1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-23-1998

United States v. Rudolph

Precedential or Non-Precedential:

Docket 96-5726

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Recommended Citation

"United States v. Rudolph" (1998). 1998 Decisions. Paper 34.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/34
Filed February 23, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-5726 

UNITED STATES OF AMERICA 

v. 

DEANDRE RUDOLPH, a/k/a "Rudy" 

Deandre Rudolph, 

 Appellant 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. No. 96-cr-00162-01) 

Argued September 15, 1997 

Before: BECKER, Chief Judge, SLOVITER and 

SCIRICA, Circuit Judges 

(Filed February 23, 1998) 

 Peter V. Ryan (Argued) 

 West Orange, New Jersey 07052 

 Attorney for Appellant 

 Faith S. Hochberg 

 United States Attorney 

 Kevin McNulty 

 Allan Tananbaum (Argued) 

 Office of United States Attorney 

 Newark, New Jersey 07102 

 Attorneys for Appellee 
OPINION OF THE COURT 

SLOVITER, Circuit Judge. 

I. 

Deandre Rudolph, who pled guilty to bribery and sale of 

government property, appeals his sentence on the grounds 

that the district court (1) improperly enhanced hi s sentence 

pursuant to U.S.S.G. S 2C1.1(b)(1), and (2) improperly 

failed to group the two convictions under U.S.S.G. S 3D1.2. 

Because there was no trial, most of the relevant facts were 

obtained from Rudolph's presentence report. 

In March 1995, Gerard Felix, who was arrested on 

charges unrelated to this case, admitted to having made 

corrupt payments to employees of the Immigration and 

Naturalization Service and other Justice Department

employees in return for illegal assistance. During the 

course of his subsequent cooperation with the government, 

Felix identified, inter alia, the appellant, Deandre Rudolph, 

an INS Special Agent based in Newark, New Jersey, as one 

of those government employees. Felix told the agents that 

in the fall of 1994, Rudolph had accepted a total of $1,500 

from him in return for an INS metal template, a device that 

imprints a marking when fingerprints and signatures are 

affixed to alien registration "green" cards to demonstrate 

authenticity. Felix cooperated in the ensuing investigation 

of Rudolph, during which several telephone calls between 

Felix and Rudolph were monitored. 

In October 1995, Felix asked Rudolph to obtain a federal 

Presentence Report (PSR) prepared by the United States 

Probation Office in the Southern District of New York in 

exchange for $1,000. Thereafter, Felix and Rudolph met on 

October 18, 1995 at a diner in Irvington, New Jersey to 

discuss the proposed sale of the presentence report. At that 

meeting, Rudolph requested more specific information 

identifying the subject of the report. 

The following day, after Felix provided Rudolph with the 

date of birth of the subject of the report, Rudolph

 2 
telephoned Felix from his INS office and told him that he 

had the report. They agreed to meet that afternoon to make 

the exchange, but at that meeting Rudolph, who displayed 

the PSR, sought more money than Felix had originally 

offered because the PSR was highly confidential. Ultimately, 

Rudolph accepted the $1,000 for the PSR at a later 

meeting. Rudolph had used an unsuspecting colleague in 

the INS office to obtain the copy of the PSR. 

Approximately one month later, on November 21, 1995, 

Rudolph, Felix and Wesley Clement, who was described as 

"an illegal document vendor," met by prearrangement so 

that Clement could purchase an INS metal template from 

Rudolph. During negotiations, Rudolph explained that this 

transaction was riskier than the sale of the template in the 

fall of 1994 because this time there would be "cameras up 

in the ceiling." The three men met again an hour later, and 

Clement turned over $4,000 in cash for the template. 

According to Felix, Clement purchased yet another template 

shortly thereafter. 

Rudolph was arrested on December 22, 1995. On 

January 18, 1996, a three-count indictment was filed in the 

United States District Court for the District of New Jersey 

charging Rudolph with (1) demanding, seeking, and 

receiving a monetary bribe as a public official to make 

opportunities for the commission of fraud by providing an 

I-89 template for use in fraudulent applications to the INS 

for permanent residence, in violation of 18 U.S.C. 

SS 201(b)(2)(B) and 2; (2) demanding, seeki ng, and receiving 

a monetary bribe as a public official in order to be induced 

to act in violation of his official duty by providing an I-89 

template to a person not authorized to receive it, in 

violation of 18 U.S.C. SS 201(b)(2)(C) and 2; and 

(3) converting to his own use and without authorit y selling, 

conveying and disposing of an I-89 metal template 

belonging to the INS, in violation of 18 U.S.C. SS 641 and 2. 

All three counts related to Rudolph's supply of the template 

to Clement in November 1995 in exchange for money. 

On March 22, 1996, pursuant to a written plea 

agreement, Rudolph pled guilty to count one of the 

indictment, charging him with receiving a bribe in violation 

of 18 U.S.C. S 201(b)(2)(B), and waived indictment and pled 

 3 
guilty to a one-count information charging him for the first 

time with sale of government property, namely a 

Presentence Investigation Report, in violation of 18 U.S.C. 

S 641. Counts two and three of the indictment originally 

presented were dismissed. 

The district court sentenced Rudolph on October 23,

1996, to two concurrent 16-month terms of imprisonment, 

to be followed by 3 years of supervised release. In addition, 

the district court ordered Rudolph to pay a $7,500 fine for 

each count of conviction, for a total of $15,000. Final 

judgment was entered on October 28, 1996, and Rudolph 

filed a timely notice of appeal on October 31, 1996.1 

II. 

Rudolph asserts that it was improper for the district 

court to increase his offense level by two levels under 

U.S.S.G. S 2C1.1(b)(1) based on his admissions to the 

probation department that he had accepted two additional 

bribes that were not the subject of a charge. Section 2C1.1 

provides for a base offense level of ten for "offering, giving, 

soliciting, or receiving a bribe" and mandates a two-level 

increase if the offense "involved more than one bribe or 

extortion." See U.S.S.G. S 2C1.1(b)(1),(2). In reviewing the 

district court's application of S 2C1.1(b)(1), the factual 

findings are reviewed for clear error, while the application 

and interpretation of the Guidelines are subject to plenary 

review. See United States v. Felton, 55 F.3d 861, 864 (3d 

Cir. 1995). 

Rudolph is not challenging the court's finding that he 

accepted the two uncharged bribes. In fact, Rudolph

_________________________________________________________________ 

1. Although the notice of appeal listed only the docket number for 

Rudolph's conviction for the sale of the presentence report, and not the 

docket number for the bribery conviction, the government concedes that 

the omission of the docket number of the latter was an inadvertent 

typographical error as there was functionally only a single prosecution, 

plea hearing, presentence report and sentencing hearing and that 

Rudolph's brief clearly discloses an intent to appeal both convictions. 

The government stipulates notice, as it was neither misled or prejudiced. 

See Brief of Appellee at 3-4. We conclude under these circumstances 

that we have jurisdiction over the entire appeal. 

 4 
acknowledged during the sentencing hearing that he had 

admitted to the probation officer that he accepted bribes for 

three templates, and the district court considered that 

admission in making its finding that Rudolph had accepted 

three bribes. App. at 75. Rudolph's contention is that his 

two uncharged bribes do not qualify as relevant conduct for 

purposes of an enhancement under the sentencing 

guidelines. 

Under S 2C1.1(b)(1), the defendant's base offense is 

increased by 2 levels if more than one bribe is involved. In 

determining whether there has been more than one bribe, 

it is necessary to consider "relevant conduct" as defined in 

S 1B1.3. That section defines relevant conduct as "all acts 

and omissions committed, aided, abetted . . . procured, or 

willfully caused by the defendant . . . during the 

commission of the offense of conviction, in preparation for 

the offense of conviction, or in the course of attempting to 

avoid detection or responsibility for that offense." U.S.S.G. 

S 1B1.3(a)(1). Where the conduct at issue, if charged, would 

be groupable with a charged offense pursuant toS 3D1.2(d), 

however, the definition of relevant conduct also includes 

"all acts and omissions committed, aided, abetted. . . 

procured, or willfully caused by the defendant . . . that were 

part of the same course of conduct or common scheme or 

plan as the offense of conviction." U.S.S.G.S 1B1.3(a)(2). 

See also United States v. Wilson, 106 F.3d 1140, 1143 (3d 

Cir. 1997). 

Offenses can be part of "the same course of conduct" if 

"they are sufficiently connected or related to each other as 

to warrant the conclusion that they are part of a single 

episode, spree, or ongoing series of offenses." U.S.S.G. 

S 1B1.3, appl. note 9(B). Similarly, offenses may constitute 

part of a "common scheme or plan" if they are 

"substantially connected to each other by at least one 

common factor, such as common victims, common 

accomplices, common purpose, or similar modus operandi. 

U.S.S.G. S 1B1.3, application note 9(A). 

Here, had they been charged, Rudolph's two uncharged 

bribes would certainly have been groupable with the bribe 

charged in count one of the indictment. Thus, it was proper 

for the district court to consider them as relevant conduct 

 5 
if they "were part of the same course of conduct or common 

scheme or plan as the offense of conviction." U.S.S.G. 

S 1B1.3(a)(2). 

As indicated in the Presentence Investigation Report, 

Felix was "a highly credible cooperating defendant," and 

provided the probation department with information 

concerning his and Rudolph's respective roles in each of the 

three bribes. That information was corroborated by tape 

recorded conversations and by Rudolph's own admissions. 

Accordingly, we cannot say that the district court'sfinding 

by a preponderance of the evidence that the two uncharged 

bribes were "relevant conduct" as defined by the Sentencing 

Guidelines was erroneous. 

Rudolph asserts that relevant conduct that is uncharged 

may not be the basis of a sentencing enhancement. 

However, the Commentary to S 1B1.3 specifically notes that 

"conduct that is not formally charged or is not an element 

of the offense of conviction may enter into the 

determination of the applicable guideline sentencing range." 

Accordingly, this court has consistently rejected the 

argument that only charged conduct may be grounds for a 

sentencing enhancement. See United States v. Baird, 109 

F.3d 856, 863 (3d Cir.) ("conduct not formally charged . . . 

can be considered at sentencing"), cert. denied, 118 S. Ct. 

243 (1997); United States v. Sokolow, 91 F.3d 396, 411 (3rd 

Cir. 1996) (affirming district court's use of uncharged 

conduct for purposes of sentencing determination pursuant 

to S 1B1.3(a)(2)); United Sates v. Pollard, 986 F.3d 44, 47 

(3d Cir. 1993) ("the court may consider uncharged conduct 

in determining whether and how to apply upward or 

downward adjustments"). Cf. United States v. Frierson, 945 

F.2d 650, 652-54 (3d Cir. 1991) ("relevant conduct"

included offenses that were charged in the indictment but 

dropped pursuant to a plea agreement), cert. denied, 503 

U.S. 952 (1992). 

Rudolph's principal contention on this issue is that use 

of the uncharged bribes is precluded by our decision in 

United States v. Thomas, 961 F.2d 1110 (3d Cir. 1992). 

However, as the district court noted, Thomas is 

distinguishable. In Thomas we held it was impermissible to 

depart upward from the guideline range on the basis of 

 6 
uncharged crimes. Id. at 1120. In this case, the uncharged 

crimes are being used merely as part of the defendant's 

relevant conduct. We thus reject Rudolph's argument that 

Thomas is "controlling." Appellant's Br. at 24-25. 

Moreover, we recently held in Baird that "even in the plea 

bargain context, conduct underlying dismissed counts may 

support an upward departure." 109 F.3d at 860. The 

analysis in Baird was informed by the Supreme Court's 

decision in United States v. Watts, 117 S. Ct. 633, 635-36 

(1997), which held that a sentencing court could consider 

conduct of which a jury acquitted a defendant. See also 

United States v. Goggins, 99 F.3d 116, 119 (3d Cir. 1996) 

(conduct relating to dismissed counts or counts on which 

defendant is acquitted may be germane to imposition of 

enhancement under U.S.S.G. S 2D1.1(b)(1)), cert. denied, 

117 S. Ct. 1347 (1997). As we recognized in Baird, to the 

extent that Thomas is inconsistent with Watts, Watts is 

controlling. Baird, 109 F.3d at 866. 

We turn to Rudolph's request that we reject the district 

court's decision to consider his statements to the probation 

officer and "bar the usage of [his] admission based on a 

violation of due process." Appellant's Br. at 20. Rudolph 

argues that he made the admissions concerning the 

additional bribes because he faced an untenable choice 

during his presentence interview with the probation officer. 

He contends that he believed he would have been ineligible 

for the two-level downward adjustment for acceptance of 

responsibility pursuant to S 3E1.1 if he had refused to 

answer truthfully the probation officer's questions

concerning the two uncharged bribes. Therefore, faced with 

what he terms a "catch-22" situation because he was

concerned that an admission of that uncharged conduct 

would expose him to the S 2C1.1(b)(1) enhancement, 

Rudolph, through counsel, chose to acknowledge the 

uncharged conduct in order to obtain the adjustment for 

acceptance of responsibility. See App. at 13. 

Of course, as Rudolph states in his brief, the guidelines 

permit a defendant to "remain silent in respect to relevant 

conduct beyond the offense of conviction without affecting 

his ability to obtain a reduction under this subsection." 

U.S.S.G. S 3E1.1 application note 1(a)(emphasis added). In 

 7 
lieu of remaining silent, Rudolph, on the advice of counsel, 

chose to speak. Thus, contrary to his assertion, Rudolph 

was not put to a Hobson's choice, as he did not need to 

offer information on, or even respond to, questions

concerning relevant conduct beyond the strict parameters 

of his offense of conviction. See United States v. Taylor, 72 

F.3d 533, 551 (7th Cir. 1995). Nothing about the situation 

in which he was placed (which is no different from that in 

which numerous defendants find themselves) implicated his 

rights under the Due Process Clause. While there may have 

been miscalculation by Rudolph's counsel, there was no 

governmental coercion. 

There is some suggestion, although no explicit 

accusation, that the probation officer's questions may have 

misled Rudolph and/or his counsel as to the extent of 

Rudolph's responsibility to speak to uncharged conduct. 

Rudolph directs us to nothing in the record to support that 

suggestion. At the sentencing hearing, both parties agreed 

that there was no issue of fact with respect to Rudolph's 

admissions and, although the court arranged for the

probation officer to be present in the event either party 

wanted her to testify, see App. at 52, neither party called 

her. 

At the sentencing hearing, Rudolph's counsel conceded 

that he knew of no authority that would require a probation 

officer to give Miranda warnings. App. at 51. Moreover, it is 

clear from our prior precedent that while a court may 

consider a defendant's candor and remorse concerning a 

charged offense, a defendant's silence concerning 

uncharged conduct will not jeopardize this reduction. See 

United States v. Price, 13 F.3d 711, 735 (3d Cir.), cert. 

denied, 513 U.S. 853 (1994). We thus reject all of Rudolph's 

arguments based upon the use of his admissions of the two 

uncharged bribes, and hold that the district court neither 

erred nor abused its discretion in enhancing Rudolph's 

sentence pursuant to S 2C1.1(b)(1). 

III. 

Rudolph also contends that the district court erred as a 

matter of law in refusing to group together for purposes of 

 8 
calculating his appropriate offense level the bribery offense 

and the offense of sale of government property. He argues 

that the two counts should have been grouped pursuant to 

U.S.S.G. S 3D1.2, which would have resulted in an offense 

level equal to that for the most serious of the counts in the 

group pursuant to S 3D1.3. Although the plea agreement 

stipulated that the offenses were groupable under 

S 3D1.2(d), it expressly acknowledged that the stipulation 

did not bind the sentencing court. App. at 15. The district 

court found that the crimes did not "involve substantially 

the same harm," U.S.S.G. S 3D1.2, and therefore did not 

group the offenses. Accordingly, the district court adopted 

a final guideline range of 12 to 18 months instead of the 10 

to 16 month range that defendant sought. The 16 month 

sentence Rudolph actually received would have fallen 

within either range. 

Our review of the district court's interpretation and 

construction of the guidelines in refusing to group multiple 

offenses under S 3D1.2 is plenary. See United States v. 

Griswold, 57 F.3d 291, 295 (3d Cir.), cert. denied, 116 

S. Ct. 428 (1995); United States v. Bush, 56 F.3d 536, 537 

(3d Cir. 1995). The district court's factual findings in 

determining whether the offenses charged were part of one 

overall scheme or a continuing course of criminal conduct 

are reviewed for clear error. Griswold, 57 F.3d at 295; 

Bush, 56 F.3d at 537-38. 

The rationale underlying grouping for sentencing 

purposes is to prevent the imposition of "multiple 

punishment for substantially identical offense conduct." 

See U.S.S.G. Ch. 3 Pt. D, intro. comment. In that effort, the 

sentencing guidelines provide that "all counts involving 

substantially the same harm shall be grouped together into 

a single Group." U.S.S.G. S 3D1.2. See Seligsohn, 981 F.2d 

at 1425 ("The purpose [of S 3D1.2] is to impose incremental 

punishment for significant additional criminal conduct, but 

at the same time prevent double punishment for essentially 

the same conduct.") (internal quotations omitted). In 

addition, the concept of grouping was adopted, at least in 

part, "[i]n order to limit the significance of the formal 

charging decision." U.S.S.G. Ch. 3 Pt. D, intro. comment. 

Nevertheless, courts have not been given carte blanche to 

 9 
use their authorization to group offenses for sentencing 

purposes as a vehicle to override a prosecutor's decision to 

charge certain offenses and not others. Rather, counts may 

be grouped by the court only when they meet the specific 

requirements listed in U.S.S.G. S 3D1.2. 

The general principle applicable to grouping is set forth 

in the first sentence of S 3D1.2 under the heading "Groups 

of Closely-Related Counts" and provides, "[a]ll counts 

involving the same harm shall be grouped together in a 

single group." The guideline then gives four circumstances 

when "[c]ounts involve substantially the same harm within 

the meaning of this rule" and are to be grouped.2 These 

cover (a) counts involving a single victim and a single 

incident, (b) counts involving a single victim and connected 

incidents, (c) offenses in which one count is also a specific 

offense characteristic of another count, and (d) offenses 

where guidelines are based primarily on quantity or

contemplate continuing conduct. Unless the circumstances 

fall within the language of one of the four subsections, the 

offenses cannot be grouped. 

_________________________________________________________________ 

2. The relevant language in full is: 

 All counts involving substantially the same harm shall be grouped 

 together into a single Group. Counts involve substantially the same 

 harm within the meaning of this rule: 

 (a) When counts involve the same victim and the same act or 

 transaction. 

 (b) When counts involve the same victim and two or more acts or 

 transactions connected by a common criminal objective or 

 constituting part of a common scheme or plan. 

 (c) When one of the counts embodies conduct that is treated as a 

 specific offense characteristic in, or other adjustment to, the 

 guideline applicable to another of the counts. 

 (d) When the offense level is determined largely on the basis of 

the 

 total amount of harm or loss, the quantity of a substance 

 involved, or some other measure of aggregate harm, or if the 

 offense behavior is ongoing or continuous in nature and the 

 offense guideline is written to cover such behavior. 

U.S.S.G. S 3D1.2. 

 10 
The guideline enumerates those offenses that are eligible 

for grouping under subsection (d) and those that are not. 

See Seligsohn, 981 F.2d at 1425. Because the offenses at 

issue here, covered by S 2B1.1 (theft) andS 2C1.1 (bribery), 

are eligible for grouping the grouping determination must 

be made based upon the facts of the case, and the 

applicable guidelines (including specific offense 

characteristics and other adjustments) used to determine 

the offense level. 

In this case, the government stipulated in the plea

agreement that Rudolph's offenses should be grouped

pursuant to subsection (d) of S 3D1.2. App. at 19. That is 

the subsection Rudolph proffered in the district court, and 

the subsection the district court addressed at Rudolph's 

sentencing hearing. Subsection (d) authorizes grouping 

"[w]hen the offense level is determined largely on the basis 

of the total amount of harm or loss, the quantity of the 

substance involved, or some other measure of aggregate 

harm, or if the offense behavior is ongoing or continuous in 

nature and the offense guideline is written to cover such 

behavior." U.S.S.G. S 3D1.2(d) (emphasis added). 

We have previously explained that the language in 

subsection (d) emphasized above "is intended to require 

grouping where the offense conduct is ongoing or 

continuous and the offense level provided by the applicable 

offense guideline already takes into account the fact that 

there has been a course of harmful conduct." United States 

v. Ketcham, 80 F.3d 789, 796 (3d Cir. 1996) (emphasis 

added). Thus, subsection (d) seeks to eliminate duplication 

created by what is, in essence, merely an aggregation of 

harm or a course of conduct that has already been taken 

into account by the setting of the offense level. 

The district court assumed, without deciding, that 

Rudolph's offense conduct was ongoing and continuous but 

deemed it doubtful that accepting bribes and stealing a 

presentence report constitute the type of ongoing criminal 

conduct envisioned by S 3D1.2(d).3 App. at 67. The court, 

_________________________________________________________________ 

3. We will make the same assumption of continuity, despite similar 

doubt. We reject the theory offered by Rudolph's counsel at oral 

 11 
following our analysis in Ketcham, determined that 

grouping pursuant to S 3D1.2 was inappropriate because 

Rudolph's "offense levels provided by the applicable 

guidelines do not take into account a course of harmful 

conduct." App. at 67-68. We cannot find error in the 

district court's application of S 3D1.2(d). 

It is clear from the language of subsection (d) that if the 

offense level is not determined on the basis of amount of 

harm or loss, then grouping is not authorized under this 

subsection based on continuing conduct unless the offense 

guideline expressly takes into account the continuing 

nature of the conduct. An example of a guideline that does 

so appears in U.S.S.G. S 2G2.2(b)(4), which provides for a 

5-level increase "[i]f the defendant engaged in a pattern of 

activity." In contrast, nothing in SS 2B1.1 or 2C1.1, the 

guideline sections under which Rudolph was sentenced, 

explicitly takes into account a continuing course of 

conduct. Although S 2C1.1(b)(1) provides for an 

enhancement if there is more than one bribe, and 

Rudolph's offense level was enhanced accordingly because 

he took more than one bribe in exchange for INS templates, 

that enhancement did not encompass, and was not in any 

way based upon, Rudolph's theft of the Presentence 

Investigation Report. Yet those are the two offenses 

Rudolph argues we should group. 

In Bush, we stated that in grouping decisions "courts 

must distinguish between occasions when increasing the 

punishment for an additional count would punish the

defendant for conduct taken into account in another count 

_________________________________________________________________ 

argument that because the theft and two of the bribes were arranged 

and/or monitored by the government, Rudolph's activities were ongoing 

or continuous in nature. Rudolph's first two offenses were separated by 

approximately one year and, although Felix played a role in both, there 

is no evidence that Clement, who was the source of funds in the 

template bribe offense, had any connection to the theft of the PSR. See 

Bush, 56 F.3d at 541 (holding that district court would have acted 

properly in finding that defendant's five firearms purchases over a period 

of several months did not constitute a continuing course of conduct 

where guns were not purchased with funds from a common source nor 

were they all to be used for a particular purpose).

 12 
and those occasions when the added counts reflect 

additional criminal culpability." 56 F.3d at 538. Thus, in 

Griswold, we affirmed the district court's refusal to group 

certain firearms offenses where, as here, the defendant's 

"multiple counts encompassed numerous instances of 

illegal conduct" and the offense guideline under which 

defendant had been sentenced did not cover multiple

violations such that defendant would be punished for the 

same conduct under different counts. 57 F.3d at 296-97; cf. 

United States v. Riviere, 924 F.2d 1289, 1303-06 (3d Cir. 

1991) (holding that three firearms offenses which were 

based on essentially one instance of criminal conduct 

should have been grouped). 

Here, the district court noted that in Bush we stated that 

the guidelines provide that "[a]ll counts involving essentially 

the same harm shall be grouped into a single Group," 56 

F.3d at 538, but it reasoned that Rudolph's offenses caused 

analytically distinct harms. Admittedly, both of Rudolph's 

offenses compromised the public's trust in the government 

and its officials because a government official was involved. 

However, as the district court noted, Rudolph's acceptance 

of the bribes in exchange for templates could have enabled 

untold numbers of illegal aliens to create illegitimate proofs 

of residence in the United States, and thereby "undermines 

the United States policy on immigration by permitting a 

virtual unlimited number of persons to obtain permanent 

residency in this country." App. at 69. Rudolph's action in 

using his access to other public employees to obtain and 

sell a presentence report caused a distinct harm; it violated 

the privacy of the subject of the PSR by disseminating 

personal and confidential information about him or her to 

those who have no legitimate basis to read it, with

additional potential resultant harm. App. at 69-70.

Rudolph may have recognized on appeal that he fits 

within neither of the situations covered by subsection 

3D1.2(d), in that the offense levels of the relevant guidelines 

were not determined on the basis of aggregate harm or loss 

and they were not written to cover behavior that is"ongoing 

or continuous" in nature. Indeed, his appellate brief makes 

only scant effort to justify grouping under that subsection, 

despite the fact that subsection (d) was the cited basis for 

 13 
grouping in the stipulation. Instead, he argues, apparently 

for the first time, that grouping was also appropriate under 

subsections (b) and (c) of S 3D1.2. Because those 

arguments were not raised before the district court, we 

review for plain error. Fed. R. Crim. P. 52(b). 

By its terms, S 3D1.2(b) applies only to counts involving 

the same victim. U.S.S.G. S 3D1.2(b). According to the 

guideline commentary, "[f]or offenses in which there are no 

identifiable victims . . ., the `victim' for purposes of 

subsections (a) and (b) is the societal interest that is 

harmed." U.S.S.G. S 3D1.2, appl. note 2. See also Griswold, 

57 F.3d at 295-96 (citing application note 2 to S 3D1.2). As 

our discussion above suggests, one of the primary societal 

interests jeopardized by Rudolph's acceptance of the bribes 

was the integrity and efficacy of the nation's immigration 

policies, arguably a victimless crime. In contrast, the theft 

of the PSR was directed to an identifiable victim-- the 

individual for whom the PSR was prepared. Accordingly, the 

two offenses involved different victims, rendering subsection 

(b) of S 3D1.2 inapplicable. 

Subsection (c) authorizes grouping "[w]hen one of the 

counts embodies conduct that is treated as a specific 

offense characteristic in, or other adjustment to, the 

guideline applicable to another of the counts." U.S.S.G. 

S 3D1.2(c) (emphasis added). Rudolph argues that this 

subsection applies because the abuse of his position of 

trust and authority was embodied in the bribery count and 

was used as the basis for an upward adjustment on the 

theft count. 

In Griswold, we rejected an argument similar to that 

made by Rudolph here. There, the defendant argued that 

his status as a convicted felon was an essential element of 

one offense and a factor in setting the base offense level in 

another. Griswold, 57 F.3d at 296. Unpersuaded, we noted 

that "no conduct embodied in one of the counts is used . . . 

in the determination of the offense level for another count. 

Griswold's status as a convicted felon is implicated in 

establishing the base offense level for each offense. 

However, no separate conduct by Griswold resulted in 

double counting." Id. at 296-97. Accordingly, we held that 

subsection (c) did not apply. 

 14 
Similarly, although Rudolph's status as a public official 

affected both counts on which he was sentenced, the two 

counts addressed distinct criminal acts, neither of which 

encompassed conduct that affected Rudolph's sentence for 

the other. We therefore cannot find that the district court's 

failure to group the offenses under subsection (c) of section 

3D1.2 constituted error, much less plain error. 

IV. 

For the reasons set forth above, we will affirm the

judgment of conviction and sentence.4 

_________________________________________________________________ 

4. This opinion takes no position with respect to the concurring opinion 

of Chief Judge Becker which is directed to the Sentencing Commission 

rather than to the disposition of the case before us. 

 15 
BECKER,***** Chief Circuit Judge, concurring. Of the 

myriad challenges facing the Sentencing Commission when 

it drafted the Sentencing Guidelines, few were greater than 

the task of fashioning clear and sensible rules for the 

grouping of offenses. While what emerged in U.S.S.G. 

S 3D1.2 is a generally sensible and workable set of

principles, this case suggests to me that facets of the 

grouping Guidelines are forced, and result in formalistic 

rather than common sense dispositions that yield results 

contrary to the Commission's intent to limit the significance 

of the charging decision. While I join in Judge Sloviter's 

carefully written opinion for the court, and in the judgment, 

I write separately to suggest that the grouping guidelines 

would benefit from a redraft that would elevate substance 

and common sense over form. My comments thus pertain 

only to Part III of the opinion of the court. I note that, from 

its earliest days, the Commission has urged the federal 

judiciary to make suggestions for Guideline revision, 

viewing them as a means of implementing the ongoing

monitoring process. See U.S.S.G. Ch.1 Pt. AS 4(b) (stating 

that Commission will analyze judicial decisions to 

determine how to refine Guidelines); see also United States 

v. Woods, 24 F.3d 514, 518 n.4 (3d Cir. 1994) (discussing 

same). To its great credit, the Commission has frequently 

acted upon such suggestions. 

I 

I see the case as follows. Prior to the offenses of

conviction, Rudolph was known by the government's 

informant, Felix, to have sold stolen government property in 

return for bribes. The events leading to both the bribery 

offense and the sale of government property (i.e. theft) 

offense at issue involved an offer to pay a sum of money in 

return for goods stolen from the Justice Department. In the 

instance leading to the theft conviction, Felix made the 

illicit offer. In the instance leading to the bribery conviction, 

Felix facilitated an offer made by a third-party, Wesley 

Clement. In both cases: (1) Rudolph and his buyer haggled 

_________________________________________________________________ 

*****Honorable Edward R. Becker, United States Circuit Judge for the 

Third Circuit, assumed Chief Judge status on February 1, 1998. 

 16 
over the amount of the bribe; (2) Rudolph used his position 

with the INS to facilitate the transaction; and (3) the end 

result was precisely the same -- a theft of government 

property in return for a bribe. 

Under the standard for S 3D1.2(d) grouping announced in 

United States v. Ketcham, 80 F.3d 789, 796 (3d Cir. 1996), 

grouping is appropriate if: (1) the defendant's o ffense 

behavior has been found to be continuous or ongoing, and 

(2) the offense guidelines take his ongoing course of 

conduct into account. See S 3D1.2(d) (offense guidelines 

must be "written to cover" ongoing offense behavior). Both 

the district court and this court have assumed that

Rudolph's behavior was ongoing and continuous, see Op. at 

n.3, and the facts supporting the charged offenses,

combined with the fact that Rudolph admitted to two other 

(uncharged) bribes in return for INS templates on two other 

occasions, suggest that this assumption is correct.

As previously noted, grouping pursuant to subsection (d) 

also requires that the offense guidelines "already take into 

account the fact that there has been a course of harmful 

conduct." Ketcham, 80 F.3d at 796. The court concludes 

that neither S 2B1.1 nor S 2C1.1, the relevant offense 

guidelines here, explicitly takes a continuing course of 

conduct into account, and hence that Rudolph's offenses 

should not be grouped. While the court has correctly 

applied the law, I find this outcome extremely troubling. 

The express purpose of the grouping guidelines is to limit 

the significance of the formal charging decision and to 

prevent multiple punishment for substantially identical 

offense conduct, while still ensuring incremental 

punishment for significant additional conduct. See U.S.S.G. 

Ch. 3 Pt. D, intro. comment. The problem with S 3D1.2(d) 

is that, in spite of these goals, it requires that the offense 

guidelines be written to cover ongoing offense behavior. In 

other words, if we read the Guidelines literally, we could, as 

intimated in Ketcham, supra, be forced to reject a grouping 

because of how the offense guidelines are written when the 

reality of the offense conduct clearly shows substantially 

identical conduct. This seems to be an unnecessary and 

untoward exercise in formalism, with the added vice of 

 17 
effectively bringing the charging process back to the center 

of the sentencing calculus.1 

That is what happened here. In my view, the key criminal 

behavior underlying both of Rudolph's offenses is the theft 

of government property in return for bribes. The only 

difference is the particular item Rudolph was asked to steal 

from the Justice Department closet. Yet, because one 

offense was charged as a bribe and sentenced under 

S 2C1.1, and the other offense was charged as a sale of 

government property and sentenced under S 2B1.1, the 

offenses are held not to be groupable.2 Thus, it is the 

charging decision and not the actual offense conduct that 

is ultimately controlling the sentence here. 

The court correctly states that we have not been given 

the authority to group offenses "carte blanche" in order to 

"override a prosecutor's decision to charge certain offenses 

and not others," and that we are limited to the textual 

dictates of S 3D1.2. Op. at 9-10, 11. The court's statements, 

however, point out precisely the tension that currently 

exists between the policy behind the grouping notion, the 

purpose of which is, I reiterate, to limit the significance of 

the formal charging decision and to prevent multiple 

punishment for substantially identical offense conduct 

while still ensuring incremental punishment for significant 

additional conduct, and the actual directions that we are 

given in the Guidelines themselves. Not only are we not 

_________________________________________________________________ 

1. The problem with S 3D1.2 highlighted by this case is also reflective of 

a larger, systemic shift caused by the adoption of the Guidelines, for 

that 

regime has, as many commentators have recognized, worked a massive 

transfer of discretionary power from the courts to the U.S. Attorneys' 

offices. See Albert W. Alschuler, The Failure of Sentencing Guidelines: A 

Plea for Less Aggregation, 58 U. Chi. L. Rev. 901, 926-28 (1991). 

2. Section 2C1.1(b)(1) provides for a base offense level enhancement if 

more than one bribe is involved in the offense. As the court notes, see 

Op. at 12, Rudolph was subject to this enhancement because "he took 

more than one bribe in exchange for INS templates." If the PSI sale had 

been charged as a bribe, it could also have been considered in this 

multiple-bribe analysis, rendering grouping of the offenses appropriate. 

See also Op. at 5 (noting that had Rudolph's two uncharged bribes been 

charged, they would have been groupable with the bribe charged in 

count one of the indictment). 

 18 
given power to override the charging decision, but under 

S 3D1.2(d) as presently drafted, we are powerless to look 

beyond the charging decision because we must adhere to 

the text of the offense guidelines -- and not the actual 

offense conduct -- to decide if grouping is appropriate. 

What the foregoing analysis suggests is that the grouping 

guidelines suffer from a drafting flaw, for this result is not, 

I submit, what the Commission really intended. Neither is 

it good policy if that was the intended result. 

II 

This functional type of approach is also necessary to 

avoid analogous pitfalls arising under our current 

construction of S 3D1.2(b). Under that subsection, multiple 

counts are groupable when they "involve the same victim" 

and constitute "part of a common scheme or plan." See 

S 3D1.2(b). According to the guideline application notes, 

when there is no identifiable victim, the "victim" for 

purposes of a S 3D1.2(b) analysis is "the societal interest 

that is harmed." See id., appl. note 2. In the present case, 

the court has rejected Rudolph's subsection (b) claim (i.e. 

that his theft and bribery offenses were part of a common 

scheme and involved the same victim) based on the 

conclusion that the primary societal interest affected by 

"Rudolph's acceptance of the bribes was the integrity and 

efficacy of the nation's immigration policies," whereas the 

victim of the PSI theft offense was the individual with 

respect to whom the PSI was prepared. See Op. at 14. As 

we are reviewing here for plain error, see Op. at 14, I 

cannot fault this result. The court's subsection (b) victim 

analysis, however, suffers from the same reliance on 

formalisms that hampers the subsection (d) analysis. 

There are at least two ways to look at a bribery offense 

when we try to assess who is the "victim" of the crime. On 

the one hand, we could examine the nature of the 

individual who accepted the bribe. On the other hand, we 

could also examine the nature of the task or property that 

was exchanged as consideration for the bribe. In this case, 

the court has chosen to assess solely the nature of the 

consideration to determine who or what is the "victim." Not 

surprisingly, the court concludes that the stolen INS 

 19 
template affects the integrity of the immigration laws while 

the PSI affects the individual who is its subject. But if we 

had looked instead to the nature of the bribe acceptor, our 

analysis would have been quite different. In both Rudolph's 

bribery and sale of government property offenses, we would 

find a Justice Department official who jeopardized the 

integrity of his agency by accepting bribes. Viewed in that 

light, in both instances the harm caused would be the 

undermining of the citizenry's trust in government and its 

officials. Indeed, the district court noted that this was a 

common ground between Rudolph's offenses. See App. at 

69-70. 

The unfortunate result of the court's analysis is that a 

defendant like Rudolph who is charged with stealing one 

template and one PSI (even though there was evidence that 

Rudolph had stolen another template) is not eligible to have 

his offenses grouped, whereas if he happened to be charged 

with stealing the two templates, his offenses could have 

been grouped under subsection (b). By limiting our analysis 

to one side of the bribery equation, our interpretation of the 

Guidelines enforces formalism over the plain reality that 

there was one criminal scheme and it just so happened that 

the defendant was caught stealing a template and a PSI 

rather than two templates or two PSIs. 

Moreover, application note 2 to S 3D1.2 also states: 

 [T]he "victim" for purposes of subsections (a) and (b) [in 

 non-identifiable victim cases] is the societal interest 

 that is harmed. In such cases, the counts are grouped 

 together when the societal interests that are harmed 

 are closely related. . . . Ambiguities should be resolved 

 in accordance with the purpose of this section as 

 stated in the lead paragraph, i.e., to identify and group 

 "counts involving substantially the same harm." 

This application note demonstrates the Commission's

recognition that the determination of what interest is 

harmed will necessarily be analytically imprecise. I believe, 

therefore, that this note directs us to rely ultimately not on 

a metaphysical parsing of what elements of society were 

harmed, but, so long as the societal interests are closely 

related, on whether the real elements of the offense suggest 

 20 
that there is only one ultimate harm embodied in both 

counts. See United States v. Riviere, 924 F.2d 1289, 1305 

(3d Cir. 1991) (applying earlier version of application note 

2 and basing grouping decision on S 3D1.2 policy grounds). 

While I agree that the subject of the PSI is properly 

identified as a victim, I believe that because there has been 

a theft of Justice Department property, the government and 

the attendant societal interests are also implicated as 

victims by the sale of the PSI, and that a less formalistic 

approach could therefore suggest that grouping is 

appropriate here. 

My approach is supported by a recent Seventh Circuit 

decision addressing a related "same victim" question. In 

United States v. Wilson, 98 F.3d 281 (7th Cir. 1996), the 

defendant pled guilty to charges of money laundering and 

mail fraud arising out of a Ponzi scheme. Relying on a line 

of authority that proposed that the victim of mail fraud is 

the person defrauded, while the victim of money laundering 

is society at large, the government argued that these two 

offenses were inappropriate for grouping under subsection 

(b) because they involved different victims, and thus 

different harms. See Wilson, 98 F.3d at 283. Although 

finding the government's contention to be correct in the 

abstract, the court disagreed that this theoretical victim 

analysis compelled the conclusion that grouping was

inappropriate: 

 [W]hen the defendant is convicted of laundering the 

 proceeds of his fraud . . . as Wilson was here, there is 

 intuitive force to the argument that the victim of the 

 fraud is also a victim of the transaction designed to 

 hide or "cleanse" the funds of which she was

 defrauded. 

Id. (internal citation omitted). I believe the Seventh Circuit's 

decision to apply its "intuitive force" rationale in these 

circumstances once again demonstrates that we must look 

to the actual offense conduct and the nature of the criminal 

scheme involved -- and not just rely on abstract victim 

analysis or other formalisms -- to give meaning to the 

Commission's intent behind the grouping guidelines.

 21 
III 

The animating purpose of the grouping rules is to identify 

and recognize when multiple counts of conviction"are so 

closely intertwined with other offenses that conviction for 

them ordinarily would not warrant increasing the guideline 

range," and to sanction accordingly. See U.S.S.G. Ch. 3, Pt. 

D. intro. comment; see also Wilson, 98 F.3d at 282 (basic 

goal of S 3D1.2 is to combine offenses involving closely 

related counts). To impose sentences consistent with this 

purpose, federal sentencing judges must be able to assess 

the factual realities of the conduct underlying the

convictions to determine when the counts are related 

enough to demand grouping. Section 3D1.2(d), as currently 

written, and S 3D1.2(b), as currently construed, stand in 

the way of this process, and the sentence imposed on 

Deandre Rudolph bears this out. 

Therefore, in addition to the revised construction of 

subsection (b) proposed supra, I also suggest to the 

Sentencing Commission that a redraft of S 3D1.2(d) may be 

in order. One possibility would be to draft an application 

note relating to the list of specific offenses that "are to be 

grouped" under subsection (d).3 The new note could state 

that inclusion of the offenses at issue on this list raises a 

rebuttable presumption that grouping is appropriate so 

long as the offense behavior is ongoing or continuous in 

nature, and so long as the purposes of the guidelines would 

be served by grouping the counts. By the terms of this 

presumption, grouping could be appropriate even in the 

absence of explicit language in the offense guidelines 

accounting for a continuing course of conduct. This would 

leave the grouping analysis to the judgment of the district 

_________________________________________________________________ 

3.Section 3D1.2(d) includes a list of offense guidelines, the offenses 

covered by which "are to be grouped under this subsection." See 

S 3D1.2(d). Our current construction of that subsection teaches that 

inclusion on this list does not mean that grouping is to be automatic, see 

United States v. Seligsohn, 981 F.2d 1418, 1425 (3d Cir. 1992); see also 

United States v. Harper, 972 F.2d 321, 322 (11th Cir. 1992) (cited in 

Seligsohn) (grouping pursuant to the subsection (d) "to be grouped' list 

not automatic because in some circumstances automatic grouping may 

detract from main purposes of S 3D1.2). 

 22 
court, rather than mandating its reliance on the formalities 

of the charging process.4 

Another possibility would be to eliminate the "written to 

cover such behavior" clause entirely, and replace it with 

language requiring that the offense conduct underlying the 

potentially groupable counts be "closely intertwined." In 

that case, subsection (d) would read: 

 . . . or if the offense behavior is ongoing or continuous 

 in nature and the offense behavior underlying one of 

 the counts is closely intertwined and represents 

 substantially the same type of wrongful conduct as 

 another of the counts. 

Yet another possibility would be to replace the"written to 

cover" clause with a more general cross-reference to the 

policy goals outlined in the in the introductory comment to 

Chapter 3, Part D. In that case, the subsection could read: 

 . . . or if the offense behavior is ongoing and 

 continuous in nature and the decision to group is 

 necessary to prevent multiple punishment for

 substantially identical offense conduct. 

_________________________________________________________________ 

4. One can see this type of approach being applied in other cases that 

functionally construe S 3D1.2(d). For example, the Eighth Circuit has 

held that a S 2F1.1 (fraud/counterfeiting) offense and a theft offense 

should be grouped under subsection (d) when they both arise out of the 

defendant's theft and forgery of U.S. Treasury instruments. See United 

States v. Manuel, 912 F.2d 204, 206-07 (8th Cir. 1990). The court 

concluded that: 

 Guideline section 3D1.2(d) specifically lists Guidelines sections 

 2F1.1 and 2B1.1 as offenses that can be grouped together. U.S.S.G. 

 S 3D1.2(d). In light of the fact that these two counts both arose 

out 

 of Manuel's theft of United States Treasury instruments, we believe 

 that the counts are sufficiently linked to merit being grouped 

 together for purposes of section 3D1.2(d). 

Id. The Manuel court, having found that the two offenses at issue are 

included among the "to be grouped" list of 3D1.2(d), did not find it 

necessary to probe further. Instead, it considered whether grouping on 

the facts of the case would advance the policies behind S 3D1.2 by 

assessing whether the offenses were "sufficiently linked." 

 23 
I acknowledge that either type of amendment might 

generate new ambiguities in application. Such new 

ambiguities, however, would revolve around the actual facts 

of the case and the policies of S 3D1.2, and not around the 

abstract language of the offense guidelines. I believe that 

such an change could help remove the charging process 

from the analysis, as the Commission apparently intended, 

and relocate sentencing discretion with the sentencing 

judge. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 24