. at 339, he denied that a $2,000 check given to him by Michael that same week was in part a reimbursement for that contribution. Instead, Serafini maintained that the $2,000 probably represented Michael‘s reimbursing Serafini for payments that Serafini made to a mechanic who had fixed Michael‘s Porsche.8 The following excerpts from Serafini‘s grand jury testimony formed the predicate for his subsequent indictment for perjury:9
Statement 1:
Q: And did you bring any documents pursuant to the subpoena that required your appearance here today?
A: I don‘t have the documents, I don‘t have documents with me but the subpoena, because the subpoena didn‘t require any. The way I read the subpoena, I have a copy of it, all documents relative to political contributions you were reimbursed for, and I was not reimbursed for any contributions.
A. at 327-28 (emphasis added).
Statement 2:
Q: Well, then why wouldn‘t he reimburse you for your Dole contribution under the same rationale?
A: Because I wanted to contribute to Bob Dole.
Q: And you didn‘t want to fix his car?
A: Not necessarily—
Q: Oh, I see.
A: —would you?
Q: I don‘t know.
A: And $2,000 for a thousand dollar contribution.
Q: $2,000 for what?
A: $2,000— Q: What was that last statement?
A: $2,000 this check is for, if I see it correctly?
Q: Right.
A: And my check here is for a thousand dollar contribution?
Q: Right. So you are saying you don‘t know what the other thousand dollars is for?
A: I would not relate it to that—
Q: What would you relate?
A: —in my mind.
Q: What would you relate it for?
A: To something else, whether it was fixing his car, whether it is something else. It could be something else and that‘s just what I am saying to you now, because when he asked me for a thousand dollar contribution I wrote a check for a thousand dollars, I found no problem with that, I was delighted, I was happy to be able to do it.
A. at 349-350 (emphasis added).
Statement 3:
Q: Is there any check that you received that reimbursed you other than that $2,000 check for your contribution?
A: No.
Q: Is there another check that you are aware of that is connected to this investigation, to this Dole contribution, other than the $2,000?
A: Not other than what you have shown me today, no.
A. at 296 (emphasis added).
Statement 4:
Q: And you have no knowledge, as you sit here today, or is it accurate that as you sit here today you have no knowledge why Michael issued that check to you for $2,000?
A: I still think the $2,000 would have been just around the time that I was fixing his car, the transmission was gone, I was fixing it, it is just about that amount of money that would have paid for the repair. It could have been for a number of things, but it certainly does not relate to me contributing to Bob Dole. I contribute quite frequently to candidates and those kind of amounts.
A. at 359-360 (emphasis added).
Statement 5:
Q: I am going to wrap this up. I want to make sure we are absolutely on the same page here, there is no misunderstanding. It is your testimony under oath, as you sit here today, that as far as you‘re concerned, as far as you know, there is no connection between the check that you wrote to Dole for President dated April 27th of ‘95 for $1,000, check 3781, and the check that you received from the Michael Serafini-Melinda Marcotte account dated April 26th of ‘95 for $2,000, it is your testimony that there is no connection between these two items?
A: In my mind I can honestly say that there is no connection between those two checks, the thousand and the two thousand. In my, I mean in my mind I know I contributed to Bob Dole because I wanted to contribute to him without reimbursement. The $2,000, I truly believe I cashed that check and spent it for another reason, I am assuming it was when I was fixing his vehicle.
A. at 371-72 (emphasis added). About a week after Serafini‘s appearance before the grand jury, Serafini‘s legislative aide, Thomas Harrison, testified in front of the grand jury. See Gov‘t Suppl. A. at 82-122. When the prosecutor confronted Harrison with a recently discovered reimbursement check drawn on Serafini‘s account and deposited to Harrison‘s, Harrison admitted that Serafini had solicited and reimbursed Harrison for his Dole contribution, see id. at 87-88, and that he
Based on Harrison‘s statements and other evidence resulting from the investigation, the grand jury indicted Serafini for perjury. Serafini moved to dismiss the indictment on the basis that the grand jury questioning was insufficiently precise to support a perjury allegation. The United States District Court for the Middle District of Pennsylvania, Chief Judge Thomas I. Vanaskie, dismissed the portion of the indictment that was based on Statement 3, finding that the grand jury questioning with regard to Serafini‘s awareness of other checks in the contribution scheme “was so ambiguous and unclear as to preclude a perjury conviction.” A. at 5 (Dist.Ct.Mem. Op., Apr. 7, 1998). However, the District Court denied the motion to dismiss the indictment in all other respects.10
The case proceeded to trial. At trial, Michael did not testify. The government presented as its principal evidence Harrison‘s testimony regarding his transactions with Serafini; the testimony of other “conduits” describing their own transactions with Michael and with other Empire officials; and a series of 34 checks, all from the same sequence of checks, showing reimbursements paid by Michael to Serafini and to the other conduits. The government also introduced evidence relating generally to Serafini‘s financial and personal relationship with Michael and with Empire. The jury convicted Serafini of perjury. Chief Judge Vanaskie then sentenced Serafini to the ten-month split sentence described above. See supra note 2. Serafini now appeals his conviction and sentence.
II. Discussion
A. The Validity of the Indictment
Serafini asserts two challenges to the validity of his indictment: first, that the prosecutor‘s questioning of him before the grand jury was impermissibly vague, and second, that the District Court‘s dismissal of the portion of the indictment concerning Statement 3 should have led to its dismissal of the entire indictment. We exercise plenary review over the District Court‘s denial of the motion to dismiss the indictment. See United States v. Serafini, 167 F.3d 812, 819 (3d Cir.1999).
For the first proposition, Serafini relies on Bronston v. United States, 409 U.S. 352, 362, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), in which the Supreme Court held that a defendant could not be convicted of perjury for giving misleading, nonresponsive, but literally true answers to the prosecutor‘s questions. The Supreme Court emphasized that it is incumbent upon the questioner to frame sufficiently precise questions:
[T]he perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner—so long as the witness speaks the literal truth. The burden is on the questioner to pin the witness down to the specific object to the questioner‘s inquiry.
Id. at 361. Serafini claims that he did not understand the central concept of “reimbursement” in the same way that the prosecutor did; Serafini says that he did not believe the check from Michael to constitute “reimbursement,” because, he, Serafini, would have given money to Dole in any event, regardless of whether Michael paid him back for the contribution. Therefore, Serafini argues, the questions put to him were vague and his answers cannot form the basis for a perjury conviction. This assertion is with-
We also reject the argument that the rest of the indictment should have been dismissed merely because the portion relating to Statement 3 was dismissed. The questioning for Statement 3 was vague as to exactly which checks were being discussed; the questions and answers in Statements 1, 2, 4, and 5 simply do not relate to the issue of other checks, and, as we have already noted, do not suffer from ambiguity.12 We will therefore affirm the District Court‘s denial of Serafini‘s motion to dismiss the indictment.
B. Disclosure of Harrison‘s Immunity
Serafini claims that the government committed a due process violation during discovery by not disclosing the fact that Harrison had been “re-immunized” from prosecution before his second grand jury appearance. Serafini cites the Supreme Court‘s decisions in Brady v. Maryland and Giglio v. United States as support for the contention that evidence of this type must be disclosed. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (stating that due process requires the government to disclose material exculpatory evidence upon the defendant‘s request); Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (stating that the government‘s failure to disclose a promise of immunity made to a critical witness constituted a due process violation, because evidence of an agreement as to immunity was relevant to the witness‘s credibility). Serafini claims that the government failed to disclose that Harrison was immunized from prosecution for perjury, see Serafini Br. at 41, and asserts that defense counsel‘s cross-examination of Harrison at trial would have been different in content and approach had the defense been aware of this renewed immunity.
The problem with Serafini‘s claim is that the purported “re-immunization” consists of nothing more than the following exchange in the transcript of Harrison‘s second appearance before the grand jury:
Q: Now, as it was the last time, you are testifying here today under an order of immunity signed by Judge Vanaskie, which requires you to testify despite the existence of any constitutional privilege against self incrimination. That order compels you to testify on the condition that your testimony may not be used against you in a criminal case. You do not have immunity from perjury or making false statements in your testimony today, do you understand? A: Yes.
Q: If you commit perjury, or make a false statement, you can be prosecuted for that perjury or false statement despite the grant of immunity and your testimony here today could be used against you in the prosecution, do you understand?
A: Yes.
Gov‘t Suppl. A. at 85. This exchange makes it clear that Harrison‘s immunity extended only to the underlying conduct about which he testified; Harrison was not immune from a subsequent perjury prosecution in the event that his statements in his second appearance before the grand jury proved to be false. Serafini does not contest the government‘s assertion that the government turned over the grand jury transcript to defense counsel two weeks before trial—well before the time that Brady or Giglio would require. See Gov‘t Br. at 38; Serafini Reply Br. at 36. Because Serafini has not offered evidence of any promises of immunity to Harrison made outside the grand jury proceedings,13 we can find no discovery violation on this record.
C. Evidentiary Rulings
1. Digital Recording
Serafini contends that the District Court abused its discretion by permitting the government to play for the jury a digital recording of a redacted version of Serafini‘s grand jury testimony.14 The story of the history and chain of custody of this recording—from “original tapes” of the grand jury testimony, to the “redacted tapes,” to the “digital version” of these tapes—is quite complex. However, the relevant facts for our purposes can be succinctly stated.
Serafini argues on appeal that the District Court should not have admitted the digital version of the tapes, because (1) the digital version was not individually authenticated and offered in evidence; and (2) the digital version differs materially from the original version. Serafini cites the report of defense expert James B. Reames; Reames concluded that the redacted copy of the tape contained “severe distortion of the spoken words” as compared to the original tape. A. at 3413. The problem with Serafini‘s argument is that Reames‘s objections are directed at the redacted version, not the digital version, and it is the digital version‘s content that is the issue presented to us. The recording—which turned out to be the digital recording—was offered in evidence without objection from Serafini, see A. at 1300. Even if we accept defense counsel‘s contention that he thought the recording being played at trial was the redacted and not the digital version, the lack of objection at trial waived any subsequent objection to the
As for the digital version, we have no basis for concluding that there were material differences between it and the redacted tape. The trial judge compared all versions of the audio recordings, and could not discern any material differences among the versions. See A. at 3082-84.16 Serafini levels a broad challenge but fails to point to any specific differences between the redacted and the digital versions. In fact, he maintains that he was unable to tell from the playing of the recording at trial that it was not the redacted version. See Serafini Br. at 22.
We find, therefore, that even if the District Court erred in its decision to play the digital rather than the redacted version of the recording, it did not affect Serafini‘s substantial rights, and was thus harmless. See Government of the Virgin Islands v. Toto, 529 F.2d 278, 283-84 (3d Cir.1976); see also Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
2. Conduit Evidence
Serafini argues that the District Court abused its discretion in admitting evidence of the conversations and the transfer of funds in transactions that involved other “conduits” like Serafini—i.e., other people through whom Michael and Empire funneled contributions—but did not involve Serafini himself. The evidence admitted by the District Court consisted of reimbursement checks and conduit witnesses’ testimony as to the conversations. These conduit conversations fall into two categories: those to which Michael was a party, and those to which he was not. The District Court admitted testimony in both categories.
We conclude that the District Court did not abuse its discretion in admitting the checks that were in the same series of checks as the check issued to Serafini, nor in admitting the testimony as to the conversations that involved Michael. In order to prove that Serafini had committed perjury, the government was required to demonstrate the falsity of Serafini‘s claim that the check he received from Michael was not a reimbursement. See A. at 695-96. The fact that the Serafini check was one in a series of apparent reimbursement checks was relevant to this requirement. Michael‘s previous actions were relevant to show that Michael, one of the parties to the transaction involving Serafini, understood it as a reimbursement. Serafini argues that even if the checks were admissible, the conversations were inadmissible hearsay. We conclude that the conversations in which Michael was involved were admissible under the hearsay exception provided by
The admission of the conduit conversations that did not involve Michael had a far more attenuated connection to Serafini‘s guilt. We find some merit to Serafini‘s contentions that these were of marginal relevance and were inadmissible as hearsay. However, the evidence contained in these conduit conversations was almost wholly cumulative of the evidence contained in those conversations that did involve Michael, which, as described above, were properly admitted into evidence. We therefore find that the error, if any, in admitting the remaining conduit conversations did not affect Serafini‘s substantial rights, and was therefore harmless.18
D. Sufficiency of the Evidence
Serafini‘s final objection to his conviction is that the government‘s evidence was legally insufficient to support a conviction for perjury. The burden on a defendant who raises a challenge to the sufficiency of the evidence is extremely high. “We determine whether there is substantial evidence that, when viewed in the light most favorable to the government, would allow a rational trier of fact to convict.” United States v. Helbling, 209 F.3d 226, 238 (3d Cir.2000) (quoting Government of the Virgin Islands v. Charles, 72 F.3d 401, 410 (3d Cir.1995)).
Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under
section 1746 of title 28, United States Code ) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined under this title or imprisoned not more than five years, or both.
Serafini‘s argument that the evidence is insufficient rests primarily on the fact that the evidence presented concerning Serafini‘s state of mind was circumstantial in nature. However, we have recognized that intent and knowledge may be proven via circumstantial evidence. See United States v. Iafelice, 978 F.2d 92, 97 (3d Cir.1992); see also United States v. Chapin, 515 F.2d 1274, 1280 (D.C.Cir.1975) (“[P]erjury cases ... are susceptible to proof by circumstantial evidence, and in fact are peculiarly likely to be proven in this manner because one of the elements of the crime is that the defendant knew his statement was false when he made it.“). Viewing the evidence in this case in the light most favorable to the government, we find that the evidence—including but not limited to Harrison‘s testimony, Serafini‘s grand jury testimony, and the admissible conduit evidence—was easily sufficient for a rational factfinder to find that Serafini perjured himself in denying that the $2,000 check was a reimbursement for his and Harrison‘s contributions to the Dole campaign, and in stating that the $2,000 had nothing to do with these contributions.
E. Sentencing Issues
1. Increase in Offense Level for Substantial Interference
After ascertaining that the base offense level for perjury before a grand jury was 12, see
“Substantial interference with the administration of justice” includes a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.
The District Court identified the following expenditures of the government‘s time: re-interviewing Thomas Harrison after Serafini‘s appearance before the grand jury, calling Harrison to testify before the grand jury a second time, subpoenaing auto repair shops and PNC Bank for records, interviewing the owner of one auto repair company and the general manager of another, and interviewing Serafini‘s employee Lucille Yager and requesting Yager‘s grand jury testimony. See A. at 3823-24. The defense argued that some of these expenditures would have been undertaken even in the absence of Serafini‘s perjury, claiming in particular that the government had in its possession the bank records showing Serafini‘s check to Harrison even before Serafini‘s grand jury appearance. See Serafini Br. at 63. Serafini cites United States v. Jones, 900 F.2d 512, 522 (2d Cir.1990), for the proposition that a substantial expenditure enhancement cannot be applied where the government already had the information that the defendant concealed via her false statements. However, Jones is easily distinguished from our case. Jones relied heavily on the fact that “the district court did not make any specific finding that Jones’ perjury had resulted in any substantial expenditure of governmental resources.” Id. at 521-22. Here, in contrast, the District Court explicitly made such factual findings. See A. at 3823-27 (transcript of sentencing hearing).19 We review the District Court‘s factual findings that the expenditures were “substantial” and that Serafini‘s perjury was a but-for cause of these expenditures for clear error only, see, e.g., United States v. Sinclair, 109 F.3d 1527, 1539 (10th Cir.1997), and we find no such error. We therefore conclude that the enhancement for “substantial interference” was permissible.
2. Downward Departure for Community and Charitable Activities
The offense level for perjury, adjusted by the three-level substantial interference enhancement, was 15. When combined with Serafini‘s criminal history category of I, this adjusted offense level resulted in a guideline range of 18 to 24 months’ impris-
In Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the Supreme Court outlined the methodology for a district court to use when considering a departure from the applicable guideline range. We have described the Koon analysis as follows:
First, identify the factor or factors that potentially take the case outside the Guidelines’ “heartland” and make it special or unusual. Second, determine whether the Guidelines forbid departures based on the factor, encourage departures based on the factor, or do not mention the factor at all. Third, apply the appropriate rule: (1) if the factor is forbidden, the court cannot use it as a basis for departure; (2) if the factor is encouraged, the court is authorized to depart if the applicable guideline does not already take it into account; (3) if the factor is discouraged, or encouraged but already taken into account by the applicable guideline, the court should depart only if the factor is present to an exceptional degree, or in some other way makes the case different from the ordinary case in which the factor is present; or (4) if the factor is unmentioned, “the court must, after considering the structure and theory of both relevant individual guidelines and the Guidelines taken as a whole, decide whether [the factor] is sufficient to take the case out of the Guideline‘s heartland.”
United States v. Iannone, 184 F.3d 214, 226 (3d Cir.1999) (emphasis added) (internal citations to Koon omitted). We also noted Koon‘s statement that a reviewing court must give substantial deference to the district court‘s discretionary decision to depart from the guideline range. See id. at 227 (citing Koon, 518 U.S. at 98).
The District Court described the appropriate analytical steps and correctly determined that departing on the basis of civic and charitable good works was discouraged, but not forbidden, by the Guidelines. See A. at 3839 (transcript of sentencing hearing);
Our review of the District Court‘s finding in this regard is quite deferential. See Koon, 518 U.S. at 98 (“[W]hether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, [is a] matter[] determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations....“); see also United States v. Jones, 158 F.3d 492, 497 (10th Cir.1998) (stating that appellate review “is at its most deferential” when the court of appeals is evaluating “the district court‘s conclusion that the facts of this case made it atypical“). Our review is limited to ensuring that the circumstances relied upon by the District Court are not “so far removed from those found exceptional in existing case law that the sentencing court may be said to be acting outside permissible limits.” United States v. Sweeting, 213 F.3d 95, 100 (3d Cir.2000).
(i) As to the first category, these can be quickly dismissed with the observation that being a “good person,” a quality indeed to be admired, does not qualify as extraordinary or exceptional civic or charitable conduct.
(ii) As to Serafini‘s activities as a state legislator, they are work-related and political in character. For example, a letter from the Fire Chief of Greenfield Township Volunteer Fire Company stated that he “had worked tirelessly to obtain grant monies to help the community afford the lifesaving equipment they need.” Sealed Suppl. A. at 20. The same letter also referred to Serafini‘s guidance “on several projects, including writing bid specifications for a new engine ... and in pushing through legislation which allows smaller fire companies to purchase equipment through state funding.” Id.
Other letters of this nature attest to Serafini‘s character and quality of legislative service. Others are from grateful constituents who were helped by Serafini or his staff. Conceptually, if a public servant performs civic and charitable work as part of his daily functions, these should not be considered in his sentencing because we expect such work from our public servants. While we might question whether our sentencing courts should consider such things as one‘s situation or opportunity, the methodology that requires us to determine “ordinary” versus “exceptional” and “laudable” versus “extraordinary” is a subjective one that involves comparing a defendant‘s conduct to the norm. Thus, to the extent this second group of letters does not evidence extraordinary community service under
(iii) However, unlike the first and second categories of letters the Court received, the third category of letters provided an adequate basis for the District Court‘s conclusion that Serafini‘s community service warranted a downward departure. Many of the letters that fall within this last group contain substantive descriptions of Serafini‘s generosity with his time as well as his money. Several constituents and friends described situations in which Serafini extended himself to them in unique and meaningful ways during times of serious need. In particular, three letters are especially noteworthy.
William Drazdowski, an accountant and “a close personal friend” of the defendant, explains Serafini‘s role in providing a $300,000 guarantee to Dr. Edward Zaloga so that he could secure new cutting edge data from certain Tokyo physicians for the treatment of his brother‘s brain tumor. Sealed Suppl. A. at 57. Dr. Zaloga testified at the sentencing hearing that he telephoned Serafini at 1:00 a.m. seeking his assistance in raising the money. Just thirty minutes later, Serafini called back and informed Dr. Zaloga “that everything was in place.” The letter does not state who actually made the guarantee, or how it was accomplished. However, the clear import of Zaloga‘s testimony is that it was Serafini‘s money: “... [N]ot once did he ask me, How are you going to pay me back? Or any other such question. The simple statement, Just get the account numbers, we‘ll wire the money in the morning.” A. at 3786. In reading the Zaloga letter, both Serafini‘s readiness to help and his reluctance to seek gratitude make a strong impression. Such behavior is hardly part of the normal duties of a local politician.
A third letter came from a widow who approached Serafini in tears because she was about to lose her house. He wrote her a personal check for $750 to forestall foreclosure. She expressed doubt about her future ability to repay him, but Serafini insisted that she need not do so unless she could afford it.
The remaining letters, taken as a whole, depict Serafini as an exceptionally giving person. See Sealed Suppl. A. at 137 (describing Serafini‘s having forgiven a substantial debt out of concern for a divorced mother‘s financial situation). For example, the letters describe Serafini‘s volunteer work as an usher at St. Mary‘s Church, see id. at 35, 40, 107; at the Abington Heights School District, see id. at 166; and at Lackawanna Trail High School, see id. at 200. In addition, he helped to establish a fund to defray the cost of a bone marrow transplant for a man suffering from leukemia. See id. at 209. Several letters note that Serafini was generous with his time even with people who lived outside his district. See id. at 33, 35, 125. The letters also describe Serafini‘s financial contributions to organizations such as The Arc (a nonprofit agency serving people with mental retardation and their families), see id. at 14; the Rotary Run Against Drugs, see id. at 26; the Scranton Lackawanna Human Development Agency, see id. at 41, 108; the Little League, see id. at 47; the Boy Scouts, see id. at 109, 118; St. Francis of Assisi Kitchen, see id. at 157; the Abington Heights School District, see id. at 166; and the leukemia sufferer‘s fund mentioned above, see id. at 209.20 A letter from an official at the University of Scranton refers to Serafini‘s financial assistance to college students, see id. at 177, and a letter from a high school social studies teacher describes Serafini‘s contributions to a scholarship for graduating seniors, see id. at 200.
A former employee noted in one letter that when her friend was sick with leukemia, Serafini did more than just permit her to take time off to visit her. He arranged a ride for her friend to Johns Hopkins Hospital in Maryland so that she could obtain a second opinion regarding her condition. See id. at 215. Other letters indicating that Serafini went above and beyond the call of duty as a public servant described how he had personally financed a second office to enable him to reach more constituents. See id. at 35. Additionally, there was significant testimony at the sentencing hearing regarding Serafini‘s charitable activities, including: giving a man several hundred dollars so his electricity would not be turned off, id. at 3789; paying mortgages, car payments, and the cost of dentures for those could
The District Court concluded that the letters and testimony demonstrated that Serafini had distinguished himself, “not by the amount of money [he has] given, but by the amount of time that [he has] devoted.” A. at 3839. The District Court found that these efforts made Serafini‘s community and charitable activities “exceptional” when compared to what an average person in Serafini‘s circumstances would have done:
Those weren‘t acts of just giving money, they were acts of giving time, of giving one‘s self. That distinguishes Mr. Serafini, I think, from the ordinary public servant, from the ordinary elected official, and I had ample testimony, today, that says that Mr. Serafini distinguishes himself, that these are acts not just undertaken to assure his re-election, but are taken because of the type of person he is....
A. at 3840.
We realize, as did the District Court, that Serafini‘s largesse was in part financial, and in part, devotion of himself and his time. Since he is a wealthy individual, we must ensure that a district court does not run afoul of the prohibition against considering socioeconomic differences in relying on financial contributions as a basis for a departure. See
It is not our role to decide in the first instance whether Serafini‘s civic and charitable contributions were exceptional given Serafini‘s role as a public servant and his apparent wealth. Our review is far more deferential. We conclude that the District Court had an adequate basis for its factual finding, and that the District Court‘s decision was not clearly out of line with other reported cases. See, e.g., United States v. Woods, 159 F.3d 1132, 1136 (8th Cir.1998) (upholding defendant‘s downward departure for charitable activities, which included bringing two troubled young women into her home and paying for them to attend a private high school, as well as helping to care for an elderly friend, where the court found no basis to overturn the district court‘s finding that these efforts were exceptional).
In reaching this conclusion, we have not overlooked the decision of the Court of Appeals for the Eighth Circuit in United States v. Morken, 133 F.3d 628 (8th Cir.1998). There, the court concluded that the defendant‘s activities, which consisted of advising local business owners, hiring young people, serving on a church council, and raising money for charity, were “laudable, ... [but] neither exceptional nor out of the ordinary for someone of his income and preeminence in a small Minnesota town with a population barely over a thousand.” Id. at 630. Accordingly, the court of appeals reversed the district court‘s downward departure.
However, in Morken, the court essentially found that, given Morken‘s station in life, his contributions were not extraordinary. Here, the District Court was careful to view Mr. Serafini‘s activities in light of his career and resources, and taking that into account, found that his charitable activities were in fact sufficiently beyond the norm for a wealthy politician, and were sufficiently exceptional so as to warrant a departure under the Guidelines. While the District Court did not allude to this, we can detect here good works of a different nature and degree than the somewhat impersonal giving that was demonstrated in Morken. Also, we are aware that other appellate courts have second guessed the trial court‘s view of the “norm” for good works performed by certain individuals, concluding that a certain defendant did no more than other similarly situated individuals. See United States v. Haversat, 22 F.3d 790, 796 (8th Cir.1994) (holding that defendant‘s charitable and volunteer activities did not make him an atypical defendant in antitrust price-fixing cases); see also United States v. Crouse, 145 F.3d 786, 792 (6th Cir.1998) (finding nine-level downward departure unsupported by defendant‘s civic contributions, which were not unusual for a prominent businessman). These do not provide a basis for finding an abuse of discretion here because, based on the evidence, the District Court could have found, and did find, that Serafini‘s acts of personal kindness and good works were above and beyond customary political or charitable giving. We also note that while many of Serafini‘s acts involved the giving of money, the monetary aid was only one aspect of otherwise charitable conduct on his part, distinguishing his acts from the impersonal writing of checks that is the norm for many wealthy individuals. By taking such giving into account, the District Court did not grant the departure based on socioeconomic conditions. We conclude that the District Court did not abuse its discretion by finding that Serafini‘s civic and charitable contributions were exceptional and thus warranted a downward departure.
The government also challenges the extent of the District Court‘s three-level departure, claiming that this departure was reached by a result-oriented and incorrect methodology. We do not agree. In United States v. Kikumura, 918 F.2d 1084 (3d Cir.1990), we noted that our scope of review over the extent of the District Court‘s discretionary departure is deferential. See id. at 1110 (“This [final] step involves what is quintessentially a judgment call. District courts are in the front lines, sentencing flesh-and-blood defendants.... Therefore, appellate review must occur with full awareness of, and respect for, the trier‘s superior ‘feel’ for the case.“) (quoting United States v. Diaz-Villafane, 874 F.2d 43, 49-50 (1st Cir.1989)); see also
The District Court heeded Kikumura‘s instruction to look to the structure of the Guidelines, but noted that it could not find “any particularly apt analogy” in any specific guideline. A. at 3851. Therefore, the District Court compared the mitigating effect of Serafini‘s charitable and community contributions with the sentence-enhancing effect of his substantial interference with the administration of justice. The District Court concluded that these two effects were similar in magnitude:
And there are no other specifically-mentioned adjustments, in this particular case, that provides [sic] a sound foundation for analogic reasoning. I do think, however, that it‘s appropriate to look at this case as if it were perjury without the enhancement, without the three-level enhancement. I think that an appropriate downward departure, in this case, is three levels.
A. at 3851-52. In the absence of any clearly relevant analogy to a specific guide-
The government‘s argument that the departure was result-oriented is based on a single statement by the sentencing judge: “And I will say that I am most influenced, in the final decision that I make, that I have departed three levels, that takes me to Zone C.” A. at 3852. We find this statement too ambiguous to support the government‘s contention that the District Court abused its discretion. It is not apparent to us, from this one statement, that the sentencing judge meant that the reason for his departure was to arrive at Zone C of the Sentencing Table. Read in the entire context of the District Court‘s departure discussion, the statement is equally susceptible to a simpler reading: that the District Court simply found that the result of the three-level departure was to put Serafini in Zone C, not that the goal of the departure was to put him in Zone C.21
3. Recommendation as to Location of Confinement
The government argues that the District Court erred in recommending to the Bureau of Prisons that the imprisonment portion of Serafini‘s service be served in the Catholic Social Services of Lackawanna County Residential Program. See A. at 3879 (District Court‘s judgment of sentence). The government asserts that such a facility cannot serve as the location for “imprisonment” within the meaning of
If the applicable guideline range is in Zone C of the Sentencing Table, the minimum term may be satisfied by—
(1) a sentence of imprisonment; or
(2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention ... provided that at least one-half of the minimum term is satisfied by imprisonment.
It is true that under section
However, we reject the government‘s contention that we can or must reverse the District Court‘s sentencing order that included a recommendation to that effect. The District Court recognized that the final decision as to the location of imprisonment was the Bureau of Prisons‘. See A. at 3879 (District Court‘s judgment of sentence) (“The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of five (5) months.... The court makes the following recommendations to the Bureau of Prisons: The Court recommends that the Bureau of Prisons designate the Catholic Social Services of Lackawanna County Residential Program, Scranton, Pennsylvania, as the place for service of this sentence.“) (emphasis added). Its recommendation, while erroneous, was not an order and is technically not reviewable. See e.g., United States v. Pineyro, 112 F.3d 43 (2d Cir.1997) (per curiam). In our view, the recommendation did not amount to the imposition of a community confinement sentence. The sentence the District Court imposed—namely five months’ imprisonment—was appropriate and we will affirm it. That part of the order that contains the recommended place of imprisonment—which would violate the guidelines if followed by the Bureau of Prisons—is either beyond our jurisdiction, or, if reviewable as part of the order, a nullity. We think the former is the better analytic route. We need not disturb a suggestion or recommendation, and have no power to do so because our review is limited to a sentence imposed in violation of the law or imposed as a result of an incorrect application of the Sentencing Guidelines. See
III. Conclusion
For the foregoing reasons, we will AFFIRM the District Court‘s orders of conviction and sentence.
ROSENN, Circuit Judge, Concurring in part and Dissenting in part:
I concur and join with the majority except with respect to Part E(2) pertaining to the Downward Departure for Community and Charitable Activities. For reasons set forth below, I respectfully dissent from this aspect of the opinion.
The trial judge tried this hard fought case skillfully, patiently and without error. However, I believe that when it came to sentencing, the voluminous letters from the defendant‘s political constituents, colleagues, and other friends misled the Court to depart downward from the Guidelines. The majority appropriately rejects the first two categories of these letters but concludes that the third category of letters provide “an adequate basis” for the District Court‘s conclusion to depart downward. Maj. op. at 773. In reaching its conclusion, the majority gives “quite deferential” review to the District Court‘s finding that Serafini‘s civic and charitable contributions did exist to an exceptional degree, or in an extraordinary manner. Maj. op. at 772.
The general rule of “deference” is not without limitation; it has many restraints. It must be consistent with Congressional purpose and, in this case, the Sentencing Guidelines. Even in cases where administrative agencies enjoy much deference in
Although I agree wholeheartedly that the District Court‘s sentencing finding is entitled to deference, “this deference is constrained by our obligation to honor the clear meaning of a statute, as revealed by its language, purpose, and history.” Teamsters v. Daniel, 439 U.S. 551, 566 n. 20, 99 S.Ct. 790, 58 L.Ed.2d 808 (1979) (quoted in Southeastern Community College v. Davis, 442 U.S. 397, 411, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979)). When invoked as a guide to the exercise of judicial action, discretion must be sound, and not exercised arbitrarily or without regard to what is right and equitable under the circumstances and the law. See Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).
Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction. See Ronald Dworkin, Taking Rights Seriously 31 (1977). Discretion, even the discretion resting with a sentencing trial judge, must be restricted by the applicable statutory meaning, purpose and history. The United States Sentencing Guidelines, which apply here, whether we empathize with them or find them frustrating, are binding upon the sentencing judge and the appellate courts. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (holding that the Guidelines are constitutional). Unless courts uphold the surrounding belt of restriction, discretion, even the little discretion that remains with a judge under the Sentencing Guidelines, will override the parameters of statutory limitation.
Prior to the Sentencing Reform Act (SRA) of 1984,
The Sentencing Guidelines are clear that a defendant‘s record of charitable work and community service are a discouraged justification for a sentencing departure. See United States v. DeMasi, 40 F.3d 1306, 1324 (1st Cir.1994). The historical note to the Civic and Charitable Amendment to the Guidelines (
Discouraged-feature factors are not usually relevant to a departure decision. See Koon v. United States, 518 U.S. at 95, 116 S.Ct. 2035. A court may depart only if a discouraged factor is present to an exceptional degree or in some other way that makes the case different from the ordinary case where the factor is present. See id., at 96, 116 S.Ct. 2035. Therefore, a down-
Thus, the critical question is whether the discouraged factor is present in this case to “an exceptional degree or in some other way that makes the case different from the ordinary case where the factor is present.” The majority relying on United States v. Woods, 159 F.3d 1132 (8th Cir.1998), concludes that the District Court had “an adequate basis,” maj. op at 775, for its departure. In Woods, the District Court allowed a one level departure to a woman who pleaded guilty to one count of bankruptcy fraud. The District Court found that the defendant‘s money laundering offense fell outside the “heartland” of such cases and that taking two troubled young women into her own home and paying for them to attend a private high school warranted the departure. In affirming, in one paragraph of a five page opinion, the court did not even cite or discuss the Guideline under which it affirmed the departure, but merely stated “we have no basis for holding that [the efforts by the defendant] were not [exceptional].” Unlike the Woods case, we have a substantial record here from which to assess. It shows that Serafini‘s charitable works were not exceptional or extraordinary by any reasonable standard.
In the ordinary course of events, a taxpayer, especially one with substantial annual income, will specifically list every available charitable contribution as a tax deduction in his federal income tax return. Serafini filed such returns and specifically claimed charitable deductions. These returns are the best evidence of his charitable contributions; they are not vague, indefinite opinions of friends and political constituents tendered to a sentencing judge in an effort to obtain a reduced sentence. The tax returns are concrete evidence of Serafini‘s charitable giving, and are the most logical place to begin an analysis of whether his charitable acts were exceptional.
The defendant is not only “a wealthy individual,” maj. op at 775, but his federal income tax returns show substantial income from sources other than his salary as a state official. Included are substantial royalties from the Empire Landfill. A financial analysis of his pertinent income returns for the period 1991 through 1996 reveals the following undisputed evidence.
| YEAR | $ TOTAL INCOME ROUNDED | $ CHARITABLE DEDUCTIONS | CHARITY AS % OF INCOME |
|---|---|---|---|
| 1991 | 724,019 | 13,407 | 1.8 |
| 1993 | 857,000 | 22,604 | 2.6 |
| 1994 | 855,000 | 16,620 | 1.9 |
| 1995 | 908,172 | 17,385 | 1.9 |
| 1996 | 1,101,276 | 20,310 | 1.8 |
Except for 1993, in which his contributions exceeded 2%, all of his contributions are less than 2% per annum. Donating less than 2% of one‘s income to charity—even 2.6%—is lackluster and pedestrian by any measure; it is not exceptional. It is far below the average measure of giving in the United States by people in the defendant‘s socioeconomic status.2
Serafini‘s charitable contributions of his annual income is ordinary at best when compared to national figures. It pales in comparison to tithing, the practice in many religious organizations of giving ten percent of one‘s income to one‘s religious institution. Serafini‘s charitable contributions are extraordinarily low when considering that many religious institutions throughout history have encouraged charitable giving in addition to the tithe. See Carl Bakal, Charity USA 21 (1979).
Serafini appears to have made many appearances at public events, but he did not contribute money or resources according to his means. He has helped some people with small debts, cost of indentures, and other acts of kindness, but he never paid out any exceptional amount of money. The District Court was sensitive to this; it observed that the defendant had distinguished himself “not by the amount of money [he has] given, but by the amount of time that [he has] devoted.” Maj. Op. at 775.
As noted, the majority and the District Court were persuaded by Serafini‘s non-financial charitable acts. But much of Serafini‘s civic participation was either honorary or obligatory because of his job as a Representative. Numerous letters submitted on his behalf were written by constituents or other beneficiaries of his public position. The majority finds three letters noteworthy. Maj. Op. at 773. One comes from William Drazdowski, “a close personal friend,” which explains defendant‘s role in providing a $300,000 guarantee to Dr. Edward Zaloga to enable him to obtain new medical data from Tokyo physicians for the treatment of his brother‘s brain tumor. The doctor testified that thirty minutes after a telephone call to Serafini at 1:30 a.m. for assistance, Serafini called back to tell him “that everything was in place.” Neither Drazdowski, an accountant, nor Dr. Zaloga claim that Serafini personally made the guarantee; nor does the defendant. There is no information how the guarantee was accomplished, to whom it was made, who made it, and the substance of the guarantee, or the relationship between Dr. Zaloga and the defendant. The majority believes this assistance “is hardly part of the normal duties of a local politician.” On the other hand, the entirely obscure and mysterious incident may very well have its genesis in defendant‘s political agenda. In any event, it hardly rises to the level of significant community service.
The Seig letter attests to Serafini‘s offer to employ Seig, a young friend of the family, on the defendant‘s legislative staff, a loan to him of an unstated sum of money, and encouragement to Seig to attend college. The third letter reports a personal check of $750 from the defendant to a widow who was about to lose her home through foreclosure. The widow expressed doubt about her ability to repay and defendant insisted she need not do so unless able.
These three “noteworthy” letters do reflect commendable action by the defendant, but neither they, nor the other letters, show community service to an exceptional or extraordinary degree. A few acts of personal kindness to individual friends do not add up to community service; they do not fulfill the purpose of the Guidelines. The District Court relied considerably on the defendant‘s gift “of time.” I can find no evidence of the amount of time given to community service, as distinguished from some personal favors to friends and political constituents.
The Guidelines do not suggest a sentence departure for time spent aiding friends or family, or time in performing
The cases support the foregoing analysis. Courts may not leniently interpret the requirement of extraordinary circumstances to grant a downward departure. See, e.g., United States v. Rybicki, 96 F.3d 754, 758 (4th Cir.1996) (Defendant was a highly-decorated Vietnam veteran, had saved an innocent civilian during the My Lai massacre, and had served with the Secret Service; these deeds did not warrant a departure); United States v. McHan, 920 F.2d 244, 247 (4th Cir.1990) (Defendant‘s work history, family ties and responsibilities, and extensive contribution to the town‘s economic well-being could not justify downward departure.)
United States v. Morken, 133 F.3d 628 (8th Cir.1998), contains factual similarities to this case, particularly with respect to the defendant‘s socioeconomic status. In commenting upon the defendant‘s commendable record as a neighbor and good friend who advised local business owners, hired young people, served on his church council and raised money for charity, the court there also noted that the defendant‘s annual income exceeded $500,000. The court found that it was neither exceptional nor out of the ordinary for someone of the defendant‘s income and preeminence in his small community to engage in charitable works and community services of this nature. See id. at 630. The majority here notes, maj. op. at 775, that the Morken court found that given Morken‘s station in life, his contributions were not extraordinary. Here, Serafini‘s annual income over the years was substantially higher than Morken‘s, and for several years prior to his indictment, was almost double. Serafini‘s contributions, like Morken‘s, were not exceptional or out of the ordinary. Serafini‘s contributions were even less exceptional, considering his much larger income and preeminence.
We have no information of record of time spent by Serafini in behalf of fund raising efforts or other services of the United Way or the colleges and other community service organizations in his county. In United States v. Crouse, 145 F.3d 786 (6th Cir.1998) the defendant, Crouse, served on the boards of various community organizations over many years. In commenting on his service in connection with his request for sentencing departure, the court of appeals observed:
Crouse‘s community works, while found to be significant by the District Court, are not unusual for a prominent businessman. Examples of Crouse‘s community involvement include church activities; service on the boards of various community organizations, including a local hospital, the United Way, and regional airport authority; and his membership and active involvement with the Rotary Club. These examples of community involvement spanned over at least a 25-year period.
Measured by any reasonable standard, whether it be tithing to his church and community, or other charitable contributions of money or community time, Serafini‘s charitable and community service was far from exceptional or extraordinary. It was quite ordinary for a man in his preem-
I therefore conclude that it was impermissible under the Guidelines for the District Court to depart from the Sentencing Guidelines.
MAX ROSENN
UNITED STATES CIRCUIT JUDGE
Notes
A. at 3824.If Mr. Serafini had testified, truthfully, that he was, indeed, reimbursed and that the other thousand dollars of the $2,000 check was for Mr. Harrison, there would be no need to go see Mr. Harrison, again, who was, to say the least, not the most reliable witness the Government could find, under the circumstances, having already lied to the Grand Jury. So I find that but for the Defendant‘s perjury, it would not have been necessary to interview Mr. Harrison, so that there is the requisite causal relationship between the interview and calling him to testify before the Grand Jury.