IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. :
: Cr. No. 97-463 (EGS)
:
xxxxxxxxxxx, :
:
Defendant. :
MOTION TO MODIFY SENTENCE
Defendant xxxxxxxxxxxx, through undersigned counsel, respectfully moves the Court to modify the sentence imposed on July 7, 1998, and as grounds, shows the court:
1. On July 7, 1998, this court sentenced Mr. xxxxxxx on his pleas of guilty to interstate transportation of stolen property (Count I of the Indictment, a violation of 18 U.S.C. § 2314) and first degree theft (Count III of the Indictment, a violation of 22 D.C. Code §§ 3811, 3812(a)). The court sentenced Mr. xxxxxxx to five years probation on Count I and to a term of 40 to 120 months imprisonment on Count III, the execution of which was suspended. On the latter count, the court imposed a term of probation of five years, to run concurrent with the term imposed on Count I. As conditions of probation, Mr. xxxxxxx was orderd to participate in electronic monitoring as part of home detention for a one-year period, to undergo substance abuse treatment, to complete 500 hours of community service, to stay away from the Library of Congress, to pay a fine of $20,000 and to compensate the court for his attorneys' legal services. The court imposed a special assessment of $100 on the federal offense and ordered that Mr. xxxxxxx pay $100 to the Victims Compensation Fund on the D. C. Code offense.
2. Counsel for Mr. xxxxxxx requested leave to file with the court supplemental pleadings on the issue of whether Mr. xxxxxxx has sufficient funds to pay a fine or the costs of his legal services.
The court granted that request.
3. Counsel for Mr. xxxxxxx have ascertained the following information with regard to his present financial status:
(a) Mr. xxxxxxx owns a condominium in Georgetown. That unit was recently appraised at $170,000. (Exhibit A). Although the purchase price for the unit in 1995 was $192,000, the real estate agent who manages the property believes that Mr. xxxxxxx would incur a significant loss -- approximately $10,000 -- if he sold the property today, given the sales price of comparable units in the area. That is particularly true in light of the fact that the property is subject to a lease until March, 2000. (Exhibit B). Mr. xxxxxxx owns no other real property.
(b) The condominium is rented for a monthly fee of $1,650.00. Expenses on the unit per month total $1,820.56 (mortgage - $1,407.23; condo fee - $263.00; insurance - $10.08; management fee - $140.25). Mr. xxxxxxx leases the property at a monthly loss to him of $170.56. Additionally, the monthly expenses listed above do no include periodic maintenance. Most recently, Mr. xxxxxxx spent $2,194.39 to repair the air conditioner in the unit. (Exhibit C).
(c) Mr. xxxxxxx's only other asset of any value is his book collection. Mr. xxxxxxx told the court at the July 7, 1998, sentencing hearing that his book collection was appraised for $35,000 as part of his divorce proceedings. As the government advised the court in its Initial Memorandum filed on July 16, 1998, the actual appraisal was for $14,000.00 (this appraisal was conducted in 1994, on 500 volumes). More recent appraisals obtained by counsel indicate that the book collection is worth approximately $13,000, if liquidated. Ronald Wackowski of Queen's Falcon Antiques in Tewksbury, Massachusetts assessed a fair market value for the collection at $36,814.00. (Exhibit D). However, he explained that fair market value is not the appropriate standard for determining what the collection could bring if Mr. xxxxxxx was forced to sell it. In his opinion, the collection would bring somewhere between $9,694.20 and $16,707.00 if liquidated. (Exhibit E).
(d) Mr. Wackowski's appraisal did not include volumes owned by Mr. xxxxxxx presently in the custody of the Library of Congress. Counsel for Mr. xxxxxxx obtained an appraisal of those volumes as well. Allan Stypeck appraised the books at fair market value (Exhibit F). However, he noted that the method of sale dictates the actual return on these books, and that any method of liquidation would net significantly less than the value of the books. (Exhibit G). The resale value of these books, based on a 35 percent resale value, is approximately $2,900.
(e) Mr. xxxxxxx's only monthly income is a disability pension of $1,958.50. From that sum, he pays $575.00 in rent. His other monthly expenses include utilities in the amount of $175.00, rental loss on his condo in the amount of $170.56, as well as food, medicine, and personal expenses for haircuts, laundry, newspapers, etc. Because of Mr. xxxxxxx's mental status, his funds are managed by his sister, Yvonne xxxxxxx, under a power of attorney arrangement.
Argument
1. Fine of $20,000
Pursuant to the United States Sentencing Guidelines, a fine must be related to the defendant's ability to pay. U.S.S.G. § 5E1.2(d)(2). See also United States v. Anderson, 39 F.3d 331, 358-59 (D. C. Cir. 1994). Given Mr. xxxxxxx's limited monthly income and his expenditures, he does not have the ability to pay a $20,000 fine from his income. Moreover, the condominium does not appear to be an asset which can be liquidated at a profit to him. The book collection can be liquidated, but it will command much less on the market than its assessed value, according to the experts who appraised the collection. The offense level in this case is level 10 (presentence report, paragraph 27, page 6). Under U.S.S.G. § 5E1.2(c)(3), the guideline range of fines for that offense level is $2,000 to $20,000. Mr. xxxxxxx respectfully moves the court to modify the fine imposed in this case to the lowest end of the guideline range, or $2,000.
Mr. xxxxxxx's request for modification is supported by the guideline, which lists several factors that should guide the court's imposition of a fine. U.S.S.G. § 5E1.2(d). Among those factors are the need for the fine to reflect the seriousness of the offense, the hardship the fine places on the defendant, any restitution or reparation the defendant has made, and whether the defendant has previously been fined for a similar offense. Mr. xxxxxxx has no prior criminal record, so he has never incurred a fine for a similar offense. The fine of $20,000 would impose a hardship on Mr. xxxxxxx because his income is limited to a disability pension and because he is solely responsible for his support. The fine also would also impose a hardship for his family, particularly his sister, Yvonne xxxxxxx, because if Mr. xxxxxxx is unable to meet monthly obligations because of payments toward the fine, his family will have to care for him financially. The court, in determining the appropriate fine, if any, should consider that Mr. xxxxxxx's conduct resulted in no financial loss to the Library of Congress. Furthermore Mr. xxxxxxx cooperated fully with the Library in its investigation and facilitated recovery of the Library's books. He voluntarily returned to the Library books in his collection that bore indicia of the Library's ownership, as well as turned over to the Library books of his own that were later determined not to belong to the Library. The court should also consider that a fine is punitive and that punishment is not a primary aim of sentencing in Mr. xxxxxxx's case where he entered an Alford plea based on his mental condition and where the conduct was, if not attributable to his head injury, certainly related to his diminished capacity from the injury. Pursuant to U.S.S.G. §5E1.2(e), community service is a preferable alternative sanction when a defendant lacks the ability to pay a fine. The court has imposed 500 hours of community service in this case. Taken together with the requirement for home detention with electronic monitoring for a year, the sentence imposed is sufficiently punitive that a fine is not necessary in this case. See U.S.S.G. § 5E1.2 (8).
Finally, sentencing statistics from the 1996 Sourcebook of Federal Sentencing Statistics show that for theft/embezzlement cases, fines were imposed by courts in only 8.6 percent of cases and fines and restitution were ordered in only 5.6 percent of cases. (Exhibit J). In a large majority of the cases (62.9 percent), courts imposed restitution only.(1) As discussed above, no restitution is appropriate in this case as Mr. xxxxxxx cooperated with the government to recover the Library's books. There are no factors in this case that would warrant treating Mr. xxxxxxx differently than other defendants in theft/embezzlement cases by imposing a significant fine.
2. Counsel Fees
The condition of probation requiring Mr. xxxxxxx to compensate the court for the value of services provided by counsel should be modified. This court has adopted a Criminal Justice Plan to effectuate the mandate of 18 U.S.C. § 3006A to provide counsel for indigent defendants. Under the plan, Section IV, D (pp. 11-12) (attached as Exhibit H), "[i]f at any time after appointment of counsel, the court finds that the person is financially able to obtain counsel or to make partial payment for the representation, or that funds are available for payment from or on behalf of a person furnished representation, the court may terminate the appointment of counsel or authorize payment as provided in subsection (f) of the Act, as the interests of justice may dictate." Pursuant to
18 U.S.C. § 3006A(f), "Whenever the United States magistrate or the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid to the appointed attorney, to the bar association or legal aid agency or community defender organization which provided the appointed attorney, . . . or to the court for deposit in the Treasury as a reimbursement to the appropriation, current at the time of payment, to carry out the provisions of this section."
The operation of these provisions is dependent upon a finding that Mr. xxxxxxx has the present ability to pay counsel. Id. As demonstrated above, he does not have that ability. Nor has he had that ability at any point during these proceedings, as his financial situation has remained constant from the time of the determination that he qualified for court-appointed counsel on August 21, 1997 (Exhibit I), to date.
CONCLUSION
For these reasons, counsel respectfully requests that the Court modify its Order of July 7, 1998, to reduce the fine imposed as a condition of probation to no more than $2,000.00, and to eliminate the requirement that Mr. xxxxxxx compensate his court-appointed attorneys.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
_______________________
Reita Pendry
Evelina Norwinski
Assistant Federal Defenders
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202) 208-7500
CERTIFICATE OF SERVICE
I certify that I served a copy of the foregoing Motion to Modify Sentence upon Carol Fortine, Esq., Assistant U. S. Attorney, Economic Crimes Section, Office of the U. S. Attorney, by faxing a copy to her and by mailing a copy to her at her office at 555 Fourth Street, N.W., Washington, D. C. 20001, this 21st day of August, 1998.
_________________________
REITA PENDRY
Copy to:
Mr. Brian McGill
U. S. Probation Office
U. S. District Court
333 Constitution Avenue, N.W.
Washington, D. C. 20001
1. In the remainder of the cases, 22.9 percent, no fine or restitution was imposed.