substantially impeded its investigation." Id.
E. Total offense level
The defendant's base offense level (7) plus the specific offense
characteristic enhancement (8) yields an adjusted offense level of 15.
Because of Mr. Schaffer's minor role in the offense, this score is
decreased (-2). The total offense level is 13.
F. Downward departure
Mr. Schaffer invokes the discretion of a sentencing judge to depart
from the Guidelines in a case that falls outside the heartland of typical
cases, see Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135
L.Ed.2d 392 (1996), and he identifies a number of factors that, in his
submission, take this case out of the heartland of gratuity cases.
Contrary to defendant's submission, I believe I lack the authority to
depart on any of the following proffered grounds: (1) it is atypical for
the prosecution to bring a gratuity charge for the provision of
hospitality in the lobbying context; (2) defendant had no clear notice
that the offense conduct was unlawful; (3) there is a hazy line between
criminal conduct and constitutionally protected conduct in this case; (4)
there was no clear authority that the Secretary of Agriculture was
covered by the Meat Inspection Act; (5) there was insubstantial evidence
of guilt; or (6) defendant's conduct was aberrant. These factors were
either in some way considered by the Sentencing Commission, must be
deemed to have been considered, have been rejected by controlling legal
authority, or are not present to such an unusual or extraordinary degree
as to justify a departure. See Koon, 518 U.S. at 98-99, 116 S.Ct. 2035.
Two other factors, however, warrant consideration.
No personal gain
There is no evidence in the record that defendant reaped any personal
benefit from this offense or that his employer rewarded him in any way.
See United States v. Wright, 211 F.3d 233, 238-39 (5th Cir. 2000)
(remanding for consideration of departure for defendant who "played a . . .
peripheral role and did not profit from the crime"); United States
v. Walters, 87 F.3d 663, 671-72 (5th Cir. 1996) (upholding downward
departure because of defendant's lack of personal gain); see also United
States v. Broderson, 67 F.3d 452, 459 (2d Cir. 1995); cf. United States
v. Garrison, 133 F.3d 831, 853 (11th Cir. 1998) (affirming upward
departure because fraud was undertaken for defendant's personal gain).
Walters involved money laundering, and the Fifth Circuit (per Judge
Jolly) thought it important that the guideline for money laundering makes
no mention of failure to receive a personal benefit as a mitigating
factor, see 87 F.3d at 671-72. Broderson involved government contract
fraud. The Second Circuit (per Judge Winter, in a pre-Koon opinion)
observed that the lack of personal profit is not ordinarily a ground for
departure because the Commission generally took that factor into
account, but deferred to the district court's reasoning that defendant
did not set out to mislead the government and that the fraud "was not
mainstream fraud. . . . Indeed, it was fraud only because of [applicable
statutes]." Broderson, 67 F.3d at 459.
As with money laundering, the Guideline for offering or giving a
gratuity makes no mention of failure to receive a personal benefit. It
does contemplate that a gratuity may be offered or given by a private
citizen whose only intent is "to ingratiate himself or his business with
the public official," § 2C1.2, comment. (n. 3), presumably without
any immediate hope of financial reward. That application note, however,
was written before, and has not been amended since, the Supreme Court's
rejection of the proposition that a gratuity
case may be made of "an effort to buy favor or generalized goodwill" and
its holding that the government "must prove a link between a thing of
value conferred upon a public official and a specific `official act' for
or because of which it was given." United States v. Sun-Diamond Growers
of Ca., 526 U.S. 398, 403, 414, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999).
No such proof was adduced in this case. At most, the Independent Counsel
proved that Mr. Schaffer: (i) aided and abetted (ii) the provision of a
gratuity by Tyson Foods to the Secretary of Agriculture (iii) who was
then "in a position to influence the trajectory" of specific policies of
concern to Tyson Foods. See Schaffer I, 183 F.3d at 850. Mr. Schaffer
neither gave nor received anything in the course of this offense. While
it is certainly true that a person who is "only" an aider and abetter is
as guilty as his principal (in this case, Tyson Foods and its immunized
executives), it does not follow that he is as culpable for sentencing
purposes. I find that what Mr. Schaffer did was not a mainstream gratuity
Extraordinary comniunity service
The file of this case contains nearly 100 letters from public officials
(from both major parties), academics, and civic and community leaders,
all attesting to Mr. Schaffer's extensive involvement in service aimed at
the betterment of his community. On the basis of these letters, which are
not challenged in any way by the Independent Counsel, I find that
defendant's record of community service is truly exemplary. I find,
moreover, that he is likely to continue that service in the future and
that the community would be better served by such continued service than
by Mr. Schaffer's imprisonment. Although a defendant's personal history
and community involvement are not ordinarily relevant in determining
whether a sentence should be outside the guideline range, I find that
defendant's service in the community has indeed been truly extraordinary
to a degree that takes this case outside the heartland. See United States
v. Crouse, 145 F.3d 786, 790 (6th Cir. 1998) (upholding departure for
defendant's civic involvement and charitable works).
In my judgment these two factors individually, and in concert with each
other, take this case "outside the heartland" of usual cases under the
Guidelines. Were I free to do so, I would depart to Level 8, which in
light of defendant's criminal history score of I, would yield a
sentencing range of 0-6 months. Within that range, a sentence of
probation would be permissible. Together with a fine of $10,000 pursuant
to 5E1.2(c)(3), a term of probation would represent a just and fair
punishment for Mr. Schaffer's offense.
2. The Meat Inspection Act
Any person convicted an offense under the Meat Inspection Act is to be
"punished by a fine not less than $5,000 nor more than $10,000 and by
imprisonment not less than one year nor more than three years."
21 U.S.C. § 622. Mr. Schaffer submits that, for eighty years
following the enactment of the Meat Inspection Act in 1907, judges
routinely suspended all or part of sentences imposed under it. He argues
that Congress understood in 1907 that sentences were subject to
suspension, and, he states, in fact "the Act has never been applied to
require that the defendant actually serve a year in prison or indeed,
serve any time in prison at all." He concludes that Congress did not
intend, and that the Act does not require, that an offender actually
serve a one-year sentence.
Mr. Schaffer cites no case for the proposition that a sentence of less
than one year may be imposed under the Meat Inspection Act. There is
precedent for supporting the suspension of Meat Inspection Act sentences
and for early parole, but the Sentencing Reform Act of 1984 removed the
power of federal judges to suspend sentences and abolished parole. The
now expressly require that any sentence imposed under the Guidelines be
"not less than any statutorily required minimum sentence." U.S.S.G.
The only exceptions to § 5G1.1 are the "safety valve" for persons
convicted of drug offenses, see U.S.S.G. § 5C1.2, and the
government-sponsored departures available for those who provide
"substantial assistance" in the investigation and prosecution of others,
see U.S.S.G. § 5K1.1, comment.(n. 1). Thus, drug dealers,
informants, and cooperating witnesses may be given departures below
statutory minimums, but Mr. Schaffer — who realized no personal
gain from his offense and has been an extraordinarily good citizen
— may not. This anomalous result betrays a likely oversight on the
part of Congress when it enacted the Sentencing Reform Act. If Mr.
Schaffer's situation is an unintended consequence of that oversight,
however, it is Congress that must fix the problem. I cannot.