The opinion of the court was delivered by: Denise Cote, District Judge
On October 16, 2008, following a jury trial, the defendant was found guilty of five counts. Sententcing on those five counts occurred on September 16, 2009.*fn1 In his pre-sentence submissions, the defendant, who was proceeding pro se,*fn2 disputes the pre-sentence report's ("PSR") calculation of the maximum sentence. This Opinion resolves those disputes.
The defendant was indicted on twelve counts, and has been tried on and convicted of five of those counts. See United States v. Jordan, 591 F. Supp. 2d 686 (S.D.N.Y. 2008). The five counts and the elements of each count, as given to the jury in the Court's charge, are as follows.
1. Count One: 18 U.S.C. § 875(c)
Count One charged Jordan with knowingly and willfully transmitting between December 2007 and January 11, 2008, in interstate and foreign commerce, threats to kidnap or injure, in violation of 18 U.S.C. § 875(c), by making telephone calls and sending emails and facsimiles that threatened to kidnap Simone Thenault ("Thenault"), and to injure Thenault, Thenault's aunt Glenda Morean-Phillip ("Morean-Phillip"), and other members of Thenault's immediate family.*fn3 The statutory maximum term of imprisonment is five years.
The charge to the jury described the three elements of Count One as follows:
First: That in the period between December 2007 and up to and including January 11, 2008, the defendant communicated a threat (1) to kidnap Simone Thenault or (2) to injure Simone Thenault, or other members of her immediate family including her aunt Glenda Morean-Phillip. To injure in this context means to inflict bodily harm.
Second: That the threat was transmitted in interstate or foreign commerce.
Third: That the defendant knowingly and intentionally transmitted the threat.
The charge identified the seven threats that the Government asserted as the basis for Count One as follows:
(1) Between in or about December 5, 2007, and in or about December 16, 2007, the defendant stated to Ms. Thenault via telephone that, in sum and substance, he would "kill" Ms. Thenault and "take [her] off the planet."
(2) Between in or about December 7, 2007, and in or about December 16, 2007, the defendant stated to Ms. Thenault's sister and her mother via telephone that, in sum and substance, he would "kill" them and "wipe all of [them] off the face of the earth."
(3) On or about January 2, 2008, the defendant sent a facsimile that stated, among other things:
Emergency situation as Trinidad High Commissioner is in grave danger.... There are 3-4 men (3 Jamaican, 1 British) and 1 woman (unknown decent) in London.... Background is that two brothers hold hatred toward the former Attorney General of the Republic of Trinidad and Tobago identified to be Glenda P. Morean-Phillip.... They are not well financed, but are now living in London awaiting right opportunity to get at Morean-Phillip.... Have maybe two AK-47 shipped Jamaica-Miami-UK via FedEx.... My friend believes they will wait and act when the opportunity arrives both against Morean-Phillip and her family.
(4) On or about January 3, 2008, the defendant sent an e-mail to Ms. Thenault that stated, among other things:
I now am convinced that you need to be rescued. Remember, if you arequickly grabbed sometime in the next 2 weeks or so, relax, no one is to harm you. But, just like when a body guardis ushering away a politician from harm, a few men may need to quickly grab you and wisk you away for your protection, so you can escape youraunt's control.... John and his girl aretraining two men who will help. If you arewith your aunt, she must stay uninvolved when it goes down. There will likely be no tolerance for interference from her or her laughable 'body guards.' They will notact until they areleast expected - so stay prepared - keep your important things with you. We will putvphase1 into action unless I hear from you directly that you are safe and living of your own free will.... I am so worried about you. You are a prisoner. You cannot do what you want. Youraunt is holding you. Don't worry. Weareabout to make world news with our rescue.
(5) On or about January 5, 2008, the defendant sent a text message to Ms. Thenault via telephone that stated: "We are finally ready. Now just waiting for moment least expected. Always keep your passport on you starting today. Here's code word that only you will know: baby oil. That should tell you when we will strike."
(6) On or about January 5, 2008, the defendant sent a text message to Ms. Thenault via telephone that stated: "My friend Monique offered of this place go Paris. I might go and return only on the day of the rescue. That may be tomorrow or 2 or more weeks from now. The call is john's. Be ready. Joe."
(7) On or about January 5, 2008, the defendant sent a facsimile to Glenda Morean-Phillip that stated, among other things:
You are to immediately apologize by telephone call to the offended party. It is very likely that failure to do so will be regretted.... [I]n order to be able To go about your life in a secure and comfortable manner,... and without the need albeit imperfect for increased security and overwhelming expense, you must prove that the young woman is safe, acting only of her free will, and not being manipulated, controlled, or otherwise held against ...