The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is defendant's sentencing*fn1 following his appeal from the judgment initially imposing a sentence of a term of imprisonment of a total of twenty-one months for defendant's conviction on three counts of failure to file federal tax returns (Docket No. 125, Amended Judgment; see Docket No. 172, Judge Arcara Order on appeal; Docket No. 118, original Judgment). Defendant was resentenced on September 21, 2010 (see Docket No. 233, Amended Judgment), and this is the written decision on that sentencing. As noted during the sentencing by both parties, this has been the most intensely litigated misdemeanor sentencing in this District. Familiarity with the prior sentencing Orders (Docket Nos. 95, 110, 116, 222) and Judge Arcara's appellate Order (Docket No. 172) is presumed. Finally, as noted during the sentencing proceeding, this Court has reviewed all documents produced relative to this sentence (much of which is cited herein).
Defendant was convicted, following trial in February 2008, on three of four counts of failure to file a tax return, in violation of I.R.C. § 7203 (for tax years 2000, 2001, and 2003); the jury was unable to reach an unanimous verdict for the failure to file count for tax year 2002. Initial Sentencing
Following submission of the initial Presentence Report (hereinafter "PSR") (see Docket No. 123) to the parties, defendant filed his objection (Docket No. 91; see Docket No. 92, defense attorney's affirmation with exhibits); Docket No. 93, Gov't Memo. with exhibits). The Court rejected in part defendant's objection, rejected the Government's motion for enhancement due to obstruction of justice during the course of the trial and adopted in part the PSR (Docket No. 95). Defendant next submitted his statement regarding sentencing factors (Docket No. 97) and moved either for a downward departure or for imposition of a non-Guideline sentence (Docket No. 98; see id. (attached exhibits); Docket No. 99, Def. Atty. Affirm.; Docket No. 100, Def. Memo), which the Government opposed (Docket Nos. 103, 104-06; see also Docket No. 101, Gov't Statement Regarding Sentencing Factors, which sought a sentence at the high end of the Guideline range). Defendant's motion for downward departure or for a non-Guideline sentence was denied (Docket No. 110). Defendant then moved for reconsideration (Docket No. 111; see Docket No. 112, Def. Memo., No. 115, Def. Reply; cf. Docket No. 114, Gov't Response), which was also denied (Docket No. 116).
After this extensive briefing on sentencing, defendant was sentenced, on August 27, 2008, to twelve months on two counts (running concurrently with each other) and nine months on the third count, to run consecutive to counts one and two, in order to achieve a sentence within the advisory Guidelines range of 21 to 27 months (see Docket No. 172, Appellate Order at 2-5, summarizing sentencing), see Sentencing Guidelines § 5G1.2(d), and judgment was entered on September 5, 2008 (Docket No. 118; see also Docket No. 125, Am. Judgment).
Appeal of Sentence and Remand
Defendant appealed this judgment as for the sentence (Docket No. 122). Judge Arcara remanded this case for re-sentencing (Docket No. 172, Appellate Order at 1, 10, 12), staying defendant's sentence while re-sentencing was pending (id. at 12). That stay was extended through the evidentiary hearing (Docket Nos. 177, 179, 183), and the post-hearing briefing period (see Docket No. 193) and until September 21, 2010, when he was sentenced. A status conference was held on June 8, 2009 (Docket No. 174 (minutes)), at which time defendant sought an evidentiary hearing to produce mitigating evidence (namely testimony from patients of the defendant and videotape and testimony surrounding the medical condition of defendant's daughter, Kirsten Weisberg ("Kirsten"), and how defendant meets their needs) (see Docket No. 176, Def. Memo. at 1-2). After the Government withdrew its objections (Docket No. 175, Gov't Memo. at 2), that hearing was held on September 21, 22, 24, and 28, 2009 (Docket Nos. 183 (Order rescheduling hearing), 190-93 (minutes), 196-99 (transcripts)). The parties then were given the opportunity to submit post-hearing materials, as described below.
Since the remand of defendant's sentence, the following submissions were made to this Court by the defendant: Memorandum of Law, Docket No. 176; Exhibit List, Docket No. 184; Witness List, Docket No. 185; Post-Hearing Memorandum of Law, Docket No. 203; defense counsel's Affirmation, Docket No. 211, with exhibits, Docket Nos. 212-15; Affirmation of Daryl Weisberg, defendant's wife, with exhibit, Docket No. 216; Affirmation of Dr. William H. Stephan, with exhibits, Docket No. 217 (discussing Government Ex. 24 from the hearing, Ex. A, and ¶ 119 of the Government's Post-Hearing Memorandum proposed findings of fact, Docket No. 205, at 29); and further Memorandum of Law, Docket Nos. 218, 219.
The Government then submitted the following opposition documents or motion for enhanced Guidelines sentence: Memorandum concerning remand sentencing proceeding, Docket No. 175; Witness List, Docket Nos. 186, 188; Exhibit List, Docket No. 187; Sentencing Memorandum, Docket No. 205; Sentencing Memorandum (wherein Government seeks enhanced sentence), Docket No. 209; and a Motion to Strike certain post-hearing defense affirmations and exhibits, (Docket No. 221).
At the evidentiary hearing, defendant produced a chiropractor, testimony from four of defendant's current patients (one by videotaped deposition), the family physician for Kirsten, and a nurse with Suburban Adult Services, Inc., familiar with Kirsten's care. Chiropractor Dr. Robert Mazurkiewicz narrated a video depicting an example of defendant's chiropractic treatment of Kirsten and her X-rays (Hearing Def. Exs. 1 (DVD of treatment), 2 (text of narration)) and testified (see Docket Nos. 196, Tr. Tr. of Sept. 21, 2009, at 13-101) that defendant was her sole chiropractic care provider and that defendant had specialized skills required for Kirsten's medical condition. Dr. Mazurkiewicz noted that Kirsten was a risky case, that other chiropractors (including Dr. Mazurkiewicz himself) may be reluctant to take her case because of her multiple conditions. He opined that Kirsten, due to her irrational fears and her familiarity with her father, would resist changing chiropractors if defendant was not available to continue her treatment (see Hearing Def. Ex. 2).
The video of Kirsten first shows her entering defendant's offices, assisted in walking by her mother. She appeared cheerful and chipper in approaching the office and signing in. Then the video displays five X-rays of Kirsten showing deformities in her spine. The video then shows defendant performing chiropractic techniques on Kirsten, including taking a cast for orthotic footwear*fn2 . The video revealed that the manipulations shown took about six and a half minutes. The video concludes with her leaving defendant's office following treatment. (Hearing Def. Ex. 1.)
Dr. Mazurkiewicz, in the narration for the video, concludes that "After examining Kirsten and her medical record last year and observing this video it is my clinical opinion that Kirsten's pre and post surgical success is largely due to the specific chiropractic care provided to her by her father. In cases like this, it is critically important to provide a careful and clinically specific regimen of care. Due to the nature of her condition, she will require ongoing uninterrupted treatment to minimize likely progressive degeneration of her spine. In my professional opinion, her father, Dr. Weisberg, is best qualified to provide her chiropractic and nutritional care because of his familiarity and consistency in her treatment since birth. Because of Kirsten's emotional and contact sensitivities and irrational fears it is difficult to gain a rapport, which would allow for the kinds of adjustments and bodywork that are required to help her. In that sense Dr. Weisberg is irreplaceable as her Doctor of Chiropractic. Any reduction in her standard of care received thus far could have a devastating consequence to her health now and in the immediate future." (Hearing Def. Exs. 2 (transcribed narration text), 1).
Next, four of defendant's patients testified as to his long-term care of them and what would happen if defendant were not available. Two testified that, if compelled to find a new chiropractor, they would not do so (one terming it that she would become "collateral damage" as a result of this case) (Docket No. 196, Tr. at 123, 122-23 (Valerie Davis), 106-07 (Richard Olday)). Another testified that, while his medical situation would be compromised, he would find another practitioner (id. at 137 (Dennis Collins)). The fourth patient, Marjorie Ernst, testified by videotaped deposition, when asked what she would do if defendant was not available to treat her, she said that she did not know what she would do about her pain and thought she may not be around much longer (Hearing Def. Ex. 13; see Docket No. 193).
Defendant contends that Ms. Ernst's testimony (an almost 106-year-old when she was deposed earlier in 2009) is sufficient by itself to justify the relief defendant seeks in his sentence. She testified that she began treatments with defendant in 1993 (at age 90) and has seen him for about the last sixteen years. She had used chiropractors previously and her last one prior to defendant had retired and closed his practice. She stated that she stays with defendant because he provides harder adjustments than other chiropractors. She also noted that other chiropractors would not perform adjustments on older patients like her or apply the adjustments as hard as defendant upon an older patient. She went to have her neck and back treated as well as pain she has in her right hip that radiates down her leg. Her frequency of treatments recently have been once a week for about fifteen to thirty minutes. (Hearing Def. Ex. 13.)
Karen Vance next testified (see Docket No. 196, Tr. at 146-82). She is the director of clinical services at Suburban Adult Services, Inc., the agency providing services to Kirsten. Previously, Vance wrote to the Court, on agency letterhead and under her agency title, regarding defendant's sentence (Hearing Def. Ex. 9; Hearing Gov't Ex. 23). But Vance had known defendant and Kirsten personally for over 25 years from Vance's own developmentally disabled child who grew up with Kirsten and resides in the same group home as Kirsten. Vance concludes that Kirsten has been dependent upon defendant for her entire life and that, if he were gone, it would be as if he died to Kirsten. Vance argues that consistency in care is paramount and defendant should be allowed to continue treating Kirsten. This Court finds that Vance is testifying as a family friend (and less as a representative of an otherwise disinterested agency) and is crediting her testimony accordingly.
Finally, Dr. John Ward, the Weisberg family physician, testified (see Docket No. 196, Tr. at 182-217). He reaffirmed the letters he submitted to this Court on defendant's behalf (Hearing Def. Exs. 10, 11; see also Docket No. 98, Def. Atty. Affirm. Ex. C) that Kirsten's well-being would be jeopardized if defendant did not continue her care. Dr. Ward stated that the spinal adjustments, nutrition and other therapies performed by defendant helped Kirsten avoid pain and pain medication.
The Government's Proof at Hearing
In response, the Government produced two medical or chiropractic experts, as well as staff at Kirsten's group home (see Docket Nos. 197, 198, 199). The two doctors reviewed the medical records for Kirsten as well as the testifying patients and Kirsten's group home records. Dr. Benjamin Bartolotto, former chair of the New York State Board of Chiropractic (the licensing and regulatory agency for that profession in this state), testified that defendant's chiropractic care of his daughter was customary and not unique, that the care he furnished was available from over 270 other chiropractors in Erie County (Docket No. 197, Tr. of Sept. 22, 2009, at 233, 243; see Hearing Gov't Ex. 27).
The Government then called witnesses who administered programs at Kirsten's group home and provided her treatment, including testimony from her physical therapist (Docket Nos. 197-99). These witnesses noted the treatment regimes she received, but sometimes the records for Kirsten's care did not note that defendant was providing her chiropractic treatment. They testified that defendant's chiropractic treatment of Kirsten was handled differently from her medical treatment, and was recorded differently*fn3 (Docket No. 197, Tr. at 412, 452, 469 (Raelene Windom); Docket No. 198, Tr. of Sept. 24, 2009, at 506-07, 524-25 (Lisa Carr)). After defendant's conviction and when sentencing initially was pending, witnesses from People, Inc., the agency running Kirsten's home, noted an increase in frequency of defendant's chiropractic treatments (from once every two weeks to weekly or more frequently) of his daughter as well as an increase in home visits to defendant's family residence (Docket No. 197, Tr. at 411-12, 413-15 (Windom); Docket No. 198, Tr. at 501, 503, 514-15, 525-26 (Carr)). Lisa Carr, the People, Inc., day aide who transported Kirsten to and from her chiropractic appointments (and other medical appointments), testified that Kirsten was in the examining room for her chiropractic services for about two minutes and these chiropractic sessions were quick (Docket No. 198, Tr. at 497-98, 515).
After the submission of this issue, the Government moved to strike certain affirmations defendant submitted (Docket No. 221), arguing that defendant should have produced this testimony at the evidentiary hearing and that these affirmations fell outside the time for such factual submissions. The Government also contests some of the factual assertions raised in these defense affirmations (see id. at 4-13).
The Government's Motion for Obstruction Sentence
At the conclusion of the hearing, the Government indicated that it may renew its motion for enhancement of defendant's Guidelines sentence pursuant to Advisory Guidelines § 3C1.1 for defendant's obstruction of justice, to add two points to his offense level (see Docket No. 205, Gov't Post-Hearing Memo.; cf. Docket No. 91, Gov't Response at 3-12; see also Docket No. 123, Presentence Investigation Report (recommending this enhancement); Docket No. 95, Order, at 10-11 (denying enhancement)). With that enhancement, defendant's adjusted offense level of 16 (see Docket No. 110, Order at 2) would be increased to 18 and, with a criminal history category of I, defendant's sentence would become 27-33 months for each count. The Government renews its recommendation that defendant be sentenced to 27-33 months (Docket No. 205, Gov't Memo. at 61).
Proceedings Following the Hearing
Upon submission of defendant's reply (Docket Nos. 211-19), the matter finally was deemed submitted (Docket No. 220, Order of Feb. 26, 2010). The Court then issued an Order (Docket No. 222), United States v. Weisberg, No. 07CR66, 2010 WL 958486 (W.D.N.Y. Mar. 12, 2010), denying again defendant's motion for either a downward departure or for a non-Guideline sentence and also denying the Government's motions for enhancement of a Guidelines sentence and to strike defense affirmations. The Government, on March 29, 2010, moved for clarification of that Order on the issue of the parties' allocution rights at sentencing (Docket No. 223) and the Court vacated the March 12 Order (Docket No. 224). Further submissions and an amended PSR were ordered (id.; see Docket No. 225). Defendant (Docket No. 226) and the Government (Docket No. 227) filed memoranda on whether this case should be reassigned; the Court denied reassignment (Docket No. 228).
Upon receiving the amended PSR, defendant filed his objection (Docket No. 229), renewing his objection to a portion of the original PSR restated in the amendment. During sentencing, the Government reaffirmed its objections regarding the denial of any enhancement of a Guidelines sentence for obstruction of justice. Defendant filed a further sentencing memorandum (Docket No. 231) and attorney's affirmation (Docket No. 232) identifying alternative sentencing options for the Court.
On September 21, 2010, the parties made their allocution and the Court ...