United States v. Zemo , 40 F. App'x 679 ( 2002 )

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
7-17-2002
USA v. Zemo
Precedential or Non-Precedential: Non-Precedential
Docket No. 00-2742
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Recommended Citation
"USA v. Zemo" (2002). 2002 Decisions. Paper 409.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 00-2742/2551
UNITED STATES OF AMERICA,
Appellant in 00-2742
v.
NANCY ZEMO,
Appellant in 00-2551
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 98-cr-00545-2)
District Judge: Honorable Jan E. DuBois
Argued on March 21, 2002
Before: NYGAARD, ROTH and AMBRO, Circuit Judges
(Opinion filed: July 17, 2002)
Michael L. Levy
Unites States Attorney
Robert A. Zauzmer
Assistant United States Attorney
Chief of Appeals
Kathy A. Stark (Argued)
Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellant, USA
Jay S. Gottlieb, Esquire (Argued)
215 South Broad Street
Suite 300
Philadelphia, PA 19107
Counsel for Appellee, Nancy Zemo
O P I N I O N
ROTH, Circuit Judge:
In this criminal appeal, Defendant Nancy Zemo asks us to reverse her 17-count
conviction for conspiring to steal union funds, aiding and abetting theft of union funds,
and failing to keep required records. See, e.g., 18 U.S.C. 371, 29 U.S.C. 501, 29
U.S.C. 439(b). The Government cross-appeals the District Court’s decision to grant a
downward departure in sentencing and argues that Zemo should instead be sentenced to
15-21 months of incarceration.
The District Court had subject matter jurisdiction pursuant to 18 U.S.C. 3231.
We have jurisdiction over the appeal and cross-appeal pursuant to 28 U.S.C. 1291 and
18 U.S.C. 3742(b), respectively.
We have reviewed Zemo’s argument that the evidence was insufficient to support
the counts of her conviction, and we find it to be without merit. However, we also reject
the Government’s argument that the District Court erred by granting Zemo a downward
departure in sentencing. We review downward departures for an abuse of discretion,
United States v. Sweeting, 213 F.3d 95, 96-97 (3d Cir. 2000), and, as explained below,
we find no reason to upset the District Court’s ruling under this standard.
A departure from a sentencing guideline is permitted only in those rare cases
where "certain aspects of the case [are] found unusual enough for it to fall outside the
heartland of cases in the Guideline." Koon v. United States, 518 U.S. 81, 98 (1996). In
deciding whether to depart from the guidelines, a district court should be informed by
"by its vantage point and day-to-day experience in criminal sentencing," as the unusual
nature of any given case will be "determined in large part by comparison with the facts of
other Guidelines cases." Id. The District Court followed Koon when it departed
downward based on the stark disparity between Zemo’s theft and other thefts in the same
sentencing category.
The unique circumstances surrounding Zemo’s offense become apparent when her
actions are compared to those of her co-conspirator, Steven McLaughlin. Zemo was
secretary/treasurer for the Eastern Montgomery County Area Local 2233 postal workers
union, and she helped McLaughlin, its president, steal from the union by unquestioningly
reimbursing the exorbitant bills McLaughlin presented to her. McLaughlin received
almost all of the benefits from the thefts. Zemo’s benefits were limited to taking two
vacations with McLaughlin and three other trips paid for by the Union.
Although Zemo and McLaughlin were charged with the same counts of
conspiracy and theft of union funds, Zemo was convicted on only 17 of the 21 counts
brought against her. McLaughlin, however, was convicted of all 21 counts brought
against him, including a charge that he perjured himself before the grand jury as
prohibited by18 U.S.C. 1623.
In calculating Zemo’s offense level, the District Court applied 1998 U.S.S.G.
2B1.1 as the base offense guideline applicable to conspiracies to steal union funds under
18 U.S.C. 371. Section 2B1.1 addresses property offenses such as theft and
embezzlement. It provides a base offense level of four and calls for upward adjustment
based on the dollar amount of the loss caused by the offense. Because the total amount
of loss for which Zemo was criminally responsible was $20,000-$40,000, the District
Court added six offense levels. See 1998 U.S.S.G. 2B1.1(b)(1)(G). It also added four
additional levels because Zemo took affirmative steps to conceal her offense and abused
a position of trust. Thus, the District Court initially calculated Zemo’s offense level as
14.
Combined with Zemo’s criminal history category of I, her offense level of 14
established a Zone D range requiring 51-21 months of incarceration. See 1998 U.S.S.G.
Chapter Five, Part A. The District Court found Zemo’s offense to be unusual and
outside the heartland, however, when compared with the 24 month incarceration period
that the Guidelines established for McLaughlin. McLaughlin pocketed the bulk of the
proceeds stolen from the union, while Zemo received very little benefit. Thus, to reflect
the unusually limited benefit Zemo gained by virtue of her property offense, District
Court readjusted her offense level down to 10. Her sentence was reduced to three years
probation on all counts of conviction, with the first eight months to be served under
house arrest. Zemo was also ordered to pay $5,000 in restitution and a special
assessment of $850.
In conclusion, the benefits that Zemo received from her theft of union funds were
unusually limited in comparison to the benefits received by McLaughlin or by the vast
majority of other offenders convicted of stealing property worth $20,000 to $40,000. We
find, based on these unique facts, that the District Court did not abuse its discretion in
finding Zemo’s conviction to be outside of the heartland of theft offenses covered by
1998 U.S.S.G. 2B1.1(b)(1)(G).
We will affirm the judgment of conviction and sentence of the District Court.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge