The opinion of the court was delivered by: Nickerson, District Judge.
On May 25, 1999 the defendant, Justin Volpe, pleaded guilty to
six counts of a twelve count indictment.
The Court is required to sentence Volpe under the United States
Sentencing Guidelines ("the Guidelines") as set forth by the
United States Sentencing Commission ("the Commission") in the
Guidelines Manual effective November 1, 1998.
In a Presentence Investigative Report dated August 13, 1999
(the "Presentence Report"), the United States Probation
Department calculated Volpe's offense level under the Guidelines.
Volpe objects to several portions of that report. The Court now
sets forth a memorandum and order embodying its findings and
conclusions as to Volpe's sentence.
The record is more than adequate to support findings of fact as
At approximately 4:00 a.m. on August 9, 1997, New York City
Police Officers from the 70th Precinct were summoned to Club
Rendez-Vous, a nightclub located on Flatbush Avenue in Brooklyn,
New York. Among them were Officers Justin Volpe, Thomas Bruder,
Charles Schwarz, and Thomas Wiese, and Sergeant Michael Bellomo.
The officers attempted to disperse a large crowd that had
gathered outside the club to watch a fight between two patrons.
As the officers tried to push and urge the crowd away from the
club, several of those gathered on the street became unruly,
yelling and throwing bottles at the officers. During the fracas,
Volpe struggled with an intoxicated patron named John Rejouis and
eventually pushed Rejouis to the ground. Rejouis held up his
badge as a New York City Corrections Officer. Volpe slapped
Rejouis's hand and knocked the badge to the ground.
Shortly thereafter, Abner Louima confronted Volpe and began
yelling at him regarding his treatment of Rejouis. Volpe
attempted to push Louima away from the club, but Louima refused
to move and the confrontation escalated. As Schwarz, Wiese and
other officers approached and tried to handcuff Louima, Volpe was
struck hard on the side of his head and knocked to the ground.
Volpe thought Louima had hit him. In fact, Jay Nicholas, Louima's
cousin, struck Volpe and then fled.
Officers who had seen Nicholas strike Volpe began chasing
Nicholas up Flatbush Avenue. Volpe joined the chase, thinking he
was in pursuit of Louima. During the chase Volpe encountered
Patrick Antoine, an individual who had not been at the club and
was simply on his way home. Volpe yelled at Antoine and began
beating him, using a flashlight to strike his head and face.
Antoine suffered bruises and contusions on his head and a
laceration over his right eye that required seven stitches.
Several other officers then arrived and placed Antoine under
Later on the morning of August 9, 1999, Volpe provided false
information to Assistant Kings County District Attorney Sheila
O'Rourke regarding his assault on Antoine. He told O'Rourke that
while he was attempting to place Louima in handcuffs, Antoine
pushed and punched him and refused to be handcuffed. Volpe also
swore out a complaint attesting to these facts and charging
Antoine with felony assault, obstructing government
administration in the second degree, and disorderly conduct.
Schwarz and Wiese then drove to Glenwood Road and Bedford
Avenue, where they radioed Bellomo that they had in custody a
suspect in the assault on Volpe. Volpe and his partner, Thomas
Bruder, overheard this and drove to Glenwood Road and Bedford
Avenue. Upon arrival and after a brief conversation with the
other officers present, Volpe approached Louima, who was still in
handcuffs in the back of the patrol car. Volpe taunted Louima and
beat him on his head and face with a closed fist and a radio.
Louima sustained lacerations and abrasions on his face and
swelling in his mouth and around his eye.
Schwarz and Wiese then drove Louima to the 70th Precinct and
presented him to Sergeant Jeffrey Fallon at the front desk.
Schwarz and Fallon began filling out paperwork regarding Louima.
Louima was still in handcuffs, and while he was being processed
his pants and underwear fell to his ankles.
Volpe arrived at the precinct shortly after Schwarz. He saw
Louima at the front desk, then walked to the juvenile questioning
room, where he grabbed a wooden broom stick and broke it over his
knee. He placed the bottom of the stick behind a locker, took the
upper section to the bathroom and put it behind a garbage can.
Volpe then left the bathroom and walked to the front desk, where
Schwarz and Fallon were still processing Louima. Volpe borrowed a
pair of leather gloves from Officer Mark Schofield, who was
standing near the front desk.
Louima testified that when Fallon finished processing him, the
driver of the car in which he was transported to the precinct
grabbed him by the handcuffs and took him to the bathroom, his
pants and underwear still around his ankles, forcing him to
shuffle-step, and opened the door to the bathroom and took Louima
inside, with Volpe following.
Volpe then picked up the stick he had put behind the garbage
can and told Louima, "I'm going to do something to you. If you
yell or make any noise, I'll kill you." Volpe pushed Louima to
the ground, with his head near a toilet bowl, and kicked him in
the groin. When Louima began screaming, Volpe put his foot over
Louima's mouth. Louima testified that the two officers began to
punch him about the head and body, and that the driver of the car
then grabbed Louima by his handcuffs and lifted him from the
Volpe then forced the broken broomstick approximately six
inches into Louima's rectum. He removed the stick, which was
covered with Louima's feces, and held it in front of Louima's
mouth and taunted him. Volpe then slammed the stick against the
wall, leaving behind traces of feces.
With Louima crying and in severe pain, Volpe lifted him to his
feet and took him to a holding cell, leaving Louima's pants and
underwear around his ankles. Before putting him in the cell,
Volpe told Louima that if he told anybody what had happened,
Volpe would kill him. Volpe then returned the leather gloves, now
covered with Louima's blood, to Schofield.
Volpe later encountered Louima sitting on a chair outside his
cell waiting to be taken to the hospital. Volpe cursed at Louima,
pulled the chair away from him, and told him to return to the
cell and get down on his knees.
Several of the officers involved in the events outside the
nightclub, including Volpe, went to the New York Community
Hospital on the morning of August 9, 1999, to be treated for
minor injuries sustained during those events. At the hospital,
Volpe was overheard telling fellow officers that "I broke a man
down." Volpe later returned to the 70th Precinct, where he
told Sergeant Kenneth Wernick what he had done to Louima, saying "I
took a man down tonight." Volpe took Wernick to the bathroom and
showed him the stick used in the sexual assault, which Volpe had
left in the bathroom. Shortly thereafter, Volpe showed the stick
to Officer Michael Schoer. Smelling Louima's feces on the stick,
Schoer said, "What is that, dog shit?" Volpe responded, "No,
human shit." Volpe subsequently threw the broom handle into a
trash bin outside the precinct.
Approximately four hours after the bathroom assault, Louima and
Antoine were taken to Coney Island Hospital in Brooklyn, New
York. Antoine received seven stitches to close the laceration on
his head and was discharged later that day. Louima was initially
diagnosed with swelling in his head and a laceration over his
eye, but further tests showed internal injuries to his bladder
and rectum. On the evening of August 9, 1997, doctors surgically
repaired a two-centimeter perforation to Louima's rectum and a
three-centimeter perforation to his bladder. Doctors also
performed colostomy and cystostomy procedures.
Louima remained hospitalized until October 10, 1997. Among the
complications he suffered was an intestinal blockage requiring
emergency surgery and the implantation of a colostomy bag. Louima
underwent surgery again in February 1998 to remove the colostomy
bag. After his release from the hospital on October 10, 1997,
Louima received medical and psychiatric treatment on an
outpatient basis and continued to suffer severe headaches,
abdominal pain and insomnia.
On August 10, 1997, the Internal Affairs Bureau of the New York
City Police Department began an investigation into the events at
the 70th Precinct. That evening, Internal Affairs inspectors
interviewed Louima at the Coney Island Hospital, and on August
11, 1997, they arrived at the 70th Precinct to collect evidence.
Volpe was arrested and charged with the assault on August 13,
1997. The Kings County District Attorney's office agreed to
dismiss the state charges in lieu of this federal prosecution. On
February 26, 1998, Volpe and Schwarz surrendered to the Federal
Bureau of Investigation.
A federal indictment was issued on February 26, 1998, and the
superceding federal indictment on which Volpe was tried was
issued March 3, 1999. Jury selection began on April 14, 1999, and
the trial itself on May 4, 1999. On May 25, 1999, three days
before the scheduled close of the government's case in chief,
Volpe pleaded guilty to six of the twelve counts in the
superceding indictment: (1) conspiring to deprive Abner Louima of
his civil rights by aggravated assault (denominated Count IA in
the superceding indictment) and aggravated sexual abuse (Count
IB); (2) assaulting Louima in a police car (Count III); (3)
sexually abusing Louima in a restroom at the 70th Precinct
(Count IV); (4) assaulting Patrick Antoine (Count VII); (5)
falsely arresting Antoine (Count VIII); and (6) witness tampering
In its Presentence Report, the Probation Department calculated
a total offense level under the Guidelines of forty-six for all
counts against Volpe. The sentence prescribed by the Guidelines
for any offense level at or above forty-three is imprisonment for
life. See U.S.S.G., Ch. 5, Pt. A.
For the reasons hereafter recited, the Court finds Volpe's
total offense level to be forty-two and imposes a sentence of 360
months imprisonment. The Court also imposes a five-year term of
supervised release, and as a special condition a prohibition on
possession of a firearm. The Court also imposes a special
assessment of $525.00; restitution to Louima in the amount of
$277,495.09; and restitution to Antoine in the amount of
The details of the Court's computation of the sentence appear
in an appendix to the Court's memorandum and order.
The logical and practical place to start in describing the
applicable Guidelines and Volpe's objection to the calculation by
the Probation Department is with Counts IB and IV. These charge a
conspiracy to deprive and the depravation of Louima's civil
rights by criminal sexual abuse. The applicable Guidelines level
for these two counts determines the adjusted offense level
applicable to any sentence of Volpe. Neither of the two counts
relating to Antoine figure in the analysis, nor do any of the
other counts relating to Louima, namely counts IA, III, IX.
Since Counts IB and IV are treated as one the Court will refer
to them as charging aggravated sexual abuse and analyze each
objection made by Volpe to the calculation of the Probation
The so-called base offense level for the crime of depravation
of civil rights by aggravated sexual abuse is 27, to which the
Probation Department added various adjustments objected to by
Volpe. Volpe also objected to a failure to apply one downward
adjustment and several downward departures from the total offense
The Presentence Report includes a two-level upward adjustment
to the base offense level pursuant to § 3C1.1 of the
Sentencing Guidelines for obstruction of justice consisting of
Volpe's threatening to kill Louima if he revealed what was done
to him. For the reasons that follow, the Court deems this upward
Obstruction of justice is typically governed by § 2J1.2 of
the Guidelines. Application Note 3 to that section states that if
a defendant is "convicted under this section [relating to
obstruction of justice] as well as for the underlying offense
(i.e., the offense that is the object of the obstruction), see
the Commentary to Chapter Three, Part C (Obstruction), and to
§ 3D1.2(c) (Groups of Closely Related Counts)."
Section 3C1.1 provides for a two-point upward adjustment if the
defendant obstructed justice "during the course of the
investigation, prosecution, or sentencing of the instant offense
of conviction." Application Note 1 to § 3C1.1 states in
pertinent part that
[t]his adjustment applies if the defendant's
obstructive conduct (A) occurred during the course
of the investigation, prosecution, or sentencing
of the defendant's instant offense of conviction.
. . . (emphasis added).
The Sentencing Commission added this language to Application
Note 1 in amendments that became effective November 1, 1998.
U.S.S.G., Supp. to App. C, Amend. 581 (1998). The prior version
of the commentary made no reference to the timing of the
obstructive conduct. In commentary accompanying the 1998
amendment, the Commission stated that the changed language
"clarifies the temporal element of the obstruction guideline
(i.e., that the obstructive conduct must occur during the
investigation, prosecution, or sentencing of the defendant's
offense of conviction)." Id. (emphasis added).
The court must use the Guidelines Manual, including the
commentary and application notes, "in effect on the date that the
defendant is sentenced." U.S.S.G. § 1B1.11; see Stinson v.
United States, 508 U.S. 36, 40, 113 S.Ct. 1913, 1919 (1993). The
manual in effect today, the day of sentence, is that which went
into effect on November 1, 1998. Thus, the court could apply the
two-level adjustment of § 3C1.1 only if Volpe's obstruction
occurred during the investigation, prosecution, or sentencing of
Volpe. See U.S.S.G. § 3C1.1; United States v. Hutchinson, No.
98-1654, 1999 WL 357837, at **1 (2d Cir., May 20, 1999)
(directing district court on remand to apply § 3C1.1
adjustment only where there has been "a specific finding as to
investigation of the offense of conviction began").
There is no evidence that Volpe's obstruction occurred during any
pertinent investigation, prosecution, or sentencing. Hence, the
Court may not apply the adjustment.
A majority of courts to have considered the issue have held
that § 3C1.1 does not apply to pre-investigation conduct. See
Hutchinson, 1999 WL 357837, at **1; United States v. Clayton,
172 F.3d 347, 353-56 (5th Cir. 1999); United States v. Self,
132 F.3d 1039, 1042-43 (4th Cir. 1997); United States v. Gacnik,
50 F.3d 848, 852 (10th Cir. 1995); United States v. Emery,
991 F.2d 907, 912 and n. 6 (1st Cir. 1993) (dictum); United States v.
Kirkland, 985 F.2d 535, 537-38 (11th Cir. 1993).
In United States v. Irabor, 894 F.2d 554, 556 (2d Cir. 1990),
the Second Circuit applied the pre-1998 version of the Guidelines
and found no indication of "congressional intent to limit its
application to conduct occurring after the initiation of
proceedings." Irabor was, of course, decided long before the 1998
amendments to the commentary to § 3C1.1. Those amendments
supercede any conflicting court interpretation. See Stinson, 508
U.S. at 46, 113 S. Ct. at 1919 ("amended commentary is binding on
the federal courts"); United States v. Clayton, 172 F.3d 347, 355
(5th Cir. 1999) (amendment to § 3C1.1, Application Note 1
"takes precedent over prior conflicting judicial
The Government argues that the language of Application Note 8
to § 3C1.1 requires an adjustment. That note states:
[i]f the defendant is convicted of both an
obstruction offense . . . and an underlying
offense . . ., the count for the obstruction
offense will be grouped with the count for the
underlying offense under [§ 3D1.2(c)]. The
offense level for that group of closely related
counts will be the offense level for the
underlying offense increased by the two-level
adjustment specified by this section, or the
offense level for the obstruction offense,
whichever is greater.
U.S.S.G. § 3C1.1, comment. (n. 8).
Volpe was convicted of both an obstruction offense (witness
tampering) and the underlying offense (criminal sexual abuse).
Those two counts were grouped together for purposes of
determining the adjusted offense level under the Guidelines. See
U.S.S.G. § 3D1.2(b). But the Government argues that, in
addition to grouping the obstruction and sexual abuse counts
together, the Court should adjust the resulting offense level
upward by two levels pursuant to Application Note 8 to §
3C1.1. See United States v. Maggi, 44 F.3d 478 (7th Cir. 1995)
(§ 3C1.1 adjustment was proper where obstruction count was
grouped with underlying money laundering count).
Application Note 8 requires that an obstruction count be
grouped with the underlying offense pursuant to § 3D1.2(c)
and the adjustment applied accordingly. Section 3D1.2(c), in
turn, applies "[w]hen one of the counts embodies conduct that
is treated as a specific offense characteristic in, or other
adjustment to, the applicable guideline of another of the
counts." Witness tampering is not an offense characteristic
in the sexual assault guideline. Cf. Maggi, 44 F.3d at
481 (adjustment pursuant to §§ 3D1.2 and 3C1.1 was proper
where "the money laundering count embodie[d] elements of
obstruction of justice"). The only relevant "other adjustment"
to the sexual assault guideline is § 3C1.1 itself, which,
as discussed, does not apply to Volpe's conduct. Thus,
Application Note 8 to § 3C1.1 does not require an adjustment
under the facts of this case.
Even if the language of Application Note 8 were read to
conflict with the guideline itself, the guideline, as interpreted
by the Sentencing Commission, is controlling. See Stinson v.
United States, 508 U.S. 36, 43, 113 S.Ct. 1913, 1918 (1993)
(where commentary and guideline are inconsistent, "the Sentencing
Reform Act itself commands
compliance with the guideline")
(citing 18 U.S.C. § 3553(a)(4), (b)). Section 3C1.1, clearly
explained by the Sentencing Commission and interpreted by the
Second Circuit, bars application of the two-level adjustment for
obstruction of justice under the facts of this case.
Volpe next argues that his acceptance of responsibility
entitles him to a two-level downward adjustment. Section 3E1.1 of
the Guidelines provides for an adjustment where "the defendant
clearly demonstrates acceptance of responsibility for his
offense." Application Note 1 provides a non-exclusive list of
factors for the Court to consider in determining whether a
defendant qualifies for this adjustment. They are: truthfully
admitting the conduct offense; voluntarily terminating criminal
conduct or associations; voluntarily paying restitution;
voluntarily surrendering to authorities; voluntarily assisting
the authorities in recovering fruits and instrumentalities of the
offense; voluntarily resigning his office or position;
post-offense rehabilitation; and the timeliness of the defendant's
conduct. See U.S.S.G. § 3E1.1, comment. (n. 1).
Volpe identifies two ways in which he has purportedly accepted
responsibility. First, he says he truthfully admitted to his
conduct and acknowledged its wrongfulness in his guilty plea and
his statement to the Probation Department. Second, he claims to
have sought to "right a most significant injustice" by stating
that Schwarz was not involved in the ...