DocketNumber： 00-1514
Judges： Becker, Scirica, Fuentes
Filed Date： 7/19/2001
Status： Precedential
Modified Date： 11/4/2024
OPINION OF THE COURT
This is an appeal of a five-level upward departure from the fraud sentencing guideline. In December 1999, John T. Jarvis pled guilty to one count of mail
I.
The charges against Jarvis arose from his employment with Penn Capital Financial Service (“Penn Capital”), a corporation registered as a broker-dealer with the Securities and Exchange Commission. At his guilty plea hearing, Jarvis admitted that, from April 1989 to October 1994, he knowingly participated in two separate fraudulent investment schemes, one involving the purchase, rehabilitation, and sale of public housing property, and the other a fraudulent stock investment scheme concerning Penn Capital stock.
The total loss attributable to Jarvis for both schemes is $883,859. The total number of victims was 27.
For sentencing purposes, the PSR calculated Jarvis’ adjusted offense level at 16. This offense level, combined with a criminal history category of II, gave Jarvis a guideline sentencing range of 24 to 30 months. Although victim impact statements had been received from 8 victims, the PSR did not recommend any victim-related adjustments in Jarvis’ offense level, and neither Jarvis nor the Government objected to the PSR. On April 6, 2000, the District Court informed the parties that a two-level increase for abuse of a position of trust under U.S.S.G. § 3B1.3 applied, and that a further two-level vulnerable victim enhancement under U.S.S.G. § 3A1.1 might be applicable.
A sentencing hearing was held on April 13 and 27, 2000, during which evidence relating to victim impact was obtained. The District Court heard testimony from several of Jarvis’ victims. Nathan Patrick Hager testified that Jarvis had defrauded him and his wife of their entire life savings, and all his retirement funds (about $207,000) while knowing that their only son was dying of cancer. According to Hager, Jarvis had promised a 9% return on his investment and assured him that no loss was possible because the investment was guaranteed by the state.
Sophie Palladini stated that she did not know Jarvis before he visited her home and introduced her to Penn Capital. Ultimately, the court found Jarvis responsible for her loss of $70,799.
Michael Esper, who at the time was 79 years old, testified that Jarvis fraudulently
Additionally, the Government made an evidentiary proffer concerning the testimony of several other individuals who were present in the courtroom. According to the proffer, Anne Marie Kmonk would have testified that she was 57 years old when she invested $219,371 with Jarvis and ultimately received back about $152,035 of her initial investment. She had also communicated directly with the sentencing court by letter, stating that she and her spouse had suffered health problems brought on by Jarvis’ fraudulent activities.
Anne Wolas would have testified that she was 82 years old and that her loss from dealing with Jarvis was about $45,440. She also would have told the court that Jarvis had visited her home, that he could see that it was modest, and that it had a value of approximately $65,000. Finally, she would have testified that Jarvis induced her to invest in the fraudulent housing scheme by transferring money from a legitimate investment she had in VMS Vanguard Mortgage, representing to her that the housing investment was a branch of Vanguard.
Finally, William Becker was prepared to testify that he was temporarily laid off in 1993, permanently in 1994, and was 52 years old when he retired. He reportedly would have testified that, when he invested $8,000 in December 1993, he told Jarvis that he needed monthly income due to the layoff and that he received six interest payment checks from Jarvis beginning in January 1994. The court eventually found that Becker would have lost his entire life savings of $170,000 had Jarvis succeeded in convincing him to invest it with Penn Capital.
The District Court continued the sentencing hearing until April 27, 2000. Soon after, the court filed an order notifying the parties that it was considering an upward departure from the Sentencing Guideline range because Jarvis’ conduct went beyond the heartland of typical fraud cases.
Thereafter, when the sentencing hearing resumed, the court called Agnes Kato to testify about her losses. Kato stated that her son-in-law, John Palladini, had introduced her to Jarvis, and she subsequently invested approximately $9,000 in the fraudulent schemes. Jarvis told her she would receive paperwork to document her investment, but she never did. The court then asked Kato if she had told Jarvis why she sought to save money, to which she responded that she had told him that she wanted the money to provide for the welfare of her son, who became disabled after a brain aneurysm.
At the conclusion of the hearing, the District Court made the following determination:
The particular facts underlying defendant’s criminal conduct cannot be captured by the adjustments set forth in the guidelines. Rather, defendant’s predatory conduct and the reasonably foreseeable consequences of his action undoubtedly remove this case from the heartland of fraud cases addressed in the guidelines. Accordingly, the Court finds that an upward departure is warranted.
Following this finding, the court first imposed a four-point enhancement to Jarvis’ offense level for abuse of trust and vulnerable victims. Based on the PSR’s adjusted offense level of 16, this resulted in an offense level of 20. Jarvis does not challenge these enhancements.
A sentencing court’s decision to depart from an applicable guideline range is generally entitled to substantial deference and hence is subject to review for an abuse of discretion. Koon v. United States, 518 U.S. 81, 98-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Factual findings are reviewed for clear error. See 18 U.S.C. § 3742(e); United States v. Helbling, 209 F.3d 226, 242-43 (3d Cir.2000). Whether “ ‘the facts found by the district court warrant application of a particular guideline provision is a legal question and is to be reviewed de novo.’ ” United States v. Wilson, 106 F.3d 1140, 1142-43 (3d Cir.1997) (quoting United States v. Partington, 21 F.3d 714, 717 (6th Cir.1994)).
II.
Jarvis initially contends that the District Court lacked the authority to depart upward from the guideline range on the basis of psychological injury and knowing endangerment of victim solvency. We reject this contention. Certainly, the Sentencing Guidelines allow a sentencing judge to take note of the consequences of a fraud scheme that extends beyond the immediate financial loss. The sentencing judge may depart from the guidelines if the judge finds that “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b). Further, where “the [monetary] loss ... does not fully capture the harmfulness and seriousness of the conduct, an upward departure may be warranted.” U.S.S.G. § 2F1.1, comment, n. 11. Specifically mentioned as factors outside the heartland of the fraud guideline are “reasonably foreseeable ... psychological harm or severe emotional trauma” and the “knowing endangerment of the solvency of one or more victims.” U.S.S.G. § 2F1.1, comment, nn. 11(c), (f); see also U.S.S.G. § 5K2.3 (policy statement authorizing departure for extreme psychological injury).
III.
We next address whether the District Court was justified in upwardly departing based on at least one victim having suffered psychological harm. The commentary to the fraud guideline states, “In cases in which the loss determined under subsection (b)(1) does not fully capture the harmfulness and seriousness of the conduct, an upward departure may be warranted. Examples may include the following: .... (c) the offense caused reasonably foreseeable, physical or psycholog
only when there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in behavior patterns. The court should consider the extent to which such harm was likely, given the nature of the defendant’s conduct.
Id.
Jarvis contends that the District Court erred in upwardly departing because the evidence and factual findings were insufficient to establish that any of the victims suffered any psychological injury. We disagree. In its ruling, the District Court made specific findings of fact that were necessary to its guideline disposition:
[Defendant's victims include blue collar workers who had worked hard and saved many years to be able to enjoy their retirement. Some of those who lost very large sums had acquired the money through their retirement such as a pension fund; another through the sale of the family home. Due to the defendant’s conduct, many of his victims will be forced to live their retirement years in destitution. Defendant has taken away the security and comforts that his victims’ lifetime of hard work would have otherwise provided them. Defendant intentionally took money from people whom he knew to be of or near advanced age and who were uneducated investors, convincing them to hand over their entire life savings and retirement funds.
Defendant’s actions resulted in foreseeable psychological harm, severe emotional trauma, and involved the knowing endangerment of the solvency of one or more of his victims.
Mr. and Mrs. Nathan Hager are currently on depression medication and see a mental health professional in order to deal with their losses.
Many victims, including Anna Marie and Thomas Kmonk, have lost their entire savings with little hope of regaining financial security.
There is a distinction between defrauding a thirty-year old of his life savings and defrauding a sixty-year old of his life savings. Defendant could foresee the unlikelihood of his victims recouping their loss.
In over twenty years as a judge on the bench, this is one of the most egregious cases of fraud that this Court has seen. The loss calculation determined under Section 2F1.1 of the guidelines does not fully capture the harmfulness and seriousness of the defendant’s conduct.
Further, this harmfulness and seriousness is not adequately addressed by the enhancements for a vulnerable victim and more than minimal planning. While the victim of any fraud would certainly experience emotional distress upon the realization that their money was gone, the psychological harm caused by defendant was much more serious than that which would normally be experienced by*241 a fraud victim. To steal the means by which persons worked to support themselves in their retirement years, to take the money that an elderly couple realized at the sale of their largest asset, the family home, to take a couple’s savings at the same time they are forced to bury their only child, to take an elderly woman’s savings meant to secure a funeral for her disabled son, subjected the defendant’s victims to psychological injury which exceeds that which could be expected in a run of the mill fraud case.
Defendant knew of his victims’ circumstances and he certainly would have foreseen the effects his actions would have upon his victims. Defendant’s fraudulent actions ended in 1994 and yet, this was when his victims’ nightmares were only beginning.
As evidenced by the presence of the victims in this courtroom and the letters submitted to this Court, defendant’s victims continue to suffer fr om his actions, desperately seeking to regain some of the money that they have lost and with it some comfort in their retirement.
The particular facts underlying defendant’s criminal conduct cannot be captured by the adjustments set forth in the guidelines. Rather, defendant’s predatory conduct and the reasonably foreseeable consequences of his action undoubtedly remove this case fr om the heartland of fraud cases addressed in the guidelines. Accordingly, the Court finds that an upward departure is warranted.3
The District Court’s findings are not clearly erroneous, and under our de novo review we agree with the court’s application of those facts to the guidelines. Jarvis’ fraudulent scheme caused several victims to suffer severe emotional trauma sufficient to justify an upward departure for conduct outside the heartland of the fraud sentencing guideline. We have previously ruled that “[wjhere any one victim suffers substantial impairment, departure is justified under section 5K2.3.” United States v. Astorri, 923 F.2d 1052, 1059 (3d Cir.1991). That standard is satisfied in this case, where the District Court found that “Mr. and Mrs. Nathan Hager are currently on depression medication and see a mental health professional in order to deal with their losses.” This finding is supported by Mrs. Hager’s letter to the court dated April 22, 2000, in which she wrote that “[m]y husband and I are on depression medicine and seeing a shrink. (Dr.) The medicine is so expensive.” While some level of depression might be thought common to all fraud victims, the condition the Hagers suffered was severe enough to require them to seek professional mental health care and to take medication. Thus, the depression the Hagers describe is consistent with the terms of U.S.S.G. § 2F1.1, comment, n. 11(c), and meets the plain meaning of U.S.S.G. § 5K2.3, which permits an upward departure for psychological harm that is “much more serious than that normally resulting from commission of the offense.”
We also disagree with Jarvis’ contention that the District Court could not have found that the Hagers’ depression “is likely to be of an extended or continuous duration,” as required by § 5K2.3. The Hagers’ son died from cancer on December 22, 1994. Their letter to the court dated April 22, 2000 stated that Jarvis and his associates had “wiped us out 2 days after I buried him.” Thus, the Hag-ers suffered from significant depression more than five years after Jarvis’ scheme. This is confirmed by Mrs. Hager’s April 22, 2000 letter, in which she writes: “I
Jarvis argues that the District Court erred by attributing the Hagers’ mental health problems to his scheme while overlooking that those problems were caused by the contemporaneous death of their only son from cancer. This contention ignores Mrs. Hager’s letter, which is replete with references to the health problems the couple suffered as a result of Jarvis’ fraud — not the death of their son. She wrote, for instance, that “[i]t has been a struggle to keep going with the stress of th[e] financial problems we are having and [a lot] of health problems.” Moreover, in the six-page letter she refers to her son and his death only twice. One of those references stated that Jarvis and his associates at Penn Capital “wiped us out 2 days after I buried him. They knew he was dying.”
Further, the Hagers’ health problems ar e similar to those in Astorri, where we upheld an upward departure pursuant to S 5K2.3 for severe psychological harm. There, three sets of financial fraud victims were identified as having suffered physical or psychological injury. The evidence showed that one victim had been forced to obtain high blood pressure treatment, and another, who had already been in poor health, “displayed adverse physical and behavioral effects.” Astorri, 923 F.2d at 1058-59. The physical or psychological health effects on the third set of victims were not described, apart from the district court judge noting that she had observed the effects being manifested during the trial. See id. at 1058. On that record, we determined that the District Court’s findings, that at least the first two victims “suffered extreme psychological injury,” were not clearly erroneous. Id. at 1059. Similarly, the Hagers’ documented mental health problems, which required them to obtain professional care and take medication even years after the fraud occurred, adequately supports a finding that they suffered extreme psychological injury.
The District Court had other evidence upon which to conclude that an upward departure for severe psychological injury was warranted. Anne Marie Kmonk wrote to the District Court that “[i]t is now five years, I am 57 years old[,] have had health problems (myself and my husband) I believe brought on by this stressful situation, and wanted to begin my retirement.” Evidence from Sophie Palladini was also relevant. Although Jarvis was not directly responsible for defrauding her, the District Court found him at least partly responsible because he introduced her to Penn Capital and he should have foreseen that she would be victimized by the fraudulent scams taking place there. Palladini wrote the court that “all the years for the [loss] of this money emotionally it was very bad and still is.” On another occasion she wrote that “[m]y nerves have put me in the hospital over this.”
Jarvis relies on our decision in United States v. Neadle, 72 F.3d 1104 (3d Cir.
The other cases upon which Jarvis relies are either distinguishable or appear at odds with the rule in Astorri that a § 5K2.3 upward departure is justified whenever one victim suffers severe psychological harm. In United States v. Pelkey, the First Circuit Court of Appeals concluded that the emotional trauma, including depression, resulting from a fraud was inadequate to uphold an upward departure under § 5K2.3. See 29 F.3d 11, 16 (1st Cir.1994). Pelkey, however, can be distinguished because there was no evidence that any victim needed treatment. Id. By contrast, the Hagers did require treatment. Moreover, given the law of this circuit, Pelkey is a questionable decision to the extent that it found insufficient evidence despite the fact that a victim reportedly experienced moments of extreme despair leading to suicidal ideations. See id. In United States v. Mandel, the Second Circuit Court of Appeals also reversed an upward departure based upon severe psychological harm. See 991 F.2d 55, 58-59 (2d Cir.1993). However, whether the same decision would have been reached in this circuit is questionable because the evidence there showed that, after the shock of learning about the fraud, one victim lost her job and needed to see a therapist, stopping only when she could no longer afford it. See id. at 58. Thus, Mandel also appears inconsistent with our rule that a § 5K2.3 upward departure may be applied when at least one victim suffers severe psychological injury.
We conclude, therefore, that the District Court’s factual findings are not clearly erroneous, and we are satisfied that the District Court’s application of the facts to the sentencing guidelines was justified. Thus, we will affirm the upward departure for psychological injury.
IV.
We now turn to whether the District Court abused its discretion in upwardly departing for knowing endangerment of victim solvency. The fraud guideline encourages heartland departures when a defrauding party endangers the solvency of at least one victim. “In cases in which the loss determined under subsection (b)(1) does not fully capture the harmfulness and seriousness of the conduct, an upward departure may be warranted. Examples may include the following: ... the offense involved the knowing endangerment of the solvency of one or more victims.” U.S.S.G. § 2F1.1, comment. n. 11(f).
Jarvis argues that the District Court abused its discretion because (1) some of its findings regarding the victims’ financial condition were clearly erroneous, and (2) the remaining findings were insufficient to sustain the departure because no victim was actually rendered insolvent. The Government disagrees, arguing that an upward departure is warranted if the evidence indicates an endangering risk of insolvency, a standard that it alleges is met on this record. Thus, the primary
Admittedly, Jarvis arguably has at least one precedent favoring his position that actual insolvency is the relevant inquiry. In a footnote in United States v. Pelkey, the First Circuit Court of Appeals stated that “[a] departure based on [the ground of knowing endangerment of victim solvency] requires a court to find that a defendant knowingly pushed a victim into extreme financial hardship.” 29 F.3d at 15 n. 5.
However, the propriety of Jarvis’ suggested actual insolvency standard is highly questionable given the plain language of the fraud guideline’s application note 11(f). That note refers to “knowing endangerment” of solvency. “Endangerment” necessarily refers to potentiality. For example, a common definition of “endanger” is “to bring into danger or peril of probable harm or loss.” Webster’s New Int'l Dictionary 748 (3d ed.1993) (emphasis added). Thus, the Sentencing Commission’s language appears to indicate a concern with knowingly exposing a victim to a significant risk of insolvency. Its language is not consistent with a requirement of actual insolvency, which is the standard that Jarvis embraces and Pelkey arguably endorsed.
Other than Pelkey, every other court of appeals that has addressed the issue of endangerment of victim solvency has applied a potentiality standard instead of the one Jarvis advocates. See United States v. Hogan, 121 F.3d 370, 373 (8th Cir.1997) (noting serious endangerment to solvency, as opposed to actual insolvency); United States v. Ross, 77 F.3d 1525, 1533-36, 1551 (7th Cir.1996) (referring to “[t]he extreme risk of victim insolvency in this case” and that “the crushing weight of ... student loans spelled almost certain insolvency”);
Consistent with the majority trend, we conclude that an upward departure for knowing endangerment of victim solvency is appropriate when a preponderance of the evidence demonstrates that a defendant knew, or should have known, that the fraud potentially endangered the victim’s solvency. Actual insolvency is not required. This standard may be satisfied even where the risk is limited to the victim’s liquid assets. See Kaye, 23 F.3d at 51.
The facts presented in this case meet that standard. Jarvis fraudulently divested Wolas of her liquid assets, amounting to $45,444.
In addition, the preponderance of the evidence in this case showed that Jarvis knowingly endangered the solvency of other victims. He knew, for instance, that he was endangering the solvency of Nathan Hager, who invested all of the proceeds he received upon leaving his employer (approximately $207,000) with Penn Capital. Although Jarvis invested this money in legitimate mutual funds, he knew that he was potentially endangering Hag-er’s solvency by encouraging Hager to invest with Penn Capital. Jarvis’ recognition of this risk is demonstrated by the testimony of Scott Lindstrom, a Penn Capital broker from May 1993 to January 1995, who stated that, after Jarvis left Penn Capital, Jarvis asked Lindstrom to contact the Hagers and warn them to get their money back and not make future investments with Penn Capital. However, by the time Lindstrom contacted the Hagers, another Penn Capital broker had induced them to liquidate their legitimate mutual funds and invest in the fraudulent investment products. Ultimately, the investment led to Nathan Hager’s loss of his “life savings plus [his] life’s pension of thirty years.” Although Jarvis was not held responsible for this loss, the District Court did not err in considering it as relevant sentencing information. See U.S.S.G. § lB1.3(a) (offense level is to be determined on the basis of (1) all acts and omissions aided, abetted, and induced, and (2) in the case of jointly undertaken criminal activity, “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity,” and (3) all resulting harm from those acts or omissions).
Jarvis also knowingly risked endangering the solvency of Becker. Although Becker invested only $8,000 with Jarvis, the evidence established that Jarvis had attempted to induce Becker to invest his $170,000 retirement account with Penn Capital. It was only because Becker had resisted and chose instead to invest that money with a reputable investment firm that he had not lost it to Penn Capital’s fraudulent schemes.
In sum, we are satisfied that the District Court’s upward departure for knowing endangerment of victim solvency was justified.
V.
Having decided that the grounds upon which the District Court decided to upwardly depart were valid, we finally turn to Jarvis’ claim that the extent of the departure was unreasonable. See 18 U.S.C. § 3742(e)(3). Our review:
*246 looks to the amount and extent of the departure in light of the grounds for departing. In assessing reasonableness ... court of appeals [are] to examine the factors to be considered in imposing a sentence under the Guidelines, as well as the district court’s stated reasons for the imposition of the particular sentence. A sentence thus can be “reasonable” even if some of the reasons given by the district court to justify the departure from the presumptive guideline range are invalid, provided that the remaining reasons are sufficient to justify the magnitude of the departure.
Williams v. United States, 503 U.S. 193, 203-04, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) (citation omitted).
Here, the District Court applied a five-level upward departure based upon the combined factors of severe psychological injury and knowing endangerment of victim solvency. We note that the District Court lumped the two bases (psychological injury and victim insolvency) into one overall departure of five levels, thereby making it difficult to examine whether the extent of the departure on each basis was reasonable.
Nevertheless, the District Court would have been well within its discretion in upwardly departing four levels based upon combining the factors of severe psychological injury and knowing endangerment of victim solvency. We have previously approved a two-level upward departure for severe psychological injury under § 5K2.3 under circumstances somewhat similar to those in Jarvis’ case. See United States v. Astorri, 923 F.2d 1052, 1058-59 (3d Cir.1991). As for knowing endangerment of victim solvency under § 2F1.1, comment, n. 11(f), another court of appeals has approved a two level upward departure on that ground under circumstances that are comparable to those in Jarvis’ case. See United States v. Hogan, 121 F.3d 370, 373 (8th Cir.1997).
We need not decide whether application of the one additional level was erroneous because Jarvis effectively received a three or four level upward departure. Despite Jarvis’ ultimate guideline range of 63 to 78 months, the court actually sentenced Jarvis to the lower 60-month statutory maximum imprisonment term. The difference between Jarvis’ final guideline range and his actual sentence worked to reduce the District Court’s effective upward departure: a three or four level upward departure would leave Jarvis with a guideline range in which a 60 month sentence could be imposed based on his criminal history category of II.
VI.
For the reasons set forth above, we will affirm the District Court’s sentence.
. There were 31 separate investments, but because several individuals invested in both fraudulent schemes, the total number of victims was 27.
. All citations to the Sentencing Guidelines refer to the 1998 edition, which was used in the PSR.
. App. at 144-48.
. In her second reference to her son, Mrs. Hager wrote: "I have lost my son, [a lot] of money, many friends, and almost my faith in God.”
. In Ross, the guideline language concerning knowing endangerment of victim solvency was identical to that which presently exists, but at the time was codified at application note 10(f) to U.S.S.G. § 2F1.1. See 77 F.3d at 1551.
. This is the amount the District Court ordered Jarvis to pay in restitution to Wolas. Wolas herself described her losses as larger in a letter dated December 23, 1999: "It is to my great sorrow that I have lost $55,000 plus all interest that I could have received from the last six years. This represents the savings that my husband and I counted on to get us through our old age. There is no chance that we will be able to save enough money to make up for this tremendous loss.”
. Jarvis correctly points out that the District Court erred in finding that “Anne Marie and Thomas Kmonk[ ] have lost their entire life savings with little hope of regaining financial security.” The record indicates that, although the Kmonks had invested $219,371.64 in the Housing Fund and stock schemes with Jarvis and Penn Capital, they received back $152,035 by operation of the fraud scheme. However, this sole factual error in the context of the other factual findings, by the District Court, does not vitiate our upholding the upward departure in this case.
. Adjusted offense levels of 23 and 24 (instead of the 25 Jarvis received) would yield, respectively, guideline ranges of 51-63 and 57-71 months. See U.S.S.G., ch. 5, pt. A (sentencing table).