The opinion of the court was delivered by: ORLOFSKY
ORLOFSKY, District Judge:
These cases emerge from a bizarre saga of extortion, murder, international assassins and southern New Jersey diners. In these surreal circumstances, casual encounters between the two defendants evolved into a clumsy scheme to extort $ 100,000 from a local businessman whose partner was the victim of an unsolved murder. The defendants' nocturnal meetings rapidly escalated to letters and telephone calls to the victim, demanding money in exchange for silence about the team of assassins which the victim allegedly flew in from India to murder his business partner. An FBI sting snared David J. Vasile, a retired police officer, and Elizabeth Roxanne Grewal, a woman he knew from the local diners.
Grewal pled guilty to count three of a three-count indictment, charging her with sending extortionate threats through the mails. Vasile pled guilty to a one-count information charging him with conspiracy to receive the proceeds of extortion. Grewal has moved for a downward departure based on the avoidance of perceived greater harms pursuant to U.S.S.G. § 5K2.11, contending that the victim of this extortion plot had murdered his business partner and that her actions were designed to bring this wrong-doer to justice. The government has moved for a downward departure on Vasile's behalf pursuant to U.S.S.G. § 5K1.1, based on his substantial assistance to the government. An evidentiary hearing exposed a tangled web which included revelations of perjury and destruction of evidence. For the reasons set forth below, both of these motions will be denied. In addition, I find that Vasile is not entitled to downward adjustments in his offense level for acceptance of responsibility or his role in the offense.
On February 13, 1998, pursuant to Rule 32 of the Federal Rules of Criminal Procedure, I convened an evidentiary hearing to resolve the dramatic discrepancies between the two defendants' versions of the operative facts. The hearing consumed that day and was continued on March 6, 1998. At the conclusion of the sentencing hearing, I notified counsel that I was considering sua sponte upward departures under U.S.S.G. § 3C1.1 for obstruction of justice with regard to both defendants, and I invited counsel to submit briefs on that issue. See Letter from the Court to Counsel (dated March 9, 1998) (citing Fed. R. Crim. P. 32 and Burns v. United States, 501 U.S. 129, 115 L. Ed. 2d 123, 111 S. Ct. 2182 (1991)).
Based upon the sworn testimony and demonstrative evidence presented at the evidentiary hearing, see U.S.S.G. § 6A1.3, as supplemented by the Presentence Investigation Reports and the plea agreements, see U.S.S.G. § 6B1.4(d), I have developed a sufficient factual record to impose sentence. See Fed. R. Crim. P. 32(c)(1) ("For each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing.").
A. The Extortion According to Grewal
According to Grewal, she was working as a waitress at a diner in Glassboro, New Jersey, when she met Vasile. See Transcript of Sentencing Hearing (dated February 13, 1998, and March 6, 1998) ("Tr.") at 144. Grewal testified that they met 20 years ago, but that she has seen Vasile "on a regular basis" since then, including frequent meetings in diners and "numerous" trips by Vasile to Grewal's home. Id. at 144-45, 148. Although Vasile agrees that he and Grewal had been acquainted years before, Vasile contends that he had not been in contact with Grewal for approximately 15 years prior to September of 1996. Id. at 4-5, 9-10. I need not tarry here to describe the extensive testimony addressing the nature and frequency of the contacts between Vasile and Grewal prior to the events of the present extortion scheme, see, e.g., id. at 236-38 (testimony of Grewal's daughter); id. at 205-209 (testimony of Grewal's cousin), because this debate is not relevant to the sentencing issues pending before the Court. See Fed. R. Crim. P. 32(c)(1).
1. Tandoori, Murder and Grewalian Justice
In 1991, Grewal married a man of Indian descent and was introduced to the local Indian community. Tr. at 149. In 1991 or 1992, Grewal met Alamjit Gill and Parmajit Singh, who were partners in a gas station business. Id. at 149-50. Grewal, her husband, Gill and Singh belonged to a social circle which frequented a popular Tandoori restaurant owned by Sonny Kelsey. Id. at 150-51; see id. at 55 (Grewal and her friends "were always there").
One day in April of 1992, Grewal observed Gill talking to Kelsey who later repeated that conversation to her. Gill reportedly told Kelsey that Singh "was becoming a problem" and that Gill wanted to spend time with Singh's wife but Singh was "always in the picture." Id. at 152. According to Kelsey, Gill also said that he no longer wanted Singh as a business partner and that Singh's wife "would get a large insurance settlement" if Singh "was out of the picture." Id.
Although Kelsey said that Gill probably had not meant it, Kelsey also told Grewal that Gill had "said it in a serious tone." Id. at 153. Grewal testified that she was "disturbed" by that conversation because she "just didn't like the tone of the ... the way that he had said it because I knew people in the Indian community were saying that Mr. Gill was having an affair with [Singh's wife]." Id. Grewal concluded that "this sounded as though [Gill] wanted [Singh] out of the picture." Id. Two weeks later, Singh was murdered. Id. at 153-54; see Presentence Investigation Report for Elizabeth Roxanne Grewal ("Grewal PSI") at P 24.
According to Grewal, people in the Indian community "suspected that Mr. Gill had had [Singh] murdered, that he had brought people in from India, had him killed, and then put them back on a plane and sent them back to India, that is why there were no suspects to be found." Tr. at 157. Even prior to Singh's death, however, Grewal had "despised" Gill's lifestyle because he allegedly cheated on his wife with prostitutes and with a waitress at Kelsey's restaurant. Id. at 158. Grewal's disapproval of Gill became an "obsession" and she ultimately concluded that Gill was responsible for Singh's murder. Id. at 158-60 ("I absolutely believed that yes, he was the one who planned it and carried it out."); see also id. at 263 (testimony by an FBI agent that the Camden County Prosecutor's Office reportedly considered Gill's father a suspect in Singh's murder).
Nevertheless, Grewal never went to the police with the information in her possession because she feared that she lacked sufficient evidence. Id. at 159, 200; see also id. at 157 (Grewal testified that other members of the community refused to talk to the authorities because Gill threatened to have their families in India killed). As Grewal explained: "It's not possible for the authorities here to find individuals who committed this murder when these individuals are in India. They're not going to send people to India to try and look for this, and that is exactly what I believe took place." Id. at 200.
Instead, Grewal testified that she decided to keep this information to herself and to "get more information against Mr. Gill to take to the authorities." Id. at 160. She spent the next four years collecting rumors and other sordid information about Gill, but amassed only embarrassing information rather than evidence of criminal conduct. Id. at 160-61. Thus, Grewal turned to Vasile, whom she knew to be a former police officer, for assistance.
Grewal testified that she saw Vasile at the Liberty Diner in late November or December of 1995 and that, after telling her story, she asked Vasile "how I could use the information that I have to make Mr. Gill come forward and be found guilty of this murder." Tr. at 162-63. Grewal claims that Vasile agreed to use his police contacts to attempt to gather additional information about Singh's murder. Id. at 163-64.
According to Grewal, Vasile told her that "the only way that you are going to get this guy to come forward is you've got to intimidate him, give him the impression that you're watching every move that he makes, make him feel scared ... and then you might have something, then maybe you could get him to come out." Id. at 166; see also id. at 167-68. Thus, according to Grewal, Vasile suggested that she send Gill a letter and that she send it from a large corporation in order to make Gill pay attention. Id. at 168. Vasile offered to "collaborate" with Grewal on compiling the facts to set forth in this letter. Id. at 171. Vasile then accompanied Grewal to her home where the pair discussed the details of the letter, including the use of a post office box in another state. Id. at 172.
In early August of 1996, Grewal contacted her daughter Symphony Roxanne Gaffney in Maryland and instructed her to obtain a post office box in the name of the Diva Corporation. Id.; see id. at 244-45. Gaffney complied, reportedly without asking or being told why. Id. at 245-46. Thereafter, Grewal sent three sealed packages to Gaffney, which Gaffney in turn mailed to Gill. Id. at 245, 279-80. Throughout these transactions, however, Gaffney acknowledged that she had no contact with Vasile. Id. at 245-46.
Grewal also asked Gaffney whether Gaffney's boyfriend, William Lucich, had a checking account. Id. at 248, 302, 310. Grewal testified that she asked about Lucich's checking account because she was selling her house and closing her own bank account, and wanted to deposit the money from the sale of her home in Lucich's account. Id. at 303. One of the demand letters received by Gill, however, directed him to send $ 50,000 in the form of a cashier's check made payable to William Lucich. See Ex. G-1; see also Tr. at 310-11.
Grewal testified that Vasile also suggested the idea of placing telephone calls to Gill. Vasile suggested that Grewal telephone Gill, pretending to represent a large corporation which had been surveilling Gill on behalf of an interested client. Id. at 173; see also id. at 175-76 (Grewal testified that Vasile offered to get her a device to disguise her voice). According to Grewal, Vasile then "gave me the basis of, you know, what he wanted me to say." Id. Although Vasile did not "push" this idea on Grewal, she agreed because she was "obsessed with the fact that I wanted Mr. Gill brought to justice" and because she was confident in Vasile's knowledge and experience as a police officer. Id. at 173-74.
Grewal further testified that it was Vasile's idea to demand money because Gill's payment would evidence his guilt. Id. at 174. Grewal testified that it was also Vasile who suggested the sum of $ 50,000. Id. Nevertheless, despite some initial misgivings, Grewal decided to "go a long [sic] with" this plan even though she did "know it was against the law to do so." Id. at 174-75. Grewal also testified that she had never spoken to Vasile about Vasile taking any money: "He never asked me for money and I never volunteered money." Id. at 194.
3. Denny's and the Ingredients of a Plan
On November 4, 1996, Vasile left a message for Grewal to telephone him, but they did not make contact until the next day. Tr. at 177-78. The following morning, Grewal returned his call and arranged to meet Vasile at the 99 Cent Store at the Deptford Mall. Id. at 178. When Grewal arrived at that location, however, Vasile was not there. Id. Grewal then called Vasile at Sears from a pay phone and had him paged. Id.
When Vasile arrived at the 99 Cent Store, he told Grewal that he was tied up with an emergency at work but that he would meet her at Denny's restaurant in Washington Township at midnight, and that they would then determine the location of Gill's home. Id. at 179-81. Vasile also advised Grewal that he wanted to arrange the money-drop at Sears where he worked as a security manager and could monitor the events. Id. at 181.
Grewal testified that, since she was going to be there anyway, she arranged for her husband to meet her at Denny's, because he was hungry, and also for Jackie Allen, a waitress from the diner, to meet her at Denny's to collect some Avon products which Allen had purchased through Grewal. Id. at 181-82. Grewal's husband came and went without incident, id. at 183-84, and Vasile left to place a telephone call while Grewal and Allen discussed Avon products, id. at 184. When Vasile returned to the Denny's parking lot, he told Grewal that they needed a car for the drop other than his or hers. Id. at 184-85. Grewal then asked Allen if they could use her car. Id. at 185. During his absence from the parking lot, Vasile had reportedly called the Voorhees police department and obtained Gill's address by identifying himself as an officer working on a case. Id. at 186. Vasile then drove Grewal to Gill's address where they observed Gill's car. Id. at 186-87.
4. Donuts and Late Night Telephone Calls
After the reconnaissance mission to Gill's home, Grewal and Vasile proceeded to a Dunkin' Donuts restaurant from which three telephone calls were placed. Vasile placed the first call to Gill but, after some banter, Gill hung up on Vasile. Tr. at 188. During a subsequent call, Vasile heard "clicks" on the telephone line and grew suspicious that the call was being recorded. Id. at 189. Presumably reasoning that the call was being recorded from the pay phone at Dunkin' Donuts rather than from the victim's home, Vasile switched phones to a pay phone at a 7-Eleven convenience store. Id.
At the 7-Eleven, Vasile coached Grewal not to talk for long. Id. This included writing "Don't Talk Long" on an envelope while Grewal spoke to Gill. Id. at 189-90; see Ex. DG-2. While Grewal spoke to Gill, Vasile jotted the model of the drop car on the envelope for Grewal to relay to Gill and also asked Grewal whether she heard clicks on the line. Tr. at 190. In response, after hanging up the telephone, Grewal asked Vasile: "what difference does it make? I thought you had -- you were taking care of this." Id.
Before leaving Grewal that evening, Vasile drew a diagram of the Sears parking lot for her so that she could tell Allen exactly where to park her car. Id. at 191; see Ex. DG-2. Vasile emphasized the importance of the exact location because he could monitor it with the security cameras in his office. Tr. at 191.
5. Out of the Frying Pan and into the Fire
The next morning, November 6, 1996, Grewal instructed Allen to park her car in the spot selected by Vasile and then to wait for Vasile in the Friendly's restaurant located in the mall. Tr. at 193. Grewal, whose presence at the mall had never been contemplated by the plan, then called Vasile "a couple [of] times" to inform him that Allen was on her way. Id. at 194.
At approximately 11:00 a.m., Grewal received a telephone call at home from Vasile informing her that federal agents were present at the Deptford Mall. Id. at 195-96. Grewal allegedly told Vasile to tell the truth if questioned by the agents. Id. Vasile replied: "yeah, that will work, but let me check things out." Id. This conversation alarmed and confused Grewal who consequently gathered "bits and pieces that were added to the extortion letter," placed them in a kitchen pot on top of her stove, see Ex. G-2, and set them ablaze. Tr. at 197-98.
Grewal testified that she burned these documents because Vasile had frightened her by his reaction to the presence of federal agents: "If he supposedly was doing what he was supposed to, why would he worry if there were federal agents there?" Id. at 197. Thus, Grewal set fire to this evidence because she "didn't want anything linked back to [her] if it wasn't going to be right." Id. at 198; see id. at 199 (Grewal agreed with the Court's statement that "the bottom line is you didn't want anyone, including the police or the FBI, to find you with this evidence in your possession"). That afternoon, federal agents arrested Grewal at her home.
In October of 1995, Vasile retired as a lieutenant of the Glassboro Police Department after approximately 30 years of service. See Presentence Investigation Report for David J. Vasile ("Vasile PSI") at P 57 and Tr. at 57. From that time until November of 1996, Vasile was employed by Sears as a security manager at its store in the Deptford Mall. See id. at P 56. During several chance encounters at diners across southern New Jersey, Vasile became reacquainted with Grewal in September of 1996. See supra Part I.A.
On several occasions, they spoke concerning a limousine business which was owned by several retired police officers from Washington Township. Id. at 9-10. Thereafter, Grewal telephoned him at Sears several times to discuss the use of that limousine service in connection with a plan to obtain immigration documents and to bring an alien into the country. Id. at 13-14.
1. Restaurant Reconnaissance
Grewal approached Vasile one night in a diner parking lot and asked Vasile to "take a ride with her." Tr. at 15. Although Vasile "was really tired that night" and "wanted to go home and go to bed," he drove Grewal approximately 20 miles to the Diamond Diner in Cherry Hill. Id. at 16. Vasile explained that Grewal "had to see somebody and she didn't want to go up by herself" and that he agreed because he "had nothing to do." Id. at 73.
After they found a table and ordered drinks, Grewal excused herself for approximately 15 minutes. Id. When she returned, they left and drove the 20 miles back to the diner. Id. The former police lieutenant further testified that, although he was curious, he never asked Grewal a single question about where she had gone when she left the table or what she had done. Id.
On November 5, 1997, Grewal again telephoned Vasile at work and asked him to meet her at Denny's restaurant because Grewal wanted to check out the address of the victim of the illegal immigration scheme. Id. at 17, 82. Vasile described a brief encounter in the parking lot at Denny's where he met Grewal's husband who told Vasile that the immigration scheme was Grewal's "show." Id. at 18; see id. at 85. Vasile then drove Grewal to a parking lot near the Echelon Mall in order to determine whether a particular car was parked in that lot. Id. at 18-19. Vasile testified that he went with Grewal because she had tried to find the address before but failed. Id. at 19.
After Grewal found the car she sought, she and Vasile proceeded to a Dunkin' Donuts restaurant where Grewal placed a telephone call. Tr. at 14. At that time, Vasile believed that Grewal was planning to take money from a man on the pretext that Grewal would arrange to get his wife into the United States. Id. at 20. Moreover, at that time Vasile was not to share in Grewal's proceeds. Id.; see also id. at 20-21. Although Vasile, a 30-year veteran of the police force, did find this "a little bit strange," he continued to participate in the conspiracy for no reason he could articulate. Id. at 20.
At some unclear point in time, Vasile recognized that the immigration scheme was actually an extortion plot. See infra Part II.F. The duo proceeded to place a series of telephone calls to Gill instructing him to leave the money in a car in the Sears parking lot at the Deptford Mall. See id. at 21-23, According to Vasile, it was definitely Grewal who placed the first telephone call to Gill in order to determine whether he was at home. Id. at 21, 38. During one of these conversations with Gill, Vasile learned that the amount of money at stake was $ 50,000. Id. at 22-23, 29.
Vasile testified that he only spoke to Gill to relay information from Grewal because Grewal thought it would sound better coming from a man. Id. at 38-39. When Gill protested, however, Vasile, on his own initiative, said to Gill: "Well then we will take other measures." Ex. G-4a (tape recording of telephone call); accord Ex. DG-4 at 2 (transcript of recorded telephone call); see Tr. at 39. Grewal then placed another call, but Vasile was only present at its inception. Id. at 23. On their way back to Grewal's car, which had been left at the Denny's parking lot, Grewal placed yet another call from a telephone at Dunkin' Donuts but Vasile did not know whom she called. Id. Vasile then drove Grewal to her car and did not see her again until the following day. Id.
Early on the morning of November 6, 1998, Vasile discussed this plot with his co-workers at Sears and "told them I thought it was an extortion." Tr. at 27, 31, 32. Later that morning, Grewal telephoned Vasile at work and offered him $ 2,500 to "pick up the package." Id. at 23-26. Although he realized he was involved in an extortion plot, Vasile agreed and proceeded with the plan with the expectation that he would receive $ 2,500 from the proceeds of the extortion. Id.
Jackie Allen, the diner waitress, then retrieved the drop car and drove it to an area of the mall where Vasile waited to receive the money. Id. at 25. After retrieving the package in his own truck and driving back to Sears, Vasile opened it and discovered that it contained only paper. Id. At that point, law ...