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April 24, 1998


The opinion of the court was delivered by: KAPLAN


 LEWIS A. KAPLAN, District Judge.

 Great research libraries are repositories of our social, cultural, and scientific heritage. Their rare books and manuscripts are vital to understanding the world and often are irreplaceable objects of study for scholars who add to our knowledge of ourselves and our environment.

 The defendant in this case stole hundreds of rare manuscripts and documents from the library of Columbia University. The matter now is before the Court in consequence of the Court's indication that it would consider an upward departure under the Sentencing Guidelines in view of the nature of the materials stolen.


 Daniel Spiegelman pleaded guilty on April 17, 1997 to a three count information that charged him with (1) interstate and foreign transportation of stolen goods, *fn1" (2) making a false statement in a passport application for the purpose of obtaining a passport for his own use, *fn2" and (3) shipping and transporting firearms in interstate commerce after having been convicted of a crime punishable by more than one year in prison. *fn3" The plea agreement stipulated, inter alia, that the loss caused by the defendant's theft was approximately $ 1.3 million, that the applicable Guidelines offense level is 18, and that the criminal history category is II. Based on those assumptions, the sentencing range would be 30 to 37 months imprisonment absent any departure.

 The initial presentence report, dated June 11, 1997, adopted the stipulated $ 1.3 million loss amount set forth in the plea agreement and recommended that the Court adopt the offense level and criminal history category stipulations contained in the plea agreement. The presentence report, however, was accompanied by a letter from Jean Ashton, the director of the Columbia University Rare Book and Manuscript Library, which argued that the defendant's crime had a "devastating effect" on Columbia and the worldwide academic community far greater than the financial loss because of its impact on scholarship.

 Spiegelman first appeared for sentencing on June 18, 1997 at which time the Court adopted the factual findings and Guideline computation in the presentence report. *fn4" It indicated also that it was considering an upward departure under U.S.S.G. § 5K2.5 on the ground that "the loss table does not adequately reflect the gravity of the crime." *fn5" After hearing argument, it adjourned the sentencing to afford defendant an opportunity to address the proposed departure issue in more detail. *fn6"

 Spiegelman appeared again for sentencing on July 30, 1997, at which time the departure issue was argued further. The Court rejected defendant's legal argument that an upward departure would be inappropriate as a matter of law. *fn7" Defendant, however, indicated for the first time a desire to submit evidence on the issue whether the stolen items had unique or special scholarly value, *fn8" so the Court again adjourned the sentencing in order to give defendant time to develop his factual argument. *fn9" In an effort to determine whether to hold a Fatico hearing, the Court directed defendant to provide a statement "listing by name each witness it proposes to call at a Fatico hearing and a summary of the witness's proposed testimony and the basis for the witness's giving that testimony." *fn10" The Court directed also that the government submit a similar statement "including any evidence that Columbia University wishes to present." *fn11"

 On August 14, 1997, defendant requested a hearing to "present and resolve factual issues as to [the] value to scholarship of [the] stolen documents" and to cross-examine Columbia's Ms. Ashton. *fn12" The government, in compliance with the Court's direction, then reported that Ms. Ashton and eight other scholars were prepared to testify at any Fatico hearing. *fn13"

 Following the receipt of these communications, the Court directed the Probation Department to obtain written statements of the proposed testimony of these eight individuals. On November 20, 1997, the Probation Department issued a supplemental presentence report which attached and summarized letters from each of the eight scholars. Defendant responded by reiterating his desire to cross-examine Ms. Ashton. *fn14"

 Upon receipt of all of these materials, the Court granted Spiegelman's request for a Fatico hearing for the purpose of affording him the opportunity to (1) cross-examine Ms. Ashton and Professor George Saliba, author of one of the eight letters submitted with the revised presentence report, and (2) present two witnesses of his own. The hearing was conducted on March 20, 1998. As Professor Saliba was not available for the hearing, the Court granted Spiegelman's motion to disregard his letter. *fn15" Spiegelman proved unable to procure the appearance of his proposed witnesses. *fn16" Accordingly, only Ms. Ashton testified.

 At the conclusion of the Fatico hearing, the Court granted Spiegelman's request for ten days in which to submit another brief. *fn17" Spiegelman filed the brief 31 days later. The brief argued for the first time that Section 5K2.5 does not permit a departure in these circumstances and, moreover, that departure under Section 5K2.0 would be inappropriate. *fn18" Although Spiegelman's brief thus reflected his awareness that the Court would consider departing under Section 5K2.0 as well as 5K2.5, the Court gave formal notice to that effect on April 20, 1998.


 The Stolen Items

 Spiegelman stole, among other things:

 . seventeen medieval and Renaissance manuscripts dating from 1160 to 1550, including Euclid's Elementa (1300), three Books of Hours with illuminations (1425-1490), a late fourteenth century manuscript of Roman de la Rose by Guillaume de Lorris and Jean de Meung, and two papal bulls (1160 and 1202);

 . eight Arabic and Persian manuscripts dating from around 900 to 1887, including several Korans and a volume of secular Persian poetry;

 . three incunabula: *fn19" Compilatio de Astrorum Scientia by Leopoldus, Dux Austriae (1489), a 1493 edition of Liber Chronicarum, also known as the Nuremberg Chronicle, and Seneca's Proverbia (1493);

 . twenty-six medieval, Renaissance, and early modern documents dating from 1122 to 1789, including property deeds, indentures, bills of sale, tax documents, and wills;

 . 284 historical maps dating from 1628 to 1891, including Danckerts, Novi Belgii no Aeque Angliae . . . Tabula (1700), and 237 individual maps razored out of Blaeu's Atlas Major (circa 1667, German text edition);

 . twenty-six Presidential letters and documents dating from 1791 to 1918, including six George Washington letters (four to John Jay), *fn20" eight letters from John Adams to William Tudor, and twelve letters from other presidents including John Quincy Adams, Andrew Jackson, Abraham Lincoln, and Woodrow Wilson; and

 . 133 letters and documents from and relating to Thomas Edison dating from 1860 to 1903, including contracts, patent assignments, and correspondence concerning the development of the telegraph and the expansion of the telegraph network. *fn21"

 Many of these items have not been recovered. Spiegelman led the FBI to others following his arrest.

 The Impact of the Thefts

 The theft of these items concededly caused economic loss to their owner, Columbia University. But the theft had an impact different in kind from a loss of money or other easily replaceable property, for these materials have value to the Columbia academic community and other scholars and, through them, to society at large that cannot be measured in economic terms alone.

 Ms. Ashton broadly and aptly summarized the importance of materials of this nature in a statement which the Court fully credits:

"The very existence of rare books and manuscripts provides the basis for new discovery and interpretation in almost every area of study, and can continue to do so only for as long as these treasures remain preserved and protected. As Roger Stoddard, curator of rare books in the Harvard College Library, aptly stated . . . 'we need all the evidence that we can get [to understand history] -- scarce as it is, and we depend on the continuing accessibility of old books and manuscripts, so we can test the accuracy of new interpretations . . . . All depends completely on the maintenance and security of library collections: destroy, mutilate, steal, or hide the books and manuscripts and you frustrate the development of knowledge and the free interchange of scholarship and teaching.'" *fn22"

 As Professor Blackmar pointed out, "the value of rare books and manuscripts derives from their availability to scholars whose research entails analyzing both individual, uniquely significant documents and historical patterns that emerge from multiple documents." *fn23" The negative effect that theft can have on the atmosphere and security policies of rare book collections, moreover, is substantial because it brings security concerns to the fore at the expense of accessibility. *fn24"

 The foregoing merely touches the surface of the extensive evidence before the Court that the theft of rare books and manuscripts deprives Columbia and similar institutions, their faculty and students, and other scholars of raw materials important to the advancement of human knowledge and thus deprives all of us of the benefits of their insights and discoveries. Nonetheless, Spiegelman argues that his thefts had no such impact for a number of reasons.

 1. Evidence of Specific Injury

 One of Spiegelman's refrains, variously expressed, is the suggestion that there is no proof that there was any specifically identifiable harm to scholarship as a result of his theft of these particular items, especially as some of them were recovered following Spiegelman's arrest. In the very narrowest sense he is right. It is impossible to say with an acceptable degree of confidence that the loss of a particular book or manuscript resulted in an identifiable loss of a specific intellectual insight or historical contribution, much less that the interim loss of those materials ultimately recovered did so during the period in which they were unavailable. It does not lie within human competence to say what would have occurred had the thefts not taken place -- any more than we can say what discoveries would have been made or insights achieved but for the loss of knowledge occasioned by the destruction of the Library Alexandria, *fn25" the rampant looting of European art treasures during World War II, *fn26" or the infamous book-burnings conducted by the Nazi regime in Germany.

 In the last analysis, then, by taking raw materials of importance to scholars and the academic community, Spiegelman knowingly risked causing substantial harm of a kind which is inherently unknowable, unquantifiable, and substantially non-monetary in character. The fact that we cannot know with certainty what new knowledge would have come from which artifact absent Spiegelman's actions, far from supporting Spiegelman's position, ...

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