Summary
In United States v. Kim, 2003 WL 22391190 (S.D.N.Y. Oct. 20, 2003), the court found that Guideline 3A1.2 on its face did not apply to United Nations employees.
Summary of this case from United States v. MalmstromOpinion
03 Cr. 413(RPP)
October 20, 2003
OPINION AND ORDER
Background
On April 3, 2003, the Defendant, Steve Kim, pled guilty, to violating 18 U.S.C. § 112. The information reads as follows:
On or about October 3, 2002, in the Southern District of New York, STEVE KIM, the defendant, unlawfully, willfully, and knowingly, using a deadly and dangerous weapon, assaulted, struck, and offered violence to foreign officials, official guests, and internationally protected persons, and made a violent attack upon such persons and their official premises that was likely to endanger their person, and attempted to do so, to wit, STEVE KIM discharged a .357 handgun on the grounds of the United Nations, hitting the United Nations Secretariat building (Information ¶ 2).
Title 18, United States Code, Section 112, states:
(a) Whoever assaults, strikes, wounds, imprisons, or offers violence to a foreign official, official guest, or internationally protected person or makes any other violent attack upon the person or liberty of such person, or, if likely to endanger his person or liberty, makes a violent attack upon his official premises, private accommodation, or means of transport or attempts to commit any of the foregoing shall be fined under this title or imprisoned not more than three years, or both. Whoever in the commission of any such act uses a deadly or dangerous weapon, or inflicts bodily injury, shall be fined under this title or imprisoned not more than ten years, or both.
Section 112 makes it a felony to violently attack "a foreign official, official guest, or internationally protected person." 18 U.S.C. § 112(a). It also makes it a felony to make a violent attack on an official premises, if it is likely to endanger such a protected person. 18 U.S.C. § 112(a). The defendant made it clear in his plea allocution that he was admitting to the latter. That is, that he was making an attack on an official premises, not an official person.
In his plea allocution, as he had in his statement to the arresting officers and without a lawyer (Gov't. Mem. 9/18/03, Ex. E), the Defendant admitted that on October 3, 2002 he had used a deadly and dangerous weapon (Tr. of hr'g Apr. 3, 2003 at 17 [herinafter Tr. I]). He admitted that he aimed the weapon at the United Nations Secretariat Building, but aimed it at 85 degrees to avoid anyone's injury (id. at 18). The defendant stated, "I thought if I go like that, and I approach as close to the building as much as I can, and I shoot like more than 85 degree angle, I thought nobody can be injured. I don't want anyone's injury." (Id.). He further admitted that he knew there were people in the building and that they were in danger and that his conduct was illegal (Id. at 21). He admitted that his shooting the gun constituted a danger to those people who were in the building (id. at 24-25). The government stated that no further allocution was required (id. at 27).
The Defendant had a permit for the gun which he obtained in Illinois, although he may not have been aware of it, the permit did not allow him to carry the gun in New York. Id. at 19-20; 27.
The terms of the Plea Agreement between the government and the Defendant are in a letter from the government to Defendant's counsel dated March 14, 2003, and signed by the Defendant and his counsel on April 3, 2003 (id at 6). The terms of that agreement are as follows. The base offense level for the crime charged in the information filed by the government is fifteen pursuant to U.S.S.G. § 2A2.2(a). Two levels were added for more than minimal planning pursuant to U.S.S.G. § 2A2.2(b)(1), and five levels were added because a firearm was discharged pursuant to U.S.S.G. § 2A2.2(b)(2), for a total offense level of twenty-two. Finally, three points were deducted pursuant to U.S.S.G. § 3E1.1, Acceptance of Responsibility, by the Defendant. Therefore the adjusted guideline offense level for sentencing was nineteen. Because the defendant had no prior convictions or arrests, the agreement states that Criminal History Category I is applicable.
Under the Plea Agreement, the parties agreed that neither party would seek a departure from the stipulated guideline range of thirty to thirty-seven months, or suggest that the Court, sua sponte, consider such a departure or adjustment (Plea Agreement at 3). The Plea Agreement also acknowledges that the Court is not bound by the guidelines stipulated by the parties (Id. at 4).
On August 19, 2003, the Court received a presentence report from the Probation Office which accepted the stipulated guideline range of the parties. The Probation Office adopted the stipulated range of thirty to thirty-seven months, and recommended a sentence of imprisonment of thirty months, the bottom of the range (Presentence Report at 16).
On September 4, 2003, the scheduled date for sentencing, the Court noted that the Plea Agreement had a stipulated guideline range and the parties had agreed not to seek a departure from that range (Tr. of hr'g Sept. 4, 2003 at 11 [herinafter Tr. II]). The Court asked if there were any grounds for departure (Id.). The defense attorney abided by the Plea Agreement and stayed mute (Id.). The government's attorney stated that he did not believe there was any basis for a departure and stated that making a political statement was not a basis (Id. at 12). After listening to the government's arguments as to why there were no grounds for any departure, the Court stated, "Before I sentence someone, I like to be sure that I haven't overlooked anything," (Id. at 18). The Court gave the government until September 18, 2003 to submit a memorandum showing there were no grounds for departing from the stipulated guideline range and adjourned the sentencing until September 22, 2003 at 10 a.m. (Id. at 23-24).
On September 10, 2003, the Court issued an order requesting the parties to address whether the evidence shows that the Defendant possessed the requisite intent for application of the guideline for "Aggravated Assault" as defined in Application Note 1 of U.S.S.G. § 2A2.2, the parties' stipulated applicable guideline (Order dated Sept. 10, 2003). Application Note 1 to Guideline 2A2.2 is entitled "Definitions" and states:
For purposes of this guideline: `Aggravated assault' means a felonious assault that involved (A) a dangerous weapon with intent to cause bodily injury (i.e. not merely to frighten) with that weapon, (B) serious bodily injury or (C) an intent to commit another felony.
U.S.S.G. § 2A2.2, comment, (n. 1).
After receipt of sentencing memoranda from the parties and review of the cases cited by the parties, the Court announced at the September 22, 2002 adjourned date that its review of U.S.S.G. § 2A2.2 indicated that the offense allocuted to by the defendant did not meet the definition of aggravated assault as defined in U.S.S.G. § 2A2.2 (Hr'g Tr. Sept. 22, 2002 at 7 [hereinafter Tr. III]) and that the background section of the Commentary of U.S.S.G. § 2A2.2 also states, "An assault that involves the presence of a dangerous weapon is aggravated in form when the presence of the dangerous weapon is coupled with the intent to cause bodily injury." U.S.S.G. § 2A2.2, comment, (backg'd.).
Thus, U.S.S.G. § 2A2.2, contrary to the government's position on September 4, 2003, does make a distinction between a terrorist who does intend to inflict bodily injury and a person making a political statement who does not intend to inflict bodily harm.
The offense allocuted to by the Defendant was making a violent attack upon a foreign official's official premises that was "likely to endanger [the official's] person or liberty." 18 U.S.C. § 112(a). Consistent with his statements to his arresting officers, he stated that he did not "intend to cause personal injury," (Tr. I at 18). Rather, he stated that he intended by his acts to make a political statement to bring the tragic conditions suffered by citizens of North Korea at the present time to the public's attention (Id. at 19). Accordingly, the Court stated that it agreed that U.S.S.G. § 2A2.2, although not totally applicable, was the best guideline from which to construct a fair and equitable sentence. However, it was necessary to adjust the offense level of the aggravated assault guideline, U.S.S.G. § 2A2.2, to reflect Defendant's lack of intent to cause bodily harm, and yet to reflect his admitted reckless endangerment of U.N. employees (Tr. HI at 2). To determine the adjustment, the Court that it would look to the proportion between the base levels for the guidelines for Voluntary [intentional] Manslaughter," (U.S.S.G. § 2A1.3) and Involuntary Manslaughter," (U.S.S.G. § 2A1.4(a)), because the differences in the nature of criminal intent reflected in those guidelines seemed applicable to the case at hand (Tr. III at 6-7). The Court also advised counsel of its intention also to apply U.S.S.G. §§ 3A1.2, 5K2., 5K2.5 and 5K2.14 at the time of sentencing, which would, in large part, offset the necessary adjustment for the lack of the required intent under U.S.S.G. § 2A2.2 (Id. at 7). The Court then adjourned the sentencing to October 15, 2003 to allow for written comments from the parties. It has now received those comments.
Discussion
This case requires a departure from U.S.S.G. § 2A2.2 as the crime committed is not with in the heartland of that guideline.
What was overlooked in the prosecution's plea agreement? First, that the Application Note to U.S.S.G. § 2A2.2 states,"`Aggravated assault' means a felonious assault that involved (A) a dangerous weapon with intent to cause bodily injury (i.e., not merely to frighten) with that weapon; (B) serious bodily injury; or (C) an intent to commit another felony." U.S.S.G. § 2A2.2, comment, (n. 1). Subdivisions (B) and (C) are not applicable here.
Second, that "reckless endangerment," which does not involve an intent to do bodily harm, which is what the defendant pleaded guilty to and is what the government accepted as an adequate plea, is no where mentioned in U.S.S.G. § 2A2.2, Aggravated Assault, in its Application Notes, or elsewhere in the Commentary provided for in that guideline. Nor is reckless endangerment, a crime under accepted criminal law, mentioned by the next lower guideline, U.S.S.G. § 2A2.3, Minor Assault. Thus, the crime as disclosed by the evidence presented to this Court is not within the heartland of U.S.S.G. § 2A2.2 or § 2A2.3, an the Court must depart from the guidelines to sentence the Defendant in a just and fair manner.
The government has asserted that this case is analogous to United States v. Daniels, in which the Sixth Circuit found the trial judge had not abused his discretion in applying U.S.S.G. § 2A2.2 to the crime of "damaging a motor vehicle with a reckless disregard for the safety of, human life in violation of 18 U.S.C. § 33." United States v. Daniels, 948 F.2d 1033, 1034 (6th Cir. 1991). The other cases cited by the government involve different scenarios. There were witnesses who could reach conclusions as to whether the defendant, attempting to escape, was driving right at them intending to do bodily harm. In some cases, different parts of the definition of Aggravated Assault in the Application Notes of U.S.S.G. § 2A2.2 apply. In Daniels, the defendant was in a car from which shots were fired at a moving Greyhound bus containing a driver and passengers. Id. One passenger suffered bodily injury. Id. Based on these limited facts, the actions of Mr. Daniels can be distinguished from the actions of Mr. Kim. The risk to human life is greater when shooting at a moving vehicle than when shooting up into the air in front of a stationary office building. In another case involving shooting at a moving automobile, the circuit court found the trial judge had not abused his discretion stating, "[t]he court unassailably found that firing multiple gunshots at an occupied and moving vehicle `is bound to result in hitting a tire, gas tank, person, something that can only be calculated to end up in bodily harm.'" United States v. Page. 84 F.3d 38, 41 (1st Cir. 1996) (quoting the District Court opinion). In that case, Page had personally held a gun to the head of one of the occupants and threatened to kill him. Here the defendant made an immediate statement to the arresting officers — without requesting a lawyer — that is consistent with his plea allocution. He acknowledged that his arm got tired while he was discharging seven shots into the air and, that he had been unable to keep firing at the planned angle. He also expressed relief that the bullets had hit no one. Here, the Court finds that aiming a gun at eighty-five degrees in front of an office building is not bound to result in bodily harm. Thus, the Court finds a strict application of U.S.S.G. § 2A2.2 is inappropriate in this case.
To ensure that the proposed sentence is fair — in the words of Gilbert and Sullivan, "to make the punishment fit the crime," — the Court first looks to the ratio between the base levels of the analogous crimes of voluntary and involuntary manslaughter. Pursuant to U.S.S.G. § 2A1.3, voluntary manslaughter has a base level of twenty-five, and, like U.S.S.G. § 2A2.2(A) requires an intent to cause bodily injury. Pursuant to U.S.S.G. § 2A1.4, involuntary manslaughter does not require intent to cause bodily injury, but requires either criminally negligent behavior (for which the base level is ten) or reckless behavior (for which the base level is fourteen) a difference of eleven levels. Thus the ratio of the base levels for manslaughter with intent to cause bodily injury and manslaughter with reckless behavior is twenty-five to fourteen (25:14). The Court then applies this ratio to the base-level for aggravated assault in order to calculate a proportionate base-level for an assault with reckless behavior. The new base-level as determined by the Court is nine.
14/25=x/15;25(x)=210; x=9
The Court adds to the adjusted base level as follows. Two levels are added for more than minimal planning as stated in U.S.S.G. § 2A2.2(b)(1) (the defendant clearly planned his actions) and five levels are added for discharge of a gun pursuant to U.S.S.G. § 2A2.2(b)(2)(A), as was provided in the prosecution's plea agreement.
However, the prosecution's calculation failed to make any adjustment for the nature of or the harm to the victims involved. Here, the victims were several U.N. employees (one of whom evidently suffered psychological injury). Although U.N. employees are not included in U.S.S.G. § 3 A. 1.2, the Guideline for official victims, the Court finds the Sentencing Commission would have included such persons as the equivalent of government employees had that fact scenario been presented to them. Accordingly, the Court adds three levels. U.S.S.G. § 3A1.2.
In addition, the Court determines that it should take into account property damage (U.N. windows were destroyed), extreme psychological injury (at least one U.N. employee required counseling), and possibly the endangerment of public safety (bullets could land in crowded area).See U.S.S.G. §§ 5K2.5, 5K2.3, 5K2.14. None of these guidelines suggests a specific offense level adjustment. The prosecution's plea agreement makes no adjustment for these three factors. The application of U.S.S.G. § 5K2.3 (government employee victim) and U.S.S.G. § 3A1.2 (psychological injury to victim) might be considered double counting. Nevertheless, considering these three guidelines, the Court increases the base level by two additional levels. Thus the adjusted offense level is twenty-one.
Lastly, the Court deducts three levels — as did the prosecution's plea agreement — for the Defendant's acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, leaving a guideline level of eighteen. Since the Defendant has no criminal history points, the guideline range is twenty-seven to thirty-three months. Accordingly, the Court sentences the Defendant to twenty-seven months in prison and three years of supervised release. The defendant does not have assets with which to pay a fine, so there will be no fine other than the mandatory special assessment of $100.00. [conditions of Supervised Release and imposition of fine of $6,000.00 as recommended by Probation Office]
Because this case has received media attention, I am taking the occasion to point out that the degree to which members of the Court are being squeezed between adherence to their moral consciences and these Guidelines: on the one hand, we must sentence in accordance with the law, yet as members of whatever religious group we may belong to, we must render a fair and just sentence based on the unique facts with which we are sometimes confronted. The Sentencing Commission in its forward to the Guidelines recognized this when it pointed out that there would be cases which are "out of the heartland." United States Sentencing Commission Guidelines Manual at 6. In recent years, however, members of Congress have been engaged in a sustained effort to limit the trial judge's traditional role in sentencing as an independent dispenser of fair and just sentences based on the facts and circumstances in each case. Representing an independent branch of government, federal trial judges have been a bulwark of justice standing between powerful governments and the individual. Although Congress has a legitimate interest in determining the range of sentence for each particular crime, it is the trial judge, and not the legislator, who has the opportunity to examine in depth the facts of each specific case and of each particular defendant.
Historically, legislatures have suggested ranges of sentences for crimes and judges have applied them to individual cases. There is a tension between the uniformity and predictability desired by legislatures and the discretion of trial judges to evaluate particular cases. See Mistretta v. United States, 488 U.S. 361, 366 (1989). In 1984, Congress attempted to address this tension by establishing the Sentencing Commission and empowering it to develop Sentencing Guidelines, in order to ensure certainty and uniformity in the sentencing of federal criminal defendants. See id. at 367. The Commission consisted of seven members, at least three of which are federal judges, the remainder have tended to be probation officers, academics, criminologists and philosophers. 28 U.S.C. § 991 (a) and Mark Allenbaugh, Who's Afraid of the Federal Judiciary? Why Congress' Fear of Judicial Sentencing Discretion May Undermine a Generation of Reform, Champion, June 2002, at 12.
Before the 2003 amendments were enacted, the Commissioners themselves, as well as the U.S. Supreme Court, recognized that in every type of crime trial judges have discretion to depart from the Guidelines in cases which are atypical and unforeseen by the Sentencing Commission, in other words cases which fall outside the heartland of the guidelines. See United States Sentencing Guidelines Manual at 6 and United States v. Koon. 116 S.Ct. 2035, 2051 (1996). This case is an example of such an "atypical" and "unforeseen" crime — a crime not foreseen by the guidelines formulated by the Sentencing Commission. The defendant's act of endangering lives, while not intending to cause bodily injury, was not within the heartland of cases covered by the U.S.S.G. § 2A2.2, and I had to use my discretion to make a just downward departure.
In 2003 Congress passed amendments to the U.S.S.G. make it more difficult for judges to provide downward departures. In doing so, Congress departed from the previous practice of getting recommendations from the Sentencing Commission. The legislation eliminated nine provisions of the Sentencing Guidelines and effectively overruled dozens of federal appellate court decisions, including the U.S. v. Koon, the leading Supreme Court case construing the Guidelines as the Guidelines applied to offenses affecting children. Alan Vinegrad,The New Federal Sentencine Law. Federal Sentencing Reporter 310, 315 (June 2003). Furthermore., appellate courts can now review sentencing decisions de novo rather than under the previous standard, which recognized the trial judge's unique familiarity with the facts and to evaluate the credibility of the witnesses and which required a finding of abuse of discretion by the trial judge. The legislation now also prohibits the Sentencing Commission from changing any guideline which allows downward departures for the next two years. Id at 314.
In passing these measures, certain members of Congress evidently reacted in a knee-jerk fashion to a March 11, 2003 statement by Associate Deputy Attorney General Daniel P. Collins charging that, sinceKoon, trial judges were increasingly departing from the guidelines in cases where the defendant did not cooperate by sufficient acts and information to meet with the prosecutor's satisfaction. See The Child Abduction Prevention Act and The Child Obscenity and Pornography Prevention Act of 2003: Hearing on H.R. 1104 and H.R. 1161 Before the House Subcomm., on Crime, Terrorism, and Homeland Sec., Committee on the Judiciary, 108th Cong. (2003) (statement of Daniel P. Collins Assoc. Deputy Att'y Gen.).
As Mr. Vinegrad, until recently the U.S. Attorney for the Eastern District of New York, states:
On average, since Koon, district judges have downwardly departed in [non-cooperation and non-fast track] cases only 12.2% of the time. This low rate of departure is entirely consistent with the original expectation that departures under the guidelines would be infrequent."Id, Further in the year ending September 30, 2001, the Justice Department succeeded in 79% of their appeals from the departures that they contested. United States Sentencing Commission, 2001 Source Book of Federal Sentencing Statistics, at Table 58. It is noteworthy too that the Justice Department, found only nineteen departure sentences worthy of appeal in that period. Id. In contrast, the defense appealed departures in 340 cases and only succeeded in 4.5% of the appeals. United States Sentencing Commission,2001 Source Book of Federal Sentencing Statistics, at Table 57. The former U.S. Attorney concludes, "this is hardly a state of affairs that warranted sweeping and one-sided sentencing reforms." Vinegrad at 314.
By letter dated April 2, 2003, the Sentencing Commission stated this rate of departures was 10.2%. Letters to Congress from Sentencing Commissioners, Judicial Conference and Chief Justice Rehnquist. Federal Sentencing Reporter 310, 341 (June 2003).
The 2003 so-called reforms were speeded through the legislative process without input from the federal judiciary, the organized bar, academics, criminal justice experts, probation officers, prison officials or even the Sentencing Commission itself. Vinegrad at 314. These drastic changes quickly passed, because they were appended to legislation concerning child abduction that no politician would want to oppose. Id Vinegrad states, "Surely, nationwide sentencing reform of the magnitude contained in this statute deserved far more deliberate consideration than this." Id.
In their latest attack on the third branch of the government, Congress not only attempted to restrict the ability of trial judges to impose fair sentences based on the particular facts presented in each case, but also restricted the participation of judges as members of the Sentencing Commission to not more than three, thus, to possibly none. Id. at 314. Congress also required that the Department of Justice report to Congress all cases in which the trial judge departs from the guidelines in non-cooperation cases. Id. at 311, 313. Evidently, Congress sought to deter any departures by the implicit threat to trial judges that, if they are considered for appellate positions, they will be subjected to the type of demeaning and unseemly treatment which nominees to the courts of appeals have undergone at the hands of Congress in recent years.
The requirement that such departures be reported to Congress overlooks the obvious fact that trial judges are more qualified to determine a proper sentence than the assistant U.S. attorneys making the reports. U.S. attorneys already have immense power in the criminal justice process under the Sentencing Guidelines. In plea agreements, prosecutors determine what offenses are charged and what facts are stipulated. "Given that over 90 percent of federal criminal cases are the result of plea agreements, the plea negotiation process essentially has become a sentencing negotiation." Allenbaugh at 8.
Trial judges have many more years of experience in sentencing, both under the United States Sentencing Guidelines and prior thereto, than the Assistant U.S. Attorneys (AUSA). Each trial judge sentences far more defendants in a year, than an individual AUSA prosecutes. Thus, the report on departures required by Congress are by a party less competent, less familiar with, and less involved in, the difficult decisions which the sentencing judge must make under the guidelines to perform the traditional role of an independent, fair and just arbiter. If, as a result of Congress' increasing pressure to eliminate any departures from the Guidelines, trial judges' sentencing decisions do not comply with the basic tenets of fairness and justice, the confidence of our citizens that the courts play an independent and fair role in the dispensation of justice will be diminished or lost. Then our system of justice will be regarded as subservient to the other branches of government — the system that prevailed for so many years behind the Iron Curtain.
At the request of defense counsel, the Court recommended to the Bureau of Prisons that the Defendant be confined at Fort Dix, New Jersey provided that the facility provides the mental counseling that the defendant requires.