The opinion of the court was delivered by: Robertson, District Judge.
Archibald Schaffer was convicted on June 26, 1998 of one count of
violating the Meat Inspection Act, 21 U.S.C. § 622. On September 25,
2000, he was sentenced to serve one year and one day in prison and to pay
a fine of $5000. This opinion, filed with the Judgment, sets forth the
reasons for the sentence.
1. The Guidelines Calculation
Appendix A of the Sentencing Guidelines Manual lists the guideline that
is "ordinarily applicable to the statute of conviction." U.S.S.G., App.
A. "[I]n an atypical case," however, "the guideline section indicated for
the statute of conviction [might be] inappropriate because of the
particular conduct involved." Id. In such a case, the sentencing court
should "use the guideline section most applicable to the nature of the
offense conduct in the count of which the defendant was convicted." Id.
Appendix A matches 21 U.S.C. § 622, the statute of conviction in
this case, with U.S.S.G. § 2C1.1, the guideline for bribery and
extortion. This is clearly not a case of bribery or extortion, however.
The Independent Counsel neither charged nor proved any quid pro quo. The
majority of offenses described in the Act may fall under the rubric of
bribery, but the conduct charged and proved in this case is more akin to
a gratuity. (Indeed, the Court of Appeals has acknowledged that the Meat
Inspection Act "contains a less rigorous intent requirement than the
federal gratuity statute." Schaffer I, 183 F.3d at 847 (emphasis added);
see id. at 846 n. 16). I find that the Guidelines section most applicable
to Mr. Schaffer's offense conduct is § 2C1.2, which governs the
offering, giving, soliciting, or receiving of a gratuity. The base
offense level for § 2C1.2 is seven.
b. Specific offense characteristics
The parties agree that, under § 2C1.2, an eight-level enhancement
applies if the "gratuity was given . . . to an elected official or any
official holding a high-level decision-making or sensitive position."
U.S.S.G. § 2C1.2. The jury found that the gratuity in this case was
meant to influence A. Michael Espy, the then-Secretary of Agriculture,
who unquestionably held a high-level decisionmaking position. Thus, I
find that the eight-level enhancement applies pursuant to § 2C1.2
The Independent Counsel argues that Mr. Schaffer played the role of an
organizer, leader, manager, or supervisor in the offense, so that a
two-level enhancement is appropriate under § 3B1.1(c). Mr. Schaffer
contends that he was only a minimal participant in the offense, and that
§ 3B1.2(a) therefore requires a four-level deduction.
Application note 3 to § 3B1.3 defines a "minor participant" as one
who is "less culpable than most other participants, but whose role could
not be described as minimal." In my judgment, Mr. Schaffer's role fits
that formulation exactly. The Meat Inspection Act violation involved the
gratuitous provision of travel, lodging, and amenities in connection with
John Tyson's birthday party. Mr. Schaffer did not extend the invitation,
plan the party, or directly furnish any part of the gratuity. The only act
he performed that furthered the giving of the gratuity was contacting the
Department of Agriculture and making the travel arrangements.
The Fourth Circuit's test for evaluating a role in the offense
adjustment, see United States v. Palinkas, 938 F.2d 456, 460 (4th Cir.
1991), vacated on other grounds, 503 U.S. 931, 112 S.Ct. 1464, 117
L.Ed.2d 610 (1992), is instructive: one cannot call Mr. Schaffer's
ministerial role in arranging air transportation immaterial (i.e.,
minimal), but it certainly was not essential. "Facilitator" is a more
suitable description of Mr. Schaffer's role in the offense ...