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December 13, 1999


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 follows.

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 arrest.

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.

Meanwhile, Schwarz and Wiese had placed Louima in custody following his encounter with Volpe. They were driving Louima to the 70th Precinct in their patrol car when Sergeant Bellomo broadcast a description of the man who had assaulted Volpe. Although he was not the assailant, Louima matched the description. Louima testified that the driver of the patrol car stopped in the vicinity of Nostrand Avenue and Glenwood Road, with Louima sitting in handcuffs in the back of the car. Louima further testified that both officers got out of the car, opened the rear door and began to beat him about the body and head, at least once with an unidentified hard object, inflicting contusions and bruises.

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 ground.

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 (Count IX).


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 $3,550.27.

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 Department.


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 level.


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 adjustment unjustified.

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 when the 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 interpretations").

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 ...

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