BY ALAN ELLIS
Criminal Justice, Fall 1998
Nowhere has the case law changed as dramatically in light of Koon v. United States, 518 U.S. 81 (1996), as in the area of downward departures for civic, charitable, or public service.
The U.S. Sentencing Guidelines (U.S.S.G.) § 5H1.1 (Policy Statement) provides that Military, civic, charitable, or public service, employment-related contributions, and similar prior good works are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.
Prior to Koon, those cases that addressed a downward departure based on outstanding charitable and community service work rejected a reduced sentence on these grounds.
In United States v. Haversat, 22 F.3d 790 (8th Cir. 1994), the defendant, a high-level business executive convicted in an antitrust, price-fixing case, sought and was granted a downward departure based on his charitable and volunteer activities. In reversing and remanding for a resentence, the court of appeals concluded that Haversat’s charitable and volunteer activity, while considerable, would not make him an atypical defendant in antitrust, pricefixing cases noting: “It would appear that high-level business executives, those who are in a position to commit Sherman Act violations, also enjoy sufficient income and community status so that they have the opportunities to engage in charitable and benevolent activities.” The court found that Haversat’s activity, while laudable, was not extraordinary as compared to other similarly situated antitrust defendants. In rejecting Haversat’s charitable and volunteer activities as a grounds for a downward departure, the court cited to U.S.S.G. § 5H1.10, which states that socioeconomic status is not relevant to a determination of one’s sentence. The court of appeals noted that but for Haversat’s socioeconomic status, he would not have been able to achieve his worthy record of good deeds.
On the other hand, in United States v. DeMasi, 40 F.3d 1306 (1st Cir. 1994), the government successfully appealed a district court’s downward departure of 29 months in the calculation of a bank robbery defendant’s sentence based on his history of charitable work and community service. The government complained that the court had improperly compared the defendant to “the typical bank robber” and not to other defendants with comparable records of good work. Correctly noting that a § 5H1.11 (p.s.), departure based on a defendant’s record of charitable work and community service falls into the “discouraged-feature” category of justifications for departure, the First Circuit found that the sentencing judge erred by restricting the scope of its comparison to only bank robbery cases holding:
“A court should survey those cases where the discouraged factor is present, without limiting its inquiry to cases involving the same offense, and only then ask whether the defendant’s record stands out from the crowd.” Ironically, although in Haversat, the defendant’s record of charitable and volunteer activities may have been exceptional, the Eighth Circuit did not consider it exceptional when compared to other antitrust violators. Conversely, in rejecting the DeMasi defendant’s downward departure based on the same ground, the court ruled that the defendant should not be compared only with other bank robbers, but with other defendants from all other cases who similarly had commendable community service records.
In any event, the result in both cases was the same-the downward departure based on charitable work and community service was denied.
Finally, in United States v. Kohlback, 38 F.3d 833 (6th Cir. 1994), the district judge also departed downward based on the defendant’s record of community ties, civic and charitable deeds, and prior good works. The defendant, Crouse, was the CEO of a large orange juice distributorship charged with fraud by the Food and Drug Administration for adulterating the product.
The government appealed Crouse’s sentence, arguing that as a white-collar offender, his socioeconomic status enabled him to make extraordinary charitable contributions. Since socioeconomic status is a “prohibited factor” that may not be the basis for a departure, U.S.S.G. § 5H1.10 (p.s.), the government argued that Crouse should not have been able to qualify for a charitable deeds departure.
As in Haversat, the Sixth Circuit here, too, reversed and remanded for a resentencing finding that in the prosecution of similar white-collar crimes involving high-ranking corporate executives such as Crouse, it is not unusual to find that the offender was involved as a leader in community activities and civic organizations. The court specifically noted that the “guidelines already considered the nature of white-collar crime and criminals when setting the offense levels that governed this offense.” (Id. at 839.) And then along came Koon. On October 7, 1996, the Supreme Court granted Crouse’s petition for certiorari, vacated the judgment, and remanded the case to the Sixth Circuit for further consideration in light of Koon. (Crouse v. United States, 117 S. Ct. 39, 136 L. Ed. 2d 3 (1996).)
The court of appeals then remanded the case to the district court for resentencing. On remand, the district court resentenced Crouse exactly as it had sentenced him originally-that is, to 12 months’ probation-concluding “that a significant departure based upon good works … is in fact merited.” The government again appealed, but this time it conceded and the appellate court agreed that civic works were, indeed, a permissible ground for the district court to consider in departing downward. (United States v. Crouse, 145 F.3d 786 (6th Cir. 1998).) (The court of appeals, however, expressed concern with the extent of the downward departure granted to Crouse and vacated and remanded for resentencing.)
In another post-Koon case, the Second Circuit affirmed a district court’s downward departure based on the defendant’s charitable fund-raising efforts and civic accomplishments, as well as his poor medical condition. United States v. Rioux, 97 F.3d 648 (2d Cir. 1996), recognized that while “physical condition and civic, charitable and public service and similar prior good works” are both not ordinarily relevant in determining whether the defendant should receive a downward departure, in extraordinary cases the district court may downwardly depart when a number of factors, which considered individually would not permit a downward departure, combine to create a situation that “differs significantly from the ‘heartland’ cases covered by the guidelines so as to justify a downward departure.” (U.S.S.G. § 5K2.2 Cmt.) In Rioux, while noting that many of the defendant’s public acts of charity were not worthy of commendation, the court, nonetheless, recognized that the defendant had unquestionably participated to a large degree in legitimate fund- raising efforts. This decision stands in stark contrast to United States v. McHan, 920 F.2d 244 (4th Cir. 1990), wherein the court criticized the notion that white-collar criminals “need only write out a few checks to charities and then indignantly demand” sentencing reductions, observing that “the very idea of such purchases of lower sentences is unsavory.” (Id. at 248.) Thus, it would now appear that prior good deeds may include charitable contributions and fund-raising efforts, as well as the contribution of one’s time and efforts towards community service. On the other hand, courts are still likely to look askance at a defendant who writes a $1 million check to the missionary efforts of a Mother Theresa and then seeks a downward departure based on charitable works.
In any event, in light of Koon, civic, charitable, public service, and prior good works should not be overlooked by counsel seeking a downward departure, particularly if they exist in a case in which there is another permissible-albeit discouraged-factor for downward departure. (See, e.g.,Rioux, supra; United States v. Bennett, No. 96-503, 1998 U.S. Dist. LEXIS 7751(E.D. Pa. May 27, 1998) (defendant exhibited exceptional civic, charitable, public service and good works in area of substance abuse, children and youth, and juvenile justice, that, when combined with extraordinary cooperation, restitution, and a mental health “hybrid” departure involving diminished capacity under U.S.S.G. § 5K2.13 and mental and emotional conditions under § 5H1.3 justified substantial downward departure in major fraud case); see also United States v. Wilke, 995 F. Supp. 828 (N.D. Ill. 1998) (homosexual 46-year-old child pornography defendant was granted downward departure based on combination of exceptional community and charitable activities and particular vulnerability to physical abuse while incarcerated).) Indeed,”combination of factors” may be the most important of all post- Koon downward departures.[/vc_column_text][/vc_column][/vc_row]