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UNITED STATES v. BOYLAN

May 8, 1998

UNITED STATES OF AMERICA
v.
JAMES F. BOYLAN



The opinion of the court was delivered by: ORLOFSKY

OPINION

 ORLOFSKY, District Judge:

 This case concerns a former Jersey City Municipal Court judge who coached female defendants charged with traffic violations to lie in open court about the circumstances of their offenses, based reductions of their traffic fines and penalties on the false statements he procured, and, in turn, solicited sexual favors from these hapless women over a period of approximately three years. This former judge, now a defendant before this Court, has asked that he be sentenced as if his conduct caused nothing more than a financial loss to the City of Jersey City. Under the circumstances, however, the Court cannot do so without violence to the Sentencing Guidelines.

 In order to ascertain the applicable guideline range for Defendant, James F. Boylan ("Boylan"), I must resolve several issues raised by the objections of Boylan and the Government to the Presentence Investigation Report (the "PSI"). *fn1" In particular, I must decide whether to apply U.S.S.G. § 2F1.1, the offense guideline section associated with fraud, or U.S.S.G. § 2C1.7, the offense guideline section associated with fraud involving deprivation of the intangible right to the honest services of public officials. If the "honest services" fraud section of the Guidelines applies, I must determine whether the 8-level adjustment for an offense involving certain categories of officials applies. I must also decide whether either of the victim-related adjustments in U.S.S.G. § 3A1.1 applies and whether an adjustment based upon an abuse of a position of trust or the use of a special skill, as provided for in U.S.S.G. § 3B1.3, applies. Finally, I must determine whether and to what extent a fine should be imposed on Boylan. I will address each of these issues in turn.

 I. Discussion

 A. Applicable Offense Guideline

 1. General Principles in Choosing Offense Guideline Section

 The first step in the application of the Sentencing Guidelines is to consult U.S.S.G. § 1B1.2, which provides that the Court should:

 
Determine the offense guideline section in Chapter Two (Offense Conduct) most applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted). Provided, however, in the case of a plea agreement (written or made orally on the record) containing a stipulation that specifically establishes a more serious offense than the offense of conviction, determine the offense guideline section in Chapter Two most applicable to the stipulated offense.

 U.S.S.G. § 1B1.2(a). Generally, the Court looks to the guidelines section which corresponds to the offense of conviction as set forth in Appendix A to the Sentencing Guidelines. See U.S.S.G. App. A; U.S.S.G. 1B1.2 comment. (n.1).

 "When a particular statute proscribes a variety of conduct that might constitute the subject of different offense guidelines, the Court will determine which guideline section applies based upon the nature of the offense charged in the count of which the defendant was convicted." Id. The only exception to this rule is "where a stipulation that is set forth in a written plea agreement or made between the parties on the record during a plea proceeding establishes facts that prove a more serious offense or offenses than the offense or offenses of conviction." Id. In such a case, the Court "is to apply the guideline most applicable to the more serious offense or offenses established." Id.

 Accordingly, I must decide which guideline section applies based upon the nature of the conduct charged in the Information, and then decide if the limited exception applies. In doing so, I look only to the nature of the charged conduct, a subset of information which is likely to be narrower than "relevant conduct" as defined in section 1B1.3. See United States v. Centner, 116 F.3d 473, 1997 WL 328766, *3 n.4 (4th Cir. June 17, 1997) (noting that "when a defendant has pled guilty, the court can only base its choice of guideline on the offense of conviction, facts alleged in the information or indictment, and formal stipulations to facts establishing a more severe offense" and citing United States v. McCall, 915 F.2d 811, 815 (2d Cir. 1990)); United States v. Street, 66 F.3d 969, 979 (8th Cir. 1995) (holding that "under [section] 1B1.2(a) the court determines which guideline is most applicable to the 'offense of conviction'" and therefore, court "selects the guideline solely by 'conduct charged in the count of the indictment or information of which the defendant was convicted'"); United States v. Carroll, 3 F.3d 98, 101 (4th Cir. 1993); United States v. Lambert, 994 F.2d 1088, 1092 (4th Cir. 1993) ("actual conduct remains relevant in the consideration of offense characteristics after a guideline has been chosen, in the consideration of various adjustments, and in the consideration of conduct-related departures, but the district court erred in permitting a subjective assessment of the conduct's seriousness to affect its initial choice of guideline") (emphasis added); see, e.g., United States v. McHugh, 122 F.3d 153, 158 (2d Cir. 1997) (Newman, J., concurring) ("The information narrowed the charged offense, and once [the defendant] pled guilty to counts charging 'criminal negligence,' that became the 'offense conduct' that the Guidelines instruct is to be used to determine the applicable sentencing guideline."); United States v. Terry, 86 F.3d 353, 358 (4th Cir. 1996) ("the district court's primary error in Lambert was that, in an effort to determine the true nature and gravity of the defendant's crime, it looked outside the conduct described in the indictment ") (emphasis added).

 2. The Plea and the Conduct Charged in the Information

 The conduct charged in the Information is essentially this: Boylan was a municipal court judge for the City of Jersey City and presided over cases involving violations of motor vehicle and traffic laws. Information at P 1 (dated Jan. 23, 1998). During a period of approximately three years, from sometime in 1994 until October 1997, Boylan, in his capacity as a municipal court judge, "reduced traffic violation fines and penalties . . . for female municipal court defendants and coached these defendants to lie in open court about the circumstances of their traffic tickets in order to create an official record in support of the reductions." Id. at P 4. In connection "with the fine and penalty reductions," Boylan "would solicit sexual favors from the municipal court defendants." Id. at P 5. The object of this scheme "was to obtain things of value for [Boylan's] benefit and to "deprive the City of Jersey City, citizens of Jersey City and municipal court defendants of money or property." Id. at P 3. The only "things of value" benefitting Boylan which can reasonably be inferred from the Information are the sexual favors which he solicited from the female municipal court defendants whom he had coached to lie about the circumstances of their offenses and for whom he had reduced fines and penalties. The Information charged Boylan with one count of wire fraud in violation of 18 U.S.C. § 1343.

 On or after November 7, 1997, Boylan and the Government entered into a plea agreement which provided that Boylan would allocute to the following factual basis:

 
From in or about 1994 through about October 1997 [Boylan] engaged in a scheme as a municipal court judge whereby he solicited sexual favors from citizens who appeared before him in connection with reducing their fines. He further counseled them to lie about the circumstances of their traffic tickets in order to support their reductions. He used the mails and wires to further the scheme.

 Plea Agreement, Sch. A at P 5 (dated Nov. 7, 1997).

 As part of the guilty plea, on January 23, 1998, Boylan admitted under oath the following facts, inter alia, in a colloquy with the Court:

 
The Court: Beginning in about 1994, did you engage in a scheme to defraud the City of Jersey City, the citizens of Jersey City and Municipal Court defendants of money or property?
 
The Defendant: Yes, your Honor.
 
The Court: As part of that scheme, while presiding over Municipal Court sessions, did you reduce traffic violation fines and penalties for female Municipal Court defendants?
 
The Defendant: Yes, your Honor.
 
The Court: As part of the scheme, did you coach these Municipal Court defendants to lie in open court about the circumstances of their traffic tickets?
 
The Defendant: Yes, your Honor.
 
The Court: Did you then use these false statements as a factual basis to justify your reductions in ...

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