Let Judges Be Judges! -- Post-Koon Downward Departures: Part 3 -- Aberrant Behavior
BY ALAN ELLIS
Criminal Justice, Summer 1998
[EDITOR'S NOTE: This is the third in a series of articles on downward departures recognized by the courts since 1996 in light of the Supreme Court's decision in United States v. Koon. Part 1 discussed diminished capacity; Part 2 discussed postoffense rehabilitation.]
The U.S. Sentencing Guidelines permit downward departures on the basis of aberrant behavior. In the Guidelines Manual, Ch. 1, Pt. A, Introduction P4(d), it states:
The Commission, of course, has not dealt with the single acts of aberrant behavior that still may justify probation at higher offense levels through departures.
The guidelines refer to "single acts of aberrant behavior," but neither define that phrase nor provide any insight into what the commission might have meantwhen it used it. Indeed, there is disagreement among the circuits as to what type of conduct constitutes aberrant behavior. Two cases establish what have come to be recognized as the outer boundaries of the aberrant behavior spectrum. United States v. Carey, 895 F.2d 318 (7th Cir. 1990), stands at one end of the spectrum and United States v. Grandmaison, 77 F.3d 555 (1st Cir. 1996), at the other. In Grandmaison, the defendant served as a member on his town's board of aldermen. During a six-month period, Grandmaison lobbied three of his aldermanic colleagues to award a lucrative contract for the renovation of a local junior high school to a construction company that employed him. At the behest of the construction company, Grandmaison gave gratuities, gifts, and other things of value to his three colleagues before and after major contract selection votes.
These lobbying efforts eventually bore fruit in that the board ultimately awarded the project to the construction company for whom Grandmaison worked. Grandmaison pled guilty to a one-count information charging him with utilizing the mail system to defraud his town's citizens of their right to the honest services of their public officials. At the sentencing hearing, Grandmaison requested a downward departure based on a combination of factors that included "aberrant behavior" within the meaning of Guidelines Manual, Ch. 1, Pt. A, Introduction P4(d). The district court declined to depart downward because it felt that a departure based on "aberrant behavior, though generally available under the guidelines" was not available to Grandmaison because it required a showing of not only first offender status and behavior inconsistent with otherwise good or exemplary character, but also spontaneity or thoughtlessness. The First Circuit reversed the district court and held that determinations about whether an offense constitutes a single act of aberrant behavior should be made by reviewing the totality of the circumstances including, inter alia, factors such as pecuniary gain to the defendant, charitable activities, prior good deeds, and efforts to mitigate the effects of the crime. Although spontaneity and thoughtlessness may be among the factors considered, they are not prerequisites for departure:
That aberrant behavior departures are available to first offenders whose course of criminal conduct involves more than one criminal act is implicit in my holding. See Takai, 941 F.2d at 743. I think the Commission intended the word "single" to refer to the crime committed and not to the various acts involved. As a result, I read the Guidelines' reference to "single acts of aberrant behavior" to include multiple acts leading up to the commission of a crime. See id. Any other reading would produce an absurd result. District courts would be reduced to counting the number of acts involved in the commission of a crime to *57 determine whether departure is warranted. Moreover, the practical effect of such an interpretation would be to make aberrant behavior departures virtually unavailable to most defendants because every other crime involves a series of criminal acts.
Addressing the concern that this test ensures every first offender a downward departure, the First Circuit made it clear that aberrant behavior and first offense status are not synonymous, noting that without more, first offender status is not enough to warrant a downward departure.
On the other end of the spectrum is United States v. Carey, supra, which involved a premeditated criminal scheme carried out over a long period of time. There, Carey, a trucking company president, engaged in a check-kiting scheme over a 15-month period. Each work-day during this period Carey concealed his two overdrawn bank accounts by having his bookkeeper prepare checks to cover the fund shortage. He signed each check and frequently deposited them himself. The Seventh Circuit held that this behavior was not "aberrant," 895 F.2d at 324-25. The court held that:
"[a] single act of aberrant behavior ... generally contemplates a spontaneous and seemingly thoughtless act rather than one which was the result of substantial planning because an act which occurs suddenly and is not the result of a continued reflective process is one for which the defendant may be arguably less accountable." 895 F.2d at 325.
The Third, Fourth, Fifth, Eighth (at least until 1996), Eleventh, and District of Columbia Circuits have embraced the narrow "unplanned, opportunistic crime" approach enunciated by the Seventh Circuit in Carey. For example, in United States v. Marcello, 13 F.3d 752 (3d Cir. 1994), the Third Circuit explained that "there must be some element of abnormal or exceptional behavior" adopting the Seventh Circuit's spontaneity requirement and reversing the district court's decision to depart downward. Marcello was an attorney who on seven separate occasions structured bank deposits to avoid tax reporting requirements. He committed these offenses over the span of seven consecutive working days.
Cases involving extensive planning or repeating criminal acts have received similar treatment in the Fourth, Fifth, Eighth, Eleventh, and District of Columbia Circuits. In United States v. Glick, 946 F.2d 335, 338 (4th Cir.1991), the Fourth Circuit reversed a downward departure decision after noting that the defendant transported a letter containing stolen trade secrets across state lines on several occasions. In United States v. Williams, 974 F.2d 25,26 (5th Cir. 1992), the Fifth Circuit affirmed a district court's refusal to depart downward because the robbery executed by the defendant involved planning. Similarly, the Eighth Circuit found that a bank fraud scheme carried out over a one-year period lacked the level of spontaneity and thoughtlessness required by cases such as Carey. (See United States v. Garlich, 951 F.2d 161,164 (8th Cir. 1991). See also United States v. Withrow, 85 F.3d 527, 530-31 (11th Cir. 1996), and United States v. Dyce, 320 U.S. App. D.C. 1, 91 F.3d1462, 1470 (D.C. Cir. 1996).)
In contrast, the First, Ninth, and Tenth Circuits have eschewed any focus on spontaneity and thoughtlessness, opting instead for a broader view of aberrant behavior. They require reviewing courts to employ the totality of the circumstances test in making aberrant behavior determinations.
Thus, in United States v. Takai, 941 F.2d 738 (9th Cir. 1991), the Ninth Circuit affirmed the district court's decision to depart downward after finding that the defendants who pled guilty to bribery of and conspiracy to bribe an Immigration and Naturalization Service official received no pecuniary gain, had no criminal record, and had to be influenced by a government agent.
In United States v. Pena, 930 F.2d 1486, 1494 (10th Cir. 1991), a drug case, the Tenth Circuit held that a downward departure was appropriate because the defendant's offense behavior was an aberration from her usual conduct, which was highlighted by long-term employment, no abuse or prior distribution of controlled substances, and economic support of her family.
Up to now, the Sixth Circuit has purposefully avoided joining either camp. In United States v. Duerson, 25 F.3d 376 (6th Cir. 1994), the court of appeals discussed the various interpretations of the phrase "single act of aberrant behavior" and decided that it need not define the term at that time stating that "[a]s to the 'single act' question, the issue is an open one in this circuit, and I am content to let it remain so for a while longer." The Second Circuit, too, remains free from an allegiance to either camp. In United States v. Ritchey, 949 F.2d 61, 63 (2d Cir. 1991), the Second Circuit held that aberrant behavior is a permissible ground for departure, but did not discuss what type of conduct could constitute aberrant behavior. Since its holding in Ritchey, the Second Circuit has not had occasion to discuss aberrant behavior at all.
The Eighth Circuit is the only court to attempt to analyze "aberrant behavior" in light of the Supreme Court's decision in Koon v. United States, 518 U.S. 81, 135 L. Ed. 2d 392, 116 S. Ct. 2035 *58 (1996). Koon reminded the lower courts that departures are potentially infinite in number; that a court may not categorically exclude the consideration of any one possible departure factor unless the Sentencing Commission has put off-limits that factor-for example, race, sex, national origin, creed, religion, socio-economic status, lack of guidance for youth, drug or alcohol dependency, and economic hardship. Anything else, including aberrant behavior, is fair game.
Since no pre-Koon case had ever held that "aberrant behavior" was not a ground for downward departure, it would appear that Koon should have no effect on the debate within the legal community as to the interpretation of the "single act" of aberrant behavior question other than emboldening district courts to use their discretion in determining whether "the misconduct which occurred in the particular instance suffices to make the case atypical," keeping in mind the district court's "institutional advantage over appellate courts in making these sorts of determinations [because] ... they see so many more Guidelines cases than appellate courts do." (Koon, 116 S. Ct. at 2047.)
The Supreme Court recognized that the district court's decision "is apt to vary" from case to case because whether the misconduct makes the case atypical is a factual matter. Thus, given the district court's institutional advantage in the inherently factual nature of the inquiry, a district court's decision, held the Supreme Court, must be accorded substantial deference. (Id. at 2046.) Accordingly, in the future expect the courts to consider, in a totality of the circumstances test, the following factors or a combination thereof:
- absence of pecuniary gain to the defendant
- prior charitable and good deeds
- efforts to mitigate the effects of the crime
- long-term employment coupled possibly with recent unemployment
- no prior criminal conduct
- no abuse of controlled substances
- economic support of one's family
- conduct of a government agent influencing the defendant to commit the crime mental disorders in violent crime cases precluding a diminished capacity departure under 5K2.13
- a marked departure from the past
- unlikelihood of recurrence
- defendant's motivation for committing the crime
- the singular nature of the criminal act
- the spontaneity and lack of planning of the criminal act
- extreme pressures under which the defendant was operating including the pressure of losing one's job
- psychological disorders the defendant was suffering from
- letters from friends and family expressing shock as to the defendant's behavior.
In summary, if the conduct at issue is both a short-lived departure from an otherwise law-abiding life and is unlikely to recur, a downward departure based on aberrant behavior may very well be in order. A defendant's brief meander into criminal activity standing in stark contrast to his posture as a responsible, hard-working, fully employed, contributing member of the community coupled with appropriate postoffense conduct may very well lead to an aberrant behavior downward departure.