On that same day, Ms. Xxxxx pled guilty to the
information pursuant to a written plea agreement. A4.CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
PARTIES
The appellant, Xxxxx Xxxxx, and the appellee, the United States of America, are the only parties before this Court and were the only parties before the district court. There are no intervenors or amici.
RULINGS UNDER REVIEW
This appeal seeks review of two rulings made at sentencing on March 24, 1995 by United States District Judge Ricardo M. Urbina. First, appellant seeks review of the district court's denial of her request for a downward departure based upon the Battered Woman's Syndrome, where the district court misapplied the guidelines by construing U.S.S.G. §§ 5K2.12 and 5K2.13 too restrictively. A165.
Second, appellant seeks review of the district court's ruling that her abuse had no connection to her offense. A164. These two rulings have not been reported.
RELATED CASES
This case has not previously been before this Court. There are presently no other related cases pending in this Court of which counsel is aware.
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES i
TABLE OF AUTHORITIES iv
STATUTES AND REGULATIONS 1
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUES 1
STATEMENT OF THE CASE 2
A.Proceedings Below. 2
B.Statement of Facts. 2
1.The Offense Conduct. 2
2.The Guilty Plea and Presentence
Investigation Report. 3
3.Sentencing. 4
a. Ms. Xxxxx's Request For Downward Departure Based Upon The Abuse She Endured As A Victim
Of The Battered Woman's Syndrome 4
b.The District Court's Rulings 7
SUMMARY OF ARGUMENT 8
ARGUMENT 9
I.THE DISTRICT COURT ERRED IN DENYING A DOWNWARD DEPARTURE UNDER U.S.S.G. §§ 5K2.12 AND 5K2.13 ON THE GROUNDS THAT THE DEFENDANT FAILED TO PROVE THAT THE SPOUSAL ABUSE SHE SUFFERED CAUSED HER TO COMMIT THE OFFENSE 9
A.Standard of Review 9
B.The District Court Construed U.S.S.G. §§ 5K2.12 and 5K2.13 Too Restrictively 10
II.THE DISTRICT COURT ERRED IN FINDING THAT THE OFFENSE HAD NO CONNECTION TO THE BATTERED WOMAN'S SYNDROME SUFFERED BY MS. Xxxxx 19
A.Standard of Review 19
B.The District Court Erred In Finding That Ms. Xxxxx's Abuse Was Not Connected to the Offense. 20
CONCLUSION 28
CERTIFICATE OF LENGTH 29
CERTIFICATE OF SERVICE 29
CASES
United States v. Amor,
24 F.3d 432 (2d Cir. 1994)11, 16
United States v. Baskin,
886 F.2d 383 (D.C. Cir. 1989),
cert. denied, 494 U.S. 1089 (1990)10
United States v. Beckham,
968 F.2d 47 (D.C. Cir. 1992)9
United States v. Burns,
893 F.2d 1343 (D.C. Cir. 1990)20
United States v. Cantu,
12 F.3d 1506 (9th Cir. 1993)12, 13
United States v. Cheape,
889 F.2d 477 (3d Cir. 1989)17, 18
United States v. Clark,
8 F.3d 839 (D.C. Cir. 1993)10, 20
United States v. Gaviria,
804 F. Supp. 476 (E.D.N.Y. 1992)11, 17, 18
United States v. Glick,
946 F.2d 335 (4th Cir. 1991)12
United States v. Harrington,
947 F.2d 956 (D.C. Cir. 1991)20
United States v. Haynes,
985 F.2d 65 (2d Cir. 1993)20
United States v. Henderson-Duran,
985 F.2d 970 (8th Cir. 1993)11
United States v. Jamison,
934 F.2d 371 (D.C. Cir. 1991)20
United States v. Johnson,
956 F.2d 894 (9th Cir. 1992)9, 11
* Cases chiefly relied upon are marked with an asterisk.
United States v. Johnson,
49 F.3d 766 (D.C. Cir. 1995)12, 14, 15, 16
United States v. Lewinson,
988 F.2d 1005 (9th Cir. 1993)12
United States v. Lopez,
938 F.2d 1293 (D.C. Cir. 1991)10
United States v. M.B.,
809 F. Supp. 319 (D.N.J. 1993)18
United States v. Ortez,
902 F.2d 61 (D.C. Cir. 1990)9
United States v. Perkins,
963 F.2d 1523 (D.C. Cir. 1992)12
United States v. Pinnick,
47 F.3d 434 (D.C. Cir. 1995)9
United States v. Pozzy,
902 F.2d 133 (1st Cir. 1990)11
United States v. Ruklick,
919 F.2d 95 (8th Cir. 1990)12
United States v. Salmon,
948 F.2d 776 (D.C. Cir. 1991)19
United States v. Sherod,
960 F.2d 1075 (D.C. Cir. 1992)19
United States v. Smith,
27 F.3d 649 (D.C. Cir. 1994)10
United States v. Villegas,
899 F.2d 1324 (2d Cir. 1990)18
United States v. Whitetail,
956 F.2d 857 (8th Cir. 1992)19
United States v. Williams,
503 U.S. 193 (1992)10
United States v. Williams,
980 F.2d 463 (D.C. Cir. 1992)10
* Cases chiefly relied upon are marked with an asterisk.
STATUTES
18 U.S.C. § 3742(a) . . . . . . . . . . . . . . . . . . . . . 1
18 U.S.C. § 3742(e) . . . . . . . . . . . . . . . . . . . . . 20
SENTENCING GUIDELINES
U.S.S.G. § 5K2.12passim
U.S.S.G. § 5K2.13passim
Pursuant to Fed. R. App. P. 28(f) and D.C. Cir. R. 11(a)(3), pertinent statutes are reproduced in the Addendum to this brief.
The Court has jurisdiction under 18 U.S.C. § 3742(a) to hear Ms. Xxxxx's appeal from the sentence imposed by the district court. The district court had jurisdiction over this criminal case under 18 U.S.C. § 3231. A timely notice of appeal having been filed within the ten day period allowed by Rule 4(b), Federal Rules of Appellate Procedure, this Court has jurisdiction under 28 U.S.C. § 1291.
1.Whether the district court erred in denying a downward departure under U.S.S.G. §§ 5K2.12 and 5K2.13 on the grounds that Ms. Xxxxx failed to prove that the spousal abuse she suffered caused her to commit the offense.
2.Whether the district court erred in finding that
the offense had no connection to the abuse Ms. Xxxxx endured as a battered woman.
On December 14, 1994, Ms. Xxxxx was named in a one-count information charging her with bank fraud in violation of 18
U.S.C. § 1344 and criminal forfeiture in violation of 18 U.S.C. §
982. A7-13.
On that same day, Ms. Xxxxx pled guilty to the
information pursuant to a written plea agreement. A4.
On March 24, 1995, United States District Judge Ricardo M. Urbina sentenced Ms. Xxxxx to 30 months of imprisonment, three years of supervised release, a $50 special assessment, and $531,276.00 in restitution. A174-178. The court found that Ms. Xxxxx's offense level was 17 and that her criminal history category was I, making the applicable guideline range 24 to 30 months of imprisonment. A178. On April 3, 1995, Ms. Xxxxx filed a timely notice of appeal. App. 179.
From approximately January 1, 1987 through November 9, 1994, Ms. Xxxxx was employed by the United Palestinian Appeals, Incorporation (hereafter "UPA"), as its program director. PSR 2. The UPA is a non-profit, charitable organization which solicits donations on behalf of the Palestinian State for humanitarian relief. PSR 2. Ms. Xxxxx's responsibilities included receiving the office mail, directing UPA contributions to the proper office, logging UPA donations, and depositing UPA checks into the corporate account at Riggs Bank. PSR 2-3.
During the period from January 1, 1989 through February 10, 1994, Ms. Xxxxx took UPA funds without authority. PSR 2. Specifically, Ms. Xxxxx deposited checks from UPA contributors to her personal account. PSR 3. The loss from this offense totaled $531,276.00. PSR 2.
2.The Guilty Plea and Presentence Investigation
Report
After Ms. Xxxxx's guilty plea on December 14, 1995, the United States Probation Office prepared a presentence investigation report. Ms. Xxxxx submitted objections to the report, and the probation office revised the report on March 20, 1995. The revised report contained an addendum listing the objections that had not been resolved. PSR 13-14. The addendum stated that
The defense counsel noted they believe a downward departure is appropriate pursuant to U.S.S.G. §§ 5K2.12 (coercion and duress) and 5K2.13 (diminished capacity). They are to provide additional information in support of a downward departure.
PSR 14. The report then stated the probation officer's view that based on the information received to date, there were not grounds for departure in this case. PSR 14. The probation office stated that "[t]he court will have to make a finding in this matter." PSR 14.
a.Ms. Xxxxx's Request for Downward Departure Based Upon The Abuse She Endured As A Victim Of The Battered Woman's Syndrome
Ms. Xxxxx sought a downward departure based upon the abuse she suffered as a victim of the Battered Woman's Syndrome under U.S.S.G. § 5K2.12 and/or § 5K2.13. A18-22. In support of the request, Ms. Xxxxx introduced evidence of physical and psychological abuse. Specifically, Ms. Xxxxx introduced a psychological report prepared by a psychologist, Dr. Uzi Ben-Ami A119-125, a letter from her therapist from the Abused Persons Program, Dora Koutris, L.C.S.W., and a letter from her primary physician, C. Wayne Callaway, M.D. A126-128. The government presented no evidence in opposition to the findings and conclusions of these doctors. Ms. Xxxxx also introduced medical records from Holy Cross Hospital, Suburban Hospital, Montgomery County Emergency Medical Service, and Thomas P. Dudas, D.D.S.; documentation of 911 calls; police reports and criminal court records of her husband's conviction for battery; the Judgment of Divorce; and numerous letters from family, friends, co-workers, and employer. A28-117.
Dr. Ben-Ami's psychological evaluation detailed the abuse Ms. Xxxxx had suffered since meeting her husband, Mr. Mesfin S. Tsegaye. Dr. Ben-Ami described how Ms. Xxxxx was battered, beatened and threatened during the 5 1/2 year marriage:
If [Ms. Xxxxx] did not do what [Mr. Tsegaye] wanted, she would get beaten severely and he threatened to take the children away for good. [Mr. Tsegaye] threatened [Ms. Xxxxx's] family, her aunts, uncles, parents and friends as another tool to put fear into her. [Ms. Xxxxx] was sent to the emergency rooms of Suburban Hospital in Bethesda and more often to Holy Cross Hospital in Silver Spring...
A121.
Dr. Ben-Ami described one particular instance in harrowing detail:
[Ms. Xxxxx] went outside to try to stop [Mr. Tsegaye] and ended up in an ambulance to Holy Cross Hospital. This was the most severe beating [Ms. Xxxxx] had ever received from [Mr. Tsegaye]. The doctor in the emergency room told [Ms. Xxxxx] he was "astounded" that she had taken so many punches to her head and face, had lost so much blood, and was still not dead. The doctor also told [Ms. Xxxxx], after several hours of providing treatment for a broken nose, broken sinuses, bruises, cuts, scrapes, loss of blood, low blood pressure, dizziness and damaged teeth and gums -- that had [Mr. Tsegaye] hit her another time in the face, [Ms. Xxxxx] would have been dead or in a coma.
A121.
The physical beatings, including broken noses, injuries to Ms. Xxxxx's head and face, and severe damage to her eyesight, to her hearing in her left ear, and to her lower right leg bone, were documented in medical reports submitted to the sentencing court. A28-42, 57-62. Mr. Tsegaye's abuse of Ms. Xxxxx was further corroborated by 911 calls she made and Mr. Tsegaye's arrest for "assault with intent to maim," which ultimately resulted in a conviction for battery. A54-55, 64-82.
The effect of the physical abuse by her husband transcended the physical. Dr. Ben-Ami outlined Ms. Xxxxx's mental state including the fear, severe anxiety, acute distress, and depression Ms. Xxxxx felt, and continued to feel, towards Mr. Tsegaye. A122-123. Dr. Ben-Ami concluded by stating that "[Ms. Xxxxx] exhibited all the symptoms of stress and diminished mental capacity associated with abuse and `The Battered Wife Syndrome.'" A124-125.
Dr. Ben-Ami explained how the abuse she suffered contributed to the offense she committed: the "fear and abuse have diminished Ms. Xxxxx Xxxxx's ability to make sound judgments and act appropriately in managing financial matters throughout her marriage and until she came to understand her abuse and admit that she was a battered woman in 1994." A-125. Ms. Xxxxx's performance on a test administered by Dr. Ben-Ami supported a finding of reduced mental capacity:
On the Rorschach Diagnostic Ink Blots there were no overt signs of pathology but defenses used seemed to involve denial and rationalization and conversion.
A124.
While Dr. Ben-Ami estimated Ms. Xxxxx's intellectual ability to be above average. A123-124. He found that "Ms. Xxxxx's intelligence and responsible nature did not prevent her from falling victim to what we call "Battered Woman's Syndrome." A121.
Ms. Xxxxx explained the relationship between the abuse and the offense in more detail at the sentencing hearing. A156-163. Ms. Xxxxx testified that her husband demanded huge sums of money from her and that when she did not comply she was beaten. She explained to the court that her husband told her how to take money from her employer, and that she argued and fought with him. She could not explain how she succumbed to his demand but stated clearly that she feared for her life and that she was just trying to survive from day to day.
The district court denied Ms. Xxxxx's request for a downward departure based on coercion or diminished capacity stemming from the tremendous abuse she endured at her husband's hands because the court concluded that abuse was not connected to her offense. A164.
The government argued:
While the government does not dispute the fact that the defendant was beaten by her husband, the government does dispute that the beatings caused her to steal from the charitable institution where she was employed.
A137.
The judge found that Ms. Xxxxx was a battered spouse, but "[did] not, however, find the connection between [the abuse] and the taking of this $531,276.00 to constitute what would justify a departure." A164. The judge commented:
I dare say when you have this conversation with yourself and you really review what happened, this abusive situation aside, you will come to admit that you had other options other than stealing a half million dollars from an employer that trusted you.
A164.
The district court explained its ruling by stating:
This half a million dollars in stolen money did not spring from the fact that you were in this battering situation. They coexisted and to some extent, I'm sure, there were some psychological weakening created by this very difficult situation.
A164-165.
The district court found that Ms. Xxxxx suffered from The Battered Woman's Syndrome. A164. In deciding whether to grant Ms. Xxxxx's request for a downward departure based upon the abuse she endured, the district court applied both U.S.S.G. §§ 5K2.12 and 5K2.13. A165. Under these sections, the discretion to depart lies where a defendant shows that the abuse or coercion contributed to the commission of the offense (§ 5K2.13), or that the abuse or coercion was in some way a factor in a chain of events leading to the offense (§ 5K2.12). The judge erroneously required a direct causal nexus between Ms. Xxxxx's abuse and the offense and denied a departure on the grounds that she failed to show that the abuse or coercion actually caused the offense. The Court should remand Ms. Xxxxx's case for resentencing because the district court misapplied the guidelines by construing § 5K2.12 and § 5K2.13 too restrictively.
Additionally, the Court should find that the lower court's finding that no connection existed between the abuse and the offense was clearly erroneous because Ms. Xxxxx presented undisputed evidence explaining how the abuse was related to her crime. A164. In arguing for a downward departure based on the Battered Woman's Syndrome, Ms. Xxxxx introduced evidence of physical and psychological abuse by her husband. Ms. Xxxxx explained to the judge how her husband directed her to steal monies from her employer and that if she refused she was beaten. A157-159 Family and friends submitted letters to the judge attesting to Mr. Tsegaye's control, domination and manipulation over Ms. Xxxxx. A-44-52, 87-117. Reports from a psychiatrist and doctors explained how Ms. Xxxxx was psychologically unable to defend herself from her husband, resulting in the commission of the offense. A119-128.
I.THE DISTRICT COURT ERRED IN DENYING A DOWNWARD DEPARTURE UNDER U.S.S.G. §§ 5K2.12 AND 5K2.13 ON THE GROUNDS THAT THE DEFENDANT FAILED TO PROVE THAT THE SPOUSAL ABUSE SHE SUFFERED CAUSED HER TO COMMIT THE OFFENSE
A sentencing court's decision not to depart is reviewable if based on "a mistake of law or an incorrect application of the sentencing guidelines." United States v. Johnson, 49 F.3d 766, 768 (D.C. Cir. 1995), citing United States v. Pinnick, 47 F.3d 434, 439 (D.C. Cir. 1995) and United States v. Ortez, 902 F.2d 61, 63 (D.C. Cir. 1990). See also United States v. Beckham, 968 F.2d 47, 53 (D.C. Cir. 1992) (appellate court should remand for resentencing where it appears that trial court misunderstood its authority to depart or believed that its
authority to depart "was constrained in a way it actually was not"); United States v. Lopez, 938 F.2d 1293, 1296 (D.C. Cir. 1991) ("A sentencing court's decision not to depart is reviewable if based on a misconstruction of its authority to depart."); United States v. Baskin, 886 F.2d 383, 389 (D.C. Cir. 1989) (same), cert. denied, 494 U.S. 1089 (1990).
Whether the district court has authority to depart is a question of law that is reviewed de novo. United States v. Smith, 27 F.3d 649, 651 (D.C. Cir. 1994), citing United States v. Williams, 980 F.2d 1463, 1466 (D.C. Cir. 1992); United States v. Clark, 8 F.3d 839, 841 (D.C. Cir. 1993).
B.The District Court Construed U.S.S.G. §§ 5K2.12 and 5K2.13 Too Restrictively
Although the district court recognized the Battered Woman's Syndrome as a ground for departure under either U.S.S.G. §§ 5K2.12 or 5K2.13, the court refused to depart in Ms. Xxxxx's case. A164-165. Although the court did not dispute that Ms. Xxxxx suffered from the Battered Woman's Syndrome, it required her to show that the abuse or coercion actually caused the offense. A156-157. In so doing, the court misapplied §§ 5K2.12 and 5K2.13 by requiring Ms. Xxxxx to prove a direct causal nexus between the abuse or coercion and the offense, contrary to the applicable caselaw.
Courts have viewed the Battered Woman's Syndrome as an incomplete duress defense under § 5K2.12, which permits downward departures if the defendant "committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense." See United States v. Pozzy, 902 F.2d 133 (1st Cir. 1990)(§ 5K2.12 covers situations where defendant is physically coerced by her husband to commit crime or defendant did so because of threats of physical violence). See also United States v. Johnson, 956 F.2d 894 (9th Cir. 1992) (court can depart from guidelines based on the Battered Woman's Syndrome under § 5K2.12); United States v. Gaviria, 804 F. Supp. 476 (E.D.N.Y. 1992)(court departs from guidelines based on defendant's physical and emotional abuse by her husband pursuant to § 5K2.12).
§ 5K2.12 does not require that the coercion or duress be the sole cause of the offense in order for a court to have discretion to depart. The Sentencing Commission contemplated a broad view of causation in § 5K2.12. See United States v. Amor, 24 F.3d 432, 439 (2d Cir. 1994) (rejecting government's interpretation of § 5K2.12 that "an offense is committed `because of' duress only when the duress leads directly to the offense"); United States v. Henderson-Duran, 985 F.2d 970, 976 (8th Cir. 1993) (holding that "[§ 5K2.12] is broader than the defense of duress," but finding that no departure warranted since defendants had not shown that coercion was motivation for offenses).
Similarly, § 5K2.13 does not require that the reduced mental capacity be the sole cause of the offense in order for a court to have discretion to depart. Courts have discretion to depart based on the Battered Woman's Syndrome under § 5K2.13 if the defendant "committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants. . ." U.S.S.G. § 5K2.13. See United States v. Lewinson, 988 F.2d 1005, 1006 (9th Cir. 1993) (rejecting government's assertion that mental diseases must be severe and affect the defendant's ability to perceive reality and upholding four level downward departure based on "long-standing psychological problems" that "resulted in a significant impairment."). See also United States v. Cantu, 12 F.3d 1506 (9th Cir. 1993) (posttraumatic stress syndrome can support downward departure under § 5K2.13); United States v. Perkins, 963 F.2d 1523 (D.C. Cir. 1992) (dependent personality disorder can support downward departure under § 5K2.13).
This Court has interpreted § 5K2.13 to require the diminished capacity merely to be a contributing factor to the offense rather than a direct cause in order for the court to have authority to depart. See United States v. Johnson, 49 F.3d at 768. Other courts have applied the same standard. See United States v. Glick, 946 F.2d 335, 339 (4th Cir. 1991)(diminished capacity need not be sole cause of the offense to justify a departure, but should "comprise[ ] a contributing factor in the commission of the offense"); United States v. Ruklick, 919 F.2d 95, 97-98 (8th Cir. 1990)("[T]he express language of the policy statement does not require proof amounting to but-for causation. Accordingly, we interpret section 5K2.13 to authorize a downward departure where, as here, a defendant's diminished capacity comprised a contributing factor in the commission of the offense.").
The court in United States v. Cantu, 12 F.3d 1506, 1515 (9th Cir. 1993) discusses in more detail the requirements of 5K2.13. The court states:
[T]he degree to which the impairment contributed to the commission of the offense does not constitute the degree to which the defendant is eligible for the departure. The defendant's eligibility remains the same whether his impairment contributed greatly to the commission of his offense, or hardly at all. Rather, the degree to which the impairment contributed to the commission of the offense constitutes the degree to which the defendant's punishment should be reduced.
Id. at 1515.
In considering whether Ms. Xxxxx's abuse as a battered woman warranted a departure under U.S.S.G. §§ 5K2.12 and 5K2.13, the district court misapplied those guidelines by requiring Ms. Xxxxx to show that the abuse contributed to the offense in its entirety, i.e., that her abuse amounted to a complete defense to her crime. The district court applied both § 5K2.12 and § 5K2.12 in deciding Ms. Xxxxx's request for a downward departure:
I have gone to the guidelines and looked at comments that further illuminate how these factors, 5K2.12 and 5K2.13 coercion, duress, diminished capacity, how they all have been viewed by other court's [sic], other judges, how appellate courts have interpreted the applicability of those concepts to the justification for a departure...
A165.
The district court then made the following ruling:
The fact of the matter is, Ms. Xxxxx, that while on hand it is clear to me that you were in an abusive situation and that you were a battered spouse and that this was a very difficult environment within which you were required to operate in raising two children. I understand all of that.
I do not, however, find the connection between that and the taking of this $531,276.00 to constitute what would justify a departure. I just cannot reason it in a way that would justify my adopting your attorney's very articulate and very well reasoned urgings on the court. It's just not the way it works.
A164.
Similar language was recently interpreted by this Court in United States v. Johnson, 49 F.3d at 768, where the district court stated only that there must be a "direct connection" between the defendant's post-traumatic stress disorder and the offense, before rejecting the defendant's request for a departure under § 5K2.13. This Court held that "[t]he [district] court's requirement of a "direct connection" was no more than a restatement of the express guideline language that reduced mental capacity must have "contributed to the commission of the offense." Id.
In the instant case, while the district judge's language above is similar to the language in Johnson, the court's additional comments made at sentencing reflect an erroneous interpretation of § 5K2.13. The court stated in its colloquy with Ms. Xxxxx prior to passing sentence:
Let me ask you a couple of questions, Ms. Xxxxx. It is still not clear to me, even after reading the various submissions, hearing from counsel from both sides and now from you as to what the relationship is, and explain it to me in your own words, between this abusive relationship and this bad marriage and the violent environment that you were in and this $531,276? What is the relationship? How does this figure and your situation, how do they explain each other?
A155-156 (emphasis added).
The district court repeatedly referred to Ms. Xxxxx's offense only in terms of the specific dollar amount taken rather than in any general terms. As a result, the court erroneously limited its analysis to the entire period covering the offense conduct and to the total amount of money taken. Instead of focusing on the substantial amount of money involved in the embezzlement, the district court was obligated under §§ 5K2.12 and 5K2.13 to decide whether Ms. Xxxxx's abuse contributed in any way to the commission of the offense. Therefore, the district court should have evaluated whether Ms. Xxxxx's victimization by her husband contributed to any portion of the offense conduct rather than requiring her to prove a direct relationship between the abuse and the embezzlement total.
Furthermore, unlike in Johnson, when the district court in this case discussed the relationship required between the abuse and the offense, it used words connoting direct causation, such as "explain" or "product", as well as the phrase "spring from." For example, the court stated:
I need to understand how this half a millon dollars of stolen money is the product of what you're telling me was an abusive relationship. I don't understand that.
A157 (emphasis added).
The court then found:
This half a million dollars did not spring from the fact that [Ms. Xxxxx was] in this battering situation.
A164-165 (emphasis added).
The court's language indicates that it required Ms. Xxxxx to show under § 5K2.13 that her abuse caused the theft of half a million dollars. Instead, the district court was obligated to decide whether Ms. Xxxxx's abuse contributed in any way to the commission of the offense, as contemplated by the guidelines.
Even if the Court finds that Johnson controls, the district court still misapplied § 5K2.12. The court failed to consider whether Ms. Xxxxx's abuse contributed in part to a chain of events which led to the theft. See United States v. Amor, 24 F.3d at 440, where the court held that because the duress was attributable in part to the offense there "was a causally related chain of circumstances, and [concluded] that the court's application of § 5K2.12 to that chain was reasonable." In Amor, the defendant had been convicted of making, possessing and failing to register a sawed-off rifle and a separate count of retaliation against a government informant. Id. at 433. The government argued that the departure under §5K2.12 was not warranted because Amor's duress had nothing to do with the retaliation count which controlled his offense level once the counts were grouped under the guidelines. The court of appeals held that "the defendant committed the offense at least in part because of coercion and duress" (emphasis added), reasoning that "it should view Amor's conduct as a chain of events, and that although the events in the chain were not wholly caused by duress, if Amor had not been under duress at the outset, none of the events in the chain, including the retaliation, would have occurred." Id. at 438-439.
In the instant case, the district court apparently accepted the government's argument:
"[e]ven if [Ms. Xxxxx's] conduct stopped immediately after she was separated [from her husband], her claimed duress would still not amount to a complete defense to her crimes."
A140. Thus, the court adopted the view that the abuse must have been the cause of the offense, thereby applying a more stringent standard than is required under § 5K2.12. See United States v. Cheape, 889 F.2d 477, 480 (3d Cir. 1989) ("If section 5K2.12 is to be accorded meaningful status, as the Sentencing Commission obviously intended, we must read it as providing a broader standard of coercion as a sentencing factor than coercion as required to prove a complete defense at trial."); United States v. Gaviria, 804 F. Supp. at 479 ("The affirmative defense of duress to a criminal charge imposes a stringent objective standard on evaluation of a defendant's conduct. In contrast, when sentencing the guilty, [under 5K2.12] the legal standards are more subjective and less strict.").
In the context of the Battered Woman's Syndrome, the district court clearly adopted a higher standard than that which is required under the guidelines, as evidenced in the court's comment to Ms. Xxxxx that "[she] had other options other than stealing a half million dollars from an employer that trusted [her]." A164. In opposing a downward departure, the government argued that Ms. Xxxxx had other ways of obtaining money to meet her husband's demands:
The government submits that many people who need extra money earn it through working two or more jobs.
A3.
A defendant claiming the defense of duress or coercion must show that "there was no reasonable opportunity to escape from the force or threat other than by engaging in the otherwise unlawful activity." Gaviria, 804 F. Supp. at 478, citing United States v. Villegas, 899 F.2d 1324, 1344 (2d Cir. 1990). However, duress as a sentencing factor does not require this element to be proven. See Gaviria, 804 F.Supp. at 481 ("[the defendant's] actions were legally "voluntary," but they were not the result of free rational decisionmaking. Her life is a classic example of the plight of a subservient, abused woman"). See also Cheape, 889 F.2d at 480 ("It is clear from the text of section 5K2.12 [ ] that the Commission did not require proof of immediacy or inability to escape; nor did it limit the feared injury to bodily injury"); United States v. M.B., 809 F.Supp. 319 (D.N.J. 1993)(departure warranted where defendant, a battered wife, committed embezzlement for fear of advising husband that bank loan was denied).
The district court interpreted §§ 5K2.12 and 5K2.13 to require Ms. Xxxxx to show that she had no other options other than to commit the offense. In so doing, the district court failed to recognize its authority to depart. See United States v. Whitetail, 956 F.2d 857, 864 (8th Cir. 1992) (court is not foreclosed by the jury verdict from considering a downward departure on the basis of the defendant's battered-woman evidence).
The district court construed §§ 5K2.12 and 5K2.13 too narrowly by requiring Ms. Xxxxx to show that her abuse was the cause of the offense rather than merely a contributing factor. In addition, the court required Ms. Xxxxx to show that she had no other options but to commit the offense, an element not comtemplated by the guidelines. Because the court misapplied
§§ 5K2.12 and 5K2.13, the Court should vacate Ms. Xxxxx's sentence and remand her case for resentencing.
II.THE DISTRICT COURT ERRED IN FINDING THAT THE OFFENSE HAD NO CONNECTION TO THE BATTERED WOMAN'S SYNDROME SUFFERED BY MS. Xxxxx.
Generally, a review of the facts underlying a refusal
to depart from the guidelines will not lie. See United States
v. Sherod, 960 F.2d 1075, 1078 (D.C. Cir. 1992) (defendant's
claim that psycho-educational evaluation supported a departure is
unreviewable); United States v. Salmon, 948 F.2d 776, 780 (D.C.
Cir. 1991)(district court's decision that the defendant had not
displayed sufficient reluctance to warrant a departure, even if
defense of partial entrapment was available, was not subject to
appellate review); United States v. Jamison, 934 F.2d 371, 372
(D.C. Cir. 1991) (defendant's claim that uncontroverted evidence
warranted a departure under § 5K2.12 was unreviewable). However,
when the refusal to depart is based on a misapplication of the
guidelines, as it is in this case, factual findings are reviewed
for clear error. See 18 U.S.C § 3742(e); United States v. Clark,
8 F.3d 839, 841 (D.C. Cir. 1993) (same); United States v.
Harrington, 947 F.2d 956, 957 (D.C. Cir. 1991), citing United
States v. Burns, 893 F.2d 1343, 1345 (D.C. Cir. 1990), rev'd on
other grounds, __ U.S. __, 111 S.Ct. 2181 (1991) ("Fact findings
underlying the sentencing court's decision to depart will not be
disturbed unless clearly erroneous.").
See also United States
v. Haynes, 985 F.2d 65, 68 (2d Cir. 1993) (same).
B.The District Court Clearly Erred In Finding That Ms. Xxxxx's Abuse Was Not Connected to the Offense
The district court found that Ms. Xxxxx suffered from
the Battered Woman's Syndrome but "d[id] not, however, find the
connection between that and the taking of this $531,276.00 to
constitute what would justify a departure." A164. The court
made no other findings other than concluding that no connection
existed.
The evidence presented to the court, however, clearly
shows that a direct connection did exist between Ms. Xxxxx's
abuse and the commission of the offense.
The most revealing piece of evidence was Ms. Xxxxx's own testimony at the sentencing hearing when the court questioned her about this relationship:
THE COURT: Let me ask you a couple of questions, Ms. Xxxxx. It is still not clear to me, even after reading the various submissions, hearing from counsel from both sides and now from you as to what the relationship is, and explain it to me in your own words, between this abusive relationship and this bad marriage and the violent environment that you were in and this $531,276? What is the relationship? How does this figure and your situation, how do they explain each other?
MS. Xxxxx: ...He would demand money from me every morning. If I didn't comply, I would get it again. If I complied, he would beat me in order to let me know, I guess, that if I didn't comply, I would get it.
THE COURT: ...And let me say, I am not questioning the credibility, your credibility on the issue that you were in a battering situation, that you were a battered spouse. I need to understand how this half a million dollars of stolen money is the product of what you're telling me was an abusive relationship. I don't understand that.
MS. Xxxxx: He made me fear for my life.
THE COURT: Tell me how it turns into dollars.
MS. Xxxxx: He knew, he used to come to my work and he knew that I was in charge of tallying up the donations that came to my office and he was the one -- I didn't wake up one morning and say that I was going to do something illegal. He was the one who explained to me how to do it and told me to do it and of course I argued with him and I fought with him. Every time I did anything that was contrary to what he wanted or said, I was beaten and then he would take off. . .
...And he would demand huge sums of money. I didn't have the money. He would say, get it from your work, I told you how. It's not a problem, you're in charge. I said, I cannot do that. He said, you're in charge of the money, you can do it. I said I'm not in charge of all of it...
...he used to drive me to work in the morning. I didn't know what he did most of the day and he would demand cash from me in front my office building. As one foot of me was outside putting a foot onto curb, half of me is still in the car. If I refused to go with him to the ATM machine which was around the block, and give him the cash that he wanted, if I didn't have enough cash, or if I told him I was late, I have to go to work, to just show me how I would get it later that day, he would drive off, so that I would fall out of the car onto the curb.
I don't know how to explain it to you. I don't understand it myself, how it is that he managed to manipulate me and control me, how I could have succumb to do such a thing. All I know is that I feared for my
life and he made that very clear.
A155-159.
Ms. Xxxxx later stated to the court:
I knew the work that UPA did. Of course, I knew it was a nonprofit agency. I don't know how to explain to you. I was trying to survive the abuse. I was trying to somehow fix the marriage and try to protect my children from at least seeing what would happen to me. They always saw later. I just didn't want them to see it happen. I was just trying to survive from day to day. I was trying to get him to stop doing what he was doing to me.
A162.
Ms. Xxxxx's testimony that she was beaten when she did not comply with her husband's demands, including his demand that she steal from her employer, clearly established the connection or relationship between the offense and her abuse. In addition, the court adopted the facts contained in the Presentence Report. The report, which includes Ms. Xxxxx's account of the offense as well, supported a finding that a connection existed.
Ms. Xxxxx explained the offense by stating, "that she became involved with the instant offense because her second husband, [Mesfin Tsegaye], never worked and she needed money to pay bills." PSR 5. She further described how she "sent him to school to become a licensed pilot; however after he received his license it was suspended because he was arrested in Florida, for being under the influence of alcohol and because he improperly landed a plane in North Carolina." PSR 5. Ms. Xxxxx also advised the probation officer that "he abused illicit drugs, specifically cocaine." PSR 5. Ms. Xxxxx's statement to the probation officer regarding her marriage detailed her hospital visits due to spousal abuse, as well as her husband's criminal case for battery for abusing her. PSR 7.
Even apart from Ms. Xxxxx's own account, Ms. Xxxxx's family and friends stated that the offense was a result of many years of abuse. The probation officer spoke with Ms. Xxxxx's mother, Shari Abbasi, who "believes her daughter's involvement with the instant offense is a result of her being an abused wife." PSR 6. The court also received numerous letters from friends and family. A44-52, 87-117. For example, Ms. Xxxxx's stepfather stated: "Under duress and battering she had engaged in improper acts in order to support the drug habits of her controlling, demanding, and unemployed husband and provided funds for his extended family." A48.
A psychological report by Dr. Uzi Ben-Ami provided independent evidence establishing the connection between the offense and abuse. Dr. Ben-Ami's report specifically described the relationship between the physical abuse and Mr. Tsegaye's requests for monies: " [Ms. Xxxxx] was beaten to pay for Tsegaye's lifestyle, his relatives (four of whom he brought from Africa)...[Ms. Xxxxx] was beaten ...to supply him with huge amounts of money." A121. Dr. Ben-Ami observed that Ms. Xxxxx "was willing to commit a crime to support Mr. Tsegaye's alleged drug habit, alcoholism and other problems." A120.
Dr. Ben-Ami's conclusions were supported by other doctors. Dr. C. Wayne Callaway, who had known Ms. Xxxxx for two and a half years, stated that "[t]he psychological stresses to which [Ms. Xxxxx] was subjected are clearly involved in the behaviors for which she is about to be sentenced." A128. Dora Koutris, L.C.S.W., Ms. Xxxxx's therapist from the Abused Persons Program, wrote the court, "[Ms. Xxxxx] became confused and helpless regarding her rights." A127. The "learned helplessness", she writes, makes "abused women feel powerless and immobilized so that they become `blind to options or problem solving actions.'" A127.
Evidence relating to the timing of the offense also established a connection between the embezzlement and the abuse. The offense occurred during the period of January 1, 1989 to February 10, 1994. PSR 2. The offense began one month after Ms. Xxxxx married Mr. Tsegaye in December 1988, although Ms. Xxxxx had been working for the UPA for two years since January 1, 1987. PSR 2, 7. Thus, Ms. Xxxxx did not begin taking money from her employer until after she married her husband and until after she began to be abused by him.
The government argued that Ms. Xxxxx's abuse did not cause the theft as seen by the fact that Ms. Xxxxx continued to commit this offense (until November 1994) after being separated from her husband/abuser on September 1993. A137. However, the evidence of abuse suffered by Ms. Xxxxx after her separation speaks for itself. On September 8, 1993, Ms. Xxxxx received treatment at the Montgomery County Emergency Medical Services, after she was beaten in the face by her husband. A57-60. For this beating, Mr. Tsegaye was arrested and later convicted of battery. A64-82. On January 10, 1995, Mr. Tsegaye pled guilty to Battery of Ms. Xxxxx, and later was found to be in violation of probation by refusing to stay away from her.
A79. On March 6, 1995, Ms. Xxxxx was divorced from her husband after a heated child custody battle while Ms. Xxxxx was awaiting sentencing in this case. A84; PSR 7.
On March 12, 1995, Ms. Xxxxx's mother wrote the court: "Mr. Tsegaye continues to stalk and harass [Ms. Xxxxx]. She can't sleep has lost weight, and still fears him to this day. He has attempted to kidnap Nishanne [Ms. Xxxxx's daughter] from her daycare and threatened the life of Ryhana [Ms. Xxxxx's daughter]. He has been seen around our home, walking and staring at our house at odd hours of the day and night. Evidence of him has been seen directly outside [Ms. Xxxxx's] bedroom window." A46. On March 15, 1995, Ms. Xxxxx's stepfather wrote the court: "Even after she separated from him, she lived in constant fear of Mr. Tsegaye. In this period of separation Mr. Tsegaye still maintained control over her by stalking her, keeping a surveillance over her, making threatening telephone calls to her both at work and the house. On a number of occasions, he climbed into house through the windows at odd hours of the night." A50. Dr. Ben-Ami found that Ms. Xxxxx "suffered continuous physical abuse between 1988 and 1993, and has experienced mental abuse and harassment starting in 1988 and continuing to the present time." A124.
In understanding the connection between Ms. Xxxxx's abuse and the offense, it is important to understand Ms. Xxxxx's mental state at the time of the offense. Evidence was introduced to show that Ms. Xxxxx suffered from a reduced mental state. Such evidence substantiates Ms. Xxxxx's inability to reject her husband's demand to steal money from her employer and her continued conduct even after the separation.
Ms. Xxxxx's stepfather stated in his letter that "[Ms. Xxxxx] continued [after the separation] to operate with a dysfunctional moral compass and remained unable to distinguish right from wrong." A50. Ms. Xxxxx's mother stated in her letter that her daughter "lost her sense of judgment, her sense of self-worth, and her positive attitudes towards life." A45.
Greater weight may be given to the opinions of an objective psychologist. Dr. Ben-Ami's report concluded that "[Ms. Xxxxx exhibits all the symptoms of stress and diminished mental capacity associated with abuse and "The Battered Wife Syndrome." A124-125. In my opinion, fear and abuse have diminished Ms. Xxxxx Xxxxx's ability to make sound judgments and act appropriately . . ." A125.
Ms. Xxxxx's exposure to spousal abuse as a child is also relevant to Ms. Xxxxx's mental state at the time of the offense. Such evidence helps to explain Ms. Xxxxx's inability to cope with her abusive situation, as well as her inability to understand the seriousness of her situation. Ms. Xxxxx's mother, Sherie Abbasi, was abused by her husband:
My children saw and heard the abuse on a regular basis. Living with a father who lectured them and beat them and who was miserly to the point of fanaticism, they supported each other as best they could.
A44.
Thus, the evidence presented to the district court clearly established a connection between the offense and Ms. Xxxxx's abuse. Ms. Xxxxx explained to the court that she was beaten when she did not comply with her husband's demands for money. A156-57. She also testified that it was her husband who told her how to embezzle funds from the UPA and demanded that she do so. A-157. Although the court found Ms. Xxxxx's testimony to be credible, it apparently disregarded this evidence. A156-157. Given the strong evidence of the relationship between the abuse and the embezzlement, the court clearly erred in finding that Ms. Xxxxx's abuse was not connected to the offense.
For the foregoing reasons, appellant Xxxxx Xxxxx respectfully requests that the Court vacate her sentence and remand her case for resentencing.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
__________________________
Teresa Alva
Assistant Federal Public Defender
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
(202) 208-7500
Counsel for Xxxxx Xxxxx
I hereby certify that the foregoing brief for appellant Xxxxx Xxxxx does not exceed the number of words permitted by Rule 28(d) of the General Rules of this Court.
_____________________________
Teresa Alva
I hereby certify that on the 11th day of September 1995, I caused two copies of the foregoing Brief of Appellant Xxxxx Xxxxx, together with the Addendum and the Appendix thereto, to be served by first-class mail, postage prepaid, upon:
John Fisher, Esquire
Chief, Appellate Division
Office of the United States Attorney
for the District of Columbia
555 - 4th Street, N.W.
Washington, D.C. 20001
_____________________________
Teresa Alva
ADDENDUM