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UNITED STATES v. ARUN GAIND

September 13, 1993

UNITED STATES OF AMERICA
v.
ARUN GAIND, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This memorandum explains my reasons for departing from the otherwise applicable Guidelines in sentencing the defendant Arun Gaind on June 11, 1993 to thirty-three (33) months for false statements in connection with contracts for testing material for the Environmental Protection Agency contrary to 18 USC 1001, and for related crimes. Mr. Gaind's only business involved such testing. Prior to the time I imposed sentence, that business was effectively destroyed by the consequences of such discovery.

 II

 Under 18 USC 3553(b), I am directed to depart from otherwise applicable guideline sentences where "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 that should result in a sentence different from that described" as determined from the "sentencing guidelines, policy statements, and official commentary . . ."

 The purposes of sentencing are defined by statute. One of the most important ones is "to protect the public from further crimes," 18 USC 3553(a)(2)(C). Another purpose is specific and general deterrence of criminal activity (18 USC 3553[a][2][B]).

 Both of these purposes are served by dismantling the power conferred by a defendant's role in an enterprise which was the primary vehicle for the criminal activity involved. Such dismantling can be achieved in part through the sentencing process by means of a sufficient term of imprisonment, a fine of such magnitude as to force divestiture of assets of the type under discussion, or conditions of probation limiting a defendant's activities.

 These objectives are also principal reasons for numerous statutory and rule provisions as well as prosecutorial efforts, including:

 
(a) enactment of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 USC 1961 et seq.;
 
(b) the forfeiture laws including one in RICO itself (18 USC 1963);
 
(c) trusteeships and injunctive decrees seeking to oust wrongdoers from positions of power in institutional entities under RICO and other statutes;
 
(d) Fed.R.Cr.P. 41(b)(3) authorizing seizure of "property . . . which is or has been used as the means of committing a criminal offense
 
(e) authority for injunctive relief in numerous statutes involving criminal or civil cases or both, e.g., 18 USC ...

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