Minutes from October 15, 1997

Minutes of the October 15, 1997,
United States Sentencing Commission
Business Meeting

The meeting was called to order by Chairman Richard P. Conaboy at 2:09 p.m. in the Judicial Conference Center. The following commissioners, staff, and guests participated:

Richard P. Conaboy, Chairman
Michael S. Gelacak, Vice Chairman
Michael Goldsmith, Commissioner
Deanell R. Tacha, Commissioner
Mary F. Harkenrider, Ex Officio Commissioner
John H. Kramer, Staff Director
Paul K. Martin, Deputy Staff Director
John R. Steer, General Counsel
Pamela O. Barron, Senior Staff Attorney
Mary E. Didier, Staff Assistant for Legal and Legislative Affairs
Frank Bowman, Visiting Professor of Law, Gonzaga University Law School
James E. Felman, Esq., Kynes, Markman & Felman
Gregory A. Hunt, Sentencing Guideline Specialist, U.S. Probation, District of Columbia
Gerald E. Rosen, U.S. District Court, Eastern District of Michigan
Ex Officio Commissioner Michael Gaines was unable to attend.

The Commission began the meeting with a two-hour hearing on clarifying the definition of loss. The Honorable Gerald E. Rosen, James E. Felman, Gregory A. Hunt, and Professor Frank Bowman testified.

Motion made by Commissioner Tacha to adopt the minutes of the September 18, 1997, business meeting; seconded by Commissioner Goldsmith. Passed unanimously.

Amendments: Referring Guidelines for Theft and Fraud

The proposed amendments indicate changes that might be called for in several guidelines that refer to the loss tables in either §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft) or §2F1.1 (Fraud and Deceit) if the Commission were to adopt one of the proposed loss tables as well as an alternative monetary table that did not incorporate “more than minimal planning.” The amendments relate to those guidelines that arguably incorporate the concept of “more than minimal planning” into the base offense level or a specific offense characteristic, certain pornography and obscenity guidelines, certain copyright infringement and structuring guidelines, trespass, property destruction, and bank gratuity.

Motion made by Commissioner Tacha to publish in the Federal Register for comment; seconded by Commissioner Goldsmith. Passed unanimously.

Pamela Barron, briefing the Commission on additional work conducted by the Manslaughter Working Group, presented information relating to state sentencing and statutory schemes for voluntary and involuntary manslaughter offenses. She compared federal sentences for voluntary manslaughter offenses and DUI offenses sentenced under the involuntary manslaughter guideline with sentences in the states of South Dakota, Pennsylvania, Virginia, Minnesota, Oregon, North Carolina, New Mexico, and Kansas.

Mary Didier, briefing the Commission on telemarketing fraud, stated that Paula Desio, Kevin Blackwell, Krista Murray, and Sandra Murray were assisting in compiling information for Commission consideration. She reviewed congressional actions and Commission responses relating to telemarketing fraud. She stated that the group was conducting empirical analysis, reviewing case law and Helpline questions, and meeting with Department of Justice staff, in its attempt to discern the scope and nature of the telemarketing fraud problem. She also identified preliminary issues that the Commission may wish to consider.

Staff Director Kramer, reporting on staff activities, stated that in yesterday’s briefing session staff covered loss issues, circuit conflicts, referring guidelines, and miscellaneous theft and fraud issues. He reported that he and Commissioner Gelacak would be attending a National Symposium on Sentencing sponsored by the American Judicature Society November 1-4 and that several Commission staff would be participating in meetings of the American Society of Criminology in mid-November. He also mentioned that the Commission was preparing for a public hearing on manslaughter at its November session.

Chairman Conaboy adjourned the meeting at 2:51 p.m.