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GAIND v. UNITED STATES

December 17, 1994

ARUN GAIND, Petitioner, against UNITED STATES OF AMERICA, Respondent.


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

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Petitioner Arun Gaind was found guilty on August 31, 1992 of conspiracy to commit mail fraud and to cause a company controlled by him to submit false statements to the United States Environmental Protection Agency (EPA) by backdating tests. Gaind was also convicted of making actual false statements to the EPA; and of committing perjury before a federal Grand Jury investigating the matter.

 Sentence, imposed on June 11, 1993, included thirty-three (33) months' imprisonment and restitution to the EPA of $ 511,263.88. I departed downward from the Sentencing Guidelines to take into account that Gaind had lost his business - the sole instrument for his criminal activity - so that the likelihood of further violations on his part was reduced. United States v. Gaind, 829 F. Supp. 669 (SDNY 1993). The conviction and sentence were affirmed by mandate issued August 24, 1994, United States v. Gaind, 31 F.3d 73 (2d Cir 1994); see also United States v. Gaind, 832 F. Supp. 740 (SDNY 1993) (denial of bail pending appeal).

 Gaind seeks relief under 28 USC 2255 from his sentence on the grounds (a) that financial difficulties - some assertedly new - justify reducing the amount of restitution; (b) that the amount of restitution improperly includes amounts paid by the EPA for studies set forth in substantive counts with respect to which petitioner was acquitted; (c) that EPA losses not directly traceable to petitioner's crimes were improperly included in the restitution ordered; (d) that enhancement of his sentence by six rather than eight offense levels under the United States Sentencing Guidelines was appropriate because the method of calculating the loss incurred by the EPA was incorrect; and (e) that petitioner should receive a two-level reduction in offense level because he accepted responsibility for his wrongdoing at the time of sentence.

 I deny the application.

 II

 In determining appropriate restitution at the time of sentencing, I considered both petitioner's financial difficulties and his high level of intelligence and acumen, suggesting significant possibilities for future earnings by him after completion of his sentence of imprisonment. Gaind testified at his trial. He exhibited extraordinary ability to recall and to organize details into a structure, to foresee potentially advantageous lines of activity, to influence the behavior of others, and to seize opportunities open to him. Gaind is one of the more brilliant business executives likely to be found, but he allowed his ambition to lead him into falsification when honesty might have accelerated the fall of his environmental testing empire. To assume that Gaind cannot find other means of making a living and quite possibly become a dramatically successful business executive would be to ignore reality.

 Restitution by an offender for losses caused is pertinent to other aspects of a sentence. In this instance, had restitution been reduced or eliminated, I would have considered a substantial fine, possibly including up to twice the amount gained or lost on account of the crime. 18 USC 3571(d).

 Where financial gain is the motive for crime having substantial adverse effects on the public, reallocating the loss to the wrongdoer by means of an adequate financial sanction is vital to the purposes of sentencing under 18 USC 3553. Such sanctions may in some cases, including that of Gaind, be imposed as a partial substitute for imprisonment.

 Gaind seeks by the present motion to whittle away at one portion of his sentence without reopening the remainder, with the consequence, if successful, of unbalancing the whole.

 Reducing otherwise appropriate restitution because of improbable negative estimates of petitioner's future income or assets would be inappropriate. See Gallardo v. United States, 1994 U.S. Dist. LEXIS ...


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