                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-26-1997

United States v. Haut
Precedential or Non-Precedential:

Docket 95-3673,95-3674




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT



                         Nos. 95-3673/36741


                      UNITED STATES OF AMERICA

                                      Appellant

                                 v.

                   AGATHA R. HAUT; HENRY D. HENSON
                    PAUL D. HAUT, JR. STEPHEN HAUT



         On Appeal from the United States District Court
             for the Western District of Pennsylvania
           (D.C. Nos. 94-cr-00027-3 and 94-cr-00027-4)



                       Argued October 29, 1996

         BEFORE:    SLOVITER, Chief Judge, COWEN and ROTH
                           Circuit Judges

                    (Filed   February 26, 1997    )


Bonnie R. Schlueter, Esq.
Shaun E. Sweeney, Esq. (Argued)
Office of United States Attorney
633 United States Post Office
 and Courthouse
Pittsburgh, PA 15219

          Counsel for United States of America

Richard F. Pohl, Esq.
140 South Main Street
Greensburg, PA 15601

          Counsel for Paul H. Haut, Jr.
     1
      These appeals are related to and were consolidated with the
appeals in Nos. 95-3593/3629/3630 and 96-3378. These four
appeals have on this day, contemporaneously with the filing of
this opinion, been disposed of by judgment orders.



                                 1
Carl M. Janavitz, Esq. (Argued)
710 Fifth Avenue
Suite 2000
Pittsburgh, PA 15219

          Counsel for Stephen B. Haut




                              OPINION



COWEN, Circuit Judge.


          This is an appeal by the government from two judgments

of sentence imposed by the United States District Court for the

Western District of Pennsylvania.     Defendant-appellees are Paul

Haut (P. Haut) and Stephen Haut (S. Haut).      Both were convicted

of conspiracy to commit malicious destruction of property by

means of fire (18 U.S.C. § 371).      S. Haut was also convicted of

mail fraud (18 U.S.C. § 1341).    The district court decreased the

offense levels of both defendants by 4 points, based on a finding

of minimal participation.   U.S.S.G., Guidelines Manual, § 3B1.2

(1995).   The district court further reduced their offense levels

an additional 6 points by way of a downward departure, based on a

finding that the government’s witnesses were not credible.

U.S.S.G. § 5K2.0.2

          We will affirm the district court insofar as it

decreased the offense levels of both P. Haut and S. Haut pursuant

     2
      At oral argument the government withdrew a third basis for
appeal that it had earlier asserted in its brief. That third
basis was a contention that S. Haut’s sentence should have been
enhanced two points pursuant to U.S.S.G. § 3C1.1.



                                  2
to section 3B1.2 (minimal participation).       However, finding no

legal justification in the Sentencing Guidelines for the downward

departure given to P. Haut and S. Haut pursuant to section 5K2.0

et seq. (other grounds for departure), we will reverse.



                                  I.

                      A.   Factual Background

           This appeal challenges the sentences received by P.

Haut and S. Haut for crimes arising out of the illegal burning of

a bar, the Inner Harbor Lounge.       The arson was accompanied by

mail fraud (the U.S. Mail was used to process fraudulent fire

insurance claims related to the arson) and culminated in the

conviction of four defendants, Henry Henson (Henson), Agatha R.

Haut (A. Haut), P. Haut, and S. Haut.       The activities of Henson

and A. Haut, whose sentences were not appealed by the Government,

are described below to provide background and to place the

actions of P. Haut and S. Haut in proper perspective.

           Henson, the Vice President of the Inner Harbor, Inc.

(owner and operator of the bar), was convicted of malicious

destruction of property by fire (18 U.S.C. § 844(i)), conspiracy

to commit malicious destruction of property by means of fire (18

U.S.C. § 371), and mail fraud (18 U.S.C. § 1341).       Henson was the

foremost offender in the group and his activities in the illegal

enterprise were extensive.   He personally set the fire and

solicited a bar patron to assist him in doing so.       He pondered

aloud whether to “mak[e] it look like wiring.”       Gov’t. App. at

16.   He offered to burn a friend’s financially troubled bookstore


                                  3
if the friend would help him burn the Lounge.    Henson took “sick

leave” from work on the three days surrounding the evening of the

fire.   He attempted to explain at trial that the reason for his

absence from work was not his health, but unelaborated “business

to take care of.”    III App. at 944.   Several witnesses testified

that of the four defendants, Henson most often brought up the

subject of destroying the Inner Harbor Lounge.    Finally, Henson

confided to a friend that he had burned the bar and used an

accelerant in the process.

            A. Haut, the President of the Inner Harbor, Inc., was

convicted of conspiracy to commit malicious destruction of

property by means of fire (18 U.S.C. § 371) and mail fraud (18

U.S.C. § 1341).    She is the mother of the three other defendants,

and fully participated in discussions at the Inner Harbor Lounge

in which she voiced her desire to burn down the bar.    She

specifically asked that various items stored in the attic of the

Lounge be removed before the planned fire, and later placed those

items in storage at her home.

            After entering into a one-year agreement listing the

Lounge for sale with a real estate agent, A. Haut abruptly

contacted the real estate agent approximately six weeks before

the fire.    For no apparent reason, she directed the agent to

cancel the contract and discontinue attempting to sell the

Lounge.   A. Haut purchased the fire insurance policy covering the

Inner Harbor less than a month before the fire.    This policy was

obtained after a period of more than four years in which there

was no coverage.    She declined the offer of the insurance company


                                 4
to mail her the insurance policy covering the bar, preferring

instead that it be obtained in person on the very day of the

fire.    On the basis of the fraudulent scheme of A. Haut, the

insurance company issued a check in the amount of $100,000.

            P. Haut and S. Haut are the only defendants with whom

we are directly concerned in this appeal.    P. Haut was convicted

of conspiracy to commit malicious destruction of property by

means of fire (18 U.S.C. § 371) and mail fraud    (18 U.S.C. §

1341).    At the direction of A. Haut, he removed some items from

the Lounge prior to the fire and participated in family

gatherings at which the arson was discussed.    S. Haut was

convicted of conspiracy to commit malicious destruction of

property by means of fire (18 U.S.C. § 371).    He also was present

at the Lounge when the arson was discussed.    The jury found that

neither brother took an active role in the actual burning or

benefited financially from its occurrence.



                B.   Proceedings in the District Court

            The district court determined that the appropriate base

offense level pursuant to the Sentencing Guidelines for both P.

Haut and S. Haut was 20.    U.S.S.G. § 2K1.4(a)(2)(B).3   Both fell
     3
      P. Haut was convicted of mail fraud and conspiracy to
commit malicious destruction of property by means of fire,
whereas S. Haut was convicted only of the latter. For offense
level computation purposes, P. Haut’s counts were grouped
together because they involved substantially the same harm.
Section 3D1.3(a) provides that when counts are grouped, the
offense level applicable to the group as a whole is that of the
count carrying the highest offense level. For this reason, S.
Haut and P. Haut both had a base offense level of 20, the level
indicated for conspiracy to commit arson, which is higher than
that specified for mail fraud. U.S.S.G. §§ 2F1.1 and 2K1.4.


                                  5
under Criminal History Category I, yielding a sentencing range of

33 to 41 months for each.    The district court, however, granted

both P. Haut and S. Haut a reduction of 4 points for minimal

participation, pursuant to Guidelines section 3B1.2.         In

addition, the district court granted each a further 6-point

downward departure by reason of the poor credibility of the

government’s witnesses, citing as authority Guidelines section

5K2.0.     The court stated that in granting the latter reduction,

it acted on its prerogative to adjudge the credibility of

witnesses “for sentencing purposes.”         P. Haut’s App. at 69.

             The district court found that four of the witnesses for

the prosecution were “poor . . . in terms of appearance,

demeanor, recollection, candor, and lucidity,” and described them

as reminiscent of “the cast from the movie, Deliverance”

[Deliverance depicts a coarse, brutal, and degraded group of

people].    P. Haut’s App. at 68.       The court justified its 6-point

departures based on its findings that “the clear weight of the

credible evidence supports the findings and conclusions of the

Court in this rather unique and bizarre prosecution.”         Id. at 69.

 In fact, the district judge related that had this matter been a

bench trial, he would have found the government’s witnesses to

have been so lacking in credibility that he would have acquitted

the defendants.    The 4-point reductions for minimal participation

were based on the court’s determination that the involvement of

both S. Haut and P. Haut was quite limited relative to Henson’s

and A. Haut’s substantial and pervasive role in the crimes.




                                    6
             After the court reduced the base offense level of both

S. Haut and P. Haut by 10 points, their final offense level was

10.   This resulted in an applicable guideline range of 6 to 12

months.     The district court imposed a sentence of 6 months home

detention and 5 years’ probation on each defendant.

                                 II.

            The district court had jurisdiction over this criminal

case pursuant to 18 U.S.C. § 3231 and 18 U.S.C. §§ 371, 844(i),

and 1341.    We exercise jurisdiction over this appeal pursuant to

28 U.S.C. § 1291.    When reviewing the sentencing decisions of the

district courts, we apply an “abuse of discretion” standard for

departures and other questions involving “the traditional

exercise of discretion by a sentencing court.”       United States v.

Koon, -- U.S. --, 116 S.Ct. 2035, 2046-47 (1996).
[W]hether a factor is a permissible basis for departure under any
          circumstances is a question of law, and the court of
          appeals need not defer to the district court’s
          resolution of the point. [A]n abuse of discretion
          standard does not mean a mistake of law is beyond
          appellate correction. A district court by definition
          abuses its discretion when it makes an error of law.


Id. at 2047 (citations omitted).       See also United States v.
Romualdi, 101 F.3d 971, 973 (3d Cir. 1996).       In contrast, “[w]e

review under a clearly erroneous standard the district court’s

factual determinations, such as whether a defendant receives a

reduced or increased offense level based on his role in the

offense . . . .”     United States v. Salmon, 944 F.2d 1106, 1126

(3d Cir. 1991).



                                 III.


                                  7
               We first turn to the government’s challenge to the

finding of the district court that S. Haut and P. Haut were

“minimal participants” warranting 4-point reductions in their

base offense levels.       U.S.S.G. § 3B1.2.   The Guidelines offer

limited insight into the precise meaning of “minimal

participant.”       Specifically, the Guidelines provide:

§ 3B1.2 Mitigating Role
Based on the defendant’s role in the offense, decrease the
          offense level as follows:

(a)     If the defendant was a minimal participant in any criminal
             activity, decrease by 4 levels.

(b)     If the defendant was a minor participant in any criminal
             activity, decrease by 2 levels.

In cases falling between (a) and (b), decrease by 3 levels.


U.S.S.G. § 3B1.2.4      Pursuant to section 3B1.2, the district court

decreased S. Haut’s and P. Haut’s offense levels by 4 points

each.       We find that the district court did not misconstrue the


        4
      The official commentary to section 3B1.2 of the Guidelines
explains that:
1. Subsection (a) applies to a defendant who plays a minimal
          role in a concerted activity. It is intended to cover
          defendants who are plainly among the least culpable of
          those involved in the conduct of a group. Under this
          provision, the defendant’s lack of knowledge or
          understanding of the scope and structure of the
          enterprise and of activities of others is indicative of
          a role as minimal participant.

2.    It is intended that the downward adjustment for a minimal
            participant will be used infrequently. It would be
            appropriate, for example, for someone who played no
            other role in a very large drug smuggling operation
            than to offload part of a single marihuana shipment, or
            in a case where an individual was recruited as a
            courier for a single smuggling transaction involving a
            small amount of drugs.



                                    8
legal meaning of “minimal participant” under subsection (a).     We

therefore must sustain the district court’s factual finding that

S. Haut and P. Haut each merit classification as minimal

participants unless we determine that the district court was

clearly erroneous in its fact-finding.    See, e.g., 18 U.S.C. §§

3557, 3742(d); United States v. Badaracco, 954 F.2d 928, 933 (3d

Cir. 1992)(quoting Inigo, 925 F.2d at 658); United States v.

Gonzales, 927 F.2d 139, 145 (3d Cir. 1991).

           The commentary to section 3B1.2 states that a minimal

participant is, inter alia, “among the least culpable of those

involved in the conduct of a group.”     U.S.S.G. § 3B1.2 (official

commentary).    The district court made a factual finding that

“[d]efendants had no [financial] interest in the Inner Harbor

[Lounge] and did not benefit in any manner from the fire at the

inn.”   P. Haut’s App. at 66.   Of the four defendants, S. Haut was

the only one to be convicted of only one crime, not two or three.

 With relation to the crime for which he was convicted,

conspiracy to commit malicious destruction of property by means

of fire, he was among the least involved members of the

conspiracy.    There is no indication that S. Haut directly

assisted in the burning of the Lounge or the removal of property

prior to the fire.    He apparently had no ownership interest in

the property or business of the Inner Harbor Lounge, and received

no monetary benefit from the fire.

           P. Haut’s classification as a minimal participant also

withstands scrutiny.    As with S. Haut, the district court made a

factual finding at sentencing that P. Haut had no real economic


                                 9
interest in the Inner Harbor Lounge or its furnishings, and that

he did not benefit financially from the fire.

          The district court concluded that, in comparison with

A. Haut and Henson, P. Haut and S. Haut were “among the least

culpable” of the conspirators.   See P. Haut’s App. at 65-66;

U.S.S.G. § 3B1.2.   In reaching its conclusion, the district court

correctly “assess[ed] the demeanor of the defendants and all the

relevant information to ascertain [their] culpability in the

crime.”   United States v. Hewin, 877 F.2d 3, 5 (5th Cir. 1989).

The district court did not act improperly in considering economic

gain and the extent of physical participation as indicia of the

level of culpability.   See United States v. Peters, 962 F.2d

1410, 1415 (9th Cir. 1992); United States v. Ocampo, 937 F.2d

485, 491 (9th Cir. 1991).

          Admittedly, P. Haut’s involvement in the events

surrounding the burning of the Lounge seems to have been more

substantial than that of S. Haut.     Nonetheless, the question

before us is not whether we would have characterized S. Haut and

P. Haut in precisely the same manner as the district court did.

Our concern is whether, given the factual findings made at trial,

the “minimal participant” designation is clearly erroneous.       We

are mindful that “[a] simple statement by the district court”

together with some supporting facts of record concerning a

defendant’s status as a minimal participant is “typically

sufficient to settle the question.”    Ocampo, 937 F.2d at 491.
          As we have noted in earlier cases, “[u]nder the clearly

erroneous standard, a finding of fact may be reversed on appeal


                                 10
only if it is completely devoid of a credible evidentiary basis

or bears no rational relationship to the supporting data.”

American Home Prod. Corp. v. Barr Lab., Inc., 834 F.2d 368, 370-

71 (3d Cir. 1987); see also Haines v. Liggett Group Inc., 975

F.2d 81, 92 (3d Cir. 1992).    In Gonzales, we stated that the

district court’s “characterization [of the defendant] as a minor

participant may have been generous,” but we appropriately

affirmed.   Gonzales, 927 F.2d at 145.   Here, too, we suggest that

the district court may have been “generous,” but find that it was

generous in a manner consistent with the Guidelines.    Our review

of the record has presented no reason to reverse the district

court’s determination that the “minimal participant”

classification accurately describes S. Haut and P. Haut.



                                IV.

                                 A.

            While the district court’s factual findings that S.

Haut and P. Haut were minimal participants survives our scrutiny,

we find that the 6-point downward departures granted by the

district court are unsupportable and without precedent.    The

district court stated at sentencing that it disagreed with the

finding of the jury and was granting capacious departures to

mitigate the impact of the jury verdict.   See P. Haut’s App. at

68-69.    This is at odds with both the intent of the Guidelines

and the division of responsibilities that underpins our jury

system.

            In passing the Sentencing Reform Act of 1984, Congress


                                 11
“sought reasonable uniformity in sentencing by narrowing the wide

disparity in sentences imposed for similar criminal offenses

committed by similar offenders.”     U.S.S.G., Ch. 1 Pt. A(3) at 2

(1995).   The Guidelines were created in part to protect a basic

precept of the rule of law, that like cases are treated alike.

At the same time, the approach taken by the Guidelines is not

simply a mechanistic application of tables to yield prescribed

sentences for crimes.   The Guidelines allow for numerous

adjustments to be made to better customize a sentence to the

individual situation of a defendant.     See U.S.S.G. Chs. 3, 4.   In

addition, departures from the Guidelines are warranted in some

circumstances after certain procedures are followed.     See

U.S.S.G. Ch. 5 Pt. K.   The well-established law instructs us that

a court may not depart unless it
finds that there exists an aggravating or mitigating circumstance
          of a kind, or to a degree, not adequately taken into
          consideration by the Sentencing Commission in
          formulating the [G]uidelines that should result in a
          sentence different from that described.


18 U.S.C. § 3553(b) (1988); see also United States v. Johnson,

931 F.2d 238, 241 (3d Cir.), 1991.

           Koon has recently shed new light on the proper
evaluation of departure factors, and we quote it at length here:
If the special factor is a forbidden factor, the sentencing court
          cannot use it as a basis for departure. If the special
          factor is an encouraged factor, the court is authorized
          to depart if the applicable Guideline does not already
          take it into account. If the special factor is a
          discouraged factor, or an encouraged factor already
          taken into account by the applicable Guideline, the
          court should depart only if the factor is present to an
          exceptional degree or in some other way makes the case
          different from the ordinary case where the factor is
          present. If a factor is unmentioned in the Guidelines,
          the court must, after considering “the structure and



                                12
          theory of both relevant individual guidelines and the
          Guidelines taken as a whole,” decide whether it is
          sufficient to take the case out of the Guideline’s
          heartland. The court must bear in mind the
          Commission’s expectation that departures based on
          grounds not mentioned in the Guidelines will be “highly
          infrequent.”


Koon, 115 S.Ct. at 2045 (emphasis added)(citations omitted).

          “Encouraged factors” offer sentencing courts assistance

by setting out a host of considerations that may take a

particular case outside the “heartland” of any individual

guideline, thereby warranting a departure.   See U.S.S.G. § 5K2.0

et seq.; U.S. v. Rivera, 994 F.2d 942, 948 (1st Cir. 1993).

“Discouraged factors” are those circumstances enumerated to be

“not ordinarily relevant” in determining departures.   See

U.S.S.G. § 5H1.1 et seq.; Rivera, 994 F.2d at 948.   A factor is

discouraged when, despite the Guidelines’ failure to provide for

sentencing adjustments based on it, its presence or absence is

insufficient “to transform a ‘heartland’ case into an unusual

case outside the heartland.”   Rivera, 994 F.2d at 948.    Such

factors include, inter alia, age, socio-economic status, and

community ties.   U.S.S.G. §§ 5H1.1, 5H1.6, 5H1.8.

          In the instant case, the district court made a

departure on the grounds that the witnesses for the prosecution

lacked credibility.   We have found no indication that the

Sentencing Commission specifically considered making upward or

downward adjustments when witness testimony supporting criminal

convictions is of dubious credibility.   No explicit statement of

the Commission makes this factor either encouraged, discouraged,

or forbidden.   Of the wide variety of other factors we know to


                                13
have been considered in formulating the Guidelines5——including

the defendant’s level of participation in a crime (hence the

“minimal participant” reduction)——none resembles that invoked by

the district court in the instant case.

          The introduction to the Guidelines manual makes clear

that:
The Commission intends the sentencing courts to treat each
          guideline as carving out a “heartland,” a set of
          typical cases embodying the conduct that each guideline
          describes. When a court finds an atypical case, one to
          which a particular guideline linguistically applies but
          where conduct significantly differs from the norm, the
          court may consider whether a departure is warranted.


U.S.S.G., Ch. 1 Pt. A(4)(b) at 5-6 (emphasis added).   In

assessing “whether a departure is warranted,” we have been

instructed by the Supreme Court to evaluate whether the proposed

ground for a departure is supported by “the structure and theory

of both relevant individual guidelines and the Guidelines taken

as a whole.”   Koon, 115 S.Ct. at 2045.   We find that necessarily

embedded in the heartland of every guideline is the assumption

that individuals sentenced under it have been found guilty beyond
     5
      See generally Kirk D. Houser, Downward Departures: The
Lower Envelope of the Federal Sentencing Guidelines, 31 DUQ. L.
REV. 361, 364 (1993)(explaining that Congress and the Sentencing
Commission considered the following factors in formulating the
Guidelines: grade of the offense; aggravating or mitigating
circumstances of the crime; the nature and degree of the harm
caused by the offense; the community view of the gravity of the
crime; the public concern generated by the offense; the deterrent
effect that a particular sentence may have on others; the current
incidence of the offense; defendant’s age, education, vocational
skills, mitigating or plainly relevant mental and emotional
conditions, physical condition (including drug abuse), previous
employment record, family ties and responsibilities, community
ties; role in the offense, criminal history, and degree of
dependence upon criminal activity for a livelihood.) See also
U.S.S.G. §§ 5H1.1 et seq., 5K2.0 et seq.




                                14
a reasonable doubt.    Here, the district court in effect claims

that “circumstance[s] of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission” places the

defendants outside the heartland of the guidelines under which

they were sentenced.    U.S.S.G. § 5K2.0 Policy Statement.   The

alleged “special circumstances” are simply that the defendants

did not in fact commit the crimes and should not have been found

guilty.

          However incredible the district court found the

witnesses, the jury determined the defendants to be guilty beyond

a reasonable doubt.    We find the district court’s view, that a

downward departure is justified when the district court doubts

the veracity of government witnesses and the guilty verdict they

support, to be categorically inappropriate.     We are mindful that

Koon explains that “with few exceptions, departure factors should

not be ruled out on a categorical basis.”     116 S.Ct. at 2051.

Nonetheless, the instant case involves one of those few

exceptions.   The district court's decision to depart was not

based upon a sound exercise of discretion, as we explain below.

          When civil cases are decided by bench trial rather than

by jury, we are careful to give “due regard . . . to the

opportunity of the trial court to judge of the credibility of the

witnesses.”   FED. R. CIV. P. 52(a).   By contrast, the federal

rules of civil and criminal procedure do not contain a

corresponding rule for cases tried by a jury.     In such cases, it

is firmly established that it is “the jury’s prerogative to

decide all questions of credibility.”     United States v. Gambino,


                                 15
926 F.2d 1355, 1367 (3d Cir.), 1991. See also United States v.

Rockwell, 781 F.2d 985, 990 (3d Cir. 1986)(“the jury, not the

court, . . . judges the credibility of witnesses”)(quoting

Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409,

412; United States v. Giampa, 758 F.2d 928, 935 (3d Cir.

1985)(“One of the oldest . . . rules of Anglo-American

jurisprudence is that the jury is the arbiter of credibility of

witnesses.”)(quoting United States v. Cravero, 530 F.2d 666, 670

(5th Cir. 1976)); Sheridan v. E. I. DuPont de Nemours & Co., 100

F.3d 1061 (3d Cir. 1996)(“Evaluation of witness credibility is

the exclusive function of the jury . . . .”)(quoting Bhaya v.

Westinghouse Elec. Corp., 832 F.2d 258, 262 (3d Cir. 1987).

             It is a basic tenet of the jury system that it is

improper for a district court to “substitute[] [its] judgment of

the facts and the credibility of the witnesses for that of the

jury.    Such an action effects a denigration of the jury system .

. . .”    Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir.),

Finally, as we stated in Giampa:
The trial judge cannot arrogate to himself this power of the jury
          simply because he finds a witness unbelievable. See
          United States v. Weinstein, [452 F.2d 704,] 713 [(2d
          Cir. 1971)]. Under our system of jurisprudence a
          properly instructed jury of citizens decides whether
          witnesses are credible. The trial judge is deemed to
          have no special expertise in determining who speaks the
          truth.


758 F.2d at 935 (3d Cir. 1985)(quoting United States v. Cravero,

530 F.2d 666, 670 (5th Cir. 1976)(footnotes and citations

omitted)).

           The attorney for S. Haut conceded at trial:



                                  16
I realize [my argument that a downward departure is warranted is]
          a stretch. I don’t know what else I can present to
          this Court that would induce it to downwardly depart.
          I think it’s absolutely ridiculous that [because of the
          Guidelines] I’m placed in the position of having to try
          and construct these somewhat tenuous arguments, but I
          don’t know any way to do it other than that. I know
          the result that should be achieved, and I’m trying to
          give the Court something to hang its hat on.


P. Haut’s App. at 62 (emphasis added).    As the attorney for the

Government aptly observed in response to this statement,

“[Defense counsel’s] proposed arrangement of the Guidelines . . .

is really an unsupported circumvention of the Guidelines, and

it’s not supported by the facts or the law or, most importantly,

justice in this case.”    P. Haut’s App. at 64-65 (emphasis added).

          The district court acknowledged its obligations in this

matter: “The jury believed the testimony of the prosecution; and,

therefore, we find that there is sufficient evidence which, if

believed, supports the [base offense level of 20 calculated by]

the probation officer.”    P. Haut’s App. at 65-66.   Nonetheless,

after conceding its responsibility to honor the jury verdict, the

district court backed away from doing so.    Cf. Rockwell, 781 F.2d

at 988 (“Yet in the very next sentence the district court, in

effect, abrogated its prior directive which had devolved to the

jury the task of determining all issues of credibility. . . .”).

 The district court disagreed with the judgment of the jury, as

reflected in this statement at sentencing:
We find that the evidence presented by these two witnesses far
          outweighs the evidence for the prosecution; and if the
          case against these Defendants was tried before this
          member of the Court in a bench trial, we would have
          found both Defendants not guilty.


P. Haut’s App. at 68.    After concluding that there was sufficient


                                 17
evidence which, if believed, supported the sentence corresponding

to offense level 20, the district court sought to substitute its

own judgment for that of the jury:
We find that the[] testimony [of two witnesses] was corrupt and
          polluted and must be received with great care and
          caution for sentencing purposes. We cannot sentence a
          citizen to prison on evidence based on the testimony of
          these two women. Their bias and interest in the
          outcome of this case is simply too apparent to be
          countenanced, at least for sentencing purposes.


Id. at 69 (emphasis added).     In concluding that the witnesses

were too “bias[ed] . . . to be countenanced, at least for

sentencing purposes,” the district court sought to short-circuit

the jury system and reduce the severity of the jury verdict.       Id.

(emphasis added).

                                   B.

          The district court set forth a theory under which, “for

sentencing purposes,” it was “empowered to make credibility

determinations.”     Id.   In an effort to reserve for itself a right

to assess credibility “in sentencing” when it is dissatisfied

with the jury verdict, the district court proposed the existence

of a relevant distinction between credibility assessment at trial

and at sentencing.

          To buttress its theory that a trial court is empowered

to make credibility determinations “for sentencing purposes,” the

district court cited three opinions of this court, United States
v. Miele, 989 F.2d 659 (3d Cir. 1993), United States v. Gaskill,

991 F.2d 82, 82-86 (3d Cir. 1993), and United States v.
Lieberman, 971 F.2d 989 (3d Cir. 1992).      These cases are

inapposite to the instant case.      Of these cases, only Miele



                                   18
directly addresses the question of credibility assesssment. It

holds that although there are some circumstances in which it is

appropriate for a court to consider credibility at sentencing,

those instances have to do not with the question of guilt, but

with specific matters of degree concerning underlying issues.

          In Miele, we held that a district court should “receive

with caution and scrutinize with care drug quantity or other

precise information provided by [an addict-informant] witness

before basing a sentencing determination on that information.”

989 F.2d at 667 (emphasis added).    Miele is distinguishable from

the present case because it nowhere invites district courts to

use the questionable reliability of a witness as a basis for

mitigating the effect of a jury verdict.   Instead, Miele informs

trial courts that when the severity of the sentence is calibrated

to a fact that was related to the court by an inherently suspect

witness, the court can take the credibility of the witness into

account at sentencing.   For instance, the district court can

determine that the defendant in fact produced an amount of drugs

different from that attested to by the witness.   But the district

court cannot determine, contrary to the finding of the jury, that

the defendant is not guilty of the crime for which he was

convicted, or that doubts as to the jury verdict in the judge’s

mind are sufficient to warrant a diminishment of the sentence.

Where a jury finds a defendant guilty of a crime beyond a

reasonable doubt, it is not the province of the district court to

interpose its own doubts and thereby distort the effect of a

guilty verdict.


                                19
          Miele noted that a section of the Guidelines entitled

“Resolution of Disputed Factors” explains that “the district

court may not rest its decision upon facts until it determines

that the fact or facts have sufficient indicia of reliability to

support a conclusion that they are probably accurate.”       Id. at

668 (citing U.S.S.G. § 6A1.3).     This section, however, explicitly

applies to “factor[s] important to the sentencing determination

. . . reasonably in dispute.”     U.S.S.G. § 6A1.3.   In the present

case, the only “disputed” matter germane to the departure was

whether the defendants actually committed the crimes for which

they were convicted.    That question, having been resolved beyond

a reasonable doubt by the jury at trial, was no longer

“reasonably in dispute” when sentencing occurred.     Id.

          In Gaskill, the trial court denied a departure to a

defendant solely responsible for the care of his mentally ill

wife, finding that it “had no choice” and was not free to grant a

departure.   991 F.2d at 83-84.   On remand, we informed the

district court that it “need not shrink from utilizing departures

when the opportunity presents itself and when circumstances

require such action to bring a fair and reasonable sentence.”

Id. at 86.     In that case, the conduct at issue was that of the

defendant, who possessed extraordinary family circumstances and

had been extremely attentive to the round-the-clock medical needs

of his wife.    Such extraordinary circumstances have been

recognized as legitimate bases for departure.    See, e.g., United
States v. Higgins, 967 F.2d 841, 845 (3d Cir. 1992); United

States v. Johnson, 964 F.2d 124, 128-29 (2d Cir. 1992); United



                                  20
States v. Big Crow, 898 F.2d 1326, 1331 (8th Cir. 1990).      But see

United States v. Thomas, 930 F.2d 526, 529-30 (7th Cir.), 1991

While Gaskill, 991 F.2d at 86, rightly emphasizes that

departures, used appropriately, ameliorate the rigidity of the

Guidelines in important ways, it gives no indication that

departures are appropriate solely because government witnesses

impress the district court as incredible.

             Lieberman held that a “sentencing court may depart

downward when the circumstances of a case demonstrate a degree of

acceptance of responsibility that is substantially in excess of

that ordinarily present.”     971 F.2d at 996.   As with Gaskill,

Lieberman does not support the district court’s departure because

it addresses the conduct of the defendant (his post-arrest

contrition and ameliorative behavior), not the credibility of the

witnesses.    Lieberman also upheld a second departure granted by

the district court based on the fact that the Government

“manipulated his indictment” and failed to group together two

substantially similar crimes, thereby raising his base offense

level improperly.     See id. at 998.   While that second departure

could be described as concerning the conduct of the prosecutor as

well as the defendant, the ultimate question was the true

behavior of the defendant: what was the appropriate way to

characterize the crimes for which the jury found the defendant

guilty?

          By contrast, in the instant case the district court

sought not to effectuate the findings of the jury in the manner

it believed to be required by law, but to limit the effect of


                                  21
those findings because it disagreed with the jury’s finding of

guilt.   The effect of the district court’s decision to depart

based on credibility was to drain the verdict of its proper

force.   The district court was obligated to sentence the

defendants within the range established by the Guidelines.

           Of course, a district court is permitted in appropriate

cases to enter judgment of acquittal when it finds that the

circumstances of the case make the jury’s verdict unsupportable.

FED. R. CRIM. P. 29; see United States v. Villard, 885 F.2d 117,

120 (3d Cir. 1989); United States v. Coleman, 811 F.2d 804, 807

(3d Cir. 1987),   Cf. EEOC v. Delaware Dept. of Health and Social

Services, 865 F.2d 1408, 1413 (3d Cir. 1989)(similar standard in

civil context).   But here, the district court concluded that

judgment as a matter of law would be inappropriate:    “We close by

noting that there is sufficient evidence which, if believed,

supports the verdict of the jury; and, therefore, we are not

privileged to grant a new trial or enter judgment [of

acquittal].”   P. Haut’s App. at 69.   The district court

nonetheless asserted the right to make the type of credibility

judgments we have shown to be inappropriate:    “However, for

sentencing purposes, we are empowered to make credibility

determinations, and in this case the clear weight of the credible

evidence supports the findings and conclusions of the Court in

this rather unique and bizarre prosecution.”   Id.
           At oral argument counsel for S. Haut sought to defend

this theory that the district court is free to assess the

credibility of witnesses and to give effect to those assessments


                                22
through the severity of the sentences imposed.    Counsel

hypothesized the existence of “a small space” in which a judgment

as a matter of law is not justified but neither is the sentence

corresponding to the jury’s verdict, because the poor quality of

the evidence against the defendant(s) “shock[s the] conscience.”

 Tape of Oral Argument, October 29, 1996 (on file with the Clerk,

U.S. Court of Appeals for the Third Circuit).    In that situation,

counsel suggested, a court is justified in departing downward.

While this argument is creative, we know of no case in which a

district court has been allowed to “split the difference” between

the “not guilty” verdict a bench trial would have yielded and the

conviction actually handed down by the jury.    To countenance such

a broad scope of judicial discretion would be to sap the

integrity of both the Guidelines and the jury system.


                               V.

          For the reasons stated, we will affirm the October 20,

1995, judgment of sentence insofar as it granted both defendants

a 4-point reduction for minimal participation.    We will reverse

the judgment insofar as it granted 6-point downward departures to

both defendants, and remand the case to the district court for

resentencing consistent with this opinion.




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