Minutes from March 20, 2002

Minutes of the March 20, 2002
U.S. Sentencing Commission
Public Meeting

Chair Murphy called the meeting to order at 9:07 a.m. in the Commissioners Conference Room.

The following Commissioners and staff participated in the meeting:

Diana E. Murphy, Chair
Ruben Castillo, Vice Chair
John R. Steer, Vice Chair
Sterling Johnson, Jr., Commissioner
Michael E. O’Neill, Commissioner (arrived at approximately 9:30 a.m.)
John P. Elwood, Commissioner Ex-Officio
Edward F. Reilly, Commissioner Ex-Officio
Timothy McGrath, Staff Director
Charles Tetzlaff, General Counsel
Donald (Andy) Purdy, Chief Deputy General Counsel
Judith Sheon, Special Counsel

Vice Chair Sessions participated via video teleconference.

Chair Murphy began the meeting by welcoming members of the public.

She noted that her report would be more limited because the Commission is busy with the many issues it must conclude before the end of the amendment cycle but that she would like to mention two interesting initiatives. She reported that the Commission’s ad hoc advisory group on the organizational guidelines had its first meeting on March 8, 2002, and that the initiative had attracted very experienced individuals. Everyone the Commission had invited to participate had accepted enthusiastically and was present for the first meeting. Chair Murphy stated that Todd Jones, former United States Attorney and Chair of the Attorney General’s Advisory Committee had agreed to serve as Chair of the group. She added that the group will serve for 18 months and will submit at least one interim report to the Commission. Chair Murphy attended the first meeting briefly to turn over the mission to the group. It will meet independently of the Commission and will make recommendations as to whether changes to the organizational guidelines are needed. Chair Murphy stated that the formation of the group is particularly timely, because the ten year anniversary of the organizational guidelines has just passed and recent events have made their importance all the more apparent.

Chair Murphy reported that the Commission is also forming an ad hoc advisory group on Native American sentencing issues relating to those Native Americans who are sentenced under the guidelines after prosecution under the Major Crimes Act. She stated that the Commission has developed a list of individuals to invite to serve on the group, including Jon Sands, Assistant Federal Public Defender from the District of New Mexico, who was present at the meeting.

Staff Director McGrath stated that progress is being made on the Commission’s National Sentencing Seminar that will take place in Palm Springs, California. He thanked Pamela Montgomery for her work in organizing the seminar. Staff Director McGrath stated that Commissioner O’Neill has been working with staff to put together a half day work shop that will take place on April 12, 2002. Staff Director McGrath said that the work shop will provide an academic forum for an exchange of ideas as part of the Commission’s fifteen year review. He also indicated that progress is being made on the judicial survey.

Chair Murphy asked if there was a motion to approve the minutes from the Commission’s January 9, 2002, public meeting.

Vice Chair Castillo moved to adopt the minutes. Seconded by Commissioner Johnson. The motioned passed unanimously by voice vote. (Commissioner O’Neill was not present for this vote.)

Foreign Corrupt Practices Act

General Counsel Tetzlaff introduced the proposed amendment implementing the Foreign Corrupt Practices Act. The proposed amendment would change the Statutory Index reference for violations of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1 through 78dd-3, from §2B1.4 (Bribery in Procurement of Bank Loan and Other Commercial Bribery) to §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right). This change is proposed because such violations involve public corruption of foreign officials and therefore are more like public corruption cases than commercial bribery cases. In addition, such a change arguably would better implement the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which requires the United States, as a signatory, to impose comparable sentences for foreign public bribery cases as for domestic bribery cases.

General Counsel Tetzlaff stated that the proposed amendment was published in the November 27, 2001, edition of the Federal Register. He added that the Commission had received some public comment and testimony on the proposal. General Counsel Tetzlaff stated that there had been no requests for retroactivity; further, there did not appear to be any prison impact related to this amendment. He stated that a motion would be in order to promulgate the amendment with an effective date of November 1, 2002, and to allow staff to make technical and conforming changes to the guidelines.

Vice Chair Castillo moved to promulgate the proposed amendment as a permanent amendment effective November 1, 2002, and to allow staff to make technical and conforming changes. Seconded by Vice Chair Steer. The motion passed unanimously by voice vote. (Commissioner O’Neill was not present for this vote.)

Expansion of the Official Victims Enhancement

General Counsel Tetzlaff discussed the proposed expansion of the official victims enhancement. The amendment proposes to expand the persons who may qualify as an official victim for purposes of the enhancement in §3A1.2 (Official Victims). Specifically, this proposed amendment responds to United States v. Walker, 202 F.3d 181 (3d Cir. 1999), which held that the enhancement under §3A1.2(b) was not applicable in the case of a defendant prison inmate who attacked his supervisor, a food service department employee, at the prison. The Third Circuit in Walker held that the work supervisor was not a corrections officer within the meaning of §3A1.2. The proposed amendment amends §3A1.2(b) to apply to an assault against any prison official (but not to an assault against an inmate) authorized to act on behalf of the prison. The amendment also limits application of the enhancement, in the case of assaults on prison officials, to offenses that occurred while the defendant was in the custody or control of the correctional facility or prison.

General Counsel Tetzlaff stated that the proposed amendment was published in the November 27, 2001, edition of the Federal Register. He added that the Commission had received some public comment on the proposal. General Counsel Tetzlaff stated that there had been no requests for retroactivity; further, there did not appear to be prison impact related to this amendment. He stated that a motion would be appropriate to promulgate the amendment with an effective date of November 1, 2002, and to allow staff to make technical and conforming changes to the guidelines.

Commissioner Johnson moved to promulgate the proposed amendment, effective November 1, 2002. Seconded by Vice Chair Steer. The motion passed unanimously by voice vote. (Commissioner O’Neill was not present for this vote.)

Cultural Heritage Resources Amendment

Chair Murphy stated that Commission had been working on cultural heritage issues for two years. Originally, the amendment was thought of as a brief amendment, but it has developed into a much more comprehensive and well thought out amendment.

General Counsel Tetzlaff then discussed the proposed cultural heritage resources amendment. This amendment proposes to add to Chapter Two, Part B, a new guideline, §2B1.5, to cover a variety of offenses involving the theft of, damage to, destruction of, or illicit trafficking in cultural heritage resources, including national memorials, archaeological resources, national parks, and national historic landmarks. The proposal was developed in response to concerns initially raised by the Departments of Justice and Interior, and supported by many Native American tribes and communities, that the current guidelines inadequately address such offenses.

General Counsel Tetzlaff expressed the Commission’s determination that cultural heritage resource crimes are fundamentally different from general property crimes because, unlike other property crimes in which the primary harm is pecuniary, the effect of cultural heritage resource crimes is in great part nonpecuniary in nature. Punishment of these crimes should reflect this intrinsic difference.

General Counsel Tetzlaff stated that the amendment proposes a base offense level of level 8, which is two levels higher than the base offense level for general property destruction. The higher base offense level represents the intangible and nonpecuniary harm caused by the theft of, damage to, or destruction of essentially irreplaceable cultural heritage resources.

General Counsel Tetzlaff stated that the amendment proposes a number of enhancements related to the valuation of the object based on commercial value, archaeological value, and the cost of restoration and repair, as appropriate to the particular resource.

The amendment also proposes separate, two level enhancements that increase the offense level if the offense involves specially protected resources and resources from specially protected places. A two level enhancement will attach if the offense involves a resource from one of seven locations particularly designated by Congress for the preservation of cultural heritage resources and further education of the public. A two level increase also will attach to seven specific types of cultural heritage resources that have merited special treatment and heightened protection under federal law.

The amendment also proposes enhancements if there is a commercial purpose involved or a pattern of misconduct. Additionally, the amendment proposes an enhancement if a dangerous weapon is brandished or its use is threatened.

General Counsel Tetzlaff stated that the Commission had received substantial public comment, as well as witness testimony at a public hearing, on this proposed amendment. He added that the Commission had received no requests for retroactivity, nor was there any prison impact implicated with this proposed amendment.

General Counsel Tetzlaff stated that a motion would be in order to promulgate the proposed amendment with an effective date of November 1, 2002, and to allow staff to make technical and conforming changes to the guidelines.

Vice Chair Castillo moved to promulgate the proposed cultural heritage amendment, effective November 1, 2002. Vice Chair Steer seconded the motion.

Prior to voting on the motion, the Commission discussed the proposed amendment.

Chair Murhpy stated that cultural heritage offenses may not involve a lot of cases, but they involve resources and artifacts that need further protection. Chair Murphy stated that the events of September 11 have made everyone aware of the importance and vulnerability of our cultural heritage resources.

Vice Chair Castillo stated that he believes this amendment is especially timely for two primary reasons: first, after the events of September 11, national landmarks and resources have taken on added significance; and second, the Commission has just created an ad hoc advisory group on Native American issues. Vice Chair Castillo stated that this amendment has received uniform support not only from the museum industry, but also from Native American groups. He believes that this amendment is an important part of the Commission’s effort to be responsive to Native American concerns. Vice Chair Castillo then acknowledged the hard work that went into the development of this guideline, and he thanked Paula Desio for her significant contribution.

Vice Chair Steer concurred in Vice Chair Castillo’s remarks and added that he was very pleased with the proposed amendment. Vice Chair Steer stated that he feels the Commission is doing a good thing in adopting the amendment because the amendment is extremely important for its symbolic value. He added that the amendment hopefully will act as a deterrent as well as provide appropriate punishment for persons who continue to commit cultural heritage offenses. Vice Chair Steer thanked all of those who contributed to this effort, including representatives from the Federal Bureau of Investigation, Department of the Interior, and Department of Justice. He also thanked Paula Desio for her hard work.

Ex-Officio Commissioner Elwood added that there had been a gap in the existing guidelines for sentencing cultural heritage offenses. He stated that when this was brought to the Commission’s attention, they acted in a timely manner in solving the problem. Ex-Officio Commissioner Elwood personally thanked Paula Desio for her effort in navigating some very thorny legal issues. He added that he agrees that this is a very timely action to protect cultural resources.

Vice Chair Sessions asked whether the Commission planned to make a recommendation to the Congress regarding an increase to maximum penalties for these offenses.

General Counsel Tetzlaff replied that staff understands that the Commission would like to make such a recommendation. He stated that, to this end, a letter is being prepared and will be presented to the Commission for consideration at the next meeting.

Chair Murphy stated that the Commission has a wonderful staff and could not accomplish its agenda without the hard work of the staff. She said that she concurred in the comments about Paula Desio, adding that her hard work and contribution reflected a heartfelt interest in this area.

Vice Chair Castillo added that he appreciated Vice Chair Sessions for mentioning the plan to recommend an increase in the statutory penalties. He stated that there is a strong Commission sentiment that the current maximum penalties for certain cultural heritage resource offenses are inadequate. Vice Chair Castillo stated that he hopes to bring this to the attention of Congress.

Vice Chair Steer stated that when the Commission constructed this guideline, it borrowed some concepts and terminology from the guideline dealing with protected fish and wildlife. While the cultural heritage resource guideline is somewhat different, Vice Chair Steer stated that he hopes the Commission will examine the protected fish and wildlife guideline next amendment cycle to determine whether the language from that guideline should conform to the new cultural heritage guideline.

Commissioner O’Neill joined the public meeting at approximately 9:30 a.m., stating that he had been unable to arrive earlier due to a traffic accident at the end of his street.

The Commission then voted on Vice Chair Castillo’s motion to promulgate the cultural heritage resource amendment, to be effective on November 1, 2002. The motion passed unanimously by voice vote.

Vice Chair Sessions then indicated that he would have to leave the meeting, and stated for the record that if he had been able to stay for the consent calendar vote, he would have voted to promulgate the proposed amendments on the consent calendar, to be effective November 1, 2002.

General Counsel Tetzlaff discussed the amendments that were included on the consent calendar. He stated that the consent calendar includes fifteen separate provisions which make technical and conforming changes to various guideline provisions. General Counsel Tetzlaff stated that after publication in the Federal Register, the Commission had received only one public comment submission from the Department of Justice regarding the consent calendar provisions. He indicated that the issue raised by DOJ had been resolved. General Counsel Tetzlaff also stated that there had been no request for retroactivity and there appeared to be no prison impact regarding the proposed amendments.

General Counsel Tetzlaff stated that a motion would be in order to promulgate the proposed amendments with an effective date of November 1, 2002, and to allow staff to make technical and conforming changes to the guidelines.

Commissioner Johnson moved to promulgate the consent calendar amendments. Seconded by Vice Chair Castillo. The motion passed unanimously by voice vote.

Commissioner O’Neill then stated that the record should reflect that, if he had been present for the votes on the proposed amendments regarding the implementation of the Foreign Corrupt Practices Act and the expansion of the official victims enhancement, he would have voted in favor of promulgation.

Vice Chair Castillo noted that the Commission had been criticized in the past for not stating its reasons for voting on various amendments. He wanted the record to reflect that there are some instances where discussion was not warranted at the time of vote because much more had been said when the amendments were first published for consideration.

Vice Chair Castillo stated that with regard to the implementation of the Foreign Corrupt Practices Act, he believes it is plain that foreign bribery needs to be treated the same as domestic bribery. Further, with regard to the expansion of the official victims enhancement, Vice Chair Castillo stated that it is the feeling among many that all prison officials should be equally protected. Vice Chair Castillo indicated that he made these statements to be responsive to past criticism that the Commission did not voice its reasons for passing amendments.

General Counsel Tetzlaff added that there will also be a written explanation of the reasons for the amendments when they are sent to Congress.

Chair Murphy adjourned the meeting at 9:40 a.m.