1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-2-1997

United States v. DeGovanni

Precedential or Non-Precedential:

Docket 96-1333

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Recommended Citation

"United States v. DeGovanni" (1997). 1997 Decisions. Paper 1.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/1
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

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 No. 96-1333 

 

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 UNITED STATES OF AMERICA 

 

v. 

THOMAS DEGOVANNI, 

 Appellant

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 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Criminal No. 95-00092-2) 

 

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 Argued Wednesday, November 6, 1996 

 BEFORE: BECKER, MCKEE 

 and GARTH Circuit Judges

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 (Opinion filed January 2, 1997) 

 

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 Gerald A. Stein, Esquire (Argued) 

 Gerald A. Stein, P.C. 

 1500 Market Street 

 2727 Center Square West 

 Philadelphia, Pennsylvania 19102 

 

 Attorney for Appellant 
 Michael R. Stiles 

 United States Attorney 

 Walter S. Batty, Jr. 

 Assistant United States Attorney 

 Chief of Appeals 

 William B. Carr, Jr. (Argued) 

 Assistant United States Attorney 

 Office of the United States Attorney 

 615 Chestnut Street 

 Suite 1250 

 Philadelphia, Pennsylvania 19106 

 Attorneys for Appellee

 

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 OPINION OF THE COURT 

 

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GARTH, Circuit Judge: 

 In the context of U.S.S.G. §3B1.1(c) which authorizes 

an enhancement of two levels when a defendant is characterized as 

a "supervisor", the question we must answer in this appeal is: 

when is a supervisor not a supervisor? In the instant case, we 

hold that one is only a "supervisor" under U.S.S.G. §3B1.1(c) 

when he is so involved in, and connected to, the illegal activity 

of others that he actually supervises their illegal conduct, and 

is not just a supervisor by virtue of his de jure position in the 

police department hierarchy. 

I.

 Defendant Thomas DeGovanni was a police sergeant in the 

39th District Five Squad in the city of Philadelphia. On 

February 25, 1995, he was charged with Conspiracy to Commit 

Offenses Against the United States in violation of 18 U.S.C. 
3

§371; Theft Concerning Program Receiving Federal Funds in 

violation of 18 U.S.C. §666; Obstruction of Justice in violation 

of 18 U.S.C. §1503; and two counts of Interference with 

Interstate Commerce by Robbery in violation of 18 U.S.C. §1951.1

 On April 6, 1995, DeGovanni pled guilty to one count of 

Interference with Interstate Commerce by Robbery and one count of 

Obstruction of Justice. DeGovanni was sentenced on April 15, 

1996 to 84 months incarceration and a $1,000 fine. DeGovanni now 

appeals the sentence imposed, on grounds that his sentence was 

improperly enhanced under U.S.S.G. §3B1.1(c) for his role as a 

"supervisor". 

 The district court had jurisdiction over this matter 

under 18 U.S.C. §3231. We have appellate jurisdiction pursuant 

to 28 U.S.C. §1291 and 18 U.S.C. §3742. Our review of the 

district court's interpretation of the Sentencing Guidelines is 

plenary, and we review the underlying factual findings for clear 

error. See United States v. Bethancourt, 65 F.3d 1074, 1080 (3d 

Cir. 1995), cert. denied 116 S. Ct. 1032 (1996); United States v. 

Katora, 981 F.2d 1398, 1401 (3d Cir. 1992). Here, because there 

is no factual dispute concerning DeGovanni's role as a supervisor 

in the police department or about the nature of his activities 

 

1. These charges stem from DeGovanni's alleged participation in 

a conspiracy with fellow police officers from 1988 until 1995, in 

which the co-conspirators engaged in activities such as 

assaulting drug suspects, conducting illegal searches, 

fabricating evidence, illegally seizing money from suspected drug 

dealers, and making arrests without probable cause. 
4

within the conspiracy, we will exercise plenary review to 

determine whether §3B1.1(c) should apply to the facts in this 

case, so as to enhance DeGovanni's sentence two levels. 

II.

 The sole question in this appeal is whether defendant 

DeGovanni, who served as a sergeant in the 39th District Five 

Squad, should be considered a supervisor in criminal activity - 

an activity which involved members of the Philadelphia police 

force, but did not require that he, DeGovanni, play an active, 

supervisory role in the criminal offenses committed. 

 The government charges that DeGovanni's failure to 

report and otherwise deter his subordinates from engaging in 

criminal misconduct, constituted the supervision to which 

§3B1.1(c) refers. The government claims that "...DeGovanni can 

best be described as agreeing to go along with and profit[ing] 

from - as opposed to actually directing - the criminal conduct to 

which he has admitted." Brief of Appellant DeGovanni at 7, 

quoting Presentence Memorandum of Government (Exhibit A at 3). 

As such, the government argues that, by virtue of DeGovanni's 

supervisory title and responsibilities as sergeant, DeGovanni was 

a supervisor within the meaning of §3B1.1(c). 

 DeGovanni, on the other hand, asserts that he was no 

more than a de jure supervisor in the 39th District Five Squad, 

and did not actively participate in the criminal activities out 
5

of which the charges arose. Indeed, in his brief on appeal, 

DeGovanni characterizes his involvement as no more than passive. 

 He argues that, although he was a sergeant in the police 

department, he did not supervise or manage his co-conspirators 

during the commission of their crimes. Although he admits 

participation in, and profiting from, the criminal activities, he 

contends that he played a secondary role, and that he was a mere 

'rank and file' participant. See Brief of Appellant DeGovanni at 

12-14. 

 DeGovanni further argues that his failure to report his 

co-conspirators, although violative of his police oath and his 

responsibilities as a sergeant, was not a decision motivated by 

concerns for the group, and did not further the group's 

activities. Finally, he claims that he "did not manage, direct, 

supervise, or lead the others or decide when, where or how the 

crimes with which he and the others were charged would be 

committed. The Government concedes as much in its sentencing 

memorandum". Id. at 12, citing Exhibit A at 1-3. 

 The district court held that DeGovanni's participation 

in the conspiracy, coupled with his failure to report the 

activities of his co-conspirators, served to facilitate the 

commission of the crimes and was an abdication of his supervisory 

responsibility as a police sergeant. See Transcript of Hearing 

(App. 24a-27a; 31a-32a). Applying the recommendation of the 

Probation Department in the pre-sentence report and overriding 
6

DeGovanni's objections, the court enhanced DeGovanni's sentence 

by two levels pursuant to U.S.S.G. §3B1.1(c).2 

III.

 We hold that the district court improperly enhanced 

DeGovanni's sentence. U.S.S.G. §3B1.1 provides, 

3B1.1. Aggravating Role

Based on the defendant's role in the offense, increase the 

offense level as follows: 

(a) If the defendant was an organizer or leader of a criminal 

activity that involved five or more 

participants or was otherwise extensive, 

increase by 4 levels. 

(b) If the defendant was a manager or supervisor (but not an 

organizer or leader) and the criminal 

activity involved five or more 

participants or was otherwise extensive, 

increase by 3 levels. 

(c) If the defendant was an organizer, leader, manager or 

supervisor in any criminal activity 

other than described in (a) or (b), 

increase by 2 levels. 

 The Guidelines (in each of its three sub-sections) call 

for a determination of whether the defendant was a supervisor in 

the criminal activity. Courts which have addressed the issue of 

 

2. Prior to the enhancement, the Guideline range was 63-78 

months (offense level of 26 and criminal history category I). 

After the enhancement, the range became 78-97 months (offense 

level of 28 and criminal history category I). DeGovanni was 

sentenced to 84 months. 
7

supervision have required that, to be a supervisor, there must be 

some degree of control over others involved in the commission of 

the offense. See e.g., United States v. Roberts, 14 F.3d 502, 

524 (10th Cir. 1993), aff'd after remand 43 F.3d 1484 (10th Cir. 

1994), cert. denied 115 S. Ct. 1417 (1995); United States v. 

Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990). More specifically, 

the Guidelines direct that a defendant's role in the criminal 

activity is the operative issue. Here, DeGovanni's sergeantstatus in the police department as an overall supervisor of other 

police officers in the discharge of general police functions, was 

not enough to substantiate an enhancement for active supervision 

of other members of the conspiracy under §3B1.1(c). See United 

States v. Fuentes, 954 F.2d 151, 153 (3d Cir.), cert. denied 504 

U.S. 977 (1992) (sentences should not be enhanced under §3B1.1(c) 

unless the defendant supervised or managed the actions of another 

individual in the criminal enterprise); see generally, United 

States v. Belletiere, 971 F.2d 961, 969-70 (3d Cir. 1992) (§3B1.1 

enhancements apply to supervision of others in group activities). 

 Just as a defendant bank director in United States v. Jobe, ___ 

F.3d ___, No. 94-50646, 1996 WL 700146 at *17 (5th Cir., December 

5, 1996), could not have his sentence enhanced for check kiting 

and bank fraud because he did not manage or supervise the 

criminal activity of check kiting, no more can DeGovanni have his 

sentence enhanced because of his general overseer role as 

sergeant. 
8

 We reject the government's contention that DeGovanni's 

status as a sergeant is relevant simply because the offenses at 

issue were committed by police officers, acting "in their 

capacities as Philadelphia Police Officers". Brief of Appellee 

United States at 9. Although the defendants used their official 

positions as cover for the illegal acts, the mere fact that 

DeGovanni was their workplace supervisor, is not enough to render 

him more culpable for purposes of the conspiracy than the other 

'rank and file' participants. We find that the enhancement 

contained in U.S.S.G. §3B1.1(c) does not apply absent such 

heightened culpability, and that one must therefore have an 

active supervisory role in the actual criminal conduct of others 

to justify the enhancements contained in this section of the 

Guidelines. 

 We hold that DeGovanni's sentence which included a twolevel enhancement for his activities as a supervisor was not 

warranted. DeGovanni's 'rank and file' participation in the 

criminal activity constituted mere participation, and nothing 

more. His activities mirrored those of the other low-level 

participants; his role was clearly distinguishable from primary 

players in the conspiracy such as John Baird3, and the evidence 

of record does not support DeGovanni's role as a manager or 

supervisor of the illegal activities engaged in by other police 

officers. 

 

3. This defendant appears before us in a separate appeal, United 

States v. John Baird, No. 96-1342. 
9

 The only activity that distinguishes DeGovanni from 

other participants was his silence -- he fulfilled his duties as 

a sergeant in the police force without reporting the illegal, 

extracurricular activities of his inferior officers.4 Such 

silence, although reprehensible, does not make him a "supervisor" 

of the charged criminal activity for purposes of §3B1.1(c).5

IV.

 Accordingly, we will vacate the district court's 

sentence which included a two-level enhancement under §3B1.1(c) 

and remand for resentencing consistent with the foregoing 

opinion. 

 

4. The government has alleged that these activities included the 

"creation of official police paperwork, the preparation for 

testimony in court, and the documentation and handling of seized 

money". Brief of Appellee Government at 10, referring to 

Transcript of Hearing (App. 29a). 

5. The "background" section of the Application Notes explains 

that enhancement for supervision is appropriate because it is 

"likely that persons who exercise a supervisory or managerial 

role in the commission of an offense tend to profit more from it 

and present a greater danger to the public and/or are more likely 

to recidivate." Application Notes to U.S.S.G. §3B1.1. None of 

these concerns apply to DeGovanni.