United States v. Rudolph

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

2-23-1998

United States v. Rudolph

Precedential or Non-Precedential:

Docket 96-5726

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Filed February 23, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-5726

UNITED STATES OF AMERICA

v.

DEANDRE RUDOLPH, a/k/a "Rudy"

Deandre Rudolph,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 96-cr-00162-01)

Argued September 15, 1997

Before: BECKER, Chief Judge, SLOVITER and

SCIRICA, Circuit Judges

(Filed February 23, 1998)

Peter V. Ryan (Argued)

West Orange, New Jersey 07052

Attorney for Appellant

Faith S. Hochberg

United States Attorney

Kevin McNulty

Allan Tananbaum (Argued)

Office of United States Attorney

Newark, New Jersey 07102

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Deandre Rudolph, who pled guilty to bribery and sale of

government property, appeals his sentence on the grounds

that the district court (1) improperly enhanced hi s sentence

pursuant to U.S.S.G. S 2C1.1(b)(1), and (2) improperly

failed to group the two convictions under U.S.S.G. S 3D1.2.

Because there was no trial, most of the relevant facts were

obtained from Rudolph's presentence report.

In March 1995, Gerard Felix, who was arrested on

charges unrelated to this case, admitted to having made

corrupt payments to employees of the Immigration and

Naturalization Service and other Justice Department

employees in return for illegal assistance. During the

course of his subsequent cooperation with the government,

Felix identified, inter alia, the appellant, Deandre Rudolph,

an INS Special Agent based in Newark, New Jersey, as one

of those government employees. Felix told the agents that

in the fall of 1994, Rudolph had accepted a total of $1,500

from him in return for an INS metal template, a device that

imprints a marking when fingerprints and signatures are

affixed to alien registration "green" cards to demonstrate

authenticity. Felix cooperated in the ensuing investigation

of Rudolph, during which several telephone calls between

Felix and Rudolph were monitored.

In October 1995, Felix asked Rudolph to obtain a federal

Presentence Report (PSR) prepared by the United States

Probation Office in the Southern District of New York in

exchange for $1,000. Thereafter, Felix and Rudolph met on

October 18, 1995 at a diner in Irvington, New Jersey to

discuss the proposed sale of the presentence report. At that

meeting, Rudolph requested more specific information

identifying the subject of the report.

The following day, after Felix provided Rudolph with the

date of birth of the subject of the report, Rudolph

2

telephoned Felix from his INS office and told him that he

had the report. They agreed to meet that afternoon to make

the exchange, but at that meeting Rudolph, who displayed

the PSR, sought more money than Felix had originally

offered because the PSR was highly confidential. Ultimately,

Rudolph accepted the $1,000 for the PSR at a later

meeting. Rudolph had used an unsuspecting colleague in

the INS office to obtain the copy of the PSR.

Approximately one month later, on November 21, 1995,

Rudolph, Felix and Wesley Clement, who was described as

"an illegal document vendor," met by prearrangement so

that Clement could purchase an INS metal template from

Rudolph. During negotiations, Rudolph explained that this

transaction was riskier than the sale of the template in the

fall of 1994 because this time there would be "cameras up

in the ceiling." The three men met again an hour later, and

Clement turned over $4,000 in cash for the template.

According to Felix, Clement purchased yet another template

shortly thereafter.

Rudolph was arrested on December 22, 1995. On

January 18, 1996, a three-count indictment was filed in the

United States District Court for the District of New Jersey

charging Rudolph with (1) demanding, seeking, and

receiving a monetary bribe as a public official to make

opportunities for the commission of fraud by providing an

I-89 template for use in fraudulent applications to the INS

for permanent residence, in violation of 18 U.S.C.

SS 201(b)(2)(B) and 2; (2) demanding, seeki ng, and receiving

a monetary bribe as a public official in order to be induced

to act in violation of his official duty by providing an I-89

template to a person not authorized to receive it, in

violation of 18 U.S.C. SS 201(b)(2)(C) and 2; and

(3) converting to his own use and without authorit y selling,

conveying and disposing of an I-89 metal template

belonging to the INS, in violation of 18 U.S.C. SS 641 and 2.

All three counts related to Rudolph's supply of the template

to Clement in November 1995 in exchange for money.

On March 22, 1996, pursuant to a written plea

agreement, Rudolph pled guilty to count one of the

indictment, charging him with receiving a bribe in violation

of 18 U.S.C. S 201(b)(2)(B), and waived indictment and pled

3

guilty to a one-count information charging him for the first

time with sale of government property, namely a

Presentence Investigation Report, in violation of 18 U.S.C.

S 641. Counts two and three of the indictment originally

presented were dismissed.

The district court sentenced Rudolph on October 23,

1996, to two concurrent 16-month terms of imprisonment,

to be followed by 3 years of supervised release. In addition,

the district court ordered Rudolph to pay a $7,500 fine for

each count of conviction, for a total of $15,000. Final

judgment was entered on October 28, 1996, and Rudolph

filed a timely notice of appeal on October 31, 1996.1

II.

Rudolph asserts that it was improper for the district

court to increase his offense level by two levels under

U.S.S.G. S 2C1.1(b)(1) based on his admissions to the

probation department that he had accepted two additional

bribes that were not the subject of a charge. Section 2C1.1

provides for a base offense level of ten for "offering, giving,

soliciting, or receiving a bribe" and mandates a two-level

increase if the offense "involved more than one bribe or

extortion." See U.S.S.G. S 2C1.1(b)(1),(2). In reviewing the

district court's application of S 2C1.1(b)(1), the factual

findings are reviewed for clear error, while the application

and interpretation of the Guidelines are subject to plenary

review. See United States v. Felton, 55 F.3d 861, 864 (3d

Cir. 1995).

Rudolph is not challenging the court's finding that he

accepted the two uncharged bribes. In fact, Rudolph

_________________________________________________________________

1. Although the notice of appeal listed only the docket number for

Rudolph's conviction for the sale of the presentence report, and not the

docket number for the bribery conviction, the government concedes that

the omission of the docket number of the latter was an inadvertent

typographical error as there was functionally only a single prosecution,

plea hearing, presentence report and sentencing hearing and that

Rudolph's brief clearly discloses an intent to appeal both convictions.

The government stipulates notice, as it was neither misled or prejudiced.

See Brief of Appellee at 3-4. We conclude under these circumstances

that we have jurisdiction over the entire appeal.

4

acknowledged during the sentencing hearing that he had

admitted to the probation officer that he accepted bribes for

three templates, and the district court considered that

admission in making its finding that Rudolph had accepted

three bribes. App. at 75. Rudolph's contention is that his

two uncharged bribes do not qualify as relevant conduct for

purposes of an enhancement under the sentencing

guidelines.

Under S 2C1.1(b)(1), the defendant's base offense is

increased by 2 levels if more than one bribe is involved. In

determining whether there has been more than one bribe,

it is necessary to consider "relevant conduct" as defined in

S 1B1.3. That section defines relevant conduct as "all acts

and omissions committed, aided, abetted . . . procured, or

willfully caused by the defendant . . . during the

commission of the offense of conviction, in preparation for

the offense of conviction, or in the course of attempting to

avoid detection or responsibility for that offense." U.S.S.G.

S 1B1.3(a)(1). Where the conduct at issue, if charged, would

be groupable with a charged offense pursuant toS 3D1.2(d),

however, the definition of relevant conduct also includes

"all acts and omissions committed, aided, abetted. . .

procured, or willfully caused by the defendant . . . that were

part of the same course of conduct or common scheme or

plan as the offense of conviction." U.S.S.G.S 1B1.3(a)(2).

See also United States v. Wilson, 106 F.3d 1140, 1143 (3d

Cir. 1997).

Offenses can be part of "the same course of conduct" if

"they are sufficiently connected or related to each other as

to warrant the conclusion that they are part of a single

episode, spree, or ongoing series of offenses." U.S.S.G.

S 1B1.3, appl. note 9(B). Similarly, offenses may constitute

part of a "common scheme or plan" if they are

"substantially connected to each other by at least one

common factor, such as common victims, common

accomplices, common purpose, or similar modus operandi.

U.S.S.G. S 1B1.3, application note 9(A).

Here, had they been charged, Rudolph's two uncharged

bribes would certainly have been groupable with the bribe

charged in count one of the indictment. Thus, it was proper

for the district court to consider them as relevant conduct

5

if they "were part of the same course of conduct or common

scheme or plan as the offense of conviction." U.S.S.G.

S 1B1.3(a)(2).

As indicated in the Presentence Investigation Report,

Felix was "a highly credible cooperating defendant," and

provided the probation department with information

concerning his and Rudolph's respective roles in each of the

three bribes. That information was corroborated by tape

recorded conversations and by Rudolph's own admissions.

Accordingly, we cannot say that the district court'sfinding

by a preponderance of the evidence that the two uncharged

bribes were "relevant conduct" as defined by the Sentencing

Guidelines was erroneous.

Rudolph asserts that relevant conduct that is uncharged

may not be the basis of a sentencing enhancement.

However, the Commentary to S 1B1.3 specifically notes that

"conduct that is not formally charged or is not an element

of the offense of conviction may enter into the

determination of the applicable guideline sentencing range."

Accordingly, this court has consistently rejected the

argument that only charged conduct may be grounds for a

sentencing enhancement. See United States v. Baird, 109

F.3d 856, 863 (3d Cir.) ("conduct not formally charged . . .

can be considered at sentencing"), cert. denied, 118 S. Ct.

243 (1997); United States v. Sokolow, 91 F.3d 396, 411 (3rd

Cir. 1996) (affirming district court's use of uncharged

conduct for purposes of sentencing determination pursuant

to S 1B1.3(a)(2)); United Sates v. Pollard, 986 F.3d 44, 47

(3d Cir. 1993) ("the court may consider uncharged conduct

in determining whether and how to apply upward or

downward adjustments"). Cf. United States v. Frierson, 945

F.2d 650, 652-54 (3d Cir. 1991) ("relevant conduct"

included offenses that were charged in the indictment but

dropped pursuant to a plea agreement), cert. denied, 503

U.S. 952 (1992).

Rudolph's principal contention on this issue is that use

of the uncharged bribes is precluded by our decision in

United States v. Thomas, 961 F.2d 1110 (3d Cir. 1992).

However, as the district court noted, Thomas is

distinguishable. In Thomas we held it was impermissible to

depart upward from the guideline range on the basis of

6

uncharged crimes. Id. at 1120. In this case, the uncharged

crimes are being used merely as part of the defendant's

relevant conduct. We thus reject Rudolph's argument that

Thomas is "controlling." Appellant's Br. at 24-25.

Moreover, we recently held in Baird that "even in the plea

bargain context, conduct underlying dismissed counts may

support an upward departure." 109 F.3d at 860. The

analysis in Baird was informed by the Supreme Court's

decision in United States v. Watts, 117 S. Ct. 633, 635-36

(1997), which held that a sentencing court could consider

conduct of which a jury acquitted a defendant. See also

United States v. Goggins, 99 F.3d 116, 119 (3d Cir. 1996)

(conduct relating to dismissed counts or counts on which

defendant is acquitted may be germane to imposition of

enhancement under U.S.S.G. S 2D1.1(b)(1)), cert. denied,

117 S. Ct. 1347 (1997). As we recognized in Baird, to the

extent that Thomas is inconsistent with Watts, Watts is

controlling. Baird, 109 F.3d at 866.

We turn to Rudolph's request that we reject the district

court's decision to consider his statements to the probation

officer and "bar the usage of [his] admission based on a

violation of due process." Appellant's Br. at 20. Rudolph

argues that he made the admissions concerning the

additional bribes because he faced an untenable choice

during his presentence interview with the probation officer.

He contends that he believed he would have been ineligible

for the two-level downward adjustment for acceptance of

responsibility pursuant to S 3E1.1 if he had refused to

answer truthfully the probation officer's questions

concerning the two uncharged bribes. Therefore, faced with

what he terms a "catch-22" situation because he was

concerned that an admission of that uncharged conduct

would expose him to the S 2C1.1(b)(1) enhancement,

Rudolph, through counsel, chose to acknowledge the

uncharged conduct in order to obtain the adjustment for

acceptance of responsibility. See App. at 13.

Of course, as Rudolph states in his brief, the guidelines

permit a defendant to "remain silent in respect to relevant

conduct beyond the offense of conviction without affecting

his ability to obtain a reduction under this subsection."

U.S.S.G. S 3E1.1 application note 1(a)(emphasis added). In

7

lieu of remaining silent, Rudolph, on the advice of counsel,

chose to speak. Thus, contrary to his assertion, Rudolph

was not put to a Hobson's choice, as he did not need to

offer information on, or even respond to, questions

concerning relevant conduct beyond the strict parameters

of his offense of conviction. See United States v. Taylor, 72

F.3d 533, 551 (7th Cir. 1995). Nothing about the situation

in which he was placed (which is no different from that in

which numerous defendants find themselves) implicated his

rights under the Due Process Clause. While there may have

been miscalculation by Rudolph's counsel, there was no

governmental coercion.

There is some suggestion, although no explicit

accusation, that the probation officer's questions may have

misled Rudolph and/or his counsel as to the extent of

Rudolph's responsibility to speak to uncharged conduct.

Rudolph directs us to nothing in the record to support that

suggestion. At the sentencing hearing, both parties agreed

that there was no issue of fact with respect to Rudolph's

admissions and, although the court arranged for the

probation officer to be present in the event either party

wanted her to testify, see App. at 52, neither party called

her.

At the sentencing hearing, Rudolph's counsel conceded

that he knew of no authority that would require a probation

officer to give Miranda warnings. App. at 51. Moreover, it is

clear from our prior precedent that while a court may

consider a defendant's candor and remorse concerning a

charged offense, a defendant's silence concerning

uncharged conduct will not jeopardize this reduction. See

United States v. Price, 13 F.3d 711, 735 (3d Cir.), cert.

denied, 513 U.S. 853 (1994). We thus reject all of Rudolph's

arguments based upon the use of his admissions of the two

uncharged bribes, and hold that the district court neither

erred nor abused its discretion in enhancing Rudolph's

sentence pursuant to S 2C1.1(b)(1).

III.

Rudolph also contends that the district court erred as a

matter of law in refusing to group together for purposes of

8

calculating his appropriate offense level the bribery offense

and the offense of sale of government property. He argues

that the two counts should have been grouped pursuant to

U.S.S.G. S 3D1.2, which would have resulted in an offense

level equal to that for the most serious of the counts in the

group pursuant to S 3D1.3. Although the plea agreement

stipulated that the offenses were groupable under

S 3D1.2(d), it expressly acknowledged that the stipulation

did not bind the sentencing court. App. at 15. The district

court found that the crimes did not "involve substantially

the same harm," U.S.S.G. S 3D1.2, and therefore did not

group the offenses. Accordingly, the district court adopted

a final guideline range of 12 to 18 months instead of the 10

to 16 month range that defendant sought. The 16 month

sentence Rudolph actually received would have fallen

within either range.

Our review of the district court's interpretation and

construction of the guidelines in refusing to group multiple

offenses under S 3D1.2 is plenary. See United States v.

Griswold, 57 F.3d 291, 295 (3d Cir.), cert. denied, 116

S. Ct. 428 (1995); United States v. Bush, 56 F.3d 536, 537

(3d Cir. 1995). The district court's factual findings in

determining whether the offenses charged were part of one

overall scheme or a continuing course of criminal conduct

are reviewed for clear error. Griswold, 57 F.3d at 295;

Bush, 56 F.3d at 537-38.

The rationale underlying grouping for sentencing

purposes is to prevent the imposition of "multiple

punishment for substantially identical offense conduct."

See U.S.S.G. Ch. 3 Pt. D, intro. comment. In that effort, the

sentencing guidelines provide that "all counts involving

substantially the same harm shall be grouped together into

a single Group." U.S.S.G. S 3D1.2. See Seligsohn, 981 F.2d

at 1425 ("The purpose [of S 3D1.2] is to impose incremental

punishment for significant additional criminal conduct, but

at the same time prevent double punishment for essentially

the same conduct.") (internal quotations omitted). In

addition, the concept of grouping was adopted, at least in

part, "[i]n order to limit the significance of the formal

charging decision." U.S.S.G. Ch. 3 Pt. D, intro. comment.

Nevertheless, courts have not been given carte blanche to

9

use their authorization to group offenses for sentencing

purposes as a vehicle to override a prosecutor's decision to

charge certain offenses and not others. Rather, counts may

be grouped by the court only when they meet the specific

requirements listed in U.S.S.G. S 3D1.2.

The general principle applicable to grouping is set forth

in the first sentence of S 3D1.2 under the heading "Groups

of Closely-Related Counts" and provides, "[a]ll counts

involving the same harm shall be grouped together in a

single group." The guideline then gives four circumstances

when "[c]ounts involve substantially the same harm within

the meaning of this rule" and are to be grouped.2 These

cover (a) counts involving a single victim and a single

incident, (b) counts involving a single victim and connected

incidents, (c) offenses in which one count is also a specific

offense characteristic of another count, and (d) offenses

where guidelines are based primarily on quantity or

contemplate continuing conduct. Unless the circumstances

fall within the language of one of the four subsections, the

offenses cannot be grouped.

_________________________________________________________________

2. The relevant language in full is:

All counts involving substantially the same harm shall be grouped

together into a single Group. Counts involve substantially the same

harm within the meaning of this rule:

(a) When counts involve the same victim and the same act or

transaction.

(b) When counts involve the same victim and two or more acts or

transactions connected by a common criminal objective or

constituting part of a common scheme or plan.

(c) When one of the counts embodies conduct that is treated as a

specific offense characteristic in, or other adjustment to, the

guideline applicable to another of the counts.

(d) When the offense level is determined largely on the basis of

the

total amount of harm or loss, the quantity of a substance

involved, or some other measure of aggregate harm, or if the

offense behavior is ongoing or continuous in nature and the

offense guideline is written to cover such behavior.

U.S.S.G. S 3D1.2.

10

The guideline enumerates those offenses that are eligible

for grouping under subsection (d) and those that are not.

See Seligsohn, 981 F.2d at 1425. Because the offenses at

issue here, covered by S 2B1.1 (theft) andS 2C1.1 (bribery),

are eligible for grouping the grouping determination must

be made based upon the facts of the case, and the

applicable guidelines (including specific offense

characteristics and other adjustments) used to determine

the offense level.

In this case, the government stipulated in the plea

agreement that Rudolph's offenses should be grouped

pursuant to subsection (d) of S 3D1.2. App. at 19. That is

the subsection Rudolph proffered in the district court, and

the subsection the district court addressed at Rudolph's

sentencing hearing. Subsection (d) authorizes grouping

"[w]hen the offense level is determined largely on the basis

of the total amount of harm or loss, the quantity of the

substance involved, or some other measure of aggregate

harm, or if the offense behavior is ongoing or continuous in

nature and the offense guideline is written to cover such

behavior." U.S.S.G. S 3D1.2(d) (emphasis added).

We have previously explained that the language in

subsection (d) emphasized above "is intended to require

grouping where the offense conduct is ongoing or

continuous and the offense level provided by the applicable

offense guideline already takes into account the fact that

there has been a course of harmful conduct." United States

v. Ketcham, 80 F.3d 789, 796 (3d Cir. 1996) (emphasis

added). Thus, subsection (d) seeks to eliminate duplication

created by what is, in essence, merely an aggregation of

harm or a course of conduct that has already been taken

into account by the setting of the offense level.

The district court assumed, without deciding, that

Rudolph's offense conduct was ongoing and continuous but

deemed it doubtful that accepting bribes and stealing a

presentence report constitute the type of ongoing criminal

conduct envisioned by S 3D1.2(d).3 App. at 67. The court,

_________________________________________________________________

3. We will make the same assumption of continuity, despite similar

doubt. We reject the theory offered by Rudolph's counsel at oral

11

following our analysis in Ketcham, determined that

grouping pursuant to S 3D1.2 was inappropriate because

Rudolph's "offense levels provided by the applicable

guidelines do not take into account a course of harmful

conduct." App. at 67-68. We cannot find error in the

district court's application of S 3D1.2(d).

It is clear from the language of subsection (d) that if the

offense level is not determined on the basis of amount of

harm or loss, then grouping is not authorized under this

subsection based on continuing conduct unless the offense

guideline expressly takes into account the continuing

nature of the conduct. An example of a guideline that does

so appears in U.S.S.G. S 2G2.2(b)(4), which provides for a

5-level increase "[i]f the defendant engaged in a pattern of

activity." In contrast, nothing in SS 2B1.1 or 2C1.1, the

guideline sections under which Rudolph was sentenced,

explicitly takes into account a continuing course of

conduct. Although S 2C1.1(b)(1) provides for an

enhancement if there is more than one bribe, and

Rudolph's offense level was enhanced accordingly because

he took more than one bribe in exchange for INS templates,

that enhancement did not encompass, and was not in any

way based upon, Rudolph's theft of the Presentence

Investigation Report. Yet those are the two offenses

Rudolph argues we should group.

In Bush, we stated that in grouping decisions "courts

must distinguish between occasions when increasing the

punishment for an additional count would punish the

defendant for conduct taken into account in another count

_________________________________________________________________

argument that because the theft and two of the bribes were arranged

and/or monitored by the government, Rudolph's activities were ongoing

or continuous in nature. Rudolph's first two offenses were separated by

approximately one year and, although Felix played a role in both, there

is no evidence that Clement, who was the source of funds in the

template bribe offense, had any connection to the theft of the PSR. See

Bush, 56 F.3d at 541 (holding that district court would have acted

properly in finding that defendant's five firearms purchases over a period

of several months did not constitute a continuing course of conduct

where guns were not purchased with funds from a common source nor

were they all to be used for a particular purpose).

12

and those occasions when the added counts reflect

additional criminal culpability." 56 F.3d at 538. Thus, in

Griswold, we affirmed the district court's refusal to group

certain firearms offenses where, as here, the defendant's

"multiple counts encompassed numerous instances of

illegal conduct" and the offense guideline under which

defendant had been sentenced did not cover multiple

violations such that defendant would be punished for the

same conduct under different counts. 57 F.3d at 296-97; cf.

United States v. Riviere, 924 F.2d 1289, 1303-06 (3d Cir.

1991) (holding that three firearms offenses which were

based on essentially one instance of criminal conduct

should have been grouped).

Here, the district court noted that in Bush we stated that

the guidelines provide that "[a]ll counts involving essentially

the same harm shall be grouped into a single Group," 56

F.3d at 538, but it reasoned that Rudolph's offenses caused

analytically distinct harms. Admittedly, both of Rudolph's

offenses compromised the public's trust in the government

and its officials because a government official was involved.

However, as the district court noted, Rudolph's acceptance

of the bribes in exchange for templates could have enabled

untold numbers of illegal aliens to create illegitimate proofs

of residence in the United States, and thereby "undermines

the United States policy on immigration by permitting a

virtual unlimited number of persons to obtain permanent

residency in this country." App. at 69. Rudolph's action in

using his access to other public employees to obtain and

sell a presentence report caused a distinct harm; it violated

the privacy of the subject of the PSR by disseminating

personal and confidential information about him or her to

those who have no legitimate basis to read it, with

additional potential resultant harm. App. at 69-70.

Rudolph may have recognized on appeal that he fits

within neither of the situations covered by subsection

3D1.2(d), in that the offense levels of the relevant guidelines

were not determined on the basis of aggregate harm or loss

and they were not written to cover behavior that is"ongoing

or continuous" in nature. Indeed, his appellate brief makes

only scant effort to justify grouping under that subsection,

despite the fact that subsection (d) was the cited basis for

13

grouping in the stipulation. Instead, he argues, apparently

for the first time, that grouping was also appropriate under

subsections (b) and (c) of S 3D1.2. Because those

arguments were not raised before the district court, we

review for plain error. Fed. R. Crim. P. 52(b).

By its terms, S 3D1.2(b) applies only to counts involving

the same victim. U.S.S.G. S 3D1.2(b). According to the

guideline commentary, "[f]or offenses in which there are no

identifiable victims . . ., the `victim' for purposes of

subsections (a) and (b) is the societal interest that is

harmed." U.S.S.G. S 3D1.2, appl. note 2. See also Griswold,

57 F.3d at 295-96 (citing application note 2 to S 3D1.2). As

our discussion above suggests, one of the primary societal

interests jeopardized by Rudolph's acceptance of the bribes

was the integrity and efficacy of the nation's immigration

policies, arguably a victimless crime. In contrast, the theft

of the PSR was directed to an identifiable victim-- the

individual for whom the PSR was prepared. Accordingly, the

two offenses involved different victims, rendering subsection

(b) of S 3D1.2 inapplicable.

Subsection (c) authorizes grouping "[w]hen one of the

counts embodies conduct that is treated as a specific

offense characteristic in, or other adjustment to, the

guideline applicable to another of the counts." U.S.S.G.

S 3D1.2(c) (emphasis added). Rudolph argues that this

subsection applies because the abuse of his position of

trust and authority was embodied in the bribery count and

was used as the basis for an upward adjustment on the

theft count.

In Griswold, we rejected an argument similar to that

made by Rudolph here. There, the defendant argued that

his status as a convicted felon was an essential element of

one offense and a factor in setting the base offense level in

another. Griswold, 57 F.3d at 296. Unpersuaded, we noted

that "no conduct embodied in one of the counts is used . . .

in the determination of the offense level for another count.

Griswold's status as a convicted felon is implicated in

establishing the base offense level for each offense.

However, no separate conduct by Griswold resulted in

double counting." Id. at 296-97. Accordingly, we held that

subsection (c) did not apply.

14

Similarly, although Rudolph's status as a public official

affected both counts on which he was sentenced, the two

counts addressed distinct criminal acts, neither of which

encompassed conduct that affected Rudolph's sentence for

the other. We therefore cannot find that the district court's

failure to group the offenses under subsection (c) of section

3D1.2 constituted error, much less plain error.

IV.

For the reasons set forth above, we will affirm the

judgment of conviction and sentence.4

_________________________________________________________________

4. This opinion takes no position with respect to the concurring opinion

of Chief Judge Becker which is directed to the Sentencing Commission

rather than to the disposition of the case before us.

15

BECKER,***** Chief Circuit Judge, concurring. Of the

myriad challenges facing the Sentencing Commission when

it drafted the Sentencing Guidelines, few were greater than

the task of fashioning clear and sensible rules for the

grouping of offenses. While what emerged in U.S.S.G.

S 3D1.2 is a generally sensible and workable set of

principles, this case suggests to me that facets of the

grouping Guidelines are forced, and result in formalistic

rather than common sense dispositions that yield results

contrary to the Commission's intent to limit the significance

of the charging decision. While I join in Judge Sloviter's

carefully written opinion for the court, and in the judgment,

I write separately to suggest that the grouping guidelines

would benefit from a redraft that would elevate substance

and common sense over form. My comments thus pertain

only to Part III of the opinion of the court. I note that, from

its earliest days, the Commission has urged the federal

judiciary to make suggestions for Guideline revision,

viewing them as a means of implementing the ongoing

monitoring process. See U.S.S.G. Ch.1 Pt. AS 4(b) (stating

that Commission will analyze judicial decisions to

determine how to refine Guidelines); see also United States

v. Woods, 24 F.3d 514, 518 n.4 (3d Cir. 1994) (discussing

same). To its great credit, the Commission has frequently

acted upon such suggestions.

I

I see the case as follows. Prior to the offenses of

conviction, Rudolph was known by the government's

informant, Felix, to have sold stolen government property in

return for bribes. The events leading to both the bribery

offense and the sale of government property (i.e. theft)

offense at issue involved an offer to pay a sum of money in

return for goods stolen from the Justice Department. In the

instance leading to the theft conviction, Felix made the

illicit offer. In the instance leading to the bribery conviction,

Felix facilitated an offer made by a third-party, Wesley

Clement. In both cases: (1) Rudolph and his buyer haggled

_________________________________________________________________

*****Honorable Edward R. Becker, United States Circuit Judge for the

Third Circuit, assumed Chief Judge status on February 1, 1998.

16

over the amount of the bribe; (2) Rudolph used his position

with the INS to facilitate the transaction; and (3) the end

result was precisely the same -- a theft of government

property in return for a bribe.

Under the standard for S 3D1.2(d) grouping announced in

United States v. Ketcham, 80 F.3d 789, 796 (3d Cir. 1996),

grouping is appropriate if: (1) the defendant's o ffense

behavior has been found to be continuous or ongoing, and

(2) the offense guidelines take his ongoing course of

conduct into account. See S 3D1.2(d) (offense guidelines

must be "written to cover" ongoing offense behavior). Both

the district court and this court have assumed that

Rudolph's behavior was ongoing and continuous, see Op. at

n.3, and the facts supporting the charged offenses,

combined with the fact that Rudolph admitted to two other

(uncharged) bribes in return for INS templates on two other

occasions, suggest that this assumption is correct.

As previously noted, grouping pursuant to subsection (d)

also requires that the offense guidelines "already take into

account the fact that there has been a course of harmful

conduct." Ketcham, 80 F.3d at 796. The court concludes

that neither S 2B1.1 nor S 2C1.1, the relevant offense

guidelines here, explicitly takes a continuing course of

conduct into account, and hence that Rudolph's offenses

should not be grouped. While the court has correctly

applied the law, I find this outcome extremely troubling.

The express purpose of the grouping guidelines is to limit

the significance of the formal charging decision and to

prevent multiple punishment for substantially identical

offense conduct, while still ensuring incremental

punishment for significant additional conduct. See U.S.S.G.

Ch. 3 Pt. D, intro. comment. The problem with S 3D1.2(d)

is that, in spite of these goals, it requires that the offense

guidelines be written to cover ongoing offense behavior. In

other words, if we read the Guidelines literally, we could, as

intimated in Ketcham, supra, be forced to reject a grouping

because of how the offense guidelines are written when the

reality of the offense conduct clearly shows substantially

identical conduct. This seems to be an unnecessary and

untoward exercise in formalism, with the added vice of

17

effectively bringing the charging process back to the center

of the sentencing calculus.1

That is what happened here. In my view, the key criminal

behavior underlying both of Rudolph's offenses is the theft

of government property in return for bribes. The only

difference is the particular item Rudolph was asked to steal

from the Justice Department closet. Yet, because one

offense was charged as a bribe and sentenced under

S 2C1.1, and the other offense was charged as a sale of

government property and sentenced under S 2B1.1, the

offenses are held not to be groupable.2 Thus, it is the

charging decision and not the actual offense conduct that

is ultimately controlling the sentence here.

The court correctly states that we have not been given

the authority to group offenses "carte blanche" in order to

"override a prosecutor's decision to charge certain offenses

and not others," and that we are limited to the textual

dictates of S 3D1.2. Op. at 9-10, 11. The court's statements,

however, point out precisely the tension that currently

exists between the policy behind the grouping notion, the

purpose of which is, I reiterate, to limit the significance of

the formal charging decision and to prevent multiple

punishment for substantially identical offense conduct

while still ensuring incremental punishment for significant

additional conduct, and the actual directions that we are

given in the Guidelines themselves. Not only are we not

_________________________________________________________________

1. The problem with S 3D1.2 highlighted by this case is also reflective of

a larger, systemic shift caused by the adoption of the Guidelines, for

that

regime has, as many commentators have recognized, worked a massive

transfer of discretionary power from the courts to the U.S. Attorneys'

offices. See Albert W. Alschuler, The Failure of Sentencing Guidelines: A

Plea for Less Aggregation, 58 U. Chi. L. Rev. 901, 926-28 (1991).

2. Section 2C1.1(b)(1) provides for a base offense level enhancement if

more than one bribe is involved in the offense. As the court notes, see

Op. at 12, Rudolph was subject to this enhancement because "he took

more than one bribe in exchange for INS templates." If the PSI sale had

been charged as a bribe, it could also have been considered in this

multiple-bribe analysis, rendering grouping of the offenses appropriate.

See also Op. at 5 (noting that had Rudolph's two uncharged bribes been

charged, they would have been groupable with the bribe charged in

count one of the indictment).

18

given power to override the charging decision, but under

S 3D1.2(d) as presently drafted, we are powerless to look

beyond the charging decision because we must adhere to

the text of the offense guidelines -- and not the actual

offense conduct -- to decide if grouping is appropriate.

What the foregoing analysis suggests is that the grouping

guidelines suffer from a drafting flaw, for this result is not,

I submit, what the Commission really intended. Neither is

it good policy if that was the intended result.

II

This functional type of approach is also necessary to

avoid analogous pitfalls arising under our current

construction of S 3D1.2(b). Under that subsection, multiple

counts are groupable when they "involve the same victim"

and constitute "part of a common scheme or plan." See

S 3D1.2(b). According to the guideline application notes,

when there is no identifiable victim, the "victim" for

purposes of a S 3D1.2(b) analysis is "the societal interest

that is harmed." See id., appl. note 2. In the present case,

the court has rejected Rudolph's subsection (b) claim (i.e.

that his theft and bribery offenses were part of a common

scheme and involved the same victim) based on the

conclusion that the primary societal interest affected by

"Rudolph's acceptance of the bribes was the integrity and

efficacy of the nation's immigration policies," whereas the

victim of the PSI theft offense was the individual with

respect to whom the PSI was prepared. See Op. at 14. As

we are reviewing here for plain error, see Op. at 14, I

cannot fault this result. The court's subsection (b) victim

analysis, however, suffers from the same reliance on

formalisms that hampers the subsection (d) analysis.

There are at least two ways to look at a bribery offense

when we try to assess who is the "victim" of the crime. On

the one hand, we could examine the nature of the

individual who accepted the bribe. On the other hand, we

could also examine the nature of the task or property that

was exchanged as consideration for the bribe. In this case,

the court has chosen to assess solely the nature of the

consideration to determine who or what is the "victim." Not

surprisingly, the court concludes that the stolen INS

19

template affects the integrity of the immigration laws while

the PSI affects the individual who is its subject. But if we

had looked instead to the nature of the bribe acceptor, our

analysis would have been quite different. In both Rudolph's

bribery and sale of government property offenses, we would

find a Justice Department official who jeopardized the

integrity of his agency by accepting bribes. Viewed in that

light, in both instances the harm caused would be the

undermining of the citizenry's trust in government and its

officials. Indeed, the district court noted that this was a

common ground between Rudolph's offenses. See App. at

69-70.

The unfortunate result of the court's analysis is that a

defendant like Rudolph who is charged with stealing one

template and one PSI (even though there was evidence that

Rudolph had stolen another template) is not eligible to have

his offenses grouped, whereas if he happened to be charged

with stealing the two templates, his offenses could have

been grouped under subsection (b). By limiting our analysis

to one side of the bribery equation, our interpretation of the

Guidelines enforces formalism over the plain reality that

there was one criminal scheme and it just so happened that

the defendant was caught stealing a template and a PSI

rather than two templates or two PSIs.

Moreover, application note 2 to S 3D1.2 also states:

[T]he "victim" for purposes of subsections (a) and (b) [in

non-identifiable victim cases] is the societal interest

that is harmed. In such cases, the counts are grouped

together when the societal interests that are harmed

are closely related. . . . Ambiguities should be resolved

in accordance with the purpose of this section as

stated in the lead paragraph, i.e., to identify and group

"counts involving substantially the same harm."

This application note demonstrates the Commission's

recognition that the determination of what interest is

harmed will necessarily be analytically imprecise. I believe,

therefore, that this note directs us to rely ultimately not on

a metaphysical parsing of what elements of society were

harmed, but, so long as the societal interests are closely

related, on whether the real elements of the offense suggest

20

that there is only one ultimate harm embodied in both

counts. See United States v. Riviere, 924 F.2d 1289, 1305

(3d Cir. 1991) (applying earlier version of application note

2 and basing grouping decision on S 3D1.2 policy grounds).

While I agree that the subject of the PSI is properly

identified as a victim, I believe that because there has been

a theft of Justice Department property, the government and

the attendant societal interests are also implicated as

victims by the sale of the PSI, and that a less formalistic

approach could therefore suggest that grouping is

appropriate here.

My approach is supported by a recent Seventh Circuit

decision addressing a related "same victim" question. In

United States v. Wilson, 98 F.3d 281 (7th Cir. 1996), the

defendant pled guilty to charges of money laundering and

mail fraud arising out of a Ponzi scheme. Relying on a line

of authority that proposed that the victim of mail fraud is

the person defrauded, while the victim of money laundering

is society at large, the government argued that these two

offenses were inappropriate for grouping under subsection

(b) because they involved different victims, and thus

different harms. See Wilson, 98 F.3d at 283. Although

finding the government's contention to be correct in the

abstract, the court disagreed that this theoretical victim

analysis compelled the conclusion that grouping was

inappropriate:

[W]hen the defendant is convicted of laundering the

proceeds of his fraud . . . as Wilson was here, there is

intuitive force to the argument that the victim of the

fraud is also a victim of the transaction designed to

hide or "cleanse" the funds of which she was

defrauded.

Id. (internal citation omitted). I believe the Seventh Circuit's

decision to apply its "intuitive force" rationale in these

circumstances once again demonstrates that we must look

to the actual offense conduct and the nature of the criminal

scheme involved -- and not just rely on abstract victim

analysis or other formalisms -- to give meaning to the

Commission's intent behind the grouping guidelines.

21

III

The animating purpose of the grouping rules is to identify

and recognize when multiple counts of conviction"are so

closely intertwined with other offenses that conviction for

them ordinarily would not warrant increasing the guideline

range," and to sanction accordingly. See U.S.S.G. Ch. 3, Pt.

D. intro. comment; see also Wilson, 98 F.3d at 282 (basic

goal of S 3D1.2 is to combine offenses involving closely

related counts). To impose sentences consistent with this

purpose, federal sentencing judges must be able to assess

the factual realities of the conduct underlying the

convictions to determine when the counts are related

enough to demand grouping. Section 3D1.2(d), as currently

written, and S 3D1.2(b), as currently construed, stand in

the way of this process, and the sentence imposed on

Deandre Rudolph bears this out.

Therefore, in addition to the revised construction of

subsection (b) proposed supra, I also suggest to the

Sentencing Commission that a redraft of S 3D1.2(d) may be

in order. One possibility would be to draft an application

note relating to the list of specific offenses that "are to be

grouped" under subsection (d).3 The new note could state

that inclusion of the offenses at issue on this list raises a

rebuttable presumption that grouping is appropriate so

long as the offense behavior is ongoing or continuous in

nature, and so long as the purposes of the guidelines would

be served by grouping the counts. By the terms of this

presumption, grouping could be appropriate even in the

absence of explicit language in the offense guidelines

accounting for a continuing course of conduct. This would

leave the grouping analysis to the judgment of the district

_________________________________________________________________

3.Section 3D1.2(d) includes a list of offense guidelines, the offenses

covered by which "are to be grouped under this subsection." See

S 3D1.2(d). Our current construction of that subsection teaches that

inclusion on this list does not mean that grouping is to be automatic, see

United States v. Seligsohn, 981 F.2d 1418, 1425 (3d Cir. 1992); see also

United States v. Harper, 972 F.2d 321, 322 (11th Cir. 1992) (cited in

Seligsohn) (grouping pursuant to the subsection (d) "to be grouped' list

not automatic because in some circumstances automatic grouping may

detract from main purposes of S 3D1.2).

22

court, rather than mandating its reliance on the formalities

of the charging process.4

Another possibility would be to eliminate the "written to

cover such behavior" clause entirely, and replace it with

language requiring that the offense conduct underlying the

potentially groupable counts be "closely intertwined." In

that case, subsection (d) would read:

. . . or if the offense behavior is ongoing or continuous

in nature and the offense behavior underlying one of

the counts is closely intertwined and represents

substantially the same type of wrongful conduct as

another of the counts.

Yet another possibility would be to replace the"written to

cover" clause with a more general cross-reference to the

policy goals outlined in the in the introductory comment to

Chapter 3, Part D. In that case, the subsection could read:

. . . or if the offense behavior is ongoing and

continuous in nature and the decision to group is

necessary to prevent multiple punishment for

substantially identical offense conduct.

_________________________________________________________________

4. One can see this type of approach being applied in other cases that

functionally construe S 3D1.2(d). For example, the Eighth Circuit has

held that a S 2F1.1 (fraud/counterfeiting) offense and a theft offense

should be grouped under subsection (d) when they both arise out of the

defendant's theft and forgery of U.S. Treasury instruments. See United

States v. Manuel, 912 F.2d 204, 206-07 (8th Cir. 1990). The court

concluded that:

Guideline section 3D1.2(d) specifically lists Guidelines sections

2F1.1 and 2B1.1 as offenses that can be grouped together. U.S.S.G.

S 3D1.2(d). In light of the fact that these two counts both arose

out

of Manuel's theft of United States Treasury instruments, we believe

that the counts are sufficiently linked to merit being grouped

together for purposes of section 3D1.2(d).

Id. The Manuel court, having found that the two offenses at issue are

included among the "to be grouped" list of 3D1.2(d), did not find it

necessary to probe further. Instead, it considered whether grouping on

the facts of the case would advance the policies behind S 3D1.2 by

assessing whether the offenses were "sufficiently linked."

23

I acknowledge that either type of amendment might

generate new ambiguities in application. Such new

ambiguities, however, would revolve around the actual facts

of the case and the policies of S 3D1.2, and not around the

abstract language of the offense guidelines. I believe that

such an change could help remove the charging process

from the analysis, as the Commission apparently intended,

and relocate sentencing discretion with the sentencing

judge.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

24