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. e du/thir dc ir c uit_1998/34Filed 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 AppelleeOPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Deandre Rudolph, who pled guilty to bribery and sal e of government property, appeals his sentence on the gr ounds that the district court (1) improperly enhanced hi s sentence pursuant to U.S.S.G. S 2C1.1(b)(1), and (2) improp erly failed to group the two convictions under U.S.S.G. S 3D1.2. Because there was no trial, most of the relevant fa cts 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 an d Naturalization Service and other Justice Department employees in return for illegal assistance. During the course of his subsequent cooperation with the gover nment, Felix identified, inter alia, the appellant, Deandr e Rudolph, an INS Special Agent based in Newark, New Jersey, a s one of those government employees. Felix told the agent s that in the fall of 1994, Rudolph had accepted a total o f $1,500 from him in return for an INS metal template, a dev ice that imprints a marking when fingerprints and signatures are affixed to alien registration "green" cards to demo nstrate authenticity. Felix cooperated in the ensuing inves tigation of Rudolph, during which several telephone calls be tween Felix and Rudolph were monitored.

In October 1995, Felix asked Rudolph to obtain a fe deral Presentence Report (PSR) prepared by the United Sta tes

Probation Office in the Southern District of New Yo rk in exchange for $1,000. Thereafter, Felix and Rudolph met on October 18, 1995 at a diner in Irvington, New Jerse y to discuss the proposed sale of the presentence report . At that meeting, Rudolph requested more specific informatio n identifying the subject of the report.

The following day, after Felix provided Rudolph wit h the date of birth of the subject of the report, Rudolph

2telephoned Felix from his INS office and told him t hat he

had the report. They agreed to meet that afternoon to make the exchange, but at that meeting Rudolph, who disp layed the PSR, sought more money than Felix had originall y offered because the PSR was highly confidential. Ul timately, 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 describe d as "an illegal document vendor," met by prearrangement so that Clement could purchase an INS metal template f rom Rudolph. During negotiations, Rudolph explained tha t this transaction was riskier than the sale of the templa te in the

fall of 1994 because this time there would be "came ras up in the ceiling." The three men met again an hour la ter, and Clement turned over $4,000 in cash for the template

. According to Felix, Clement purchased yet another t emplate shortly thereafter.

Rudolph was arrested on December 22, 1995. On January 18, 1996, a three-count indictment was file d in the

United States District Court for the District of Ne w 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 provid ing 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 b e induced to act in violation of his official duty by providi ng 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

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

time with sale of government property, namely a Presentence Investigation Report, in violation of 1 8 U.S.C. S 641. Counts two and three of the indictment origi nally presented were dismissed.

The district court sentenced Rudolph on October 23, 1996, to two concurrent 16-month terms of imprisonm ent, 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. F inal judgment was entered on October 28, 1996, and Rudol ph filed a timely notice of appeal on October 31, 1996 .1

II.

Rudolph asserts that it was improper for the distri ct court to increase his offense level by two levels u nder U.S.S.G. S 2C1.1(b)(1) based on his admissions to t he probation department that he had accepted two addit ional bribes that were not the subject of a charge. Secti on 2C1.1 provides for a base offense level of ten for "offer ing, giving, soliciting, or receiving a bribe" and mandates a tw o-level

increase if the offense "involved more than one bri be or extortion." See U.S.S.G. S 2C1.1(b)(1),(2). In revi ewing the district court's application of S 2C1.1(b)(1), the factual findings are reviewed for clear error, while the ap plication and interpretation of the Guidelines are subject to plenary review. See United States v. Felton, 55 F.3d 861, 8 64 (3d Cir. 1995).

Rudolph is not challenging the court's finding that he accepted the two uncharged bribes. In fact, Rudolph

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1. Although the notice of appeal listed only the do cket number for Rudolph's conviction for the sale of the presentenc e report, and not the docket number for the bribery conviction, the gover nment 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 hea ring and that Rudolph's brief clearly discloses an intent to appe al both convictions. The government stipulates notice, as it was neither misled or prejudiced. See Brief of Appellee at 3-4. We conclude under the se circumstances that we have jurisdiction over the entire appeal.

4acknowledged 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 ac cepted three bribes. App. at 75. Rudolph's contention is t hat his two uncharged bribes do not qualify as relevant con duct for purposes of an enhancement under the sentencing guidelines.

Under S 2C1.1(b)(1), the defendant's base offense i s increased by 2 levels if more than one bribe is inv olved. In determining whether there has been more than one br ibe, it is necessary to consider "relevant conduct" as d efined in

S 1B1.3. That section defines relevant conduct as " all acts and omissions committed, aided, abetted . . . procu red, or willfully caused by the defendant . . . during the commission of the offense of conviction, in prepara tion for the offense of conviction, or in the course of atte mpting to avoid detection or responsibility for that offense. " U.S.S.G. S 1B1.3(a)(1). Where the conduct at issue, if charg ed, would be groupable with a charged offense pursuant toS 3D 1.2(d), however, the definition of relevant conduct also in cludes "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, 11 43 (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 s ingle episode, spree, or ongoing series of offenses." U.S .S.G. S 1B1.3, appl. note 9(B). Similarly, offenses may c onstitute 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 opera ndi. U.S.S.G. S 1B1.3, application note 9(A).

Here, had they been charged, Rudolph's two uncharge d bribes would certainly have been groupable with the bribe charged in count one of the indictment. Thus, it wa s proper for the district court to consider them as relevant conduct

5if 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 Repor t, Felix was "a highly credible cooperating defendant, " and provided the probation department with information concerning his and Rudolph's respective roles in ea ch of the three bribes. That information was corroborated by tape recorded conversations and by Rudolph's own admissi ons. Accordingly, we cannot say that the district court' sfinding by a preponderance of the evidence that the two unc harged bribes were "relevant conduct" as defined by the Se ntencing

Guidelines was erroneous.

Rudolph asserts that relevant conduct that is uncha rged may not be the basis of a sentencing enhancement. However, the Commentary to S 1B1.3 specifically not es 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 sentencin g range." Accordingly, this court has consistently rejected t he argument that only charged conduct may be grounds f or a sentencing enhancement. See United States v. Baird, 109 F.3d 856, 863 (3d Cir.) ("conduct not formally char ged . . . can be considered at sentencing"), cert. denied, 11 8 S. Ct. 243 (1997); United States v. Sokolow, 91 F.3d 396, 411 (3rd Cir. 1996) (affirming district court's use of uncha rged conduct for purposes of sentencing determination pu rsuant to S 1B1.3(a)(2)); United Sates v. Pollard, 986 F.3 d 44, 47 (3d Cir. 1993) ("the court may consider uncharged c onduct in determining whether and how to apply upward or downward adjustments"). Cf. United States v. Friers on, 945 F.2d 650, 652-54 (3d Cir. 1991) ("relevant conduct" included offenses that were charged in the indictme nt but dropped pursuant to a plea agreement), cert. denied , 503 U.S. 952 (1992).

Rudolph's principal contention on this issue is tha t use of the uncharged bribes is precluded by our decisio n in United States v. Thomas, 961 F.2d 1110 (3d Cir. 199 2). However, as the district court noted, Thomas is distinguishable. In Thomas we held it was impermiss ible to depart upward from the guideline range on the basis of

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

crimes are being used merely as part of the defenda nt'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 t he plea bargain context, conduct underlying dismissed count s 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 co nsider 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. de nied, 117 S. Ct. 1347 (1997). As we recognized in Baird, to the extent that Thomas is inconsistent with Watts, Watt s is controlling. Baird, 109 F.3d at 866.

We turn to Rudolph's request that we reject the dis trict

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. R udolph argues that he made the admissions concerning the

additional bribes because he faced an untenable cho ice during his presentence interview with the probation officer.

He contends that he believed he would have been ine ligible for the two-level downward adjustment for acceptanc e of responsibility pursuant to S 3E1.1 if he had refuse d to answer truthfully the probation officer's questions concerning the two uncharged bribes. Therefore, fac ed with

what he terms a "catch-22" situation because he was concerned that an admission of that uncharged condu ct 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 guid elines permit a defendant to "remain silent in respect to relevant conduct beyond the offense of conviction without af fecting his ability to obtain a reduction under this subsec tion." U.S.S.G. S 3E1.1 application note 1(a)(emphasis add ed). In

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

chose to speak. Thus, contrary to his assertion, Ru dolph was not put to a Hobson's choice, as he did not nee d to offer information on, or even respond to, questions concerning relevant conduct beyond the strict param eters

of his offense of conviction. See United States v. Taylor, 72 F.3d 533, 551 (7th Cir. 1995). Nothing about the si tuation in which he was placed (which is no different from that in which numerous defendants find themselves) implicat ed his rights under the Due Process Clause. While there ma y 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 cond uct. Rudolph directs us to nothing in the record to supp ort that suggestion. At the sentencing hearing, both parties agreed that there was no issue of fact with respect to Rud olph'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 part y called

her.

At the sentencing hearing, Rudolph's counsel conced ed that he knew of no authority that would require a p robation officer to give Miranda warnings. App. at 51. Moreo ver, it is clear from our prior precedent that while a court m ay consider a defendant's candor and remorse concernin g a charged offense, a defendant's silence concerning uncharged conduct will not jeopardize this reductio n. 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 t he two uncharged bribes, and hold that the district court neither erred nor abused its discretion in enhancing Rudolp h'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 pur poses of

8calculating his appropriate offense level the bribe ry offense

and the offense of sale of government property. He argues that the two counts should have been grouped pursua nt to U.S.S.G. S 3D1.2, which would have resulted in an o ffense level equal to that for the most serious of the cou nts in the group pursuant to S 3D1.3. Although the plea agreem ent stipulated that the offenses were groupable under S 3D1.2(d), it expressly acknowledged that the stip ulation did not bind the sentencing court. App. at 15. The district

court found that the crimes did not "involve substa ntially 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 mon th sentence Rudolph actually received would have falle n within either range.

Our review of the district court's interpretation a nd construction of the guidelines in refusing to group multiple offenses under S 3D1.2 is plenary. See United State s v. Griswold, 57 F.3d 291, 295 (3d Cir.), cert. denied, 116 S. Ct. 428 (1995); United States v. Bush, 56 F.3d 5 36, 537 (3d Cir. 1995). The district court's factual findin gs in determining whether the offenses charged were part of one overall scheme or a continuing course of criminal c onduct 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 cond uct." See U.S.S.G. Ch. 3 Pt. D, intro. comment. In that e ffort, the sentencing guidelines provide that "all counts invo lving substantially the same harm shall be grouped togeth er into a single Group." U.S.S.G. S 3D1.2. See Seligsohn, 9 81 F.2d at 1425 ("The purpose [of S 3D1.2] is to impose inc remental punishment for significant additional criminal cond uct, but at the same time prevent double punishment for esse ntially the same conduct.") (internal quotations omitted). In addition, the concept of grouping was adopted, at l east in part, "[i]n order to limit the significance of the formal charging decision." U.S.S.G. Ch. 3 Pt. D, intro. co mment. Nevertheless, courts have not been given carte blan che to

9use their authorization to group offenses for sente ncing

purposes as a vehicle to override a prosecutor's de cision to charge certain offenses and not others. Rather, cou nts may be grouped by the court only when they meet the spe cific 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 cou nts involving the same harm shall be grouped together i n a single group." The guideline then gives four circum stances when "[c]ounts involve substantially the same harm within the meaning of this rule" and are to be grouped.2 T hese cover (a) counts involving a single victim and a si ngle 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) o ffenses where guidelines are based primarily on quantity or contemplate continuing conduct. Unless the circumst ances fall within the language of one of the four subsect ions, the offenses cannot be grouped.

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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 count s.

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

the total amount of harm or loss, the quantity o f 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 b ehavior.

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

10The guideline enumerates those offenses that are el igible

for grouping under subsection (d) and those that ar e not. See Seligsohn, 981 F.2d at 1425. Because the offens es at issue here, covered by S 2B1.1 (theft) andS 2C1.1 ( bribery), are eligible for grouping the grouping determinatio n must be made based upon the facts of the case, and the applicable guidelines (including specific offense characteristics and other adjustments) used to dete rmine

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 co urt, and

the subsection the district court addressed at Rudo lph's sentencing hearing. Subsection (d) authorizes group ing "[w]hen the offense level is determined largely on the basis of the total amount of harm or loss, the quantity o f the substance involved, or some other measure of aggreg ate harm, or if the offense behavior is ongoing or cont inuous in nature and the offense guideline is written to cove r 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 req uire grouping where the offense conduct is ongoing or continuous and the offense level provided by the ap plicable offense guideline already takes into account the fa ct that

there has been a course of harmful conduct." United States v. Ketcham, 80 F.3d 789, 796 (3d Cir. 1996) (emphas is added). Thus, subsection (d) seeks to eliminate dup lication created by what is, in essence, merely an aggregati on of harm or a course of conduct that has already been t aken into account by the setting of the offense level.

The district court assumed, without deciding, that Rudolph's offense conduct was ongoing and continuou s but deemed it doubtful that accepting bribes and steali ng a presentence report constitute the type of ongoing c riminal conduct envisioned by S 3D1.2(d).3 App. at 67. The court,

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3. We will make the same assumption of continuity, despite similar doubt. We reject the theory offered by Rudolph's co unsel at oral

11following our analysis in Ketcham, determined that

grouping pursuant to S 3D1.2 was inappropriate beca use Rudolph's "offense levels provided by the applicabl e guidelines do not take into account a course of har mful conduct." App. at 67-68. We cannot find error in th e district court's application of S 3D1.2(d).

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

offense level is not determined on the basis of amo unt of harm or loss, then grouping is not authorized under this subsection based on continuing conduct unless the o ffense guideline expressly takes into account the continui ng nature of the conduct. An example of a guideline th at does so appears in U.S.S.G. S 2G2.2(b)(4), which provide s for a 5-level increase "[i]f the defendant engaged in a p attern of activity." In contrast, nothing in SS 2B1.1 or 2C1. 1, the guideline sections under which Rudolph was sentence d, explicitly takes into account a continuing course o f 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 be cause he took more than one bribe in exchange for INS tem plates, 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 offense s Rudolph argues we should group.

In Bush, we stated that in grouping decisions "cour ts must distinguish between occasions when increasing the punishment for an additional count would punish the

defendant for conduct taken into account in another count

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argument that because the theft and two of the brib es were arranged and/or monitored by the government, Rudolph's activ ities were ongoing or continuous in nature. Rudolph's first two offens es 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 t heft of the PSR. See Bush, 56 F.3d at 541 (holding that district court w ould have acted properly in finding that defendant's five firearms purchases over a period of several months did not constitute a continuing c ourse of conduct where guns were not purchased with funds from a com mon source nor were they all to be used for a particular purpose).

12and those occasions when the added counts reflect

additional criminal culpability." 56 F.3d at 538. T hus, in Griswold, we affirmed the district court's refusal to group certain firearms offenses where, as here, the defen dant's "multiple counts encompassed numerous instances of illegal conduct" and the offense guideline under wh ich defendant had been sentenced did not cover multiple violations such that defendant would be punished fo r the

same conduct under different counts. 57 F.3d at 296 -97; cf. United States v. Riviere, 924 F.2d 1289, 1303-06 (3 d Cir. 1991) (holding that three firearms offenses which w ere based on essentially one instance of criminal condu ct should have been grouped).

Here, the district court noted that in Bush we stat ed 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 offense s caused analytically distinct harms. Admittedly, both of Ru dolph's offenses compromised the public's trust in the gove rnment and its officials because a government official was involved. However, as the district court noted, Rudolph's acc eptance of the bribes in exchange for templates could have enabled untold numbers of illegal aliens to create illegiti mate proofs of residence in the United States, and thereby "und ermines the United States policy on immigration by permitti ng a virtual unlimited number of persons to obtain perma nent residency in this country." App. at 69. Rudolph's a ction in using his access to other public employees to obtai n and sell a presentence report caused a distinct harm; i t violated the privacy of the subject of the PSR by disseminat ing 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 subsect ion 3D1.2(d), in that the offense levels of the relevan t 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 bri ef makes only scant effort to justify grouping under that su bsection, despite the fact that subsection (d) was the cited basis for

13grouping in the stipulation. Instead, he argues, ap parently

for the first time, that grouping was also appropri ate 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 inv olving the same victim. U.S.S.G. S 3D1.2(b). According to the guideline commentary, "[f]or offenses in which ther e are no identifiable victims . . ., the `victim' for purpos es of subsections (a) and (b) is the societal interest th at is harmed." U.S.S.G. S 3D1.2, appl. note 2. See also G riswold, 57 F.3d at 295-96 (citing application note 2 to S 3 D1.2). As our discussion above suggests, one of the primary s ocietal interests jeopardized by Rudolph's acceptance of th e bribes was the integrity and efficacy of the nation's immi gration 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. According ly, the two offenses involved different victims, rendering subsection (b) of S 3D1.2 inapplicable.

Subsection (c) authorizes grouping "[w]hen one of t he counts embodies conduct that is treated as a specif ic 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 th is subsection applies because the abuse of his positio n of trust and authority was embodied in the bribery cou nt and was used as the basis for an upward adjustment on t he

theft count.

In Griswold, we rejected an argument similar to tha t made by Rudolph here. There, the defendant argued t hat

his status as a convicted felon was an essential el ement of one offense and a factor in setting the base offens e level in another. Griswold, 57 F.3d at 296. Unpersuaded, we noted

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

in the determination of the offense level for anoth er count. Griswold's status as a convicted felon is implicate d in establishing the base offense level for each offens e. However, no separate conduct by Griswold resulted i n double counting." Id. at 296-97. Accordingly, we he ld that subsection (c) did not apply.

14Similarly, although Rudolph's status as a public of ficial

affected both counts on which he was sentenced, the two counts addressed distinct criminal acts, neither of which encompassed conduct that affected Rudolph's sentenc e for

the other. We therefore cannot find that the distri ct 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

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4. This opinion takes no position with respect to t he concurring opinion of Chief Judge Becker which is directed to the Sent encing Commission rather than to the disposition of the case before u s.

15BECKER,***** Chief Circuit Judge, concurring. Of th e

myriad challenges facing the Sentencing Commission when it drafted the Sentencing Guidelines, few were grea ter 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 forma listic rather than common sense dispositions that yield re sults contrary to the Commission's intent to limit the si gnificance of the charging decision. While I join in Judge Slo viter's carefully written opinion for the court, and in the judgment, I write separately to suggest that the grouping gui delines

would benefit from a redraft that would elevate sub stance and common sense over form. My comments thus pertai n only to Part III of the opinion of the court. I not e that, from its earliest days, the Commission has urged the fed eral judiciary to make suggestions for Guideline revisio n, 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 Unite d States v. Woods, 24 F.3d 514, 518 n.4 (3d Cir. 1994) (disc ussing same). To its great credit, the Commission has freq uently 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 pr operty in return for bribes. The events leading to both the b ribery offense and the sale of government property (i.e. t heft) 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 mad e the illicit offer. In the instance leading to the bribe ry conviction, Felix facilitated an offer made by a third-party, W esley Clement. In both cases: (1) Rudolph and his buyer h aggled

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*****Honorable Edward R. Becker, United States Circ uit Judge for the Third Circuit, assumed Chief Judge status on Februa ry 1, 1998.

16over 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 governm ent property in return for a bribe.

Under the standard for S 3D1.2(d) grouping announce d 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 guide lines 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 t wo other occasions, suggest that this assumption is correct.

As previously noted, grouping pursuant to subsectio n (d) also requires that the offense guidelines "already take into

account the fact that there has been a course of ha rmful conduct." Ketcham, 80 F.3d at 796. The court conclu des that neither S 2B1.1 nor S 2C1.1, the relevant offe nse guidelines here, explicitly takes a continuing cour se of conduct into account, and hence that Rudolph's offe nses should not be grouped. While the court has correctl y applied the law, I find this outcome extremely trou bling. The express purpose of the grouping guidelines is t o limit the significance of the formal charging decision an d to prevent multiple punishment for substantially ident ical 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 beha vior. In other words, if we read the Guidelines literally, w e could, as intimated in Ketcham, supra, be forced to reject a grouping because of how the offense guidelines are written w hen the reality of the offense conduct clearly shows substa ntially identical conduct. This seems to be an unnecessary and untoward exercise in formalism, with the added vice of

17effectively bringing the charging process back to t he center

of the sentencing calculus.1

That is what happened here. In my view, the key cri minal behavior underlying both of Rudolph's offenses is t he theft of government property in return for bribes. The on ly difference is the particular item Rudolph was asked to steal from the Justice Department closet. Yet, because on e offense was charged as a bribe and sentenced under S 2C1.1, and the other offense was charged as a sal e of government property and sentenced under S 2B1.1, th e offenses are held not to be groupable.2 Thus, it i s the charging decision and not the actual offense conduc t that is ultimately controlling the sentence here.

The court correctly states that we have not been gi ven 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 tex tual dictates of S 3D1.2. Op. at 9-10, 11. The court's s tatements, however, point out precisely the tension that curre ntly exists between the policy behind the grouping notio n, the purpose of which is, I reiterate, to limit the sign ificance of the formal charging decision and to prevent multipl e punishment for substantially identical offense cond uct while still ensuring incremental punishment for sig nificant additional conduct, and the actual directions that we are given in the Guidelines themselves. Not only are we not

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1. The problem with S 3D1.2 highlighted by this cas e is also reflective of a larger, systemic shift caused by the adoption of the Guidelines, for

that regime has, as many commentators have recognized, w orked a massive transfer of discretionary power from the courts to the U.S. Attorneys' offices. See Albert W. Alschuler, The Failure of Se ntencing 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 co nsidered in this multiple-bribe analysis, rendering grouping of the offenses appropriate. See also Op. at 5 (noting that had Rudolph's two un charged bribes been charged, they would have been groupable with the br ibe charged in count one of the indictment).

18given power to override the charging decision, but under

S 3D1.2(d) as presently drafted, we are powerless t o look beyond the charging decision because we must adhere to the text of the offense guidelines -- and not the a ctual offense conduct -- to decide if grouping is appropr iate. What the foregoing analysis suggests is that the gr ouping guidelines suffer from a drafting flaw, for this re sult is not, I submit, what the Commission really intended. Neit her 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 vi ctim" and constitute "part of a common scheme or plan." S ee 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 pres ent case, the court has rejected Rudolph's subsection (b) cla im (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 affec ted by "Rudolph's acceptance of the bribes was the integri ty and efficacy of the nation's immigration policies," whe reas 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 1 4, I cannot fault this result. The court's subsection (b ) victim analysis, however, suffers from the same reliance o n formalisms that hampers the subsection (d) analysis

.

There are at least two ways to look at a bribery of fense when we try to assess who is the "victim" of the cr ime. On the one hand, we could examine the nature of the individual who accepted the bribe. On the other han d, we could also examine the nature of the task or proper ty that was exchanged as consideration for the bribe. In th is case, the court has chosen to assess solely the nature of the

consideration to determine who or what is the "vict im." Not surprisingly, the court concludes that the stolen I NS

19template affects the integrity of the immigration l aws while

the PSI affects the individual who is its subject. But if we had looked instead to the nature of the bribe accep tor, our analysis would have been quite different. In both R udolph's bribery and sale of government property offenses, w e 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 t he undermining of the citizenry's trust in government and its officials. Indeed, the district court noted that th is was a common ground between Rudolph's offenses. See App. at

69-70.

The unfortunate result of the court's analysis is t hat a defendant like Rudolph who is charged with stealing one template and one PSI (even though there was evidenc e that Rudolph had stolen another template) is not eligibl e 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 interpreta tion of the Guidelines enforces formalism over the plain realit y that there was one criminal scheme and it just so happen ed 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 societ al interest that is harmed. In such cases, the counts ar e grouped together when the societal interests that ar e harmed are closely related. . . . Ambiguities shoul d be resolved in accordance with the purpose of this secti on as stated in the lead paragraph, i.e., to ident ify and group "counts involving substantially the same har m."

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 ultima tely 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 offens e suggest

20that there is only one ultimate harm embodied in bo th

counts. See United States v. Riviere, 924 F.2d 1289 , 1305 (3d Cir. 1991) (applying earlier version of applica tion note 2 and basing grouping decision on S 3D1.2 policy gr ounds). While I agree that the subject of the PSI is proper ly identified as a victim, I believe that because ther e has been a theft of Justice Department property, the governm ent and the attendant societal interests are also implicate d as victims by the sale of the PSI, and that a less for malistic approach could therefore suggest that grouping is appropriate here.

My approach is supported by a recent Seventh Circui t decision addressing a related "same victim" questio n. In United States v. Wilson, 98 F.3d 281 (7th Cir. 1996 ), the defendant pled guilty to charges of money launderin g and mail fraud arising out of a Ponzi scheme. Relying o n a line of authority that proposed that the victim of mail fraud is the person defrauded, while the victim of money lau ndering is society at large, the government argued that the se two offenses were inappropriate for grouping under subs ection (b) because they involved different victims, and th us different harms. See Wilson, 98 F.3d at 283. Althou gh finding the government's contention to be correct i n the abstract, the court disagreed that this theoretical victim analysis compelled the conclusion that grouping was inappropriate:

[W]hen the defendant is convicted of launder ing the proceeds of his fraud . . . as Wilson was he re, there is intuitive force to the argument that the vic tim of the

fraud is also a victim of the transaction de signed to

hide or "cleanse" the funds of which she was

defrauded.

Id. (internal citation omitted). I believe the Seve nth Circuit's decision to apply its "intuitive force" rationale i n 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 vi ctim analysis or other formalisms -- to give meaning to the Commission's intent behind the grouping guidelines.

21III

The animating purpose of the grouping rules is to i dentify and recognize when multiple counts of conviction"ar e so closely intertwined with other offenses that convic tion for them ordinarily would not warrant increasing the gu ideline range," and to sanction accordingly. See U.S.S.G. C h. 3, Pt. D. intro. comment; see also Wilson, 98 F.3d at 282 (basic goal of S 3D1.2 is to combine offenses involving cl osely related counts). To impose sentences consistent wit h 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 relate d enough to demand grouping. Section 3D1.2(d), as cur rently written, and S 3D1.2(b), as currently construed, st and in the way of this process, and the sentence imposed o n Deandre Rudolph bears this out.

Therefore, in addition to the revised construction of subsection (b) proposed supra, I also suggest to th e Sentencing Commission that a redraft of S 3D1.2(d) may be in order. One possibility would be to draft an appl ication 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 lis t raises a rebuttable presumption that grouping is appropriate so long as the offense behavior is ongoing or continuo us in nature, and so long as the purposes of the guidelin es would be served by grouping the counts. By the terms of t his presumption, grouping could be appropriate even in the absence of explicit language in the offense guideli nes accounting for a continuing course of conduct. This would leave the grouping analysis to the judgment of the district

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3.Section 3D1.2(d) includes a list of offense guide lines, the offenses covered by which "are to be grouped under this subs ection." See S 3D1.2(d). Our current construction of that subsec tion 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 Ci r. 1992) (cited in Seligsohn) (grouping pursuant to the subsection (d) "to be grouped' list

not automatic because in some circumstances automat ic grouping may detract from main purposes of S 3D1.2).

22court, rather than mandating its reliance on the fo rmalities

of the charging process.4

Another possibility would be to eliminate the "writ ten to cover such behavior" clause entirely, and replace i t with language requiring that the offense conduct underly ing the potentially groupable counts be "closely intertwine d." In that case, subsection (d) would read:

. . . or if the offense behavior is ongoing or continuous in nature and the offense behavior underlyin g one of the counts is closely intertwined and repres ents substantially the same type of wrongful cond uct as

another of the counts.

Yet another possibility would be to replace the"wri tten to cover" clause with a more general cross-reference t o the policy goals outlined in the in the introductory co mment to Chapter 3, Part D. In that case, the subsection cou ld read:

. . . or if the offense behavior is ongoing and continuous in nature and the decision to gro up is necessary to prevent multiple punishment for substantially identical offense conduct.

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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 bo th arise out of the defendant's theft and forgery of U.S. Treasury inst ruments. See United States v. Manuel, 912 F.2d 204, 206-07 (8th Cir. 19 90). The court

concluded that:

Guideline section 3D1.2(d) specifically list s Guidelines sections 2F1.1 and 2B1.1 as offenses that can be grou ped 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 m erit being grouped together for purposes of section 3D1.2(d).

Id. The Manuel court, having found that the two off enses 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 be hind S 3D1.2 by assessing whether the offenses were "sufficiently l inked."

23I acknowledge that either type of amendment might

generate new ambiguities in application. Such new ambiguities, however, would revolve around the actu al facts of the case and the policies of S 3D1.2, and not ar ound the abstract language of the offense guidelines. I beli eve that such an change could help remove the charging proce ss from the analysis, as the Commission apparently int ended, and relocate sentencing discretion with the sentenc ing judge.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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