IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

v.



STEVEN SAFFER,

Defendant.



CRIMINAL ACTION

NO. 00-194-02



M E M O R A N D U M & O R D E R



Katz, S.J. October 25, 2000

Defendant Steven Saffer pled guilty before this court to two counts of conspiracy, one countof making false statements to the Federal Aviation Administration (FAA), one count of mail fraud,and one count of obstruction of justice. In its sentencing memorandum and its letter of October 20,2000, filed by Order of October 25, 2000, (Adjustment Ltr.), the government asked the court toimpose a two-level upward adjustment to the defendant's offense level because his conduct involvedthe conscious or reckless risk of serious bodily injury. By letter to his probation officer, a copy ofwhich was forwarded to this court and filed by Order of September 2, 2000, (Departure Ltr.), thedefendant requested a downward departure due to extraordinary family ties and circumstances. Upon consideration of the parties' submissions, and after a hearing, the court grants thegovernment's request for a two-level upward adjustment and denies the defendant's request for adownward departure.

I. Background

A. Offense Conduct

Mr. Saffer was district manager of Argenbright Security, Inc., a company that staffs pre-departure screening security checkpoints at the Philadelphia International Airport. At thesecheckpoints, passengers and their luggage are screened for metal and other suspicious objects beforethey are allowed to pass through to secured areas such as the concourse and gates. FAA regulationsgovern the pre-departure screening process and, inter alia, require that prospective screenersundergo an extensive background investigation, including verification of their previous five years ofemployment and a review of their last ten years of employment. Persons convicted of certain crimesmay not be employed as screeners. In addition FAA regulations require that screeners receive twelvehours of initial classroom training, which includes training on operating the various scanningequipment and successful completion of a written test, as well as forty hours of on-the-job training. Screeners must receive annual retraining.

From approximately January 1995 until January 1999, Mr. Saffer, and two co-defendantswho were acting under his direction, routinely flouted these regulations. The defendants failed toperform the required background checks, provided grossly inadequate training to screeners, andfalsely certified that they had complied with FAA regulations. As a result of these actions,approximately 1,300 screeners hired by the defendants were improperly trained; at least fourteen ofthe screeners had criminal records. The foregoing conduct was the basis of one of the conspiracycounts and the false statement charge. In addition, Mr. Saffer and one of his co-defendantsoverbilled Argenbright's airline clients, which is the basis of the other conspiracy count and the mailfraud count. The obstruction of justice charge is based on Mr. Saffer's acts of hiding files andfurther altering records when the FAA began an investigation of Argenbright. B. Family Circumstances

Mr. Saffer is married with two children. While the defendant was the primary financialprovider in the past, he has not worked since April of this year. All members of the family havemedical problems of varying degrees. Mr. Saffer's three-year-old daughter has a history of chronicintermittent diarrhea, has been diagnosed with asthma, and has exhibited symptoms of hyperactivity. Mrs. Saffer suffers from fibromyalgia, a condition that causes her chronic pain and fatigue. She has,however, been able to work approximately fifteen hours a week. Both Mr. and Mrs. Saffer are beingtreated for depression.

Mr. Saffer's eight-year-old son, Justin, was born with a bilateral cleft lip and complete cleftpalate. He has undergone numerous surgical procedures to repair these conditions and requireseveral more operations. Experts for both the defendant and the government agree that Justin hasbeen traumatized by his medical problems and treatment, that his problems have caused him anxietyand difficulty in interacting with his peers, and that Mr. Saffer and his son have a strong, loving bond. The experts depart, however, in characterizing centrality of the role Mr. Saffer plays in his son'semotional and physical development.

The defendant's expert, Sandra J. Jones, is a social worker who has been treating Justin sinceDecember 1999 with both individual and family therapy. In June of this year, Ms. Jones reportedthat Justin may be suffering from depression and that he had "made statements such as 'I want to killmyself,' " but denied feeling suicidal when questioned about these statements. Departure Ltr., Ex. Bat 2.(1) Ms. Jones noted in August of this year that Justin had improved significantly--he appearedless depressed and anxious, and, due to his work in summer school, would not be required to repeatsecond grade. She attributed this improvement to Mr. Saffer's increased availability since he was nolonger working. She concluded that the incarceration of his father would cause Justin to experiencea "severe regression." Departure Ltr, Ex. C at 2.

The government's expert, Steven E. Samuel, is a licensed psychologist who evaluated Justinand interviewed his parents. Dr. Samuel concluded Ms. Jones' assessment of the effect of hisfather's incarceration on Justin was "too absolute, too general, and not tailor-made for what isideologically significant to Justin's personality." Gov't Mem. of Law, Ex. A at 8. Dr. Samuel notedthat Justin had several characteristics that made him resilient in the face of adversity, including hissense of being loved by his family, his ability to form attachments to others, and his ability to extractinformation "from his environment to help him deal with his life." Id. at 7. Dr. Samuel noted that inhis evaluation Justin had "varied reactions to his father's increased presence" at home and that otherfactors contributing to his recent progress include his response to treatment with Ms. Jones, hisgrowing maturity, and his emerging ability to emotionally distance himself from his past history ofphysical illness. Id. at 8. Dr. Samuel noted that, despite Justin's past remarks, Mrs. Saffer did notthink that Justin would kill himself and that Justin himself stated that "he likes himself and that hedoes not think of himself that way anymore." Id. at 4. Based on his evaluation, Dr. Samuelconcluded that Justin was not suicidal. See id.

II. Discussion

A. Conscious or Reckless Risk of Serious Bodily Injury Adjustment

According to the fraud guidelines, a defendant's offense level must be increased two levels ifthe offense involved "the conscious or reckless risk of serious bodily injury." U.S.S.G.

2F1.1(b)(6)(A). The relevant inquiry is not whether actual injury occurred, but whether thedefendant's conduct created a risk of such injury. See United States v. Vivit, 214 F.3d 908, 921 (7thCir. 2000). The government argues, and the court agrees, that "by knowingly assigning untrained,unqualified, untested and, in some cases convicted felons to work at the security checkpoints aPhiladelphia International Airport, [Mr. Saffer] consciously and knowingly increased the risk thatdangerous explosives, firearms, weapons or other forms of dangerous contraband would reach sterileareas of the airport and that an aviation disaster could occur." See Adjustment Ltr. at 1; see alsoUnited States v. Turner, 102 F.3d 1350, 1358-59 (4th Cir. 1996) (affirming conscious risk of seriousbodily injury fraud upward adjustment for defendants who falsely certified that mine workers hadreceived eight hours of federally-mandated safety training). Consequently, the defendant's offenselevel is increased by two levels, resulting in a total offense level of 19 and a guidelines sentencingrange of 30 to 37 months imprisonment.

B. Family Ties and Responsibilities Departure

A court may depart downward from the applicable guideline range if it finds "a mitigatingcircumstance of a kind, or to a degree, not adequately taken into consideration by the SentencingCommission in formulating the guidelines." 18 U.S.C. 3553(b); U.S.S.G. 5K2.0. A court mustfirst determine whether the departure factor is forbidden, discouraged, or unmentioned by theGuidelines. See Koon v. United States, 518 U.S. 81, 94-96 (1996); United States v. Iannone, 184F.3d 214, 226-27 (3d Cir. 1999) (detailing 5K2.0 departure analysis to be employed after Koon);United States v. Sally, 116 F.3d 76, 80 (3d Cir. 1997) (same). If the factor is discouraged,encouraged but already taken into the account by the applicable guideline, or listed as an appropriateconsideration in applying an adjustment, a court can depart "only if the factor is present to anexceptional degree or in some other way makes the case different from the ordinary case where thefactor is present." Koon, 518 U.S. at 96. A defendant's family ties and responsibilities is adiscouraged factor.(2) See U.S.S.G. 5H1.6; United States v. Sweeting, 213 F.3d 95, 100 (3d. Cir.2000) (emphasizing that "a downward departure based on family ties and responsibilities should bethe exception rather than the rule"). The defendant has the burden of production and persuasion ona request for downward departure. See United States v. Higgins, 967 F.2d 841, 846 n.2 (3d Cir.1992).

The defendant argues that his family ties and responsibilities are extraordinary because he isthe primary provider of the family and plays an essential part in his son's emotional and physicaldevelopment. The defendant points out that an important aspect of the former role is the provisionof health insurance for the entire family, all of whom have conditions that require medical attention. The defendant also argues that his wife is in poor health and ill-equipped to shoulder the emotionaland financial burdens of the family.

As a preliminary matter, the defendant's general role as head of his family does not take hiscase out of the heartland. "[T]he circumstance that [a defendant's] incarceration will disrupt thefamily unit cannot be considered atypical, inasmuch as innumerable other defendants no doubt couldestablish that their absence will cause a void in their children's lives. . . . 'Disintegration of family lifein most cases is not enough to warrant a departure.' " Sweeting, 213 F.3d at 102 (quoting UnitedStates v. Gaskill, 991 F.2d 82, 84 (3d Cir. 1993). In Sweeting, the Third Circuit held that adefendant's devotion to her children and her substantial positive influence on their lives did not makethe case extraordinary such that a departure was warranted. See id. As the court recognized, in thecases of single-parent families even the danger that the children may end up in foster care due to lackof available relative relatives to care for them " 'is simply not out of the ordinary.' " Id. at 103(quoting United States v. Brand, 907 F.2d 31, 33 (4th Cir. 1990).

The court acknowledges that in this case there is evidence in the record that suggests thatMrs. Saffer has physical and emotional constraints that would make difficult for her to assume therole of head of the family. Notwithstanding this concern, if the loss of the only parent and theaccompanying breakup of the family unit is not extraordinary, then the loss of one parent in a two-parent household may not necessarily be grounds for departure, even when there is a possibility thatthe remaining parent may not be able to care for the family. See United States v. Abbott, 975F.Supp. 703, 709 (E.D. Pa. 1997) (ruling on collateral appeal and holding that even had defendantmade a motion for departure due to family circumstances, the motion would have been denieddespite evidence that defendant's wife and mother were medically unable to care for defendant'schildren).

That Mr. Saffer was the primary financial provider of his family also does not take his caseout of the heartland. In Sweeting, the defendant's role as the sole provider for her five children didnot provide a basis for departure. See id. at 103. The fact that Mr. Saffer's past employment hasprovided the family with health insurance does not make this case extraordinary; it is simply anothertype of support that is generally provided by the head of a household. Again, a family's loss of theprimary or sole provider is a tragic but commonplace effect of the incarceration of a parent andspouse. While the court does not wish to minimize the adversity Mr. Saffer and his family are facing,his situation is more the norm than the exception.

The effect of Mr. Saffer's incarceration on the emotional and psychological state of his sonpresents a more difficult case. After consideration of all evidence of record, and weighing thesomewhat contradictory reports of the experts, the court finds that this aspect of Mr. Saffer's case isnot outside of the heartland. A defendant's indispensable role in caring for a seriously ill relative maybe grounds for a departure. See Gaskill, 991 F.2d at 86. Where, however, the defendant's role maybe filled by another person, a departure is not warranted. See Sweeting, 213 F.3d at 105, 108 n. 5. For example, in Gaskill, the defendant was the sole caretaker of his mentally ill wife and had given upa lucrative job in order to take on this responsiblity. See 991 F.2d at 84, 86. The court found thatnot only was Mrs. Gaskill unable to care for herself, but that there was no other member of thefamily who could assume the defendant's role. See id. at 86. In Sweeting, the defendant, whoseeldest son suffered from Tourette's Syndrome, argued that she was essential to her son's continuedhealth and well-being because she ensured that her son followed a exercise and diet program thatcontrolled his symptoms. See Sweeting, 213 F.3d at 104. In rejecting this argument, the courtfound that "there simply is nothing about the type of care that [the defendant's son] requires thatsuggests to us that it is so unique or burdensome that another responsible adult could not provide thenecessary supervision and assistance in Sweeting's absence." Id. at 105.

The court finds the defendant's family situation is more akin to that in Sweeting than that inGaskill.(3) While the record indicates that Mr. Saffer is a positive influence in his son's development,the evidence does not show that he is the only figure in his son's life who can provide Justin withsupport and guidance. Both experts note that Justin is close to both his parents. While Ms. Joneshas suggested that Mr. Saffer's presence in the home due to his unemployment has contributed toJustin's improvement over the past months, this statement is not support by any concrete discussionof how Mr. Saffer has increased his interactions with his son. It is also undercut by the fact that Mr.Saffer has been out of work since April, while the progress noted by Ms. Jones took place from Juneto August. In addition, according to the government's expert, while Justin's descriptions of hisrelationship with his father depict a close and positive one, they do not indicate that Mr. Saffer hastaken an active, affirmative role in helping Justin address his medical problems and anyaccompanying social difficulties. See Gov't Mem. Ex. A at 3, 5 (noting that Justin relies on hisfather for male-oriented activities such as participation in sports and that his father reads to his son atbedtime but that Justin describes his father's primary activities since leaving work as eating andwatching television; noting that, generally, Justin has a tendency to prefer his mother). While thecourt certainly does not suggest that the temporary loss of Mr. Saffer will not have a profound effecton his son, it cannot conclude this situation is extraordinary. Any child facing the loss of a parentmay be devastated and while Justin has already faced more adversity than most children his age, theweight of the evidence does not suggest that the presence of his father is indispensable to hiscontinued development.(4)

Finally, the court acknowledges that Ms. Jones expressed concerns in June regarding thepossibility that Justin may be suicidal. This concern, however, was based on remarks that both Justinand his mother have discounted, and recent evaluations of Justin by Ms. Jones and by Dr. Samuelpaint a more positive picture. See Departure Ltr., Ex. C at 2 (noting in August 2000 that Justin hasmade significant process since June); Gov't Sent. Mem. Ex. A at 4 ("There is no evidence in hisinterview or psychological testing evaluation data consistent with Justin's being suicidal."). Giventhat the defendant bears the burden of proof, the high bar he faces in demonstrating that his familycircumstances are extraordinary, and the evidence showing that currently, Justin is not suicidal, thecourt concludes that this consideration does not take the case out of the heartland. Cf. United Statesv. Lopez, 28 F.Supp.2d 953, 955-56 (E.D. Pa. 1998) (departing due to family circumstances wheredefendant's seven-year-old daughter had been hospitalized for an attempted suicide after hermother's arrest and where there was a high risk that a sentence within the guidelines range wouldresult in the termination of the defendant's parental rights).

III. Conclusion

The defendant's offense level is increased by two-levels because his fraudulent conductinvolved the conscious or reckless risk of serious bodily injury. While the court recognizes that it hasthe discretion to depart from the Sentencing Guidelines under U.S.S.G. 5K2.0 and 5H1.6, it willnot do so in this case because the defendant's family ties and circumstances are not extraordinary.































IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

v.



STEVEN SAFFER,

Defendant.



CRIMINAL ACTION

NO. 00-194-02



O R D E R

AND NOW, this 25th day of October, 2000, upon of the government's request for a two-level upward adjustment contained in its sentencing memorandum and October 20, 2000, letter to thecourt, filed by Order of even date, and the defendant's request for a downward departure, containedin his August 25, 2000, letter to Ms. Rachel A. Kolvek and its attachments, filed by Order ofSeptember 2, 2000, the other submissions of the parties, and after a sentencing hearing, it is herebyORDERED as follows:

1. The government's request for a two-level upward adjustment is GRANTED. ThePresentence Investigation Report is modified to indicate that the defendant's total offense level isincreased by two-levels for conduct that involved the conscious or reckless risk of serious bodilyinjury. See U.S.S.G. 2F1.1(b)(6)(A). Consequently, the defendant's total offense level is 19 andhis sentencing range is 30 to 37 months imprisonment.

2. The defendant's request for a downward departure pursuant to U.S.S.G. 5K2.0and 5H1.6 is DENIED.

BY THE COURT:



MARVIN KATZ, S.J.

1. Exhibits B and C of the Departure Letter are not numbered; for these twoexhibits, the page number references are informal designations used by the court.

2. The other discouraged factors are age; education and vocational skills; mental andemotional conditions; physical condition or appearance; employment record;; military, civic,charitable or public service, employment-related contributions, and similar good works; andsubjection to coercion or duress. See U.S.S.G. 5H1.1-1.5, 5H1.11, 5K2.12; see also Iannone,184 F.3d at 227 n.10 (listing discouraged factors).

3. The other considerations informing the Third Circuit's recognition that adeparture in Gaskill would be appropriate do not weigh in favor of granting a departure in thiscase. The Gaskill court noted that the defendant's minimum pre-departure sentence was eightmonths, requiring only a slight departure in order to impose a non-custodial sentence; it alsodistinguished the defendant's offense, fraudulent use of social security numbers which wasmotivated by the defendant's desire to allow his wife to engage in shopping sprees, from violentor serious transgressions such as large-scale drug dealing. See id. 991 F.2d at 85-86.

In contrast, with an offense level of 19 and a criminal history category of I, Mr.Saffer faces a minimum sentence of 30 months. Thus, the court would have to make a nine-leveldeparture in order to avoid imposing a sentence of imprisonment. See U.S.S.G. 5B1.1(a),5C1.1(c) (allowing a sentence of home detention and probation for offense levels in Zone B); id.,Ch. 5 Pt. A (Sentencing Table) (indicating that Zone B begins at offense level 10 for defendantswith a criminal history category of I). While Mr. Saffer's offenses did not expose his family toany risk, as discussed, it was conduct that posed an inherent risk to many others and spannedseveral years. The court cannot equate this conduct with the relatively benign actions of thedefendant in Gaskill.

4. As noted by the Third Circuit, several of the other cases relied upon by thedefendant, United States v. Haversat, 22 F.3d 790 (8th Cir. 1994), United States v. Sclamo, 997F.2d 970 (1st Cir. 1993), and United States v. Alba, 993 F.2d 1117 (2d Cir. 1991), can all bedistinguished on the grounds that the defendants in those cases had been found to play an essentialand irreplaceable role in caring for a family member. See Sweeting, 213 F.3d at 108 n. 5. Inaddition, United States v. Big Crow, 989 F.2d 1326 (8th Cir. 1990), upon which the defendantalso relies, is distinguishable since the in that case the court granted a departure based on acombination of factors, including the defendant's employment history, the difficulties he facedgrowing up on the Pine Ridge reservation, his support of his family, and his community ties.

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