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September 5, 1996

Re: United States of America, Plaintiff,
James Lisk, Defendant.

The opinion of the court was delivered by: POLITAN

 Dear Counsel:

 This matter comes before the Court on the parties' cross-motions for departures from the United States Sentencing Guidelines ("USSG"). See United States Sentencing Commission, Guidelines Manual (Nov. 1995). The Court received testimony and heard oral argument on August 7, 1996. For the reasons stated herein, defendant's motion is DENIED, and the Government's motion is GRANTED IN PART AND DENIED IN PART.

 Congress enacted the guidelines to provide honesty, uniformity, and proportionality in sentencing. USSG, Ch. 1, Pt. A, intro. comment A(3). The guidelines, taking into account the relevant distinctions common to specific crimes, permit the Court to impose a sentence within a prescribed range. Id. In formulating the guidelines, the United States Sentencing Commission (the "Commission") acknowledged that "relevant distinctions not reflected in the guidelines probably will occur rarely and sentencing courts may take such unusual cases into account by departing from the guidelines." Id. "When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted." USSG, Ch. 1, Pt. A, intro. comment 4(b). The facts of the instant case illustrate the type of situation not contemplated by the Commission, and for which departure was created.


 On November 5, 1987, defendant James Lisk was indicted and charged with conspiring to steal $ 656,000 in American Express travelers checks. *fn1" Prior to being arraigned, however, on November 23, 1987, defendant and two friends, Vincent Cannara and Harry Stridacchio, staged an accident at Grossman's Lumber in Sayreville, New Jersey. While at the lumberyard, defendant placed a piece of lumber on the ground and laid down beside it, pretending to have been injured by the fallen wood. Defendant's friends called for assistance, and defendant was transported to a hospital. Subsequently, defendant pretended that he was unable to speak or care for himself. Defendant was treated by numerous doctors for many years, and was ultimately diagnosed as suffering from conversion reaction. In addition, the scheme involved the filing of a lawsuit by defendant against Grossman's Lumber on August 9, 1989, in which defendant sought damages based on the accident.

 As a result of defendant's faked injury, the original Indictment for the theft was dismissed by the Government based on the false belief that defendant was mentally and physically unfit to stand trial. Subsequently, defendant continued the charade by collecting $ 107,622.80 in Social Security benefits and allowing Prudential Insurance Company to pay false claims to defendant's doctors in the amount of $ 217,567.00.

 Thereafter, the Government charged defendant with three counts of mail fraud, based on the submission of false benefit and insurance documents. Defendant was convicted on all three counts by a jury in this Court, on April 16, 1996. It is now the task of the Court to determine what, if any, impact the first alleged crime has upon the sentence for the crime of which defendant was convicted.


 I. Upward Departure

 1. § 1B1.3

 The first theory upon which the Government moves for an upward departure is based on the monetary loss allegedly incurred in the theft at Newark Airport. *fn2" According to the Government, defendant stole $ 656,000 worth of American Express Travelers Checks from the mail at Newark Airport. As detailed above, to avoid prosecution for said crime, defendant feigned a debilitating injury. The Government argues that by committing the second crime, for which he was convicted, defendant successfully avoided the prosecution of theft. Because defendant prevented the Government from prosecuting him for theft, the Government asserts that said crime should be taken into account in this sentencing.

 Section 1B1.3(a)(2) of the USSG states that a guideline range should be based on "all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction." USSG § 1B1.3(a)(2). The "same course of conduct" requirement has been construed to mean whether the defendant repeats the same activity over time. United States v. Hill, 79 F.3d 1477, 1481-82 (6th Cir. 1996), petition for cert. filed, (U.S. June 24, 1996) (No. 95-9455). Application Note 9(B) instructs the Court to analyze "the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses." USSG § 1B1.3, comment. (n.9(B)). In addition, "'common plan or scheme' requires that acts 'be connected together by common participants or by an overall scheme . . . .'" Hill, 79 F.3d at 1482. "The guidelines prescribe a sliding scale approach, i.e., where one of the factors is weak or absent, there must be a substantially stronger showing of at least one other factor." Id. at 1484 (citation omitted).

 In the case sub judice, the Court is not satisfied that the alleged theft at Newark Airport is relevant conduct for the purpose of defendant's sentence for mail fraud. Defendant did not engage in a common scheme or repeat similar conduct. Avoidance of prosecution for theft was merely the motive for which defendant committed the mail fraud. Hence, the Court finds that an upward departure based on the alleged theft of over $ 600,000 in a case for which defendant was not convicted is inappropriate.

 2. § 5K2.0

 Alternatively, the Government moves for an upward departure from the guideline range pursuant to USSG § 5K2.0. This section provides, in pertinent part: "Under 18 U.S.C. § 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds 'that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.'" USSG § 5K2.0. The guideline recognizes that "circumstances that may warrant departure from the guidelines pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance." Id. Rather, it is within the Court's discretion to determine whether departure is necessary, "even though the reason for departure is taken into consideration in the guidelines . . . ." Id. That is, the Court may determine that "in light of unusual circumstances, the guideline level attached to that factor is inadequate." Id.

 Moreover, the Court may depart on the basis of previous, related misconduct, even though the acts in question do not fall within the technical definition of relevant conduct. United States v. Kim, 896 F.2d 678, 684 (2d Cir. 1990). See also United States v. Uccio, 917 F.2d 80, 86 (2d Cir. 1990); United States v. Zamarripa, 905 F.2d 337, 341-42 (10th Cir. 1990). *fn3" Additionally, the fraud guideline provides that an upward departure may be appropriate when "a primary objective of the fraud was non-monetary; or the fraud caused or risked reasonably foreseeable, substantial non-monetary harm." § 2F1.1, comment. (n.10(a)).

 In the instant case, the facts are such that they could not have been contemplated by the Sentencing Commission when formulating the guidelines. The prospect of a person feigning a debilitating injury, spending months in hospitals, and subjecting himself to continued invasive medical treatment for the purpose of avoiding prosecution of theft is almost beyond the imagination of this Court. However, this is the scheme for which defendant was convicted, and upon which he fraudulently ...

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