                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-31-1996

Zuk v. Eastern PA Psy Inst
Precedential or Non-Precedential:

Docket 96-1199




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Recommended Citation
"Zuk v. Eastern PA Psy Inst" (1996). 1996 Decisions. Paper 20.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/20


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       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

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                  No. 96-1333

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            UNITED STATES OF AMERICA

                      v.

              THOMAS DEGOVANNI,

                      Appellant

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On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
        (D.C. Criminal No. 95-00092-2)

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       Argued Wednesday, November 6, 1996

           BEFORE: BECKER, MCKEE
         and GARTH Circuit Judges

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       (Opinion filed January 2, 1997)

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             Gerald A. Stein, Esquire (Argued)
             Gerald A. Stein, P.C.
             1500 Market Street
             2727 Center Square West
              Philadelphia, Pennsylvania 19102

             Attorney for Appellant
                        Michael R. Stiles
                        United States Attorney
                        Walter S. Batty, Jr.
                        Assistant United States Attorney
                         Chief of Appeals
                        William B. Carr, Jr. (Argued)
                        Assistant United States Attorney
                        Office of the United States Attorney
                        615 Chestnut Street
                        Suite 1250
                        Philadelphia, Pennsylvania 19106

                        Attorneys for Appellee

                             ----------

                         OPINION OF THE COURT

                             ----------

GARTH, Circuit Judge:


         In the context of U.S.S.G. §3B1.1(c) which authorizes
an enhancement of two levels when a defendant is characterized as
a "supervisor", the question we must answer in this appeal is:
when is a supervisor not a supervisor? In the instant case, we
hold that one is only a "supervisor" under U.S.S.G. §3B1.1(c)
when he is so involved in, and connected to, the illegal activity
of others that he actually supervises their illegal conduct, and
is not just a supervisor by virtue of his de jure position in the
police department hierarchy.

                                I.
         Defendant Thomas DeGovanni was a police sergeant in the
39th District Five Squad in the city of Philadelphia. On
February 25, 1995, he was charged with Conspiracy to Commit
Offenses Against the United States in violation of 18 U.S.C.
§371; Theft Concerning Program Receiving Federal Funds in
violation of 18 U.S.C. §666; Obstruction of Justice in violation
of 18 U.S.C. §1503; and two counts of Interference with
Interstate Commerce by Robbery in violation of 18 U.S.C. §1951.
         On April 6, 1995, DeGovanni pled guilty to one count of
Interference with Interstate Commerce by Robbery and one count of
Obstruction of Justice. DeGovanni was sentenced on April 15,
1996 to 84 months incarceration and a $1,000 fine. DeGovanni now
appeals the sentence imposed, on grounds that his sentence was
improperly enhanced under U.S.S.G. §3B1.1(c) for his role as a
"supervisor".
         The district court had jurisdiction over this matter
under 18 U.S.C. §3231. We have appellate jurisdiction pursuant
to 28 U.S.C. §1291 and 18 U.S.C. §3742. Our review of the
district court's interpretation of the Sentencing Guidelines is
plenary, and we review the underlying factual findings for clear
error. See United States v. Bethancourt, 65 F.3d 1074, 1080 (3d
Cir. 1995), cert. denied 116 S. Ct. 1032 (1996); United States v.
Katora, 981 F.2d 1398, 1401 (3d Cir. 1992).   Here, because there
is no factual dispute concerning DeGovanni's role as a supervisor
in the police department or about the nature of his activities
within the conspiracy, we will exercise plenary review to
determine whether §3B1.1(c) should apply to the facts in this
case, so as to enhance DeGovanni's sentence two levels.

                               II.
         The sole question in this appeal is whether defendant
DeGovanni, who served as a sergeant in the 39th District Five
Squad, should be considered a supervisor in criminal activity -
an activity which involved members of the Philadelphia police
force, but did not require that he, DeGovanni, play an active,
supervisory role in the criminal offenses committed.
         The government charges that DeGovanni's failure to
report and otherwise deter his subordinates from engaging in
criminal misconduct, constituted the supervision to which
§3B1.1(c) refers. The government claims that "...DeGovanni can
best be described as agreeing to go along with and profit[ing]
from - as opposed to actually directing - the criminal conduct to
which he has admitted." Brief of Appellant DeGovanni at 7,
quoting Presentence Memorandum of Government (Exhibit A at 3).
As such, the government argues that, by virtue of DeGovanni's
supervisory title and responsibilities as sergeant, DeGovanni was
a supervisor within the meaning of §3B1.1(c).
         DeGovanni, on the other hand, asserts that he was no
more than a de jure supervisor in the 39th District Five Squad,
and did not actively participate in the criminal activities out
of which the charges arose. Indeed, in his brief on appeal,
DeGovanni characterizes his involvement as no more than passive.
He argues that, although he was a sergeant in the police
department, he did not supervise or manage his co-conspirators
during the commission of their crimes. Although he admits
participation in, and profiting from, the criminal activities, he
contends that he played a secondary role, and that he was a mere
'rank and file' participant. See Brief of Appellant DeGovanni at
12-14.
         DeGovanni further argues that his failure to report his
co-conspirators, although violative of his police oath and his
responsibilities as a sergeant, was not a decision motivated by
concerns for the group, and did not further the group's
activities. Finally, he claims that he "did not manage, direct,
supervise, or lead the others or decide when, where or how the
crimes with which he and the others were charged would be
committed. The Government concedes as much in its sentencing
memorandum". Id. at 12, citing Exhibit A at 1-3.
         The district court held that DeGovanni's participation
in the conspiracy, coupled with his failure to report the
activities of his co-conspirators, served to facilitate the
commission of the crimes and was an abdication of his supervisory
responsibility as a police sergeant. See Transcript of Hearing
(App. 24a-27a; 31a-32a). Applying the recommendation of the
Probation Department in the pre-sentence report and overriding
DeGovanni's objections, the court enhanced DeGovanni's sentence
by two levels pursuant to U.S.S.G. §3B1.1(c).

                               III.
         We hold that the district court improperly enhanced
DeGovanni's sentence. U.S.S.G. §3B1.1 provides,

              3B1.1.    Aggravating Role

                        Based on the defendant's role in the
                        offense, increase the offense level as
                        follows:

                        (a) If the defendant was an organizer
                        or leader of a criminal activity that
                        involved five or more participants or
                        was otherwise extensive, increase by 4levels.

                        (b) If the defendant was a manager or
                        supervisor (but not an organizer or
                        leader) and the criminal activity
                        involved five or more participants or
                        was otherwise extensive, increase by 3levels.

                        (c) If the defendant was an organizer,
                        leader, manager or supervisor in any
                        criminal activity other than described
                        in (a) or (b), increase by 2 levels.


         The Guidelines (in each of its three sub-sections) call
for a determination of whether the defendant was a supervisor in
the criminal activity. Courts which have addressed the issue of
supervision have required that, to be a supervisor, there must be
some degree of control over others involved in the commission of
the offense. See e.g., United States v. Roberts, 14 F.3d 502,
524 (10th Cir. 1993), aff'd after remand 43 F.3d 1484 (10th Cir.
1994), cert. denied 115 S. Ct. 1417 (1995); United States v.
Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990). More specifically,
the Guidelines direct that a defendant's role in the criminal
activity is the operative issue. Here, DeGovanni's sergeant-
status in the police department as an overall supervisor of other
police officers in the discharge of general police functions, was
not enough to substantiate an enhancement for active supervision
of other members of the conspiracy under §3B1.1(c). See United
States v. Fuentes, 954 F.2d 151, 153 (3d Cir.), cert. denied 504
U.S. 977 (1992) (sentences should not be enhanced under §3B1.1(c)
unless the defendant supervised or managed the actions of another
individual in the criminal enterprise); see generally, United
States v. Belletiere, 971 F.2d 961, 969-70 (3d Cir. 1992) (§3B1.1
enhancements apply to supervision of others in group activities).
Just as a defendant bank director in United States v. Jobe, ___
F.3d ___, No. 94-50646, 1996 WL 700146 at *17 (5th Cir., December
5, 1996), could not have his sentence enhanced for check kiting
and bank fraud because he did not manage or supervise the
criminal activity of check kiting, no more can DeGovanni have his
sentence enhanced because of his general overseer role as
sergeant.
         We reject the government's contention that DeGovanni's
status as a sergeant is relevant simply because the offenses at
issue were committed by police officers, acting "in their
capacities as Philadelphia Police Officers". Brief of Appellee
United States at 9. Although the defendants used their official
positions as cover for the illegal acts, the mere fact that
DeGovanni was their workplace supervisor, is not enough to render
him more culpable for purposes of the conspiracy than the other
'rank and file' participants. We find that the enhancement
contained in U.S.S.G. §3B1.1(c) does not apply absent such
heightened culpability, and that one must therefore have an
active supervisory role in the actual criminal conduct of others
to justify the enhancements contained in this section of the
Guidelines.
         We hold that DeGovanni's sentence which included a two-
level enhancement for his activities as a supervisor was not
warranted.   DeGovanni's 'rank and file' participation in the
criminal activity constituted mere participation, and nothing
more. His activities mirrored those of the other low-level
participants; his role was clearly distinguishable from primary
players in the conspiracy such as John Baird, and the evidence
of record does not support DeGovanni's role as a manager or
supervisor of the illegal activities engaged in by other police
officers.
         The only activity that distinguishes DeGovanni from
other participants was his silence -- he fulfilled his duties as
a sergeant in the police force without reporting the illegal,
extracurricular activities of his inferior officers. Such
silence, although reprehensible, does not make him a "supervisor"
of the charged criminal activity for purposes of §3B1.1(c).

                               IV.
         Accordingly, we will vacate the district court's
sentence which included a two-level enhancement under §3B1.1(c)
and remand for resentencing consistent with the foregoing
opinion.
