"loss" from the fraud was not measured by Barbara Bissell's personal gain but rather was the actual loss suffered by her victim. See United States v. Maurello, 76 F.3d 1304, 1311 (3d Cir. 1996). The aggregate loss resulting from Barbara Bissell's fraud was properly measured by the amount of money stolen from the Bedminster Station; accordingly, her argument the "loss" should be reduced was rejected.
c. Minor Role in Tax Evasion and Bedminster Fraud
Barbara Bissell argued she played a minor role in any fraud scheme or the tax evasion conspiracy and functioned in a "robotic fashion to meet her husband's requests." Barbara Bissell Sen. Objections at 4. She argued she was entitled to a two-point reduction because of her minor role. Id.
This argument was without merit. Barbara Bissell, as the bookkeeper for the Bedminster Station, was intimately familiar with the station's finances. She wrote the checks for the personal expenses, she handled the off-the-books payroll, at times she handled the cash that went into her accounts, and she signed all of the false tax returns, S-Corp Election Forms and the Representation Letters.
Barbara Bissell was fully cognizant of her role in both the tax and fraud offenses. Barbara Bissell participated in the instant offenses, taking affirmative steps on numerous occasions to handle cash, write checks and sign false returns. Such behavior did not justify a minor role adjustment.
d. Sophisticated Means
Barbara Bissell argued there should be no increase in the offense calculations for sophisticated means. Barbara Bissell argued she did not "initiate the criminal scheme" and, "in fact, she did not know of the scheme until it was unveiled at trial." Barbara Bissell Sen. Objections at 5. This contention is nonsense; the evidence of Barbara Bissell's criminal conduct was overwhelming.
The evidence at trial demonstrated Barbara and Nicholas Bissell conspired with each other and with Wagner to defraud the Government of taxes for the years 1991 to 1994. Defendants accomplished their scheme using five distinct methods. First, they defrauded the government by skimming cash from the Bedminster station and failing to report the money on their tax returns. Evidence introduced at trial proved Defendants skimmed approximately $ 141,000.
Second, Defendants charged more than $ 65,000 in personal expenses on the Bedminster Station business account. Instead of declaring this money as taxable income, they wrote off these personal expenditures as business deductions.
Third, Defendants submitted false business tax returns overstating business expenses. Specifically, Nicholas Bissell directed Wagner to overstate the partnership's accounts payable in order to reduce or eliminate the business's tax liability. Id. Because profits and losses of the business were passed on to Defendants' personal returns, this manipulation directly affected their personal tax liability. The Representation Letters were admitted in evidence. As indicated, the Representation Letters, signed by Barbara Bissell, acknowledged that she was aware of the accounts payable figures being used. Barbara Bissell fully understood she was signing returns reporting large losses each year.
Fourth, Defendants misstated their true ownership interest in the Bedminster Station at various times. In 1992, for example, they falsely declared Barbara Bissell was the 100 percent owner of the Bedminster Station, thereby, enabling them to fraudulently declare a purported $ 34,000 tax loss from the Bedminster Station.
Finally, Defendants defrauded the IRS by paying several workers at the Bedminster Station without withholding payroll or income taxes. To avoid employer taxes, Barbara Bissell halved one employee's hours for tax purposes, declaring half his hours on the books and authorizing payment for the remaining hours off the books. Defendants overlooked wages for other employees as well. Barbara Bissell then provided false payroll information to the accountant each quarter, fraudulently understating the payroll. Those records were used to prepare and file the station's payroll tax returns and to generate W-2 Forms. The evidence at trial proved off-the-books payroll of $ 28,418 in 1991, $ 40,753 in 1992, $ 20,886 in 1993, and $ 20,994 in 1994.
Defendants' five methods of evasion were sophisticated and designed to impede discovery. Furthermore, the evidence at trial proved Barbara Bissell's active participation in this evasion. Accordingly, Barbara Bissell's argument she did not participate in the sophisticated scheme of evasion was rejected.
e. Acceptance of Responsibility
Barbara Bissell pleaded not guilty and was subsequently tried and convicted of the charges brought against her in the Second Superseding Indictment. She nevertheless argued her sentence should be adjusted downward because she had accepted reponsibility for her actions.
Barbara Bissell stated that she had "accepted responsibility for her deliberate ignorance of facts of which she should have been aware." Barbara Bissell Sen. Objections at 7. She further argued:
She mistakenly and carelessly allowed a pattern to develop that she should have challenged. She tried on several occasions to enter a plea but had no information to give to the government and she was under great duress before and during trial not to take any action that would be against her husband. She cooperated in every other respect, stipulating to numeraous (sic) signatures and documents to economize on the Court's time.... She also declined to take the stand and testify in her own behalf.
Barbara Bissell Sen. Objections at 7. Barbara Bissell also pointed to her "exemplary conduct pre and post trial" as evidence of her acceptance of responsibility.
Barbara Bissell did not accept responsibility for her criminal conduct; her comments to the Draft Presentence Report demonstrated she continued to proclaim innocence. Furthermore, her acceptance of responsibility for her "deliberate ignorance of facts," did not reflect a recognition of wrong-doing. Accordingly, Barbara Bissell's argument her "acceptance of responsibility" should be considered was rejected; it was, and is, utterly without merit.
f. Remaining Objections
Barbara Bissell made numerous objections to the Barbara Bissell Draft Presentence Investigation Report in addition to the objections previously discussed. The remaining objections, however, have either been resolved by the Department of Probation in the Barbara Bissell Presentence Investigation Report or do not affect the Guideline computation. They were not considered for sentencing and accordingly will not be addressed.
C. The Motion for Downward Departure
As indicated, Barbara Bissell moved for a downward departure from the Guidelines, based, in part, upon U.S.S.G. § 5K2.0 ("Section 5K2.0") because of "extraordinary family responsibilities, susceptibility to abuse in prison, and reliance on professionals." Downward Departure Brief at 1. The Motion for Downward Departure was also based upon U.S.S.G. § 5K2.12 ("Section 5K2.12"), Coercion and Duress, and U.S.S.G. § 5K2.13 ("Section 5K2.13"), Diminished Capacity. Id.
1. The Standard for Departure from the Guidelines
"The Sentencing Reform Act of 1984 [(the "Reform Act")], as amended, 18 U.S.C. § 3551 et seq., 28 U.S.C. §§ 991-998, made far-reaching changes to federal sentencing." Koon v. United States, U.S. , , 135 L. Ed. 2d 392, 116 S. Ct. 2035, 2043 (1996). Prior to the Reform Act, a sentencing court "enjoyed broad discretion" over the sentencing of offenders. Id. "This discretion led to perceptions that 'federal judges mete out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances.'" Id. at 2043-44. To address these concerns, Congress created the United States Sentencing Commission (the "Commission") and charged it with developing a comprehensive set of sentencing guidelines. See id. at 2044 (citing 28 U.S.C. § 994). "A district judge now must impose on a defendant a sentence falling within the range of the applicable Guideline, if the case is an ordinary one." Id.
District courts, however, have not been left completely without discretion. A district court may depart from the applicable Guideline range 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." 18 U.S.C. § 3553(b); see Koon, 116 S. Ct. at 2044; United States v. Rybicki, 96 F.3d 754, 757 (4th Cir. 1996); United States v. Cali, 87 F.3d 571, 580 (1st Cir. 1996) (Decision to depart is only appropriate in "unusual or atypical" circumstances.); United States v. Gaskill, 991 F.2d 82, 85 (3d Cir. 1993). The Commission has commented:
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. Section 5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status), § 5H1.12 (Lack of Guidance as a Youth and Similar Circumstances), the third sentence of § 5H1.4 (Physical Condition, Including Drug Dependence and Alcohol Abuse), and the last sentence of § 5K2.12 (Coercion and Duress) list several factors that the court cannot take into account as grounds for departure. With those specific exceptions, however, the Commission does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.
U.S.S.G. ch. 1, pt. A, intro. comment. (n.4(b)) (emphasis added).
In determining whether a circumstance is "unusual" or "atypical" and, therefore, capable of taking a case out of the applicable Guideline's "heartland," a district court should consider the Guidelines and the Commission's policy statements and official commentary. Koon, 116 S. Ct. at 2044; Rybicki, 96 F.3d at 756; United States v. Artim, 944 F. Supp. 363, 366, 1996 WL 633849 at *1 (D.N.J. 1996).
The Commission has provided guidance by listing certain factors as either encouraged or discouraged bases for departure. Koon, 116 S. Ct. at 2045. "Encouraged factors are those 'the Commission has not been able to take into account fully in formulating the guidelines.' ... Discouraged factors, by contrast, are those 'not ordinarily relevant to the determination of whether sentence should be outside the applicable guideline range.'" Id., at 2045; see Artim, 944 F. Supp. 363, 1996 WL 633849 at * 1.
To determine whether departure from the Guidelines is appropriate, the following factors are taken into consideration:
(1) What features of this case, potentially, take it outside the Guideline's "heartland" and make of it a special, or unusual, case?