The opinion of the court was delivered by: KENNETH CONBOY
KENNETH CONBOY, DISTRICT JUDGE:
The principal questions before the Court under the Federal Sentencing Guidelines are 1) did Alter's conduct toward Donald V. constitute a form of extortion rather than receipt of a conventional bribe, and 2) does Alter's conduct necessitate an upward departure?
The pre-sentence report states that Alter's conduct did not involve a threat of physical harm or property destruction, and that therefore Alter did not extort favors from Donald V. within the meaning of Guidelines § 2C1.1(c)(3). The report, however, concludes that an upward departure is necessary because Alter's conduct both caused Manhattan House to close and harmed the reputation of the United States Bureau of Prisons.
In substance, the Government contends that Alter's conduct involved a threat of physical harm because it entailed the prospect of such harm, i.e., sadistic torture that was part of the sex that Alter had with Donald V. The Government further seeks various sentencing enhancements and upward departures based, in sue, on Donald V.'s vulnerability, Alter's conduct toward other residents, Alter's obstruction of justice, and Alter's role in causing Manhattan House to close.
Alter argues that he should be sentenced only for bribery, not extortion, because his relationship with Donald V. constituted a consensual quid pro quo. Alter further contends that certain sentencing enhancements and upward departures are not justified because, first, Alter was not a high-level government official; second, the Guidelines' definition of "victim" does not apply to this case; and third, Alter's conduct was not the proximate cause of Manhattan House's closure.
In order to determine the facts relevant to sentencing, the Court held a five-day factual hearing pursuant to United States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978), cert. denied, 444 U.S. 1073, 62 L. Ed. 2d 755, 100 S. Ct. 1018 (1980).
I. Alter's Duties as Director of Manhattan House
Harvey Alter was executive vice-president and director of Manhattan House from 1987 until its closing in January, 1989. Manhattan House was owned by a private corporation, Manhattan House CTC, Inc., which was under contract with the United States Bureau of Prisons. Alter and Michael Young were co-owners of Manhattan House CTC, Inc. PSR P25.
Alter also had the authority to review reports of rule violations by residents and to recommend to the community corrections manager of the Bureau of Prisons major sanctions to be imposed where appropriate. On his own authority, Alter could impose minor sanctions where appropriate without making a recommendation to the Bureau of Prisons.
During Alter's tenure as director of Manhattan House, Richard Luna was the community corrections manager of the Bureau of Prisons. Luna never declined to impose major sanctions that Alter recommended. Tr. 850-853.
II. Alter's Asserted Conduct Toward Donald V.
Donald V., who is thirty-two years old, was a resident of Manhattan House during the summer of 1988. He arrived at Manhattan House from a federal prison in Allenwood, Pennsylvania ("Allenwood") on July 25, 1988. Donald V. left Manhattan House in September, 1988, when he was remanded to Allenwood as punishment for having taken drugs while at Manhattan House.
Donald V.'s criminal record, which consists of crimes committed from May, 1976 to September, 1990, is extensive. Over the past thirteen years, except for periods when he was incarcerated, Donald V. has been a heavy drug abuser, continuously involved in intravenous heroin and cocaine abuse and criminal activity. DX F, U; Tr. 36. Donald V. has at least twelve convictions to date. GX 1.
A. Donald V.'s Relationship with Alter
The relationship between Altar and Donald V. began, for purposes of this case, on August 14, 1988. As punishment for Donald V.'s having left the halfway house without permission the day before, Alter prohibited Donald V. from leaving the halfway house to appear at his job. As a result of his failure to appear at work, Donald V. lost his job. Tr. 47.
The sequence of events triggered by Donald V.'s losing his job was principally developed in the record of the hearing through the testimony of Donald V. What follows is a summary of the principal claims made by Donald V. on the witness stand.
On the evening of August 14, 1988, Alter entered Donald V.'s room while Donald V. was partially dressed and was having a conversation with some other residents. The conversation ended with Alter asking Donald V. to come to Alter's office, which was located around the corner from Donald V.'s room. In his office, Alter apologized to Donald V. for making him lose his job, after which Alter and Donald V. discussed, among other things, a proposed construction project for the roof of Manhattan House. Alter then asked Donald V. to join him on the roof to see the proposed construction sites. Tr. 49-51
In the late evening of August 14, 1988, and in the early morning of August 15, 1988, on the roof of Manhattan House, Alter and Donald V. had a conversation that lasted for several hours. Among other things, Donald V. told Alter of his past problems with drugs, and Alter told Donald V. that he could allow halfway house residents to use drugs. Tr. 54-55.
Donald V. did not wish or intend to leave Manhattan House to go with Alter to the hotel, but Donald V. did not openly refuse at the time because of his concern that he would "be getting on the wrong side of Alter" if he refused. Tr. 62. As Alter became occupied with other matters in the halfway house that morning, Donald V. returned to his room and went to sleep. Alter entered Donald V.'s room, woke him up, and told Donald V.'s roommate to make certain that Donald V. stayed awake because of an upcoming job interview. Tr. 63. Donald V. went back to sleep, but Alter came back to Donald V.'s room and again woke him up.
Donald V. avoided going to the hotel with Alter that morning by joining a group of residents who were partaking in a discussion. Donald V. did not report the incidents of that morning and the prior evening to anyone at Manhattan House. Tr. 68. He received no reprisals for avoiding Alter. Tr. 267.
During the weekend of August 19, Donald V. left Manhattan House on a weekend pass to visit his family at his parents' home. He told his parents some of the incidents that had occurred between Alter and himself. During the weekend, Donald V. also bought and used heroin and cocaine. Tr. 70-71; GX 10. He returned to the halfway house on August 21.
On August 23, 1988, a syringe was found in Donald V.'s room at the halfway-house. He was required to submit a urine sample to the halfway house authorities for drug testing purposes, and he did so. Tr. 237-8.
About the same time that Donald V. was tested for drug abuse, Alter attempted to assist him in finding a new job. On August 24, 1988, Alter prepared a resume for Donald V., something Alter normally did not do for residents. Alter explained to Donald V. that he had written him a resume because he was physically attracted to him, not because he had earlier caused him to lose his job. Tr. 90. Donald V. offered to paint Alter's office to repay Alter for preparing his resume, and Alter agreed. He then accompanied Donald V. to Martin Paints, a paint supply store, where the two bought painting supplies. Tr. 91.
While standing on the street after the purchase, Alter told Donald V. that he had been attracted to him since August 14, 1988, when he had entered Donald V.'s room and had seen him partially undressed. Alter then proposed that the two have oral sex in a hotel. Alter inquired whether Donald V. wanted him to provide Donald V. with drugs or money, and Donald V. agreed that he would accept money. Alter told Donald V. that he could use drugs in the halfway house, and Alter suggested ways in which Donald V. could foil halfway house drug detection tests that were sometimes performed. Tr. 92-94. After Alter told Donald V. that he wanted to have oral sex with him, Donald V. responded that he could not do so "straight." Alter then handed Donald V. a ten milligram valium tablet, which he ingested. Tr. 95-97.
The conversation outside Martin Paints lasted about an hour. Afterwards, Alter and Donald V. returned to Manhattan House briefly, and Alter signed Donald V. out of Manhattan House on the pretense that Donald V. would be at work for the evening. Alter gave Donald V. $ 20.00 to buy food and told him to wait at a nearby fast food restaurant, where subsequently Altar met him. Tr. 106.
Unable to obtain enough money at an automatic teller machine to pay for a hotel room, Alter and Donald V. took a taxi cab to Alter's apartment on 165 Christopher Street in New York City. Alter gave Donald V. another ten milligram valium tablet, which he presumably ingested. Tr. 106-107
Alter then produced a bag of marijuana, rolled a joint of marijuana, and started to smoke it. Donald V. also smoked some marijuana despite Alter's warning to Donald V. that traces of the drug would remain in his body for a long time. Tr. 115, 131.
Alter then subjected Donald V., who was semi-conscious because of the drugs, to humiliating and painful acts of sadism, which included the tying up of Donald V's arms and genitals during the performance of oral sex. Donald V. described his physical condition while these acts were occurring as being "extremely high." Tr. 117-122.
Donald V. stayed at the Christopher Street Apartment overnight, longer than the pass that had been issued allowed. Alter called Manhattan House at 8:20 a.m. on August 25, 1988, and authorized Donald V.'s overnight absence from Manhattan House. GX 16. Alter used the pretense that Donald V. was at work. Tr. 124-125.
About 9:00 a.m. Alter and Donald V. left the apartment and went to a luncheonette for breakfast, where Alter gave Donald V. approximately two hundred dollars, and Donald V. left the restaurant. Donald V. then went to the Bronx and bought and used heroin and cocaine with the money that Alter had given him. Donald V. returned to Manhattan House that morning. Tr. 126-128. At some point, although it is unclear when, Donald V. began keeping private notes of his encounters with Alter. Tr. 325.
On the evening of August 26, 1988, Alter told Donald V. that he was going to include Donald V. in a group of residents whom Alter would have paint his offices. Alter told Donald V. that the actual purpose of his actions was to create work for Donald V. to perform so that Donald V. could earn a pass to leave Manhattan House. Alter explained that he wanted Donald V. to join him for the weekend at the Fire Island residence of the Co-owner of Manhattan House, Michael Young. Tr. 135. In fact, Donald V., high from using drugs, slept during most of the time that the other residents were painting Alter's office despite Alter's urging that Donald V. join them for appearance's sake. Tr. 138.
Nevertheless, on August 27, 1988, Donald V. received a pass allowing him to leave Manhattan House. In order that Donald V. would not be called during the weekend by Manhattan House personnel, Alter suggested that Donald V. write on his pass that he was visiting a person in a new apartment that lacked a telephone. Tr. 138; GX 18.
After Donald V. received the weekend pass on August 27, 1988, he told Alter that he wanted to go to the Bronx to get so drugs. Alter signed Donald V. out of Manhattan House on the pretense that Donald V. was going to Martin Paints. GX 19. Donald V. bought heroin and cocaine in the Bronx and, after briefly returning to Manhattan House, went to a nearby restaurant to wait for Alter. Tr. 140-143. While awaiting transportation to Fire Island, Alter gave Donald V. a valium tablet, and Donald V. ingested it. Tr. 144.
Alter and Donald V. spent the afternoon and evening of August 27, 1988, and most of August 28, 1988, in the Fire Island vacation home of Michael Young. During the weekend, Alter encouraged Donald V. to take drugs and taunted him with pleasure as Donald V. injected himself with heroin. Before performing oral sex upon Donald V., Alter also struck Donald V.'s back with a whip for several minutes. Tr. 149-156.
After the weekend of August 25-27, 1988, Donald V. had no further sexual encounters with Alter. Subsequently, Donald V. began violating rules at Manhattan House, accumulating incident reports, and using drugs daily. Tr. 168.
On September 14, 1988, Donald V. was remanded to the Metropolitan Correction Center in New York City for sixty days because the urine test taken on August 23, 1988 disclosed his use of drugs. GX 33. On September 30, 1988 Donald V. went before a hearing at which Alter presided and pled guilty to the charges against him. The parties do not dispute ...