                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             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Precedential or Non-Precedential: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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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
