Opinion
00 Cr. 1028 (SWK)
November 12, 2002
OPINION AND ORDER
Defendant Alphonsos Barbato pleaded guilty on June 5, 2002 no using extortionate means to collect extensions of credit, in violation of 18 U.S.C. § 894. Barhato moves for a downward departure from the applicable Sentencing Guidelines based upon: (1) aberrant behavior; (2) his advanced age and various serious medical conditions; and (3) the totality of the circumstances that place this case outside of the heartland of cases covered by the guidelines. For the reasons set forth below, Barbato's motion in granted in part and denied in part.
I. OFFENSE CONDUCT AND BACKGROUND
Barbato is an 81 year old retired longshoreman with no prior criminal history. As indicated by his doctors, Barbato suffers from a variety of serious medical ailments, including hypertension, carotid artery disease and coronary artery disease. At the time of the instant offense, Barbato was 78 years old and had already been diagnosed with several of the ailments he presently complains of. See Def.'s Mem. at 3, Ex. C-C.
During his plea allocution, Barbato admitted that he made threats in order to recover money from a man named David Weeks. However, the Government and the defendant disagree on the defendant's true motivation for making those threats and whether Mr. Weeks in fact repaid any of the money. Barbato's statement to the Court indicated that he gave $30,000 to Mr. Weeks in 1998 for investment purposes, and that when Mr. Weeks failed to repay him as promised, Barbato became frustrated and telephoned Mr. Weeks several times and made threats in order to frighten him into repaying. Barbato also asserts that he was never fully repaid.
To the contrary, the Government contends that Barbato is actually a "loanshark" who lent money to Mr. Weeks at an extorrionate rate of 3% interest per week until the principal was repaid in full. According to the Government, Mr. Weeks made weekly interest payments to Barbato or to his co-defendant, Richard Collaro, for approximately one year, and that it was only after failed to make several payments that the defendant began to threaten him. In support of its allegation that the defendant provided a "fictional account of his offense conduct," the Government has submitted transcripts of several recorded conversations between Mr. Weeks, Barbato and/or Richard Collaro. Letter from Assistant United States Attorney Timothy J. Treanor to the Court, dated November 1, 2002, at 1-6, Ex. A-C ("Gov't Mem.")
The Court notes that the Government did not object to the defendant's version of the facts at the time the Court accepted the defendant's guilty plea.
These recorded conversations support the Government's contention that money was repaid to the defendant and that his conduct evinces a pattern of ongoing behavior.
The Probation Department, after conducting an investigation that included an interview with Barbato and his family, adopted essentially the Government's view of the facts in the Presentence Investigation Report (the "Report") submitted to the parties and the Court. Notably, defendant's counsel did not submit any objections to the offense conduct as described in the Report.
II. THE GUIDELINES
Section 2E2.1 of the United States Sentencing Guidelines (the "Guidelines") provides a base offense level of 20 for the offense for which Barbato has pleaded guilty. However, three levels are deducted because of Barbato's timely acceptance of responsibility for the offense. See U.S.S.G. § 3E1.1(a),(b). Therefore, Barbato's total offense level is 17, which, when combined with his criminal history category of I, gives him an applicable sentencing range of 24-30 months.
The November 1, 2001 edition of the Guidelines Manual has been used in this case.
III. ABERRANT CONDUCT
Barbato argues that he is entitled to a downward departure for aberrant conduct because his conduct was not undertaken with any criminal intent, but was only a result of his anger and frustration in his attempts to recover his money. Barbato further argues that the Probation Department incorrectly considered the factors set forth in Zecevic v. United States Parole Comm'n, 163 F.3d 731, 735-36 (2d Cir. 1998), a case decided prior to the enactment of Section 5K2.20 of the Guidelines. Barbato argues that "spontaneity" should not have been taken into account in determining whether or not his conduct was aberrant and that although his criminal conduct consisted of multiple acts, it should be considered as part of a singular act.
Barbato asserts that although his offense conduct took place prior to the enactment of Section 5K2.20, pursuant to United States v. Gonzalez, 281 F.3d 38 (2d Gir. 2002), this Section is applicable to determination of whether his conduct was aberrant. In opposition, the Government contends that the proper legal standard for analyzing Barbato's conduct is unclear. However, the Government asserts that whether analyzed under Zecevic or Section 5K2.20, Barbato's behavior fails to qualify as aberrant.
Contrary to the Government's assertion that the proper legal standard for determining motions for downward departures based upon aberrant conduct is unclear, the Court of Appeals recently clarified the circumstances warranting such a departure. See United States v. Gonzalez, 281 F.3d at 38. In Gonzalez, the court concluded that the aberrant conduct guideline adopted by the Sentencing Commission in § 5K2.20, which became effective on November 1, 2000, was applicable to conduct that occurred prior to that date because the new guideline and its commentary "served to clarify an already existing basis for downward departure" and was not "more severe or more onerous" than the previously existing standard. 281 F.3d at 46; see also United States v. Arbelaez, No. 00 Cr. 1260, 2002 WL 750845 (S.D.N.Y. Apr. 26, 2002); U.S.S.G. § 1B1.11(b)(2) ("[I]f a court applies an earlier edition of the Guidelines manual, the court shall consider amendments, to the extent that such amendments are clarifying rather than substantive changes."). Therefore, Barbato's motion for a downward departure based upon aberrant conduct will be analyzed using the factors set forth in Section 5K2020 of the Guidelines rather than the those enumerated in Zecevic.
Section 5K2.20 defines aberrant conduct as a "single criminal occurrence or single criminal transaction that (A) was committed without significant planning; (B) was of limited duration; and (C) represents a marked deviation by the defendant from an otherwise law-abiding life," and allows the sentencing court to downwardly depart from the applicable Guideline range in extraordinary cases. U.S.S.G. § 5K2.20, Application Note 1. However, the court may not depart if the offense involved serious bodily injury or death, use of a firearm or dangerous weapon, or serious narcotics trafficking, or if the defendant has more than one criminal history point or a prior state or federal felony conviction. See id. "In determining whether the court should depart on the basis of aberrant behavior, the court may consider the defendant's (A) mental and emotional conditions; (B) employment record; (C) record of prior good works; (D) motivation for committing the offense; and (E) efforts to mitigate the effects of the offense." U.S.S.G. § 5K2.20, Application Note 2.
The definition of aberrant conduct in Section 5K2.20 encompasses actions broader than a "single act," but is limited in its potential applicability to offenses that meet the criteria outlined above. See U.S.S.G. Suppl. to App. C at 79 "The commission intends that The phrases `single criminal occurrence' end `single criminal transaction' will be somewhat broader `single act'"); United States v. Grandmaison, 77 F.3d 555, 5K, (1st Cir. 1996) ("[T]he Commission intended the word `single' to refer to the crime committed and not to the various acts involved.").
Barbato argues that the instant offense conduct was "`singular' in nature in that, while there were `multiple' telephone calls made `over a period of time,' it was one transaction with one individual which led to Mr. Barbato's threatening calls." Mem. at 8. He further argues that these nails did not involve any "significant planning" on his part and were of "limited duration" when considered in the context of an 78 year old man's life, and represent a "marked deviation from [his] otherwise law abiding life." Mem. at 8-9.
The Government has submitted evidence that Barbato engaged in a pattern of conduct involving two separate loans to Mr. Weeks and several threats occurring over more than a year and a half. The first loan of $10,000 was made in June 1998, and an additional $20,000 was loaned in August 1998. See Gov't Mem. at 8. Moreover, the Government asserts that during this time, Barbato made numerous telephone calls and participated in several face to face meetings with Mr. Weeks to discuss his problems repaying the money. See id. The Government further argues that the money Barbato claims to have given Mr. Weeks to invest was, in actually, a usurious loan for which Barbato charged a rate of 3% per week. The Gov't Mem. an 2. Mr. Weeks allegedly made weekly payments to Barbato over the course of approximately one year, and the threats began when he started missing scheduled payments.
The Court finds that Barbato's actions do not meet the Section 5K2.20 requirement of a "single criminal occurrence or transantion." The Government's evidence, including transcripts of recorded conversations between Barbato, Collar and Mr. Weeks reveal that these men had ongoing discussions about the repayment of the money. See Gov't Mem., Ex. A at 10-11. The ongoing nature of Barbato's conduct indicates that it was not without significant planning, thereby removing it from the conduct contemplated under Section 512.20.
In a December 23, 1999 recorded conversation between Barbato (AB) and David Weeks (the cooperating witness (CW)), the two discuss future and past payments of money:
AB: Okay? And you, you missed ten weeks which it's Friday. Tomorrow's ten weeks.
CW: So it's the principal is thirty regardless of what has already been given. That number still remains.
AB: of course because of you.
CW: . . . but what does the, but what is, I mean, if I come up with a thousand and two dollars, I mean, is that gonna be an insult, or is it gonna be somethin' better than nothing?
AB: Show some, some good faith. Try to come up with at least five. That's all. This way I could hold them up for a week or two, and then we could sit down again and then you'd be workin' and then we could straighten, you know, we'll do, er, somethin'. And the, er . . .
Additionally, Barbato's conduct was not limited in duration. Barbato gave Mr. Weeks money on two occasions, first giving him $10,000 in June 1998 and an additional $20,000 in August 1998. The threats made by Barbato regarding the return of the money continued for over a year. Although the threats were allegedly made in response to the 1998 transactions, the length of time during which the threats continued remove Barbato's conduct from that meant to be addressed in Section 512.20. Therefore, the Court denies Barbah's motion for a downward departure based upon aberrant behavior based upon the conclusion that Barbato's acts consisted of more than a single transaction or occurrence, reguired more then minimal planning, and were of an extended duration.
It is unnecessary, therefore, to consider whether factors such as a mental or emotional condition, employment record, prior good works, motivation for committing the offense, and efforts to mitigate the offense, as outlined in Section 5K2.20 Application Note 2, are applicable in this case.
IV. EXTRAORDINARY PHYSICAL IMPAIRMENT
Barbato moves for a downward departure on the basis that his age and many physical afflictions are likely to be exacerbated during a period of incarceration, thereby reducing his life expectancy. Barbato suffers from severe hypertension, transient ischemic attacks, carotid artery disease, spinal stenosis, degenerative disc disease and lumbar radiculopathy, markedly elevated PSA levels, hypercholesterolemia, coronary artery disease, and takes several medications a day to deal with the attendant symptoms. See Def.'s Mem. at 13, Ex. C. Barbato also suffered from a mini-stroke in 1996. See Def.'s Mem. at 13, Ex. F. Barbato's doctors submit that these conditions require continuous monitoring, and describe him as "totally disabled." Def.'s Mem. at 13, Ex. C.
The Government responds that Barbato's conditions, while serious, can be adequately monitored and treated by the medical facilities within the Bureau of Prisons ("BOP"). See Gov't Mem. at 11, Ex. D. According to Health Services Administrator of the BOP, Barbara J. Cadogan, Barbato's hypertension, heart disease, and other ailments can be adequately addressed by the BOP and a "determination would be made as to the appropriate facility, either a medical referral center or a general population institution, in which to designate Mr. Barbato." Id.
While a defendant's condition is not ordinarily relevant in determining whether a departure from the applicable guideline range is warranted, see U.S.S.G. § 5H1.4, a departure is permitted for physical impairment where such a factor is present "to an exceptional degree." Koon v. United States, 518 U.S. 81, 95-96, 166 S.Ct. 2035 (1996); see also United States v. Jimenez, 212 F. Supp.2d 214, 216 (S.D.N.Y. 2002). It is often relevant, though not always controlling, whether the BOP can provide adequate care. See United States v. Jimenez, 212 F. Supp.2d at 219, n. 1.
Additionally, "[s]entencing courts are permitted to take into account a defendant's age and frailty." United States v. Gigante, 989 F. Supp. 436, 443 (E.D.N.Y. 1998; U.S.S.G. §§ 5H1.1, 5H1.4. "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." U.S.S.G. § 5H1.1.
The Court finds that the combination of Barbato's medical condition and his advanced age are such that a downward departure would be appropriate. Therefore, the Court grants Barbato's motion for a downward departure based upon his physical condition and age and grants a seven level departure resulting in an applicable Guidelines range of six to 12 months.
V. MITIGATING OR EXCEPTIONAL CIRCUMSTANCES
Lastly, Barbato argues that he is entitled to a downward departure based upon a combination of mitigating or exceptional circumstances which draw his case outside of the "heartland of cases" covered by the Guidelines. Def.'s Mem. at 14; see United States v. Rioux, 97 F.3d 648, 663 (2d Cir. 1996) ("In extraordinary cases . . . the district courts may downwardly depart when a number of factors that, when considered individually, would not permit a downward departure, combine to create a situation that differs significantly from heartland cases covered by the guidelines."). Barbato contends that the aberrant nature of his offense and his medical condition, combined with his family's need for his presence, his prior good acts and his exceptional work history support his motion.
However, as the Court has already granted Barbato's motion for a downward departure based upon his medical condition and advanced age, it is unnecessary to determine whether this combination of factors warrants departure.
VI. CONCLUSION
Therefore, for the reasons set forth above, Barbato's motion for a downward departure based upon aberrant conduct is denied. Barbato's motion for a downward departure for his extraordinary physical condition and advanced age is granted with a seven level reduction, resulting in an applicable Guidelines range of 6-12 months. The defendant shall be sentenced to 12 months of home confinement, 2 years of supervised release and a $100 special assessment. The parties are hereby ordered to appear on November 20, 2002 at 2:00 p.m. for sentencing of the defendant.