                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-23-2004

USA v. Cooper
Precedential or Non-Precedential: Precedential

Docket No. 03-2854




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                                                    PRECEDENTIAL

         THE UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                            ___________

                            No. 03-2854
                            ___________

                 UNITED STATES OF AMERICA

                                        Appellant

                                 vs.

                         FRED E. COOPER
                           ___________


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE WESTERN DISTRICT OF PENNSYLVANIA

                 (D.C. Criminal No. 02-cr-00192-1)
        District Judge: The Honorable William L. Standish
                           ___________

                   ARGUED MARCH 11, 2004

     BEFORE: SLOVITER and NYGAARD, Circuit Judges.
              and SHADUR,* District Judge.




*Honorable Milton I. Shadur, Senior District Judge for the United
States District Court for the Northern District of Illinois, sitting by
designation.
                    (Filed December 23, 2004 )


Bonnie R. Schlueter, Esq.
Mary Beth Buchanan, Esq.
Christine A. Sanner, Esq. (Argued)
Office of United States Attorney
700 Grant Street, Suite 400
Pittsburgh, PA 15219
        Counsel for Appellant

William F. Boyer, Esq. (Argued)
Sharp and Associates
2020 K Street, N.W., Suite 475
Washington, DC 2006
       Counsel for Appellee

                            ___________

                    OPINION OF THE COURT
                         ___________

NYGAARD, Circuit Judge.

       Appellee, Fred Cooper, pleaded guilty to one count of

securities fraud, in violation of 15 U.S.C. § 78j(b) and 18 U.S.C. § 2,

and to one count of making and subscribing to a false tax return, in

violation of 26 U.S.C. § 7206(1). He also accepted responsibility for

under-reported income. The District Court sentenced him to thirty-

six months probation, including six months house arrest, after

granting him a downward departure based on his charitable works and



                                  2
donations. The government appeals this sentencing decision and we

will affirm.

      I. FACTUAL AND PROCEDURAL BACKGROUND

       Sentencing is essentially a fact-driven analysis, even under the

standards announced in Prosecutorial Remedies and Tools Against

the Exploitation of Children Today Act of 2003 (“PROTECT Act”),

Pub.L. No. 108-21, 117 Stat. 650. Our review of sentences imposed

by a district court is likewise driven by the particular factual

background of each case. We must therefore first turn our attention

to the undisputed evidence presented to the District Court in the

present case.

       Cooper is the former CEO and CFO of Biocontrol

Technology, Inc. (“BICO”), a publicly-traded Pennsylvania

corporation engaged in the development of medical devices. Under

Cooper, BICO declared bankruptcy, leaving thousands of

shareholders with worthless stock. And yet ironically, in addition to

his substantial salary, while at BICO Cooper received valuable

bonuses in the form of warrants to purchase stock. In 1994 he

exercised some of these warrants, generating $321,217 in income,



                                  3
none of which he reported to the IRS as required by the tax code. Nor

did he report the fact that he pledged these warrants as collateral for

personal loans. Between 1995 and 1997, Cooper continued to

exercise warrants, generating $891,153 in income, which he again

failed to report. As a result, his total unpaid tax liability for 1994

through 1997 was approximately $487,000.

       In addition, in 1996 Cooper and two other BICO officers

pledged BICO certificates of deposit as collateral for three personal

loans totaling $623,000 without getting approval from the BICO

board of directors. Although required by law to report these actions

to the Securities and Exchange Commission, Cooper did not do so,

thereby misleading the investing public about BICO’s financial

condition.

       For his failure to fully report his 1994 income, Cooper

pleaded guilty to one count of making and subscribing to a false tax

return, in violation of 26 U.S.C. § 7206(1). For his failure to report

the use of the certificates of deposit, Cooper also pleaded guilty to

one count of securities fraud, in violation of 15 U.S.C. §§ 78j(b) and

18 U.S.C. § 2. As part of the terms of his plea agreement, Cooper



                                  4
accepted responsibility for the under-reported income in his tax

returns between 1995 and 1997.

       At the sentencing hearing, several witnesses testified on

Cooper’s behalf, including: Cooper’s oldest son, Garrett; two men

from a church in Aliquippa; Alonzo Roebuck, a young man Cooper

helped through high school and college; and former Pittsburgh Steeler

Mel Blount, who runs a boys’ home in Pennsylvania. The District

Court also received twenty-four letters concerning Cooper, most

pleading for leniency. The witnesses and letters described a variety

of Cooper’s charitable donations and activities. They recount his

generosities with both his money and his time for the benefit of

others. Specifically, the evidence showed that Cooper engaged in the

following “good works”:

       1) For twenty-seven years Cooper threw an annual
       Christmas party for underprivileged children, buying
       them valuable gifts with his own money.
       2) He founded and funded, at an unknown cost, an
       area athletic organization entitled “Athletes Against
       Drugs and Violence,” and provided equipment for the
       organization.
       3) He organized two youth football teams—one of
       which included his son—and went into inner-city
       Pittsburgh to offer kids the chance to participate,
       driving many of them back and forth to the suburbs
       for practice.


                                 5
       4) He donated his own money to enable four boys
       who participated on one of the football teams to leave
       their inner-city school and attend a better school in the
       suburbs. He also donated money to help some of
       them through college.
       5) He extensively mentored Roebuck, one of the boys
       on Cooper’s football team. Cooper frequently invited
       Roebuck to his house and helped him with family and
       school problems. Roebuck went on to graduate from
       college, and attributes his success to Cooper’s
       intervention.
       6) He arranged for BICO to make donations to several
       charities for two computer learning centers in
       depressed areas, to the Allegheny County Special
       Olympics, and to Pittsburgh’s Mercy Foundation. At
       Cooper’s behest, BICO also sponsored a charity event
       to raise money.
       7) He helped advise the Mel Blount Youth Home.

       The presentence report gave Cooper a base offense level of

seventeen. The government recommended a three-level reduction for

acceptance of responsibility. With a corresponding score of fourteen

and a criminal history category of I, the guidelines sentencing range

suggested a term of fifteen to twenty-one months in prison. However,

Cooper filed a motion seeking a two-level downward departure on the

grounds that the tax loss tables overstated the seriousness of his

offense, arguing that he had never received any actual income from

the undeclared stocks. He also sought a three-level downward

departure in recognition of his community and charitable events.


                                  6
       The District Court denied Cooper’s request for a departure on

the basis of the overstated seriousness of the offense, but granted a

four-level departure for his charitable activities—one level more than

he had requested. Accordingly, the District Court sentenced Cooper

to thirty-six months probation, including six months house arrest.

From the bench the District Court explained its reasons for departure

as follows:

       I think his community and charitable activities have
       been truly exceptional, and that’s just not the amount
       of money he spent on the things, but also the amount
       of personal effort, and work, and help that he has
       given to so many people, starting long before the
       criminal investigation began in this case. Therefore,
       resulting in a downward departure, going to be four
       levels in this case on that basis. . . .

       Now, the reason for the imposition of this sentence is
       as follows. A sentence of three years’ probation, with
       the condition of six months’ home detention, reflects
       the seriousness of the offenses in this case [and] takes
       into consideration the extensive charitable work that
       has been done by Mr. Cooper before and since the
       investigation began . . . which resulted in the present
       charges. And the three years probation addresses the
       sentencing goals of punishment and deterrence.

App. at 169, 174. The government appeals from the District Court’s

downward departure.

                         II. DISCUSSION


                                  7
A.     The PROTECT Act and the Standard of Review

       When signed into law in April of 2003, the PROTECT Act

brought about several fundamental changes in federal sentencing law.

For instance, the Act: prohibits downward departures based on new

grounds on remand; requires a government motion as a condition for

the grant of a level reduction for extraordinary acceptance of

responsibility; and reduces the number of federal judges on the

United States Sentencing Commission from at least three of the seven

members to no more than three. See PROTECT Act, Pub. L. No.

108-21, § 401. Presently relevant though, is the provision amending

18 U.S.C. § 3742(e). Before that particular amendment, the Courts

of Appeal did not review a downward departure decision de novo, but

instead asked whether the sentencing court abused its discretion in

granting the departure. Koon v. United States, 518 U.S. 81, 91

(1996). Now, however, the Courts of Appeal must engage in de novo

review, not only of a district court’s ultimate decision to depart, but

also of its “application of the guidelines to the facts.” 18 U.S.C. §

3742(e). If a departure is warranted, then the extent of the departure

granted by the district court is still reviewed under the pre-PROTECT



                                  8
Act abuse of discretion standard. United States v. Dickerson, 381

F.3d 251, 264 (3d Cir. 2004) (“[W]e are to continue to apply an abuse

of discretion standard as we review the extent of departures that have

been properly granted.”); United States v. Frazier, 340 F.3d 5, 14 n.4

(1st Cir. 2003); see also United States v. Mallon, 345 F.3d 943, 946

(7th Cir. 2003); United States v. Jones, 332 F.3d 1294, 1300 (10th

Cir. 2003). As for a district court’s findings of fact, our standard of

review remains unchanged, and we review them for clear error.

Dickerson, 381 F.3d at 261.

       The PROTECT Act also requires a sentencing judge to

explain any departure from the guidelines “with specificity in the

written order of judgment and commitment.” 18 U.S.C. § 3553(c)(2).

Although here the District Court did not issue written reasons for its

grant of a departure, it did explain its reasoning orally. We agree with

other the Courts of Appeal that have concluded that failing to provide

a written explanation for a departure is not cause for remand if the

departure is otherwise permissible and the district court’s reasoning

is persuasive. See United States v. Santiago, 2004 WL 2049754, at

*5 (2nd Cir. Sept. 15, 2004); United States v. Daychild, 357 F.3d



                                   9
1082, 1107–08 (9th Cir. 2004); United States v. Orchard, 332 F.3d

1133, 1141 (8th Cir. 2003).

B.     Application of the De Novo Standard of Review to the

       Downward Departure

       The District Court granted Cooper a downward departure

based on his good works. The sentencing guidelines discourage

departures for good works. United States v. Thurston, 358 F.3d 51,

78. (1st Cir. 2004). Only when those works are “exceptional” do the

guidelines permit them to serve as a basis for departure. Id. at 78–79.

Whether good works qualify as exceptional is evaluated with

reference to the offender’s wealth and status in life. See id. at 80.

More is expected of “high-level business executives” who enjoy

“sufficient income and community status so that they have the

opportunities to engage in charitable and benevolent activities.”

United States v. Haversat, 22 F.3d 790, 796 (8th Cir. 1994). Indeed,

“it is usual and ordinary, in the prosecution of similar white-collar

crimes involving high-ranking corporate executives . . . to find that a

defendant was involved as a leader in community charities, civic

organizations, and church efforts.” United States v. Kohlbach, 38



                                  10
F.3d 832, 838 (6th Cir. 1994). Moreover, we must be mindful that

individuals “who donate large sums because they can should not gain

an advantage over those who do not make such donations because

they cannot.” Thurston, 358 F.3d at 80. The relevant inquiry,

therefore, is not whether Cooper performed charitable works, but

whether those works, as found by the District Court, “were

exceptional enough to overcome the judgment of the Sentencing

Commission that a record of good works is a discouraged basis for

departure.” Id. at 79.

       We begin our analysis with the evidence of good works

presented to the District Court.     Like many similarly-situated

defendants, Cooper presented evidence of financial donations he

made personally and had BICO make to various charitable

organizations. Were this Cooper’s only evidence of good works, we

would not affirm the downward departure.        Cooper, however,

presents more.

       He organized and ran a youth football team in a depressed

area of Pittsburgh. Not only did he coach the young men who

participated, he became their mentor as well. Cooper even went so



                                11
far as to pay for four of the players on the team, including Roebuck,

to attend a suburban high school where they would find better

opportunities. And it was Cooper who expended the effort to find a

school that would accept the boys as a group, ensuring that they could

adjust to the new setting together. In addition, Cooper helped

Roebuck go to college. First to the University of Pittsburgh, and

when he did not get enough playing time on the University’s football

team, then to Edinboro University of Pennsylvania.           Roebuck

graduated from Edinboro after a successful four years of athletics and

academics, and he attributes his success to Cooper. These are not the

detached acts of charity one might ordinarily expect from a wealthy

business executive. They are, in a very real way, hands-on personal

sacrifices, which have had a dramatic and positive impact on the lives

of others.

       Moreover, when compared with a similarly-situated defendant

who received a downward departure based on good works, Cooper

favors well. In United States v. Serafini, 233 F.3d 758 (3d Cir. 2000),

we affirmed a downward departure for a wealthy state legislator who




                                  12
mentored a young man with a disability. 1 Serafini encouraged the

young man to attend college and loaned him tuition money. Id. at

774. The young man eventually became an attorney, and attributed

his success to the defendant. Id. We explained that the defendant’s

good works were personal in nature, thereby “distinguishing his acts

from the impersonal writing of checks that is the norm for many

wealthy individuals.” Id. at 776. Cooper’s good works, specifically

as they relate to Roebuck, are no less personal and substantial. He

mentored the underprivileged young man, who later attributed his

success to Cooper. Cooper also paid for not one, but four young men

to attend a high school together where they would have a better

opportunity to succeed. These acts are qualitatively different than the

detached donation of money. They are more personal, and we find

them to be exceptional.




1
 We decided Serafini before the new standard of review required by
the PROTECT Act. While we noted that our review of the decision
to depart was—at that time—deferential, at no point did we intimate
that we would have reversed the departure if our review was de
novo as it is now. See Serafini, 233 F.3d at 775. On the contrary, we
explained that the decision to grant a downward departure was not
clearly out of line with other then-existing reported cases. Id. (citing
United States v. Woods, 159 F.3d 1132, 1136 (8th Cir. 1998)).

                                  13
       We must acknowledge, however, that there exists case law

that is seemingly to the contrary. In United States v. Morken, 133

F.3d 628 (8th Cir. 1998), the Eighth Circuit reversed a downward

departure for a high-profile businessman who advised local

businesses, hired young people, served on his church council, and

raised money for charity. In United States v. Thurston, the First

Circuit held that a downward departure could not stand for a wealthy

businessman who, inter alia, took both family members and others

into his home for several weeks, tithed ten percent of his income, and

devoted several hours a week for unpaid service to his church. 358

F.3d at 51. These cases, however, are either distinguishable or

unpersuasive.

       Morken is distinguishable for the same reason that we

distinguished it in Serafini: the good works by the defendant in

Morken were “somewhat impersonal” in nature. Serafini, 233 F.3d

at 775. By contrast, here, as in Serafini, Cooper did not merely

donate money or serve in an advisory role in the community. Among

other things, he took it upon himself to mentor Roebuck and

others—a sacrifice of a personal nature.



                                 14
       It is true that the good works in Thurston could also be

construed as personal in nature—at least so far as the defendant took

others into his home for several weeks—and thus that case would be

more difficult to distinguish. However, we find Serafini to be more

presently analogous. As we have already explained, in Serafini we

found the defendant’s act of mentoring—to which a young man

attributed his success—to be an extraordinary good work. Cooper

mentored Roebuck and others in a similar fashion, and Roebuck

attributes his success to Cooper. We fail to see why Cooper’s good

works were any less extraordinary than those in Serafini.

       We are aware of the fact that Cooper’s failure to make

accurate reports to his shareholders contributed to the misconceptions

that they held about BICO’s financial health. We are also mindful of

the fact that thousands of shareholders lost millions of dollars when

the value of BICO’s stock plummeted. Downward departures for

good works, however, are permissible when the works are

exceptional. Cooper’s good works are exceptional and we agree with

the District Court’s grant of a downward departure. For these same

reasons, and considering the deference we must give to the District



                                 15
Court’s decision regarding the extent of the downward departure, we

will affirm the District Court’s order granting Cooper a four-level

downward departure.




                                16
United States v. Fred E. Cooper

No. 03-2854




SLOVITER, Circuit Judge, dissenting.

                                 I.

        My colleague, Judge Nygaard, in his fair, dispassionate
opinion for the majority, has accurately described the relevant
facts, and even the applicable law, to be considered in this
appeal. However, I cannot join the majority’s conclusion that a
millionaire defendant, who has admitted to both securities fraud,
in violation of 15 U.S.C. §§ 78j(b) and 18 U.S.C. § 2, and filing
a false income tax return, in violation of 26 U.S.C. § 7206(1),
should be able to avoid even the short imprisonment which the
Sentencing Guidelines direct. The majority reaches that
conclusion by approving the District Court’s grant of a
downward departure for good works, a reason discouraged by
the Sentencing Guidelines. I find persuasive instead the
Government’s argument on its appeal that the grant of a
downward departure and the extent of that departure were
unwarranted.

       The initial issue to consider is our scope of review of the
District Court’s decision to depart downward. Unlike the
previous law, when we deferred to the District Court’s
sentencing discretion, the PROTECT Act mandates de novo
review. This reflects Congress’ concern with the number of
downward departures granted by the district courts and its belief
that lenient sentencing can best be remedied by the appellate
courts. See 149 Cong. Rec. H2420-2424 (daily ed. Mar. 27,
2003) (statement of Rep. Feeney) (“Although the guidelines
continue to state that departures should be very rare occurrences,
they have in fact proved to be anything but. . . . [District] Judges
who dislike the Sentencing Reform Act and the sentencing
guidelines now have significant discretion to avoid applying a
sentence within the range established by the commission, and it
is difficult for government to effectively appeal such cases.”);
PROTECT Act, H.R. Conf. Rep. No. 108-66, at 59 (2003),
reprinted in 2003 U.S.C.C.A.N. (117 Stat.) 683, 694 (stating that
“this section would . . . change the standard of review for
appellate courts to a de novo review to allow appellate courts
more effectively to review illegal and inappropriate downward
departures”); see also Letter from Jamie E. Brown, Acting
Assistant Attorney General, U.S. Dep’t of Justice, Office of
Legislative Affairs, to Orrin G. Hatch, Chairman, Committee on
the Judiciary, U.S. Senate (Apr. 4, 2003), reprinted in 149 Cong.
Rec. S5,127-28 (daily ed. Apr. 10, 2003) (“The bill would make
it easier for the Government to appeal illegal downward
departures by requiring appellate courts to undertake a de novo
review of departure decisions.”); see generally Andrew D.
Goldstein, Note, What Feeney Got Right: Why Courts of Appeal
Should Review Sentencing Departures De Novo, 113 Yale L.J.
1955 (2004).

       As the Court of Appeals for the First Circuit recognized,
the PROTECT Act reflects, in part, Congress’ “disinclination
towards leniency for white collar criminals” and its frustration
with the fact that these defendants receive probation more often
than other offenders who commit crimes of comparable severity.
See United States v. Thurston, 358 F.3d 51, 79 (1st Cir. 2004);
see also Testimony of then Sentencing Commissioner Stephen
Breyer Before the Senate Committee on the Judiciary, Oct. 22,
1987, reproduced in 146 PLI/Crim 811, 824 (1987) (“The
Commission considers present sentencing practices, in which
white collar criminals receive probation more often than other
offenders who committed crimes of comparable severity, to be
unfair.”). Although the majority recognizes the changed
standard of review, see also United States v. Dickerson, 381


                               18
F.3d 251, 262 (3d Cir. 2004), I believe it has failed to apply it to
the situation before us.

        Cooper is the paradigmatic white collar criminal. While
CEO of Biocontrol Technology, Inc., he failed to report
$891,153 in income and, in addition, he pledged the company’s
certificates of deposit as collateral to secure his personal loans
without securing the approval of the company’s Board and
without making the required disclosure to the SEC. Cooper’s
offense level was set at 14, resulting from a base offense level
of 17 with a three-level reduction for acceptance of
responsibility and a criminal history of I. The consequent
sentencing range was fourteen to twenty-one months
imprisonment, which was the presumptive sentence that Cooper
should have been required to serve.

        Instead, undoubtedly seeking to avoid any imprisonment
for the crimes that he committed, Cooper sought two downward
departures, one for a three-level reduction for good works and
the other a two-level reduction on the ground that the tax tables
overstated the seriousness of his offense. The District Court
denied the two-level reduction, and Cooper does not challenge
that ruling on appeal. However, Cooper’s argument about his
charitable donations and activities persuaded the District Court
to depart downward. Notwithstanding that Cooper had sought
only a three-level downward departure on that ground, the
District Court granted a four-level downward departure, thereby
insuring that Cooper, an admitted criminal, would serve no
prison time.

       We review the extent of the departure for abuse of
discretion. Although I believe, unlike my colleagues in the
majority, that a fair de novo review requires reversal of the
decision to depart downward, I also believe that, in the exercise



                                19
of our discretion, we should overturn the District Court’s
departure at a level beyond even that requested by Cooper.

                               II.

        In United States v. Serafini, 233 F.3d 758 (3d Cir. 2000),
we stated that in order to be entitled to a downward departure
for good works, a defendant’s civic service, charity, and
philanthropy must be “beyond the norm,” i.e., “exceptional,” for
a person with his or her resources who had obtained the
equivalent station in life. Id. at 775. Cooper’s were not.
Rather, considering Cooper’s former status as the head of a
large, publicly-traded corporation, his service and charity were
merely typical for someone in his position. United States v.
Thurston, 358 F.3d 51, 78-80 (1st Cir. 2004); United States v.
Haversat, 22 F.3d 790, 796 (8th Cir. 1994).

       The majority concludes, and I agree, that Cooper’s
monetary donations to various charitable organizations cannot,
standing alone, support a downward departure. Rather, as noted
by the United States Court of Appeals for the First Circuit,
“[t]hose who donate large sums because they can should not
gain an advantage over those who do not make such donations
because they cannot.” Thurston, 358 F.3d at 79; see also
Serafini, 233 F.3d at 775 (“Since [defendant] is a wealthy
individual, we must ensure that a district court does not run
afoul of the prohibition against considering socioeconomic
differences in relying on financial contributions as a basis for
departure.”); United States v. Tocco, 200 F.3d 401, 434 (6th Cir.
2000) (noting that allowing downward departures on basis of
defendant’s monetary contributions would run afoul of not only
the Guidelines but also of “the ancient concept of justice that a
man of wealth, position, power, and prestige should not be given
special consideration in the law”); United States v. McHan, 920
F.2d 244, 248 (4th Cir. 1990) (“[T]o allow any affluent offender


                               20
to point to the good his money has performed and to receive a
downward departure from the calculated offense level on that
basis is to make a mockery of the Guidelines.”). Indeed, as the
Government points out, for the most part the financial
contributions for which Cooper seeks credit were made by the
corporation, not by Cooper personally. Thus, the majority
recognizes that we must focus on Cooper’s direct personal
contributions, rather than on his more detached acts of donating
money.

       The majority and I part ways in our evaluation of
Cooper’s personal contributions and service to his community.
The principal activity relied upon by the majority is Cooper’s
organization and running of a football team for the benefit of
youth in an economically depressed neighborhood of Pittsburgh
and the fact that, through this involvement, Cooper came to
serve as mentor to several of the young players. In particular,
Cooper became an active part in the life of Alonzo Roebuck, a
young man Cooper helped through high school and then
college.2

        Undoubtedly, Cooper’s contributions assisted greatly in
the lives of these young people – his efforts certainly are to be
applauded. Nonetheless, Cooper’s actions were not beyond the
norm; it cannot be said that Cooper’s civic acts were in any way
“extraordinary” when compared to other cases involving
similarly-situated defendants presenting charitable acts. See,
e.g., United States v. Neil, 903 F.2d 564, 566 (8th Cir. 1990)
(“Neil has . . . coached young athletes in his community, but
there is nothing in these activities to distinguish Neil from other


2
 The majority also recounts Cooper’s work with the Mel Blount
Youth Home, his annual Christmas party for underprivileged
children, and his work with Athletes Against Drugs and
Violence.

                                21
defendants who can make the same showing.”); United States v.
Jordan, 130 F. Supp. 2d 665, 673 (E.D. Pa. 2001) (finding,
despite defendant’s apparent position “as a mentor and role
model for youth in his neighborhood,” that defendant’s “civic,
charitable, and public service and other good works, while
commendable, are not so exceptional or extraordinary for a
person in [the defendant’s] circumstances as to warrant a
downward departure”).

       Cooper’s work with Roebuck and the other youths,
although certainly laudable, cannot be considered atypical for
individuals occupying Cooper’s station in life. Many, if not
most, of these activities were undertaken while Cooper was an
executive of a corporation that receives publicity and goodwill
as a result. In Thurston, the court noted that business leaders
“are often expected, by virtue of their positions to engage in
civic and charitable activities.” Thurston, 358 F.3d at 79. In
other words, although Cooper’s actions certainly benefitted the
targeted youths, they also benefitted Cooper’s corporation and
ultimately therefore, Cooper himself. It is also notable that
Cooper did not begin some of his charitable work until after the
inception of the investigation that led to the instant conviction;
for example, he did not offer to advise the Mel Blount Youth
Home until “the early part of 2000.” App. at 111. This timing,
of course, calls into question the true impetus undergirding
Cooper’s charity.

        Nor can we overlook the testimony of Cooper’s son,
Garrett Lee Cooper, that although his father personally drove the
inner-city youth to his affluent neighborhood for football
practice, he did so, at least in part, so that Garrett – himself
engaged in sports – could practice with individuals that the
Coopers perceived as more formidable players. See App. at 133
(“One, the selfish feeling that my father wanted me to play with
the talented attributes that Alonzo and his friends had. Because,


                               22
if you want to be good in sports, you need to play with these
types of kids.”).

       The majority relies in large part on our decision in
Serafini where we upheld a downward departure. The majority
recognizes that Serafini was decided before enactment of the
PROTECT Act, but it relegates that point to a footnote and
appears not to have absorbed the changed standard of review in
its analysis. I believe Congress intended that we scrutinize
departures, such as that given in this case, more strictly than the
majority does here. It is time that this court, like our colleagues
on the First Circuit, absorbs and applies the PROTECT Act’s
intention that the under-sentencing of white collar criminals
should cease.

        Finally, Cooper provided the District Court with no facts
whatsoever that would allow for any accurate estimation of how
much personal time he actually spent involved in civic service.
See generally United States v. McDowell, 888 F.2d 285, 291 (3d
Cir. 1989) (noting that “when the defendant is attempting to
justify a downward departure, it is usually the defendant who
bears the burden of persuasion”). Rather, Cooper’s evidence
respecting the time commitment imposed by his charitable
activities sounds merely in vague generalities. It offers no basis
for a finding that Cooper’s charitable activities required a
significant, let alone exceptional, forfeiture of his time. Cf.
United States v. Tocco, 200 F.3d 401, 434 (6th Cir. 2000).

        I believe that considered in perspective of his position in
life, Cooper’s charitable works do not serve to place his
situation “‘outside the heartland’” of the Sentencing Guidelines.
United States v. Dickerson, 381 F.3d 251, 264 (3d Cir. 2004)
(quoting Koon v. United States, 518 U.S. 81, 96 (1996)).
Rather, although Cooper’s community service is certainly
worthy of praise, it cannot be considered atypical. United States
v. Morken, 133 F.3d 628, 630 (8th Cir. 1998) (“Although
laudable, [defendant’s] record of good works is neither
exceptional nor out of the ordinary for someone of his income
and preeminence.”). In sum, therefore, I conclude that Cooper’s
civic activities provided insufficient grounds for the District


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Court’s downward departure.   For these reasons, I must
respectfully dissent.




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