upon which a court may appropriately rely as a basis for a downward departure. See, e.g., United
States v. O'Hagan, 139 F.3d 641, 656-58 (8th Cir. 1998); United States v. Sanchez-Rodriguez,
161 F.3d 556, 564 (9th Cir. 1998) (en banc); United States v. Saldana, 109 F.3d 100, 104 (1st
Cir. 1997); United States v. Garcia, 165 F. Supp. 2d 496, 498 (S.D.N.Y. 2001); United States v.
Jasin, 25 F. Supp. 2d 551, 562 (D. Kan. 1998) (recognizing that delay may provide basis for
departure but declining to depart in particular case); United States v. Hollins, 863 F. Supp. 563,
568-69 (N.D. Ohio 1994). Most of these cases involve situations in which the sentence imposed
on the defendant ends up being harsher due to the delay, for example because the opportunity for
a concurrent sentence has been lost, or when the defendant’s opportunity to move for a departure
has been Jost or impaired. But the rationale of these cases is not limited to those specific
situations. In any event, the delay in this case, though not sufficiently prejudicial to warrant a
finding of a due process violation, has adversely affected to some degree Neuendank’s ability to
seek and obtain a downward departure based on diminished capacity under Guideline § 5K2.13.
And as explained more fully below, a sentence within the Guideline range would effectively
deprive both society and Neuendank of the benefits of his rehabilitative efforts over the six years
that have passed since his offense was discovered. Thus even if some concrete detriment to the
defendant is needed before delay in initiating prosecution can be considered as a basis for
departure, it exists here.

In Neuendank’s case, the government’s unreasonable delay is a factor that warrants a
sentence below the range prescribed by the Guidelines. As the Court explained at the time of
sentencing, the delay effectively removed any deterrent effect prosecution might have on

Neuendank or others, allowed to pass any need that might have existed to protect the public or


different from that prescribed. U.S.S.G. § 5K2.0; United States v. Koon, 518 U.S. 81 (1996).
“The Guidelines . . . ‘place essentially no limit on the number of potential factors that
may warrant a departure.”” Koon, 518 U.S. at 106 (quoting Burns vy. United States, 501 U.S. 129,
136-137 (1991)). The Court’s ruling that the government’s delay did not violate Neuendank’s
due process rights is of no consequence; in Koon itself, the Supreme Court upheld a departure
based on the fact that the defendants had been subjected to successive federal and state
prosecutions, even though the successive prosecution did not violate the defendants’
constitutional rights. Jd. at 112. The Court upheld the trial court’s finding that the successive

ee

prosecution, though not violative of the defendants’ rights, had “‘significantly burden[ed] the
defendants’” and was thus appropriately considered as a basis for a sentencing departure.
Id, (quoting United States v. Koon, 833 F. Supp. 769, 790 (C.D. Cal. 1993)).

Under Koon the question is whether the government’s unreasonable and unwarranted
delay, a factor unmentioned in the Guidelines and not taken into account by the Sentencing
Commission, is “sufficient to take the case out of the Guideline’s heartland” after considering the
structure and theory of the particular Guideline at issue and the Guidelines as a whole. Koon,
518 U.S. at 95. It cannot seriously be questioned that this factor puts Neuendank’s case outside
the heartland of federal prosecutions generally, and fraud prosecutions in particular. The
overwhelming majority of federal crimes, including fraud offenses, are prosecuted reasonably
promptly once the necessary investigation is conducted after the offense comes to the attention of
law enforcement authorities. Prosecutions like this one that languish for no real reason are rare

indeed.

Numerous courts have ruled that unwarranted delay in initiating prosecution is a factor


individuals, and eliminated any need for further rehabilitation — all of which are among the
important goals of sentencing as declared by Congress. See 18 U.S.C. § 3553(a)(2).

The government’s delay also impaired the goal of retribution, that is, the idea that
punishment should reflect the seriousness of the offense and promote respect for the law. See id.
Imposition of punishment within the Guideline-prescribed range after Neuendank had made
significant restitutionary efforts and agreed to make full restitution, rehabilitated himself, and
shown that he did not pose a significant risk of future criminal activity, would effectively turn
our justice system into an indiscriminate avenging angel, mowing down offenders irrespective of
whether doing so will contribute to Congress’ declared sentencing goals. As the Seventh Circuit
has aptly put it,

By delaying the indictment and prosecution of crimes, prosecutors can create the

impression that criminal acts do not have consequences and thereby seriously undermine

the deterrent purpose of criminal law. Ideally, criminal law should be administered in hot
blood. The crime, once uncovered, should be swiftly dealt with by arrest, indictment and
trial. While some complicated cases may require long-term investigation, most do not.

Swift justice is required for the benefit of the public, the victims and, in a different sense,

the accused himself. And prosecutors should remind themselves of this on a frequent

basis.
United States v. Hunter, 197 F.3d 862, 866 (7th Cir. 1999); see also, United States v. Ashford,
924 F.2d 1416, 1426 (7th Cir. 1991) (Bauer, J., concurring) (“[C]riminal justice, if it is to be
effective at all as a detriment, must be administered in hot blood; that is, as close to the criminal
act as possible. All speedy trial acts and statutes of limitation aside, criminal prosecutions have a
salutary effect on the individual defendants and the community at large when the process is sure

and swift. The long delay between crime and punishment betokens an attitude that the agencies

established to protect society from crime are both disinterested and leisurely about their

wv


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Matthew F. Kennelly

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 02 CR 1079 DATE 2/17/2004
CASE USA vs. Michael Neuendank
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party piaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) o Filed motion of [ use listing in “Motion” box above.] |
(2) o Brief in support of motion due.
QB) oO Answer brief to motion due . Reply to answer brief due
(4) oO Ruling/Hearingon____setfor__—saat__.
(5) o Status hearing[held/continued to] [set for/re-set for] on setfor at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on setfor_ se at_
(7) Oo Trial[set for/re-set for]on_ at
(8) im [Bench/Jury trial] [Hearing] held/continued to at
o Oo ‘This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) = CLocal Rule 41.1 CC FRCP41(a)(1) OO FRCP41(a)(2).

ao ff [Other docket entry] For the reasons set forth on the attached Memorandum Opinion and Order,

and those described in open court at the time of sentencing, the Court grants Neuendank’s motion for
downward departure. The Court has departed downward to a sentence of twelve months and one day, for

the reasons explained at sentencing.

dl) #

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.
umber of notices

| Document
Number

Notices mailed by judge’s staff. HEB 23 2004

Notified counsel by telephone. date docketed

A. |

date maited notice

Y | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom a
OR ° 62 032 Sw

Date/time received in
( centfal Clerk: Office

railing deputy initials



business.”).

Neuendank’s restitutionary and rehabilitative efforts in the period between his offense
and the time the prosecution was initiated would not suffice by themselves as a basis for a
downward departure; though iaudable, these efforts by themselves were not extraordinary in the
sense that is required to warrant a downward departure for that reason standing alone. But these
efforts are a factor that the Court may consider in combination with the government’s delay in
determining the appropriateness and extent of a sentencing departure. Because of the
government’s unwarranted delay in initiating prosecution, both Neuendank and society will be
deprived of a significant portion of the benefit of what Neuendank has done to atone for his
offenses. He will find it difficult if not impossible to keep the job that now permits him to make
restitution, and his efforts to rehabilitate himself, which have borne so much fruit in the years
that have passed since his offense, will to some extent have to begin anew after his release from
prison.

Conclusion

For these reasons, and those described in open court at the time of sentencing, the Court

grants Neuendank’s motion for downward departure. The Court has departed downward to a

sentence of twelve months and one day, for the reasons explained at sentencing.

MATTHEW F. KENNELLY }
United States District Judge
Date: February 18, 2004


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
Case No. 02 CR 1079

vs.

MICHAEL NEUENDANK,

weer eer

Defendant.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Defendant Michael Neuendank, who pled guilty to mail fraud, moved for a downward
departure from the Sentencing Guideline range of twenty-one to twenty-seven months based on
the government’s allegedly unreasonable and unwarranted delay in prosecuting him, along with
his efforts in the intervening period to make restitution, rehabilitate himself, and accept
responsibility for his offenses. The Court granted the motion and explained its ruling in open
court. The purpose of this order is to supplement the Court’s verbal explanation.

The offense to which Neuendank pled guilty, a serious crime that caused his employer
Progressive Manufacturing Corp. a loss of over $450,000, took place between 1996 and February
1998. PMC discovered the crime on the latter date, fired Neuendank, and reported his offense to
the authorities. Neuendank attempted suicide shortly after he was fired. In April 1998, he
effectively admitted his guilt in an interview conducted by agents of the FBI. The government

had all it realistically needed to institute prosecution by no later than mid-1998, around the same

22


time that PMC sued Neuendank civilly.’

As the Court has explained more fully in its August 14, 2003 ruling denying Neuendank’s
motion to dismiss based on preindictment delay, the government essentially put the case on the
back bummer — or worse — after it had all the material evidence it relied on to prosecute
Neuendank. This happened not for any investigative reason, but rather due to simple inertia and
inattention. The case gathered dust for an extended period until it was revived by a combination
of factors — the original case agent retired, the statute of limitations began to loom large, and the
newly assigned agent kicked things into gear. In the intervening period, Neuendank settled
PMC’s civil suit, making significant restitution payments and agreeing to a payment plan that
required him to put up a far greater proportion of his income than PMC could have collected
through legal proceedings; he became rehabilitated and reformed his life in ways more fully
described in the defendant’s sentencing submission and in several letters submitted to the Court;
and he terminated the unusual relationships that had contributed in at least some degree to his
commission of the offense.

The Court agrees with Neuendank that these factors — the unwarranted delay standing
alone, and in combination with his rehabilitative and restitutionary efforts in the intervening
period — are a proper basis for a downward departure from the prescribed Guideline sentencing
range. A judge may impose a sentence outside the prescribed Guideline range if there exists an
aggravating or mitigating circumstance of a kind or to a degree not adequately taken into account

by the Sentencing Commission in formulating the Guidelines that should result in a sentence

' Neuendank settled the civil case in December 1998, agreeing to make restitution to
PMC.