FRANK MALTESE
UNITED STATES OF AMERICA, Plaintiff, v. FRANK MALTESE,
Defendant. Case No. 90 CR 87-19 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION 1993 U.S. Dist. 8403 June 18, 1993, Decided June 22, 1993, Docketed JUDGES: [*1] Williams OPINION BY: ANN CLAIRE WILLIAMS
OPINION: MEMORANDUM OPINION AND ORDER
On October 4, 1991, defendant Frank Maltese pleaded guilty to Count 2 of the superseding indictment, charging him with illegal gambling conspiracy in violation of 18 U.S.C. @ 371. Defendant now brings this motion objecting to certain calculations in the probation officer’s presentence investigation report (“PSI”).
The PSI currently provides that defendant’s total adjusted offense level is 14 and his criminal history category is I. Defendant argues that he should receive a two point reduction for acceptance of responsibility pursuant to U.S.S.G. @ (“Section”) 3E1.1 and should receive a downward departure because of his poor health pursuant to Section 5H1.1.
In its response to defendant’s motion, the government seeks an upward departure for obstruction of justice pursuant to Section 3C1.1. For the reasons stated below, this court finds that defendant should not receive a two point reduction pursuant to Section 3E1.1 and should receive a two point enhancement pursuant to Section 3C1.1. The addition of this enhancement brings defendant’s total adjusted offense level up to 16 and his criminal [*2] history category remains I. These calculations correspond to a sentencing range of 21-27 months.
This court also finds that defendant is entitled to a downward departure pursuant to Sections 5H1.1 and 5H1.4 because of defendant’s age and the fact that he is in extremely poor health.
Background
Beginning in the second half of 1986, defendant was involved with the Ferriola Street Crew’s illegal gambling business which was operated by defendant Rocco Infelise and managed by defendant William Jahoda. In the summer of 1986, defendant sought permission from Infelise to take over the betting customers of another bookmaker and have these customers place wagers with the crew on horse races and sporting events. Maltese also sought permission to have his son pay off winning and collect from losing bettors. After receiving Infelise’s permission, Maltese’s new customers began placing bets with the crew.
As an agent of the gambling operation, defendant received approximately 25% of his customers’ net losses. Defendant generally settled up his customers’ bets with Infelise, but at least on one occasion defendant obtained money from defendant Paul Spano to pay his winning bettors. Defendant [*3] also was given wagering paraphernalia by Infelise.
During the time that he acted as a 25% agent of the operation, Maltese was serving as the assessor for Cicero, Illinois. Defendant used this elected political position to assist crew members in their illegal activities. For example, defendant provided crew members with advance warnings about police raids. In the summer of 1986, defendant warned Infelise of a police raid on a tavern owned by William Jahoda’s brother, Danny Jahoda. Infelise passed this information on to William Jahoda.
Also, in the summer of 1986, defendant introduced Infelise to Steve Bajovich, the corrupt liquor commissioner for Cicero, so that Infelise could control the issuance of liquor licenses. Prior to that time, Bajovich had an agreement with Bucky Ortenzi, a close associate with convicted outfit boss Joseph Aiuppa, whereby Ortenzi paid Bajovich a monthly bribe in return for Ortenzi having the right to veto the issuance of a liquor license. Ortenzi told Bajovich that if anything happened to him, someone would see him about the liquor licenses. After Ortenzi’s death in June 1986, Maltese told Bajovich that someone wanted to talk to him and arranged a meeting [*4] with Infelise. During this meeting, Infelise arranged to continue Bajovich’s bribe in return for control over the issuance of liquor licenses. Maltese was present during the initial part of this meeting.
In the fall of 1986, the FBI began an investigation into Bajovich’s activities. During the investigation, Bajovich met with Maltese to find out what Maltese knew about it. Bajovich told Maltese that he was taking monthly bribes and skimming money off liquor license renewal application fees. Maltese told Bajovich to wait and see what happened. Maltese subsequently set up a meeting between Infelise and Bajovich during which Infelise told Bajovich to stop taking the renewal fees. Instead, Infelise gave Bajovich approval to solicit bribes from new liquor license applicants. Maltese also kept Infelise informed about the Bajovich investigation. And, after Bajovich was forced to resign, Maltese’s common law wife was appointed to Bajovich’s position. n1
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n1 Bajovich was subsequently convicted of income tax and other violations. He is currently serving a ten year sentence.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[*5]
Maltese also acted as the go between in the crew’s attempt to bribe two judges assigned to a criminal case against Jahoda. In February 1988, Jahoda was arrested for operating a black jack game. n2 Shortly after his arrest, Infelise told Jahoda that since the case was in Cook County, Illinois, they would “take care of it.” Since the first judge assigned to the case, Christy Berkos, had ties to Cicero, Infelise told Jahoda that something could be done to take care of the case. During a meeting between Maltese, Infelise, and Jahoda during the summer of 1988, Maltese told them that he had been to Berkos’ house the night before and Berkos was holding out for a trip for two to Hawaii. However, in early 1989, Berkos recused himself from the case stating that he knew Jahoda’s brother.
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n2 This black jack game was controlled by Infelise.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
Berkos contends that sometime in 1988, Maltese called him at home, saying that he needed to talk to him about something. While Berkos knew Maltese from political functions, Maltese had never [*6] contacted him before either at the office or at home. When Berkos asked Maltese what he wanted, Maltese said he could not talk on the telephone and asked Berkos to meet him for coffee. Berkos refused to meet Maltese and said that if Maltese wanted to talk to him about a pending case, Berkos would have to summarize their conversation on the record before a court reporter the next day. Maltese responded: “That’s okay,” and never contacted Berkos again.
Berkos contends that he received an anonymous phone call shortly thereafter from an individual saying that he wanted to do Berkos a favor. The caller told Berkos that Berkos was presiding over a gambling case involving William Jahoda, the brother of Danny Jahoda whom Berkos knew. It was after this phone call that Berkos recused himself from Jahoda’s case.
Thomas Hett, the next judge assigned to Jahoda’s case, also recused himself because he knew a member of Jahoda’s family. In mid-April 1989, Hett was approached by Frank Belmonte, the Democratic Committeeman from Cicero and an administrative employee of the Circuit Court of Cook County, regarding Jahoda’s case. Belmonte asked Hett if he had Jahoda’s case, but Hett, who was still unaware [*7] of the reassignment, said he did not have the case. Hett recused himself at the next scheduled status call. When Jahoda told Infelise about it, Infelise said that Hett would have received $ 7,500 for taking care of the case.
Belmonte is a long term friend of Maltese. Belmonte told the FBI that he ran into Maltese one night in the spring of 1989 and Maltese asked him to find out if Jahoda’s case had been assigned to Hett. Belmonte said he would try to find out. As described above, Belmonte contacted Hett the next day. After talking to Hett, Belmonte called Maltese to tell him that Hett did not have Jahoda’s case.
When Jahoda’s case was reassigned to a third judge, Infelise told Jahoda that Pat Marcy would approach the new judge. The case was eventually dismissed by the state.
The Objections to the PSI
In Paragraph 8(b) of the plea agreement, the government and defendant agreed to disagree as to whether defendant has demonstrated an acceptance of responsibility for his conduct warranting a reduction under Section 3E1.1. The probation officer determined that defendant was not entitled to this reduction because “it appears as though Maltese’s participation was much more significant [*8] than the defendant cares to admit.” PSI at 5, lines 173-75. Rather than merely agreeing to make inquiries for Infelise as defendant claimed, the probation officer found that defendant “actively participated in the instant offense by alerting his codefendants of police raids in Cicero, and contacting Judge Hett and Berkos for the purpose of fixing a criminal case for Codefendant Jahoda.” PSI at 5, lines 178-181. Defendant contests this determination.
Section 3E1.1 provides that a defendant should receive a two point reduction in his offense level for clearly demonstrating acceptance of responsibility for his offense. According to Application Note 1 to Section 3E1.1, among other factors, truthfully admitting the conduct comprising the offense of conviction and truthfully admitting and not falsely denying any relevant conduct for which defendant is accountable should be considered when determining whether such a reduction is appropriate. U.S.S.G. @ 3E1.1, Application Note 1; United States v. DeFelippis, 950 F.2d 444, 447 (7th Cir. 1991).
Factual matters pertinent to the application of the Sentencing Guidelines must only be proven by a preponderance of [*9] the evidence. United States v. Villasenor, 977 F.2d 331, 336 (7th Cir. 1992); see also United States v. White, 888 F.2d 490. 499 (7th Cir. 1989). In this instance, defendant has admitted that he agreed to assist Jahoda and Infelise in contacting the first two judges assigned to Jahoda’s case. However, defendant claims that he never contacted either judge. Upon careful review of the evidence presented by the government, this court is persuaded that sufficient evidence has been presented to prove by a preponderance of the evidence that defendant directly or indirectly contacted Judges Berkos and Hett.
For example, Jahoda testified, in pertinent part, to the following at trial:
Q And let me direct your attention back to the summer of 1988. Did you have an occasion to have a conversation with Mr. Infelise with respect to the disposition of this case in Cook County?
A I had dozens of conversations with Mr. Infelise concerning this case.
* * *
Q And what was the general nature of the conversation?
A At this particular time a judge had been assigned to the case. Rocky said he was very happy that this particular [*10] judge was assigned.
Q Did he say why?
A Yes, because he had ties in Cicero, and Roc said we had influence with this particular judge.
Q And did anyone have any assistance in this influence with the judge?
A We had a meeting that summer. I think it was the Mother’s Day restaurant in Berwyn. The purpose was to discuss this case between myself, Infelise, and the Cicero politician, Frank Maltese.
Q Now, is this the same Frank Maltese that was an agent of the business in 1986?
A Correct.
* * *
Q Now, did you have an occasion to have a conversation with Mr. Maltese and Mr. Infelise at this particular time concerning the Cook County case?
A Yes, I was present at the table. I didn’t have too much input. I was doing more listening than talking.
Q And what did Mr. Maltese and Mr. Infelise say to each other at this particular meeting?
A Maltese said that he was with the judge the night before, and what the judge wanted to take care of the case were two round trips to Hawaii. Rocky’s response was if he takes care of us we’ll send him first-class.
Q And by that did you understand that to mean fixing the case?
A Absolutely.
* * *
Q And did this judge dispose [*11] of the case?
A No, he did not. Well, he did dispose of it in a particular sense. Well, he recused himself from the case. He distanced himself from the case.
* * *
Q Now, was a new judge assigned to the case when the first judge got out of the case?
A Yes, he was.
* * *
Q And did you discuss the new judge with respect to the disposition of the case?
A Yes.
Q And what did you say to Mr. Infelise and what did he say to you?
A These were a variety of conversations that took place in early ’89. Roc said somebody had talked to the new judge and he had a — he had political influence in Berwyn at one time, and Roc told me that this judge would agree to toss the case out in exchange for $ 7,500.
Q Now, when you say he had political influence in Berwyn who was the person that had political influence?
A The judge. He was a former mayor of the community.
Q And did Mr. Infelise indicate to you if he had any assistance in trying to contact this judge?
A It was coming from the same spot, from Frank Maltese.
Q Mr. Maltese?
A Correct.
Q Now, did the second judge, to your knowledge, take the money and dispose of the case?
A He did neither, to my knowledge. [*12]
Q What happened?
A Very shortly before this recording, in early May of 1989, the judge recused himself from the case saying that he personally knew me.
* * *
Q Now, did you come to learn whether Mr. Infelise had anyone that was attempting to contact the third judge?
A Yes, I did.
Q And when did you learn who this individual was?
A Several months before at a breakfast meeting that Infelise had and I had at Andrea’s restaurant, when the third judge was assigned, he said he would take care of it the third time around; it would no longer be Maltese’s job; that Rocky was going to get involved with his guy who he named at that particular meeting.
Q Who is that?
A Pat Marcy.
(Tr. 849-853, Dec. 18, 1991, 9:45 p.m.). n3
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n3 Jahoda also testified at trial to the following:
Q There is a reference by Mr. Infelise to someone named Neville or Neville.
A Yes, sir.
Q Who is that?
A Judge, I believe his first name is Richard, Neville, the third Cook County judge assigned to the blackjack case.
Q And he also refers to an individual named Chris Berkos. Who is Chris Berkos?
A An ex-Cicero politician who is also the first judge that this case was assigned to.
Q And you — there’s a reference by him to a Baldy. Who is the Baldy in the context of this conversation?
A The linkage, the tentative fixer in the first case, Frank Maltese, the town assessor of Cicero.
(Tr. 977, Dec. 19, 1991 2:00 p.m.).
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[*13]
Jahoda’s testimony is corroborated by two tape recorded conversations between Infelise and Jahoda. On August 17, 1989, the following conversation, in pertinent part, between Infelise and Jahoda was recorded at Andrea’s restaurant:
Infelise: No, (inaudible) you had two different judges. More fucking heat on this case.
Jahoda: It’s a high profile case?
Infelise: It’s nothing.
Jahoda: Yeah, it is nothing. I can’t even remember the name of that judge we got now.
Infelise: Neville?
Jahoda: Neville? Yeah, Neville, yeah. Cuz he was on vacation last time we were in. . . .
Infelise: I talked to that (inaudible) already.
Jahoda: Good.
Infelise: Motherfucker, Christ Berkos used to have all the insurance in Cicero; right, his company, you know, his law firm.
* * *
Infelise: I told Baldy [Maltese] to tell the old man, give, give it to somebody else.
* * *
Infelise: The second guy.
Jahoda: He never sat down.
Infelise: (Inaudible). I said, listen, he’s a fucking liar? Because he already knew the names in front when the guy went to him. Baldy [Maltese] came to me, Bill Jahoda and all, you know. No problem. He said no problem.
Government Exhibit 415 [*14] at 15-17. Approximately two weeks later, Infelise and Jahoda had the following conversation:
Infelise: Well, he really didn’t come into the picture until this, this guy here took over. The other two, the other two guys come out of our town. Follow me?
Jahoda: OK.
Infelise: Now this mother fucker, well, I got even with the one mother fucker already.
Jahoda: Yeah, the judge, I mean the first one, the insurance guy [Berkos].
Infelise: Yeah. The other guy when he comes up for redemption or whatever the fuck they call it.
Jahoda: Yeah. Retention.
Infelise: He’s going to get retention alright.
Jahoda: Oh, I though this guy was in it from the start. I thought . . .
* * *
Jahoda: No, I thought is was . . . from Baldy [Maltese] to . . .
Infelise: He was, he was the top coordinator, but these guys knew these guys better, so he told me go through the Cicero guys on this, you know, on this because the other guy belonged to him, the first guy. And the second guy was from Berwyn, you know. Now . . .
Jahoda: I wish the fuck they’d make up their minds. Going from, what was the first one, a trip to Hawaii? The second one was six bits.
Government Exhibit 421 [*15] at 26.
In addition, the government has submitted the sworn statements of Judges Berkos and Hett. While both judges deny having been offered bribes, they both have indicated that they had unusual contacts regarding Jahoda’s case. According to his statement, Berkos received a telephone call at home from Maltese sometime in 1988. Berkos found the phone call to be very unusual because Maltese had never called him before at home or at his office. Berkos then explained:
Maltese asked if he could talk with me about something. I asked Maltese what he wanted to talk to me about. Maltese said that he could not talk about it over the phone and asked that I meet him for coffee that morning. I told Maltese that I could not meet with him. I told Maltese if he wanted to talk about a case pending before me that I could not do that and that I would have to put any contact I had with him about the case off the record before a court reporter the next morning. Maltese said okay. I never heard from Maltese again about this incident.
Statement of Christy Berkos at 3-4.
According to Hett’s sworn statement, he also knew Maltese from events such as political functions. In the spring of 1989, Hett [*16] was approached by Frank Belmonte and had the following conversation:
After exchanging greetings, Belmonte said words to the effect that, “You have the Jahoda case.” I replied that I did not have the Jahoda case. Belmonte told met that Jahoda was a friend of his. I again said that I did not have the Jahoda case. I was aware of the Jahoda case from conversations with other judges at the criminal court at 26th and California. Jahoda was considered a “hot” case because of the publicity. After I reiterated to Belmonte that I did not have the Jahoda case, Belmonte entered Novi’s, had a sandwich and left without any further conversation.
A few days later, Hett learned that he had been assigned Jahoda’s case. Statement of Judge Thomas Hett at 3.
Belmonte was interviewed by the FBI about this contact with Hett. Belmonte explained during this interview that he and Maltese were long-time friends. Belmonte recalled running into Maltese in the spring of 1989 and being asked by Maltese if Jahoda’s case had been assigned to Hett. According to Belmonte, Maltese asked him if he could find out if this was true, but Maltese did not explain why he wanted to know this information. Belmonte [*17] agreed to find out for him. The next day, Belmonte had the above described conversation with Hett. Belmonte subsequently called Maltese and told him that Hett said he was not assigned to Jahoda’s case. n4
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n4 FBI Interview of Frank Belmonte at 2-3, Government’s Response to Defendant’s Objections to the Sentencing Guidelines Calculations as Contained in the Presentence Investigation Report.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
Such extensive evidence amply proves by a preponderance of the evidence that defendant contacted or had Judges Berkos and Hett contacted regarding Jahoda’s case. This is all that is required to rely on such evidence at sentencing. See Villasenor, 977 F.2d at 336. As the government suggests, defendant’s denial of such conduct to the probation officer demonstrate that defendant has not adequately accepted responsibility for his actions as required to receive a reduction under Section 3E1.1.
The government contends that defendant also made materially false statements to the probation officer regarding [*18] his role in the crew’s illegal gambling business. The probation officer described defendant’s version of his role in the instant offense, in pertinent part, as follows:
Mr. Maltese admits that he contacted Infelise regarding a request made by Anthony Ritello, a bookmaker who wanted the defendant to contact Mr. Infelise regarding the furtherance of his (Ritello) illegal gambling business. The defendant admits that he agreed to contact his co-defendant, Mr. Infelise for Mr. Ritello, but his involvement ceased after he made the initial contact.
PSI at 2, lines 58-64. After reviewing the evidence presented, this court agrees with the government that defendant’s explanation of his role contradicts his plea agreement and his sworn testimony at his plea proceeding.
As the government suggests, defendant admitted to having a more personal involvement in the crew’s illegal gambling business than his statements to the probation officer would make it appear. For example, defendant’s plea agreement explains defendant’s role as follows:
In the summer of 1986, the defendant asked Infelise’s permission to take over the betting customers of another bookmaker, and utilize the Infelise [*19] wagering operation for these customers to place wagers on horse races and sporting events. The defendant also asked Infelise’s permission to utilize the defendant’s son to service — that is, pay winning customers and collect from losing customers — bettors who placed wagers with the operation. After Infelise approved the defendant’s participation in the wagering operation, the defendant had his wagering customers place their wagers directly with phone clerks employed by the Infelise wagering business. This business used code names for its agents, and the defendant’s code name for the business was “Bones.” As an agent, the defendant received from the Infelise operation 25% of his customers’ net losses; the defendant did in fact receive his 25% commission from net losses towards the end of the 1986 football season. The defendant generally settled with Infelise — that is, turned in players’ losses, or receive money to pay winning players — on a weekly basis, but on at least one occasion, the defendant received $ 5,677 from Paul Spano at Flash Trucking to pay winning players for the week. The defendant also received wagering paraphernalia from Infelise, such as Doc’s sports journals [*20] to provide his customers to assist them in placing wagers.
Plea Agreement at 2-3, P 5(b). And, at his plea proceeding, defendant and his attorney, Alan Brunell, gave the following explanation of defendant’s role in the illegal gambling operation:
Defendant Maltese: At the time I — he (Ritello) says, “Could you contact somebody?” At that time I contacted Infelise, Rocco Infelise, to tell him that this fellow had this business. he wants to give it up because he’s sick and he doesn’t have a place to give them their bets.
* * *
Defendant Maltese: So that’s how — how that started.
And then during this different meetings back and forth this started, as I said, for about five months. I got involved — I got involved because there was some payments to be made. And because I was the one that made the contact, I was like the go-between.
And then I — at times I used my son.
* * *
Mr. Brunell: Judge, if I can, Because I think we’re going around. If I can make a statement and we can go.
The Court: Go ahead.
Mr. Brunell: Well, what was happening is there were meetings from time to time, and he would, in fact, pick up moneys from Mr. Infelise or Mr. Spano on a different [*21] occasion or make arrangements for moneys to be picked up for players to be paid or money that were collected.
The Court: Is that true?
Defendant Maltese: Yes, yes.
* * *
Mr. Brunell: We understand English, but we’re trying to be precise in what he did and didn’t do.
And there were many occasions when he would make arrangements for something to be picked up either from Jahoda, either like scratch sheets, slough sheets or schedules.
Defendant Maltese: Different paraphernalia.
Mr. Brunell: Sometimes he picked them up; sometimes he had other people pick them up.
But he did, in fact, oversee this football season’s worth of activity from the beginning of football until the raid in December, but he was not involved in all the day-to-day operations.
The Court: Okay. And then do you recall this — do you recall either you meeting or one of your people meeting with Spano and receiving this [$ 5,677]?
Defendant Maltese: I recall a conversation that I had and that it was picked up by someone else. I said that I would send somebody up there, but someone else picked this up.
(Tr. 33-39, Oct. 4, 1991).
Defendant also denied to the probation officer that he received [*22] a commission or made a profit in this illegal gambling business. See PSI at 2, lines 81-82. Once again, this statement is directly contradicted by defendant’s plea agreement and his testimony at his plea hearing. Defendant’s plea agreement clearly states:
As an agent, the defendant received from the Infelise operation 25% of his customers’ net losses; the defendant did in fact receive his 25% commission from net losses towards the end of the 1986 football season.
Plea Agreement at 2, P 5(b). Moreover, at his plea proceeding, defendant and his attorney confirmed that defendant received such a commission:
Mr. Brunell: Judge, if I can just interject one thing and you can clarify it by questioning.
He’s not disputing the receipt of money, but if it was actually 25 percent. He doesn’t — won’t say that it was exactly because he’s not sure. He received moneys, and I’ll let him go on. But when it says 25 percent, that was a standard. But he could not tell you that when he did, in fact receive was exactly 25
The Court: So he can’t verify it?
Mr. Brunell: But it was, in fact, the general understanding that that was what it was going to be, but he never kept a total [*23] so if you compared one to another it was exactly 25 percent.
* * *
The Court: So you agree with that?
Defendant Maltese: Yes.
The Court: That you know it was a percentage, or you were supposed to get some portion?
Defendant Maltese: Yes.
The Court: And what you’re saying is you didn’t run — like an accountant, you didn’t run to make sure you got that. That’s why you can’t tell me it’s exactly 25 percent.
Defendant Maltese: Well, not only that, Your Honor, but it stopped abruptly because of the raid and everything ceased. We didn’t continue on. And we never kept a — like you say, a running total of any — any moneys.
(Tr. , Oct. 4, 1991).
Such evidence amply demonstrates that defendant sought to minimize his role in the instant offense and his culpability when speaking to the probation officer. Defendant did not admit to the full extent of his involvement in the crew’s illegal gambling operation. Despite the fact that the above described evidence is sufficient to prove defendant’s involvement by a preponderance of the evidence as required at sentencing, defendant did not admit to contacting or having two judges assigned to Jahoda’s case contacted in [*24] an attempt to fix the case. Nor did defendant fully admit to his role as a 25% agent for the gambling operation. Defendant’s failure to admit the full extent of his involvement and his attempt to minimize his role to the probation officer does not demonstrate sufficient acceptance of responsibility to warrant a reduction pursuant to Section 3E1.1. See U.S.S.G. @ 3E1.1, Application Note 1; DeFelippis, 950 F.2d at 447. Therefore, defendant’s objection to the probation officer’s failure to assign him this reduction is denied. n5
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n5 Despite his claim to the probation officer that he did not earn any money from the gambling business, defendant now argues that he claimed he did not earn any money because he gave the money to his son. As the government suggests, it is immaterial whether defendant kept the money or gave it to his son. Regardless of what defendant chose to do with the money, the evidence sufficiently demonstrates that defendant earned money from the gambling operation.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
The [*25] government also argues that defendant should receive a two point enhancement pursuant to Section 3C1.1 because he provided false information to the probation officer in connection with the preparation of the PSI. Section 3C1.1 provides:
If the defendant willfully obstructed or impeded, or attempted to obstruct or impede the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.
Application Note 3(h) to Section 3C1.1 specifically states that “providing materially false information to a probation officer in respect to a presentence or other investigation for the court” constitutes the type of conduct to which the obstruction of justice enhancement applies. This court has already determined that defendant made various false or misleading statements to the probation officer preparing the PSI. Therefore, this court finds that defendant should receive a two point enhancement pursuant to Section 3C1.1 as the government suggests. n6 This brings defendant’s total adjusted offense level up to 16 and defendant’s criminal history category remains at I.
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n6 This determination provides an additional basis for this court’s determination that defendant should not receive a two point reduction pursuant to Section 3E1.1 for acceptance of responsibility. As Application Note 4 to Section 3E1.1 explains, “conduct resulting in an enhancement under @ 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.”
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[*26]
Finally, defendant argues that this court should downwardly depart pursuant to Sections 5H1.1 and 5H1.4 because defendant is in extremely poor health. Defendant is 62 years old and has suffered from liver cancer since October 1992.
Despite surgery and chemotherapy, his prognosis remains poor. According to his treating physician, John M. Shaw, M.D., the majority of patients with this condition do not live one year despite postoperative therapy. Given defendant’s age and extraordinary health problems, defendant argues that a downward departure is appropriate in this instance.
While the government agrees that defendant’s health problems should be taken into consideration, the government claims that this does not necessarily mean that a downward departure is appropriate. The Bureau of Prisons is equipped to undertake the care and treatment of virtually any medical problem an inmate may have during the course of his incarceration. This includes care and treatment for cancer. According to Dr. Teresa Jensen, a doctor employed at the Federal Medical Center (“FMC”) in Rochester, Minnesota, this facility has contract oncologists available and is associated with the Mayo Clinic. Inmates housed [*27] at the FMC can receive chemotherapy and other medical treatment for cancer through these contract services and the Mayo Clinic. According to Dr. Jensen, similar treatment is also available to inmates at the FMC in Springfield, Missouri. n7 Since such facilities are available, the government argues that a downward departure is not necessary in this instance to assure that defendant receives proper medical treatment.
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n7 See Government’s Report Concerning the Medical Facilities Within the Bureau of Prisons.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
Section 5H1.1 provides:
Age (including youth) is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. Age may be a reason to impose a sentence below the applicable guideline range when the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration. Physical condition, which may be related to age, is addressed at @ 5H1.4 (Physical Condition, Including Drug or [*28] Alcohol Dependence or Abuse).
Section 5H1.4, in pertinent part, further provides:
Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range: e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.
The Seventh Circuit has established that to base a departure on Section 5H1.1, the sentencing court must make a finding that the defendant is elderly and infirm, and that an alternative form of confinement would be equally efficient and less costly than incarceration. And, to base a finding on Section 5H1.4, the court must also make a finding that the defendant suffers from an extraordinary physical impairment. United States v. Carey, 895 F.2d 318, 324 (7th Cir. 1990).
After reviewing the evidence presented regarding defendant’s health, this court is persuaded that a downward departure is warranted pursuant to Sections 5H1.1 and 5H1.4. Defendant [*29] is 62 years old and has suffered from liver cancer for at least 8 months. Given that defendant’s prognosis is poor and that statistics suggest that most liver cancer patients do not live one year despite postoperative therapy, this court finds that defendant’s illness presents the requisite extraordinary physical impairment. Moreover, defendant requires chemotherapy and other medical treatment which is incapacitating and very expensive. As Dr. Shaw has explained:
[Maltese] continues to receive chemotherapy on a monthly basis. He is admitted to the hospital overnight for Cisplatin therapy and receives 5 days of infusion of 5-FU as well. He then has a 3 week rest period at which point he has leukopenia and is at high risk for multiple infections. Mr. Maltese has tolerated this treatment relatively well. He does have nausea and vomiting with his initial chemotherapy and develops diarrhea and stomatitis which means mouth sores following the 5-FU therapy. To date, with careful management, he has not had infections requiring hospitalization but as the treatment continues, I would expect the risk of this to increase. n8
Given the costs of treating and housing defendant, this court [*30] finds that an alternative form of confinement would be equally efficient and less costly than incarceration. Therefore, defendant’s request for a downward departure pursuant to Sections 5H1.1 and 5H1.4 is granted. However, the court will determine how much of a departure is warranted at the sentencing.
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n8 Letter from John M. Shaw, M.D., Defendant Exhibit 1.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
Conclusion
For the reasons stated above, defendant’s request for a two point reduction pursuant to U.S.S.G. @ 3E1.1 for acceptance of responsibility is denied and the government’s request for a two point enhancement pursuant to U.S.S.G. @ 3C1.1 for obstruction of justice is granted. This enhancement brings defendant’s total adjusted offense level up to 16 and his criminal history category remains I. These calculations correspond to a sentencing range of 21-27 months. Defendant’s request for a downward departure pursuant to U.S.S.G. @@ 5H1.1 and 5H1.4 is granted because of defendant’s age and the fact that he is in extremely poor health.
ENTER:
Ann Claire [*31] Williams, Judge
United States District Court
Dated: JUN 18 1993