UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

Transcription

1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA, ) CRIMINAL ACTION NO. ) Plaintiff, ) 3:95-CR-260-R ) v. ) ) XXXX XXXX, ) ) Defendant. ) ) SENTENCING MEMORANDUM 1

2 TABLE OF CONTENTS PAGE NO. I. INTRODUCTION 1 II. BACKGROUND TO OFFENSE 1 III. XXXX XXXX 8 IV. ARGUMENT 10 A. U.S.S.G. 2F1.1(b)(4) is inapplicable 10 B. Downward Departure Aberrant Behavior Imperfect Entrapment Age 15 C. Probation is the Appropriate Sentence 16 V. CONCLUSION 17 2

3 TABLE OF AUTHORITIES PAGE NO. CASES United States v. Alfaro, 919 F.2d 962 (5th Cir. 1990) 11 United States v. McClelland, 72 F.3d 717 (9th Cir. 1995) 14, 15 United States v. Ward, 814 F. Supp. 23 (E.D. Va. 1993) 15 STATUTES 18 U.S.C. 3553(q) 16 MISCELLANEOUS 1 Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law 3.7(F) (West 1986) 11 Perry Flint, All Parts Are Not Created Equal, Air Transport World, July 1, U.S.S.G. 2F U.S.S.G. 2F1.1(b)(2)(A) 10 U.S.S.G. 2F1.1(b)(2)(C) 10 U.S.S.G. 2F1.1(b)(4) 10, 11, 12, 13 U.S.S.G. 5H U.S.S.G. 5K

4 The following Sentencing Memorandum is submitted to the Court in order to assist the Court in imposing a just sentence in this case. I. INTRODUCTION XXXX XXXX is currently sixty years old. See Presentence Investigation Report (the "PSI") at ƒƒ 42, 47. When he was seventeen years old, Mr. XXXX and his family immigrated to the United States from Europe. Id. at ƒ 42. In 1965, Mr. XXXX and his brothers founded Witko Engineering ("Witko") in Gardena, California. Id. at ƒ 53. Witko was a machine shop that made machine parts for various industries including the airline industry, the space industry and the military. Mr. XXXX was Vice- President of Witko. During the sixties and seventies and through the mid-eighties, Witko was a thriving family run business. Nevertheless, because Witko was heavily dependent upon the defense industry for its business, it suffered huge financial losses following the downsizing of this country s military industrial complex in the late 1980s. As a result, Witko declared bankruptcy in July of 1991, more than twenty-five years after it first came into existence. II. BACKGROUND TO OFFENSE In January of 1990, McDonald Douglas ("MDC") placed an order with PCA Systems, Inc. in Anaheim, California for eighteen end cap assemblies (the "Assemblies"). See Purchase Order (attached hereto as Exhibit A). PCA Systems in turn subcontracted with Witko to machine the eighteen Assemblies. See Purchase Order (attached hereto as Exhibit B). End cap assemblies assist in retracting a plane s landing gear following takeoff. Prior to the machining of the Assemblies by Witko, PCA Systems went out of business. Nevertheless, because Witko was an approved source 1 for MDC parts, PCA suggested that the purchase order for the eighteen Assemblies be transferred to Witko. MDC then requested a quote from Witko to supply the eighteen Assemblies. See Price Quotation (attached hereto as 1 An approved source is a source approved by an original equipment manufacturer such as MDC. 4

5 Exhibit C). Eventually, MDC determined that it only needed one Assembly and provided a purchase order to Witko for the one Assembly. See Purchase Order (attached hereto as Exhibit D). Because Witko had originally been told by PCA and MDC that MDC would be ordering eighteen Assemblies rather than one Assembly, it arranged to have eighteen Assemblies machined and processed as well as one spare Assembly that was to be used as a set up part. When the Assemblies were first inspected by a Witko in-house inspector, Robert McDowell, Mr. McDowell noted four discrepancies between the Assemblies and MDC s blueprints. See Nonconforming Material Report (attached hereto as Exhibit E). Nevertheless, the original NonConforming Material Report prepared by Mr. McDowell shows that three of the four discrepancies were crossed out on the Report. Id. Assuming that three of the problems had been corrected or excused by MDC, Mr. XXXX then signed a NonConforming Materials Report on May 22, 1991 noting what he believed to be the only unexcused discrepancy remaining. See Nonconforming Material Report (attached hereto as Exhibit F). That discrepancy involved oversized holes in which the Assemblies bushings would be inserted. The holes were oversized by 1/2000 of an inch in diameter. Mr. XXXX then had preliminary discussions with Earl Nishiyama, an MDC engineer, regarding the discrepancy and Mr. XXXX was told by Mr. Nishiyama that MDC s source inspector would likely "buy off" (i.e. approve) what Mr. XXXX believed to be the only remaining unapproved discrepancy (i.e. the oversized holes). Unfortunately, prior to MDC buying off on the discrepancy and the Assembly being source inspected by an MDC source inspector, Witko was forced to file for bankruptcy. 2 A short time before Witko declared bankruptcy, Mr. XXXX and one of his brothers formed another machine shop, Aero Tech Engineering, also in Gardena, California. Following Witko s bankruptcy, Mr. XXXX took the nineteen Assemblies with him to Aero Tech. Unlike 2 Shortly before Witko s bankruptcy, Witko was given an A rating by MDC and received a perfect quality score. See Review Report (attached hereto as Exhibit G). 5

6 Witko, however, Aero Tech was unable to become an approved source for MDC. Mr. XXXX and his brother were told at or about the time Aero Tech Engineering was formed that MDC was generally not approving new businesses as approved sources. Aero Tech Engineering operated from October 1990 to July See PSI at ƒ 52. At some point in time following the closure of Witko, Mr. XXXX s bankruptcy attorney, Paul Groff, suggested that Mr. XXXX put various parts he was allowed to take from Witko on consignment with another of his (Groff s) clients, Carlos DelToro, owner of DelToro Machine, Inc. Mr. XXXX followed Mr. Groff s suggestion. Mr. XXXX did not realize at the time that parts produced by an approved source (i.e. Witko) could only be sold to the original equipment manufacturer (i.e. MDC) pursuant to FAA regulations. More importantly, Mr. Groff was also understandably ignorant of this fact. 3 In the meantime, Mr. XXXX and his wife were forced to declare personal bankruptcy. Thus, in a short time span, at the age of fifty-eight, Mr. XXXX lost his business, his home and his life savings and was forced to start over in life. In August of 1993, the XXXXs moved to Argyle, Texas in order to move in with their daughter and son-in-law, Linda and Nathan Green. Shortly upon arriving in Texas, Mr. XXXX went to work as a machinist for West Precision Machining. See PSI at ƒ In January of 1995, he left West Precision to work as a machinist at E.W. Johnson, Inc. for a short period and then, in February of 1995, he went to work for Campbell Grinding and Machine in Lewisville. Id. at ƒƒ Mr. XXXX is still 3 This was a regulation that the FAA did not begin to enforce until recently. See Perry Flint, All Parts Are Not Created Equal, Air Transport World, July 1, 1994 (attached hereto as Exhibit H). 4 The Court has before it letters from two of Mr. XXXX s supervisors at West Precision attesting to Mr. XXXX s character and work ethic. 5 The Court has before it a character letter from Leon Campbell, President of Campbell Grinding and Machine. 6

7 employed by Campbell Grinding and Machine and is considered to be an exemplary employee. See Letter from Leon Campbell. Following his move to Texas, Mr. XXXX s daughter and son-in-law also founded Deutsch Precision. His son-in-law described Deutsch Precision as "a place for XXXX to work part-time as a machinist in a one man shop." See Letter from Nathan Green. In other words, it was a place for Mr. XXXX to putter around when he got off from work and where, hopefully, he could build up a small business. At some point in early to mid 1994, Linda Green learned of the Witko parts that her father had on consignment in California. See Letter from Linda Green. Linda and Nathan Green also learned about a company named Dallas Aerospace from a sub-contractor who was working on their home. Id. Both Linda and Nathan Green encouraged Mr. XXXX to contact Dallas Aerospace in order to learn whether Dallas Aerospace might be interested in the Witko parts that were on consignment with DelToro Machine, Inc. in California. Id. Significantly, other than putting the parts on consignment with DelToro Machine, Inc. upon the advice of his bankruptcy attorney, Mr. XXXX had taken no other steps to sell the spare Witko parts prior to the time he was encouraged by his daughter and son-in-law to contact Dallas Aerospace. Upon contacting Dallas Aerospace in July of 1994, Mr. XXXX was put in contact with Dallas Aerospace s Quality Control Manufacturer, J.R. Hoffman. As noted above, the parts in question were produced by Witko, an approved source for McDonald Douglas. However, as also noted above, Mr. XXXX did not know about the FAA regulation requiring approved sources to only sell parts to the original equipment manufacturer (in this case McDonald Douglas). Rather than simply telling Mr. XXXX that he could not sell the parts in question to Dallas Aerospace as a result of the FAA regulation, J.R. Hoffman contacted the FAA and the FAA proceeded to set up a sting operation. Indeed, had Mr. Hoffman told Mr. XXXX about the FAA regulation, there is no doubt whatsoever in the undersigned counsel s mind that Mr. XXXX would have simply walked away. 7

8 As a result of negotiations between Mr. XXXX and Hoffman, operating in an undercover capacity, Mr. XXXX arranged for the nineteen Assemblies to be brought to Texas from California. Mr. XXXX repeatedly explained to Hoffman how he came into possession of the Assemblies following Witko s bankruptcy and admitted that the Assemblies had not been final source inspected by MDC prior to Witko s bankruptcy. See, e.g., Transcript of July 11, 1994 conversation between XXXX XXXX and J.R. Hoffman (attached hereto as Exhibit I) at Hoffman: Okay, uhh, XXXX fill me in a little bit on, on these uhh, assemblies now. XXXX: Okay, what s happening is that uhh we, I had the parts stored at somebody s Hoffman: Right. XXXX: I started these parts for my company that used to be called Witko Engineering, that s W-I-T-K-O Engineering. Hoffman: Right. XXXX: I had a purchase order from Douglas. Hoffman: Oh. XXXX: to make these parts Hoffman: I see. XXXX: and like I told you that we uhh called for source inspection before we - what they later wanted to do was make two complete and then uhh have the other ones done on, but we finished all of them to a certain, uhh, uhh, point Hoffman: Right. XXXX: and then we processed two of them complete to, uhh you know, processing like the painting and, uhh, and before we were gonna install the bushings, we had to have source inspection come in Hoffman: Right. XXXX: and they never came and I closed the place down meantime Hoffman: Oh. 8

9 Eventually, Hoffman agreed to buy one of the Assemblies. Prior to buying the Assembly, Mr. XXXX arranged for an area company to produce bushings for the Assembly and for the Assembly to be packaged to military specifications. As an example of Mr. XXXX s naivete, he actually had his daughter call MDC to try to learn of a Dallas entity that could penetrate inspect the Assembly he was selling to Dallas Aerospace. See Transcript of September 30, 1994 conversation between Linda Green and J.R. Hoffman (attached hereto as Exhibit J at 1). When such inquiries were unsuccessful, Hoffman, in order to ensure Mr. XXXX was successfully snagged, magnanimously recommended a local company, Dalfort Corporation, that could do the penetrate inspection. Id. at 1-2. In addition to suggesting a company to penetrate inspect the Assembly, Hoffman also requested that Mr. XXXX provide a certificate of compliance reflecting how the Assembly in question was manufactured and processed. See, e.g., Letter from J.R. Hoffman to XXXX XXXX (attached hereto as Exhibit K). Hoffman rejected the first two sample certifications Mr. XXXX offered to supply (see samples (attached hereto as Exhibit L)), but Hoffman finally approved a Certificate of Compliance that now contains the false statement forming the count of conviction in the instant case. See Parts/Material Certification (attached hereto as Exhibit M). The Certificate of Compliance at issue specifies that the Assembly that was sold was processed to MDC specifications. Id. While Mr. XXXX believed the Assembly to be completely airworthy, the Assembly was not, in fact, fully processed to MDC specifications because of the four above-mentioned discrepancies between the part and the MDC blueprint (at least one of which Mr. XXXX knew had not actually been "bought off" by MDC). XXXX: and then instead of just leaving the parts there, I just took them with me, you know Hoffman: Okay XXXX: so I have the parts in storage in Los Angeles. I would say they are probably about 90% done. 9

10 Significantly, Mr. XXXX also provided numerous certifications obtained in the production process for the part. See various certifications (attached hereto as Exhibit N). Included with the Certifications was a Witko inspection report that actually referenced the four discrepancies. See Witko Inspection Report (attached hereto as Exhibit O). Thus, while the Certificate of Compliance from Deutsch Precision admittedly did not reference any discrepancies and certified that the Assembly was processed to MDC specifications, the discrepancies were noted in the Witko inspection report that was also provided to Dallas Aerospace with the Assembly. As pointed out in the government s application for a search warrant, the Certificate of Compliance also certified that the Assembly had been delivered by an MDC truck. See Affidavit of Joseph G. Diebert in support of search warrant at 6. The government apparently found this to be significant even though everybody obviously knew that Mr. XXXX s son-in-law, and not an MDC truck, delivered the part to Hoffman. In essence what occurred is fairly simple. Mr. XXXX, a respected machinist who never committed a crime in sixty years (see PSI at ƒƒ 36-41), decided to sell a spare part in order to earn extra cash. Mr. XXXX firmly believed the part was airworthy, despite minor discrepancies; and believed he had the legal right to sell the part because he made it. Moreover, had Hoffman ever told Mr. XXXX that he was not able to sell the part to any entity other than MDC, Mr. XXXX surely would have walked away. Instead, Hoffman encouraged Mr. XXXX s offense at every turn by suggesting a local company to assist in conducting a penetrate inspection of the Assembly and by insisting on specific language for the Certificate of Compliance. Mr. XXXX admits providing Hoffman the Deutsch Precision Certificate of Compliance certifying the part was processed to MDC specifications without also disclosing on the Certificate of Compliance the discrepancies that were noted in the inspection report that was also provided to Hoffman. Thus, while this false statement was made knowingly and willfully, it also reflects the hand of J.R. Hoffman and an ignorance on Mr. XXXX s part as to the significance of the Certificate of Compliance. 10

11 III. XXXX XXXX This Court has before it numerous character letters that speak volumes regarding Mr. XXXX and do so far more eloquently than the undersigned counsel could hope to do himself. The letters include letters from all facets of Mr. XXXX s life: family members, friends, business associates and his current employer. Even a cursory review of these letters show a common scheme running through the letters that was best summed up in a letter written by one of Mr. XXXX s daughters, Laurie Dickson: "I have never seen a more dedicated man to his work, but most of all, to his family." "In my opinion, it is easy to judge a person by his accomplishments. One of my father s major feats are the success of his children." (Daughter, Linda Green) "He was very proud of his business and company [Witko Engineering]...[H]e is one of the hardest working individuals I know." (Son-in-Law, Nathan Green) "[H]e has raised and schooled three successful children and has instilled in them the fine values that make them the good and kind adults that they are today. This can only be done by example." (Daughter-in-Law, Dr. Mary Beth XXXX) We know he has pleaded guilty to this offense...[i]t contradicts all that we know about XXXX s character." (Sister-in-Law, Linda Kohar) "His work ethics and habits were a standard for others to attain to." (Former Supervisor, David L. Billingsley) "I have found XXXX to be an exemplary employee." (Current employer, Leon Campbell) "I own and operate a small specialty metal parts manufacturing company of my own, and I have had XXXX s company (known as Witco [sic.] Engineering) perform literally hundreds of machined parts operations for my company. Everything was always done in a professional and first class manner." (Former Witko Customer, XXXX Curtright) "Quite simply, XXXX is one of the finest men I know." (Friend, Patrick A. Davis) 11

12 XXXX XXXX immigrated to the United States at age seventeen with a sixth grade education. See PSI at ƒ 47. He served in the army (id. at ƒ 48) and later built Witko, a business that operated for more than twenty-five years. Many of the letters sent to the Court accurately describe Mr. XXXX as an American success story. XXXX XXXX is a proud man who has been forced to start over again at the age of sixty. Up until now, he has lived an exemplary life. At the same time, he accepts responsibility for his actions in this case. While he did not intend to defraud Dallas Aerospace and fully believed the Assembly he sold to Dallas Aerospace was airworthy, he admits that discrepancies between the Assembly and the MDC blueprint make the statement in the Certificate of Compliance, that the Assembly was processed to MDC specifications, a false statement. Indeed, many of the letters sent to this Court, especially by family members, comment on how remorseful and ashamed Mr. XXXX is regarding his actions. In short, Mr. XXXX s actions in this case, resulting more from ignorance than anything else, reflect a blemish on an otherwise exemplary life. IV. ARGUMENT As part of the Plea Agreement filed in this case, the government agreed the following calculation of the United States Sentencing Guidelines was consistent with what it could establish at a sentencing hearing. Base Offense Level (U.S.S.G. 2F1.1) 6 Loss: $5800, representing the only part sold and the only part to which the false certification was intended to apply (U.S.S.G. 2F1.1(b)(2)(C)) +2 More than minimal planning (U.S.S.G. 2F1.1(b)(2)(A)) +2 Acceptance of Responsibility -2 Total Offense Level 8 Plea Agreement at ƒ 7. The government also agreed it would take no position as to where Mr. XXXX should be sentenced in the resulting 0-6 months guideline range. Id. As will be set forth 12

13 below, the defendant submits that a sentence of one year probation conditioned upon fifty hours community service is the appropriate sentence in this case. A. U.S.S.G. 2F1.1(b)(4) is inapplicable The Probation Department has recommended that Mr. XXXX s sentencing guidelines be increased by three levels under U.S.S.G. 2F1.1(b)(4) for conscious or reckless risk of serious bodily injury in connection with his false statement in the Certificate of Compliance. Thus, at a sentencing hearing and on appeal, the government would have the burden of proving that Mr. XXXX acted with a conscious knowledge of the risk of serious injury or with reckless 7 disregard for the risk. United States v. Alfaro, 919 F.2d 962, 965 (5th Cir. 1990). The government in its Statement Regarding Pre-Sentence Report candidly admits it cannot do this. XXXX has always maintained that he acted only out of economic motives, and that he believed the part to be airworthy though not up to specification. The Government has not evidence to the contrary concerning XXXX s state of mind. See Government s Statement Regarding Presentence Report at 2. Because the burden is on the government to sustain this enhancement, one would assume this to be the end of this matter. 8 Nevertheless, the Probation Department insists the enhancement is applicable and advances the argument that "[n]o one can assess the state of mind of the defendant at the time of 7 Recklessness in causing a result [only] exists when one is aware that [the] conduct might cause the result... 1 Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law 3.7(F) (West 1986). 8 For this enhancement to be applicable, the government would also have to prove as an initial matter that the failure of the Assembly in question would, in fact, result in serious bodily injury. However, Mr. XXXX submits that the Assembly was airworthy. In addition, the Assembly operates to retract a plane s landing gear once the plane is airborne. Thus, failure of the Assembly and the consequential failure of the landing gear to retract might cause a plane to make an unscheduled landing, but would not create a potential for any injury. 13

14 the offense to conclude that his actions were or were not made at [sic.] a conscious risk of serious bodily injury." Addendum to the Presentence Report at 1. In point of fact, judges and courts are required to assess a defendant s "state of mind" all the time. In this circumstance, the Sentencing Guidelines require the government to show Mr. XXXX acted with the requisite mens rea and the government has concluded that Mr. XXXX s mens rea does not rise to the level required to support a 2F1.1(b)(4) enhancement. Likewise, the fact that Mr. XXXX s daughter flies the type of plane for which the Assembly was designed is strongly indicative of his lack of the mens rea required to support a 2F1.1(b)(4) enhancement. One thing is certain, the Probation Department does not have a better insight into Mr. XXXX s state of mind than both the parties. In short, U.S.S.G. 2F1.1(b)(4) is not supported by the evidence and Mr. XXXX s offense level should be reduced to 8 as provided by the Plea Agreement. As a practical matter, the defense notes that Mr. XXXX would be able to appeal any guideline determination above level 8 and it is the defense s understanding that the government would take the same position before the Court of Appeals as it has taken before this Court regarding the non-applicability of a 2F1.1(b)(4) enhancement. B. Downward Departure Assuming arguendo that the Court adopts the Probation Department s guideline calculations in this case, the Court should then downward depart to offense level 8 so that it is able to impose a just sentence in this case and place Mr. XXXX on probation. Three grounds exist for a downward departure in this case: 1) aberrant behavior; 2) imperfect entrapment defense; 3) age. The grounds can be considered independently or in conjunction with one another. 1. Aberrant Behavior The United States Sentencing Commission has noted in the introductory chapter to the United States Sentencing Guidelines that "[t]he Commission, of course, has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through 14

15 departures." U.S.S.G. Ch.1, Pt. A, 4(d). If any case presents facts supporting a downward departure for aberrant behavior it is the instant case. As noted above, Mr. XXXX operated Witko Engineering for over twenty-five years and operated Aero Tech Engineering for more than two years. Thus, had Mr. XXXX been inclined to make bogus or inferior airline parts and engage in the unauthorized sale of these parts, he had ample opportunity to do so. Nevertheless, former customers of Witko note that Mr. XXXX operated Witko "in a professional and first class manner." See Letter from XXXX Curtright. Likewise, former supervisors of Mr. XXXX comment that "[h]is work ethics and habits were a standard for others to attain to." Simply put, the Court has before it numerous letters describing the true XXXX XXXX. In other words, the XXXX XXXX who worked hard as a machinist for decades and never committed a criminal violation, despite ample opportunity to do so. Even when dealing with Dallas Aerospace, Mr. XXXX explained the history of the Assemblies (see Exhibit I at 1-2) and all of his actions were consistent with his upstanding character until he signed the false Certification of Compliance. 9 That last action "contradicts all that we know about XXXX s 9 Prior to contacting Dallas Aerospace at the suggestion of his daughter and son-in-law, the only actions Mr. XXXX took in the three years he possessed the Assemblies was to place the Assemblies on consignment with DelToro Machine, Inc. on the advice of his 15

16 character." See Letter from Linda Kohar. Indeed, there can be little doubt that signing the partially false Certificate of Compliance was aberrant behavior that will never be repeated. The Sentencing Commission recognizes that courts will sometimes be faced with cases such as this where a downward departure will be appropriate in order to put a defendant on probation. See U.S.S.G. Ch. 1, Pt. A, 4(d). In the event this Court applies the 2F1.1(b)(4) enhancement, it should nevertheless use the authority given to it by the Sentencing Commission and downward depart so that Mr. XXXX can be placed on probation. 2. Imperfect Entrapment The Court of Appeals for the Ninth Circuit recently held that an imperfect defense of entrapment is also grounds for a downward departure under the United States Sentencing Guidelines. United States v. McClelland, 72 F.3d 717, (9th Cir. 1995). An imperfect defense of entrapment exists where a defendant is predisposed to commit the offense at issue but is still unduly pressured by the government to go forward with the offense. Id. at 725. In the instant offense, had Mr. XXXX ever been told by Hoffman, the Quality Assurance Manager at Dallas Aerospace, that he could only sell the Assembly in question to MDC, there is little question that he would have walked away. However, thinking it had a "big fish" who made and supplied numerous bogus airplane parts, Hoffman and the FAA proceeded with the sting operation and never gave Mr. XXXX an opportunity to back out and walk away had he been so inclined. Not only did Hoffman never bother to tell Mr. XXXX that he could not sell the part to Dallas Aerospace pursuant to recently enforced FAA regulations, Hoffman even insisted on the particular wording of the Certificate of Compliance that forms the count of conviction in the instant case. Hoffman actually went so far as to suggest that Mr. XXXX contact Dalfort Corporation so that the Assembly could be penetrate inspected and completed in order that Mr. XXXX could arrange its delivery to Dallas Aerospace. See Exhibit J. Query why Hoffman would go so far as to do this unless he wanted to ensure that Mr. XXXX did not slip off his line. 16

17 Clearly Mr. XXXX contacted Dallas Aerospace about selling the Assemblies and, therefore, the government would have had a strong argument had this case went to trial that Mr. XXXX was predisposed to commit the offense of conviction. Nevertheless, the obvious manipulations of Mr. XXXX that occurred after his initial contacts with Dallas Aerospace was shameful and he was clearly pressured by Hoffman, acting as a government agent, to provide the statement that forms the basis for his conviction. Therefore, a downward departure for an imperfect entrapment defense is certainly appropriate under the McClelland analysis. 3. Age As noted above, Mr. XXXX is sixty years old and has lived an upstanding and crime free life while raising three children. It is true that age per se is not normally a factor in determining whether a downward departure is appropriate. See U.S.S.G. 5H1.1. Nevertheless, the fact that an elderly person has led a crime free life, as compared to the fact that a young person has led a crime free life, is a ground for a downward departure because there is absolutely no indication that such a disparity was taken into account by the Sentencing Commission. See U.S.S.G. 5K2.0. This ground for a downward departure was best summarized by Judge Smith sitting in the Eastern District of Virginia. While awarding defendants generally and this defendant individually some credit for leading relative crime-free lives, the Criminal History Category of the Sentencing Guidelines does not account for the length of time a particular defendant refrains from criminal conduct. Thus, for example, the guidelines do not distinguish between a nineteen-year-old and a sixty-year-old, both of whom have led crime-free lives and consequently are assigned the same low Criminal History Category. In other words, the nineteen-year-old and the sixty-year-old receive the same credit under the Sentencing Guidelines for their criminal history, because the longevity of the sixty-year-old s criminal history is not taken into account. Although age [by itself] is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range, U.S.S.G. 5H1.1, the length of time a person refrains from the commission of crimes, which is invariably tied to a person s age, is a factor that is critical to a court s determination of the sentence it should impose. Because of the guidelines failure to consider this factor, U.S.S.G. 5K2.0 authorized the downward departure in this case. 17

18 United States v., Ward, 814 F. Supp. 23, 24 (E.D. Va. 1993) (emphasis added). Mr. XXXX has lived an exemplary life. As noted above, Mr. XXXX has been in a 18

19 position most of his life in which he was presented with numerous opportunities to have engaged in a similar offense, but he did not. Mr. XXXX certainly deserves to be treated different than a nineteen year old defendant who engages in criminal behavior soon after the opportunity presents itself. Judge Smith correctly recognized that the Sentencing Guidelines, in fact, allow the Court to take such factors into account. C. Probation is the Appropriate Sentence In determining what sentence should be imposed in this case, this Court must consider factors such as the need for punishment, deterrence, protection of society and rehabilitation. See 18 U.S.C. 3553(q). All of these factors militate against imprisonment in this case and more importantly, in favor of probation. It would appear beyond cavil that Mr. XXXX committed an act completely out of character and that he is remorseful. A felony conviction is itself bitter punishment for a proud man like Mr. XXXX who for many years was the epitome of an American success story. There is no question Mr. XXXX is a wiser man as a result of his experience and that he will not have the inclination nor the opportunity to commit a similar offense. Indeed, all of the remaining Witko parts have been seized by the government and the public certainly faces no danger of Mr. XXXX selling other unauthorized parts. Finally, rehabilitation is not necessary for a sixty year old man who committed an aberrant act that is totally out of character. Mr. XXXX is a productive member of our society. According to his son-in-law, "he is one of the hardest working individuals I know." See Letter from Nathan Green. Society would not benefit by imprisoning Mr. XXXX and, moreover, such an action would be a severe disservice to the taxpayers. In short, a minimum period of probation is the appropriate sentence in this case, perhaps conditioned upon a small community service requirement. This will allow Mr. XXXX to be the "exemplary employee" his boss considers him to be, it will allow him to 19

20 provide for his wife, it will allow him to be the doting grandfather described in the many character letters, and it will prevent him from being a drain on the taxpayers. V. CONCLUSION As discussed above, Mr. XXXX s actions as they relate to this case are a small blemish on the life of a man who immigrated to this country, helped form a successful business, and raised a wonderful and supportive family. Mr. XXXX recognizes he made a mistake and is extremely remorseful. It is only hoped that this Court will not let one incident overshadow such an exemplary life. It is clear Mr. XXXX poses no danger to society and is not in need of rehabilitation and thus all facets of our society would lose by imprisoning Mr. XXXX. The undersigned counsel submits that a sentence of one year probation with fifty hours community service is the appropriate sentence in this case. Respectfully submitted, F. Clinton Broden Tx. Bar Broden & Mickelsen 2715 Guillot Dallas, Texas (facsimile) Attorney for Defendant XXXX XXXX 20

21 CERTIFICATE OF SERVICE I, F. Clinton Broden, do hereby certify that on March, 1996, I caused a copy of Defendant s Sentencing Memorandum to be hand-delivered to Tom Hamilton, Assistant United States Attorney, at 1100 Commerce Street, Third Floor, Dallas, Texas. F. Clinton Broden 21