BUSINES S CRIME

Fall 19 9 7 Prof. First

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The Decision to Criminalize 1. Introd uc tio n 1. Thre e main issue s of the cours e: 1. How should we trea t econo mic crime? How do we decide what eve n t s should be criminal? 2. How should we trea t the actors who hav e com mit t e d the s e crime s ? How does the proc e s s tre a t corpor a t e entities ? 3. What prot e c tion s do we give to entities as oppos e d to individu als? 2. Definition of busin e s s crime: Crime com mit t e d in the norm al cours e of busin e s s , for econo mic rea s o n s , by or on beh alf of busin e s s orga niza tio n s . Gener ally not crime s of violenc e , but econo mic motiva tio n. 3. Busine s s crim e stat u t e s are gen e r ally vagu ely word e d , resulting in pros ec u t o ri al discre tion. They almo s t always provid e an array of re m e di e s , including civil rem e di e s . 4. Busine s s crim e stat u t e s are gen e r ally the criminal provisions of feder al regul a t or y provisions. There is no feder al criminal code. The stat u t e s that mak e up busin e s s crime are scatt e r e d throu g h o u t the code. 2. U.S. v. Patt er s o n (p. 15) 1. Officers and em ploy e e s of Nation al Cash Regist e r s were charg e d with violations of '' 1- 2 of the Sher m a n Act (restr ain t of trad e and cons pirac y to mono p olize). 2. What did they do? 1. dispar a g e m e n t of Hallwood mac hin e s 2. broug h t frivolous pat e n t suits 3. induc e d peopl e to bre a k their contr a c t s 4. att e m p t to bribe a dray m a n (unsuc c e s s f ul) 5. induc e d com p e ti tor s ' em ploy to ent e r that of Nation al's (unsucc e s s f ul) 3. Who's hurt by this? 1. Public - evils of mono p oly and price- fixing 2. Comp e tit or s 4. Note: we don't gen e r ally see opinions that talk abou t morality so ope nly as we do her e. 3. U.S. v. Dowling (p. 33) 1. Defen d a n t was convict e d of mail fraud, inters t a t e 1

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tran s p o r t a tio n of stole n prop e r t y, and cons pira cy to tran s p o r t stolen prop e r t y inters t a t e , and he app e al e d . S.Ct. held that a Nation al Stolen Propert y Act provision imposin g criminal pen altie s for inters t a t e trans p o r t a tio n of stole n prop e r t y did not reac h the inters t a t e trans p o r t a tio n of "bootle g record s," that is, una u t h o rize d copies of com m e r ci ally unrele a s e d perfor m a n c e s of famou s ent e r t ai n e r; the phonor e c o r d s were not "stolen, conve rt e d or take n by fraud" exc e p t in the sens e that they were ma n uf a c t u r e d and distribut e d withou t the cons e n t of the copyright owner s of the music al com p o sition s perfor m e d on the record s. 2. Nation al Stolen Proper t y Act: trans p o r tin g in inters t a t e or foreign com m e r c e goods , ware s, or merc h a n di s e gre a t e r tha n $5,00 0 in value, knowing it to be stolen, conv ert e d , or take n by fraud. 3. Dowling ma n uf a c t u r e d bootle g Elvis record s. He argu e d tha t the record s were not "stolen, conve rt e d , or take n by fraud." Feder al Stat u t e s of Gener al Application 1. U.S. v. Turket t e (p. 81) 1. S. Ct held that the ter m "ent e r p ris e" as used in RICO enco m p a s s e d both legitim a t e and illegitim a t e ent e r p ris e s . 2. Elem e n t s nee d e d to prove RICO: 1. Person 2. Enterpris e 3. Conduc t/P a rticip a t e 4. Racket e e ri n g activity 5. Patt er n 3. Legal proble m before the court: Turkett e claims that the stat u t e was me a n t to apply to legitim a t e comp a ni e s . What was the proble m that Congre s s was trying to solve? Orga niz e d crime infiltrating legitim a t e busine s s and oper a ti n g the m as a front. 4. The langu a g e of the stat u t e indicat e s that it should be rea d broa dly. S.Ct. backs this up, interpr e ti n g it as a broa d stat u t e . This has be e n the interpr e tiv e patt e r n for RICO cas e s befor e S.Ct. 2. McNally v. U.S. (p. 107) 1. Defen d a n t s were convict e d of mail fraud and cons pir acy and they app e al e d . S. Ct. held that mail fraud stat u t e did not apply to actions of form e r stat e official and privat e individu al in requiring tha t insur a n c e age n t select e d to provid e policies for stat e shar e pre miu m s with insur a n c e 2

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age n cy in which defe n d a n t s had an inter e s t , as the mail fraud stat u t e doe s not prohibit sche m e s to defra u d the peopl e of their intan gible rights to hone s t and imparti al gover n m e n t . 2. Hunt was the Chairm a n of the Kentucky Democr a tic Party. Hunt, Gray, and McNally receive d kickback s from Wombw ell for appointin g the m as insur a n c e age n t for Kentucky. 3. Who was defra u d e d in the indict m e n t , and of what? Citizens of Kentucky were defra u d e d of their right to hav e the Com m o n w e a l t h affairs cond uc t e d hon e s tly. (Wher e does this right com e from? What' s the sourc e of this right? From an oath? Kentucky constitu tion?) Court found that the thre e had a fiduciary duty to the people. 4. The defe n d a n t s argu e d that the citizens of Kentucky were not defra u d e d of any tangible prop e r t y rights, and mail fraud only covers prop e r t y rights. S.Ct. agr e e d , overruling the "inta n gible rights doctrine" dev elop e d and unifor mly held by the Court of Appe als. 5. Broadly writte n stat u t e - conc er n e d abou t who it might catc h. Perha p s ther e ' s also an issue abou t notice. 6. What do we me a n by fraud? Is ther e a duty? U.S. v. Bronsto n (p. 125) 1. District Court held that mail fraud indict m e n t ade q u a t e l y set forth ele m e n t s of offens e inten d e d to be charg e d and denie d motion to dismiss. After defe n d a n t was convict e d of two count s of mail fraud, he app e al e d . Court of Appe als held that evide n c e was sufficient to allow jury to convict defe n d a n t of mail fraud bas e d on his bre ac h of duty of loyalty to his firm's clients, his conc e al m e n t from clients of his pro m o tion of inter e s t s of com p e tit or in obt aining bus stop shelt e r franchis e , his specific inte nt to defra u d firm's client of very econo mic value firm had be e n retain e d to prot e c t , and his mailing of two lett er s in furth e r a n c e of sche m e . 2. Steinb e r g wishe d to secur e a bus stop shelt e r franchis e from the city. Steinb e r g was chair m a n of C&S. Bronsto n was a partn e r at Rose n m a n . Rose n m a n was repr e s e n ti n g BusTop, a C&S com p e tit or for the bus stop franchis e. Bronsto n continu e d to offer service s to Steinb e r g on the side, and end e d up being a director of C&S. Bronsto n wrot e two lett er s, which constit ut e d mail fraud. Had he sent thos e lett er s by courier, no mail fraud. (Mail fraud stat u t e has since be e n am e n d e d . ) 3

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Bronsto n argu e s that he mus t hav e ben efitt e d hims elf or har m e d the victim in order to be found to violat e fiduciary duty. 4. Elem e n t s : 1. Conce al m e n t by a fiduciary 2. Material inform a tio n 3. Duty to disclos e 4. Nondisclos ur e could or does result in har m 5. Sourc e of fiduciary duty? Code of Profes sion al Respo n si bility, writt e n by the ABA. (Could also use age n c y law, but the court doe s n ' t look to that.) Stat e legislat ur e usu ally adop t s ABA's Code of Profession al Respo n sibility. 6. Conce al m e n t : Bronso n never disclos e d his relation s hi p with C&S to the firm or to BusTop. 7. Duty to disclos e: BusTop exp ec t s undivid e d loyalty. 8. Harm: no proof tha t BusTop was actu ally har m e d , but 2d Cir. says they could hav e be e n har m e d , and tha t was sufficient. 9. Proble m s ? Notice -- the proble m here is one of undisclos e d conflict of inter e s t . Carp e n t e r v. U.S. (p. 133) 1. Winans, a report e r for WSJ, and Carpe n t e r , a stockbrok e r, were convict e d of participa tion in insider tradin g sch e m e bas e d upon inform a tio n misa p p r o p ri a t e d from news p a p e r . Court of Appe als affirm e d in part and rever s e d in part. S. Ct., eve nly divide d, affirm e d convictions und e r securities laws. S. Ct. una ni m o u sly held that: (1) cons pir acy to trad e on news p a p e r ' s confide n ti al inform a tio n was within reach of mail and wire fraud stat u t e s ; (2) new s p a p e r had prop e r t y right in kee ping inform a tio n confide n ti al prior to publication, which was prot ec t e d by stat u t e s ; (3) activities constit ut e d sch e m e to defra u d news p a p e r within me a ni n g of stat u t e s ; and (4) use of wires and mail to print and send news p a p e r to its custo m e r s was sufficient to satisfy stat u t o ry require m e n t that mails be use d to execu t e sche m e . 2. Defen d a n t s ' argu m e n t : WSJ was not deprive d of prop e r t y. (McNally was decid e d befor e this cas e in the sa m e year.) This cas e was tried pre- McNally . Stat u t e doe s not cover intngible rights per McNally ; stron g argu m e n t for defe n d a n t s . 3. Who's being defra u d e d ? Read e r s hi p? WSJ? Court say WSJ was defra u d e d of hone s t and faithful service and excusiv e use of the inform a tio n. If this has to be prop e r t y, what 4

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exactly did the WSJ lose? Failure to have exclusiv e use of this inform a tio n. S.Ct. says it's not that eth e r e a l. (Right...) 4. After Carp e n t e r , Congre s s pas s e d the Anti- Drug Abuse Act of 1988, which add e d a provision tha t include d "sche m e or artifice to deprive anot h e r of the intan gible right of hone s t service s" und e r mail, wire, and bank fraud. U.S. v. Brumley (Supp. 17) 1. Defen d a n t was convict e d of wire fraud, mon e y laund e rin g, and one count of cons pira cy to com mit mail fraud and wire fraud, as well as making false financial stat e m e n t s to financial institution. Court of Appe als vaca t e d wire fraud, cons pir acy, and mon e y laund e rin g conviction s. Court of Appe als, en banc, held that: (1) gover n m e n t entity could be victim of sche m e to deprive anot h e r of intan gible right of hone s t service s; (2) citizen s as body politic could be victim of sche m e to depriv e anot h e r of inta n gible right of hon e s t service s; (3) "hon e s t service s" referr e d to service s which defe n d a n t stat e official owed to sta t e em ploy e r und er sta t e law; and (4) defe n d a n t , who was em ploy e d by stat e workers' com p e n s a t i o n boar d and receive d pay m e n t s from attor n e y s repr e s e n ti n g claim a n t s who app e a r e d befor e him, eng a g e d in sche m e to deprive anot h e r of intan gible right of hone s t service s, for purpo s e of wire fraud stat u t e . 2. Brumley, direct or of workers' com p com mi s sio n, rec eive d "loans" from lawyers repr e s e n ti n g claim a n t s . No proof tha t the mon e y influenc e d Brumley' s decisions. 3. Brumley argu e d that his cond uc t was not cover e d by Congr e s s ' am e n d m e n t : citizens of the sta t e are not in the purview of the stat u t e . The langu a g e says "to depriv e anot h e r", and stat u t e start s with "whoev e r". "Anoth e r" does n ' t includ e citizen s bec a u s e "whoev e r" does n ' t includ e citizen s. 5th Cir. does n ' t buy the argu m e n t . Chiarella v. U.S. 1. Chiarella, an em ploy e e of financial print er which had bee n eng a g e d to print corpor a t e takeo v e r bids, was convict e d of violating ' 10(b) of Securities Excha n g e Act bas e d on his purch a si n g stock in targ e t com p a ni e s without informin g its shar e h ol d e r s of his knowled g e of propos e d takeo v e r , with em ploy e e selling such shar e s at a profit imm e di a t el y after takeo v e r att e m p t s were ma d e public. S.Ct. held that: (1) em ploy e e could not be convict e d on theory of failure to disclos e his knowled g e to stockh old e r s or targ e t 5

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comp a ni e s as he was und er no duty to spe a k, in that he had no prior dealing s with the stockhold e r s and was not their age n t or fiduciary and was not a pers o n in who m sellers had place d their trust and confide nc e , but de alt with the m only throu g h imper s o n al mark e t trans a c tio n s; (2) ' 10(b) duty to disclos e does not arise from mer e poss e s sio n of nonp u blic mark e t inform a tio n; and (3) court would not decide whet h e r em ploy e e bre a c h e d a duty to acquiring corpor a tion since such theory was not sub mit t e d to the jury. U.S. v. O'Hag a n 1. Defen d a n t was convict e d of a total of 57 count s of mail fraud, securities fraud, and mon e y laund e rin g. 8th Cir. revers e d and rem a n d e d . S.Ct. held that: (1) criminal liability und e r ' 10(b) of Securities Excha n g e Act may be predic a t e d on misa p p r o p ri a tio n theory; (2) defe n d a n t who purch a s e d stock in targ e t corpor a tio n prior to its being purch a s e d in ten d e r offer, bas e d on inside inform a tio n he acquire d as me m b e r of law firm repr e s e n ti n g ten d e r offeror, could be found guilty of securities fraud in violation of Rule 10b -5 und e r mis a p p r o p ri a tion theory; and (3) Securities and Excha n g e Com mis sion (SEC) did not exc e e d its rule m a ki n g aut h ority in prom ulg a ti n g rule proscribing tran s a c tio n s in securitie s on basis of ma t e ri al, nonp u blic inform a tio n in cont e x t of ten d e r offers. 2. Would Chiarella be found guilty und e r the misa p p r o p ri a tio n the ory? Chiarella would da m a g e inves t or confide n c e , but S.Ct. reject e d it. New York Centr al v. U.S. Stat e v. Richard Knutso n, Inc. 1. Defen d a n t was convict e d of neglige n t homicid e by vehicle, in the Circuit Court, Wauke s h a County, Jame s R. Kieffer, J., and he app e al e d . After the Court of Appe als certified a ques tion, the Supre m e Court, 191 Wis.2d 395, 528 N.W.2d 430, vac a t e d certification and rem a n d e d . On rem a n d , the Court of Appe als, Anders o n, P.J., held that: (1) corpor a tio n could be found guilty for violation of stat u t e providing that "whoev e r caus e s a dea t h of anot h e r hum a n being by the neglige n t oper a tio n or han dling of a vehicle is guilty of a Class E felony," and (2) evide nc e suppor t e d conviction of corpor a tio n for crimin al neglige n c e in conn e c tion with sup er vision of backh o e oper a t o r on work project, whos e vehicle touch e d pow er line causing electroc u tio n of worker. 6

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Stan d a r d Oil v. Texas 1. Prose c u tio n of pipeline corpor a tio n and petrol e u m corpor a tio n und er Hot Oil Act. The United Stat e s District Court for the North er n District of Texas, Joe B. Dooley, J., rend e r e d judg m e n t , and defe n d a n t s app e a l e d . The Court of Appe als, John R. Brown, Circuit Judge, held that knowled g e of acts of pipeline corpor a tio n em ploy e e s in per mit ting seco n d produc e r to violat e Texas law by swa p pin g produc tio n am o n g its leas e s , and in attribu tin g produc tion of petrole u m corpor a tio n, which was affiliat e d with pipeline corpor a tion and which both produc e d in and boug h t from field, to seco n d produc e r, was not, since acts were not inten d e d for ben efit of corpor a tion s , imput a bl e to corpor a tio n s so as to rend e r the m criminally liable und e r Hot Oil Act. Ste er e Tank Lines v. U.S. 1. Prose c u tio n of corpor a t e motor carrier for violation of Interst a t e Com m e r c e Com mis sion regul ation s resp e c tin g filing of drivers' logs. The United Stat e s District Court for the North e r n District of Texas, Joe B. Dooley, J., ent e r e d a judg m e n t of conviction and the defe n d a n t corpor a tio n app e al e d . The Court of Appe als, Griffin B. Bell, Circuit Judge, held that evide n c e was sufficient to sust ai n conviction on all 14 count s chargin g falsification of logs, and instruction on imput a tio n of em ploy e e s ' knowled g e to corpor a tio n, while erron e o u s in light of evide n c e , upon whole record it had slight, if any, effect on jury and was har ml e s s . U.S. v. Hilton Hotels 1. Defen d a n t corpor a tio n was convict e d in the United Stat e s District Court for the District of Orego n, Alfred T. Goodwin, J., of violation of the Sher m a n Act, and it app e al e d . The Court of Appe als, Browning, Circuit Judge, held, inter alia, tha t wher e hot el's purch a si n g age n t was auth orize d to buy all its supplies and exercis e d com pl e t e aut h ority as to sourc e , hot el corpor a tion was criminally liable und e r the Sher m a n Act for act of age n t whe n he thre a t e n e d supplier with loss of hotel's busin e s s unles s supplier paid trad e ass ocia tion' s ass e s s m e n t , thou g h it was policy of hot el to purch a s e supplies solely on basis of price, quality and service, thoug h age n t was twice told to take no part in boycot t which had bee n agr e e d upon by various hot els to comp el suppliers to pay ass e s s m e n t s , and thoug h age n t violat e d his instruction s bec a u s e of ang e r and perso n al 7

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piqu e towar d the individu al repr e s e n ti n g the supplier. U.S. v. Bank of New Englan d 1. Bank was convict e d of 31 violation s of Curre ncy Trans a c tio n Reporting Act by the United Stat e s District Court for the District of Mass ac h u s e t t s , Rya W. Zobel, J. Bank app e al e d . The Court of Appe als, Bowne s, Circuit Judge, held that: (1) Curre ncy Trans a c tion Reporting Act and imple m e n t i n g regul atio n s, defining "tran s a c tio n in curre n c y" to me a n "the physical tran sf e r of curre nc y from one pers o n to anot h e r," provid e d Bank with ade q u a t e warning that single, lump -sum transf e r of cash exce e di n g $10,0 0 0 was report a bl e , rega r dl e s s of nu m b e r of checks custo m e r us ed to obt ain mon e y, for purpo s e of due proc e s s require m e n t of fair warning; (2) definition of "pat t e r n" was not imper mi s sibly broa d; (3) evide nc e prov e d that bank had had knowled g e that custo m e r ' s tran s a c tio n s cam e within Act; and (4) jury could have conclud e d that failure by bank pers o n n el to, at least, inquire abou t report a bility of trans a c tio n s cons tit ut e d flagra n t indiffere n c e to obligation s impos e d by Act, for purpo s e of supp orting finding of willfulne s s on part of bank. U.S. v. U.S. Gypsu m 1. Gypsu m boar d ma n uf a c t u r e r s and cert ain of their officers were convict e d in the United Stat e s District Court for the West e r n District of Pennsylva ni a , 383 F.Supp. 462, of criminal violations of the Sher m a n Act, and they app e a l e d . The Court of Appe als, 550 F.2d 115, rever s e d , and certior ari was gra nt e d . The Supr e m e Court, Mr. Chief Justice Burger, held that: (1) intent is an ele m e n t of a criminal antitrus t offens e; (2) the defen d a n t s ' exch a n g e s of price inform a tio n, alleg e dly for purpo s e s of com plia nc e with the Robinson - Patm a n Act, was not exe m p t from Sher m a n Act scrutiny, but (3) the trial judge erre d in his instruc tion s on withdr a w al from the alleg e d conspir acy, and (4) an ex part e me e tin g betw e e n the trial judg e and the fore m a n of the jury after deliber a tio n s had beg u n was improp e r and warra n t e d rever s al s of the conviction s solely bec a u s e of the risk that the fore m a n believ e d the court was insisting on a dispositive verdict. Cheek v. U.S. 1. Defen d a n t was convict e d in the United Stat e s District Court for the North er n District of Illinois, Paul E. Plunke t t, J., of att e m p t i n g to eva d e incom e tax e s and failing to file 8

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incom e tax return s , and he app e al e d . The Court of Appe als for the Seve n t h Circuit affirm e d, 882 F.2d 1263. The United Stat e s Supr e m e Court, Justice White, held tha t: (1) defen d a n t was not entitle d to acquitt al bas e d on good -faith belief that incom e tax law was uncon s tit u tion al as applied to him and thus did not legally impos e any duty on him, but (2) defe n d a n t ' s good -faith belief that the tax laws did not impos e any duty on him did not have to be objectiv ely rea s o n a bl e in order to be consid e r e d by the jury. Ratzlaf v. U.S. 1. Defen d a n t was convict e d in the United Stat e s District Court for the District of Neva d a , Edward C. Reed, Jr., Chief Judge, of struct urin g financial trans a c tio n s to avoid curre n c y reporting require m e n t s , and he app e al e d . The Court of Appe als for the Ninth Circuit, 976 F.2d 1280, affirm e d. Certiorari was gra nt e d . The Supre m e Court, Justice Ginsbur g, held that to est a blish the defen d a n t "willfully violat e d" the antistruc t u rin g law, gover n m e n t mus t prove defe n d a n t act e d with knowle d g e tha t his conduc t was unlawful. U.S. v. Dotte rw eic h 1. The Buffalo Phar m a c al Comp a n y , Inc., and Joseph H. Dott erw eic h, its presid e n t and gen e r al ma n a g e r , were charg e d by two inform a tio n s , consolida t e d for trial, with violations of the Feder al Food, Drug, and Cosm e tic Act, s 301(a), 21 U.S.C.A. s 331( a). The jury disagr e e d as to the corpor a tio n and return e d a verdict of guilty agains t the individu al defe n d a n t , whos e conviction was revers e d by the Circuit Court of Appe als, 131 F.2d 500, and the gover n m e n t brings certiora ri. U.S. v. Park 1. Defen d a n t , the presid e n t of a large nation al food stor e chain, was convict e d in United Stat e s District Court for the District of Maryland, of causin g adult er a tio n of food which had trav el e d in inters t a t e com m e r c e and which was held for sale, and he app e al e d . The Court of Appe als, 499 F.2d 839, revers e d , and certior ari was gran t e d , 419 U.S. 992, 95 S.Ct. 302, 42 L.Ed.2d 264. The United Stat e s Supre m e Court, Mr. Chief Justice Burger, held, inter alia, that the trial court' s instruction s ade q u a t e l y focus e d on the issue of defe n d a n t ' s aut h ority resp e c tin g the condition s that form e d the basis of the alleg e d violations, fairly advising the jury tha t to find guilt it mus t find that defe n d a n t 'ha d a 9

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respo n sibl e relation to the situa tio n' and tha t by virtu e of his position defe n d a n t had aut h ority and respo n sibility to deal with such conditions. U.S. v. Reich 1. Defen d a n t , having be e n sent e n c e d to one year and one day as punish m e n t for crime of securities fraud, filed motion to reduc e sent e n c e . The District Court, Swe e t, J., held that defe n d a n t ' s sent e n c e would not be reduc e d on groun d of alleg e d disp arity betw e e n his sent e n c e and that of oth er s involve d in insider tradin g sche m e . Koon v. U.S. 1. Police officers were convict e d in the United Stat e s District Court for the Centr al District of California, John G. Davies, J., 833 F.Supp. 769, of violating susp e c t ' s constitution al rights und e r color of law during arre s t and were each sent e n c e d to 30 mont h s ' imprison m e n t . Police officers app e al e d their convictions and Govern m e n t app e al e d sent e n c e s impos e d . The United Stat e s Court of Appe als for the Ninth Circuit, 34 F.3d 1416, affirm e d convictions but vaca t e d sent e n c e s and, 45 F.3d 1303, decline d to reh e a r cas e en banc. After gra nting certiorari, the Supre m e Court, Justice Kenn e d y, held that: (1) district court' s decision to dep a r t downw a r d from applica bl e sent e n ci n g rang e und e r Sent e n cin g Guideline s was to be review e d und e r abu s e of discretio n stan d a r d ; (2) district court act e d within its discretio n in dep a r tin g downw ar d five levels bas e d on finding tha t susp e c t ' s miscon d u c t contribut e d significan tly to provoking officers' offens e beh a vior; (3) district court improp e rly bas e d thre e -level downw a r d dep a r t u r e in part on fact tha t police officers would lose their jobs; (4) district court improp e rly bas e d such thre e - level dep a r t u r e in part on its belief that police officers pos e d low risk of recidivis m; and (5) district court act e d within its discre tion in consid e rin g police officers' high susc e p tibility to abu s e in prison and fact tha t they were subjec t e d to succ e s siv e sta t e and feder al pros e c u tio n s as factors upon which to bas e downw a r d dep a r t u r e . U.S. v. Merritt 1. Defen d a n t pled guilty in the United Stat e s District Court for the Sout h e r n District of New York, 792 F.Supp. 206, John S. Martin, Jr., J., to cons pirac y to defra u d the United Stat e s , and he app e al e d . The Court of Appe als, Leval, District Judge, sitting by design a tio n, held tha t District 10

Court could dep a r t upw ar d from Sent e n cin g Guideline s bas e d upon defe n d a n t ' s continuin g disho n e s t y and gre e d , and to cynical det e r mi n a tio n to profit from his crim e after service of jail time.

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