United States District Court, N.D. Illinois, Eastern Division.
UNITED STATES of America
v.
Robin ROTHBERG
No. 00 CR 85-1.
June 14, 2002.
Following defendant's entry of blind guilty plea to conspiracy to commit copyright infringement, defendant moved for downward departure in sentencing. The District Court, Kennelly, J., held that: (1) defendant failed to establish that prison sentence was in consistent with sentences in other cases; (2) defendant failed to establish causal connection between alleged Internet addiction and compulsion to infringe copyrights; (3) government's determination to limit degree of downward departure for defendant's substantial assistance was proper; (4) defendant failed to establish that family circumstances alone supported downward departure; (5) defendant's efforts in assisting prosecution of co-defendant demonstrated extraordinary acceptance of responsibility as warranted consideration of downward departure; and (6) non-profit motive removed case from heartland of Sentencing Guidelines.
Motion granted in part and denied in part.
West Headnotes
[1] Sentencing and Punishment 
1845
Defendant
convicted of conspiracy to commit copyright infringement, pursuant to No
Electronic Theft Act, failed to establish that prison sentence was inconsistent
with sentences in other cases; defendant failed to show that the 11 comparator
cases, in which only probation was ordered, were similar. 17
U.S.C.A. § 506(a)(2); 18
U.S.C.A. § § 371, 2319(c)(1); U.S.S.G.
§ 1B1.1 et
seq., 18 U.S.C.A.; 18
U.S.C.A. § 2311 note.
[2] Sentencing and Punishment 804
Disparities
that result from a proper application of the Sentencing Guidelines should never
be considered as permissible bases for departure. U.S.S.G.
§ 1B1.1 et
seq., 18 U.S.C.A.
[3] Sentencing
and Punishment 870
Eleven
cases nationwide is not large enough data base to provide by itself a
meaningful basis for a finding of inappropriate disparity, as would support
downward departure under Sentencing Guidelines.
U.S.S.G.
§ 1B1.1 et
seq., 18 U.S.C.A.
[4] Sentencing and Punishment 862
Assuming
an addiction to the use of computers and the Internet qualified as a "significantly reduced mental
capacity," defendant failed to establish causal connection between alleged
addiction and compulsion to infringe copyrights, as required for downward
departure under Sentencing Guidelines for defendant convicted of conspiracy to
commit copyright infringement; defendant's psychologist's report failed to
explain her conclusions regarding causal connection. 17
U.S.C.A. § 506(a)(2); 18
U.S.C.A. § § 371, 2319(c)(1); U.S.S.G.
§ 5K2.13,
p.s., 18 U.S.C.A.
[5] Sentencing and Punishment 862
For
downward departure under Sentencing Guidelines based on diminished capacity, a
determination that had it not been for the defendant's mental illness, he would
not have committed the crime, or perhaps would have committed a lesser crime is
required. U.S.S.G.
§ 5K2.13,
p.s., 18 U.S.C.A.
[6] Sentencing and Punishment 861
Government's
determination to limit degree of substantial assistance departure in
sentencing, for defendant convicted of conspiracy to commit copyright
infringement, based largely on its assessment of defendant's cooperation, was
proper. 17
U.S.C.A. § 506(a)(2); 18
U.S.C.A. § § 371, 2319(c)(1), 3553(e); U.S.S.G.
§ 5K1.1,
p.s., 18 U.S.C.A.
[7] Sentencing and Punishment 941
Sentencing
Guidelines make filing of a motion by the government a prerequisite to a
downward departure for substantial assistance.
U.S.S.G.
§ 5K1.1, p.s., 18 U.S.C.A.
[8] Sentencing and Punishment 806
Sentencing
court is required by Sentencing Guidelines to consider the particular factors
of a case as a whole, and any combination thereof, in determining whether there
were sufficient extraordinary factors to take a defendant's case out of the
heartland of cases. U.S.S.G.
§ 1B1.1 et
seq., 18 U.S.C.A.
[9] Sentencing and Punishment 866
A
defendant's family ties and responsibilities ordinarily are not a proper basis
for a downward departure, but "ordinarily" is not
"never." U.S.S.G.
§ 5H1.6,
p.s., 18 U.S.C.A.
[10] Sentencing and Punishment 866
Under Sentencing Guidelines, a defendant's
responsibilities to a child or an infirm family member properly may serve as
the basis for a downward departure, so long as the harm to the family member is
greater than the harm a normal family member would experience from
incarceration of a person in the defendant's position, and care from other
sources is not reasonably available to alleviate the harm. U.S.S.G.
§ 5H1.6,
p.s., 18 U.S.C.A.
[11] Sentencing and Punishment 866
Defendant,
convicted of conspiracy to commit copyright infringement, failed to establish
that family circumstances alone supported downward departure under
Sentencing
Guidelines; although defendant's assistance was required to help lift and
transport father-in-law-to-be, who had amyotrophic lateral sclerosis, sometimes
called Lou Gehrig's disease, family relationship was attenuated and another person
could help with the lifting and transportation of father-in-law-to-be. 17
U.S.C.A. § 506(a)(2); 18
U.S.C.A. § § 371, 2319(c)(1); U.S.S.G.
§ 5H1.6,
p.s., 18 U.S.C.A.
[12] Sentencing and Punishment 861
Defendant's efforts in assisting in
prosecution of co-defendant and cooperating, although no agreement had been
reached that defendant would receive a downward departure in sentencing due to
substantial assistance, demonstrated extraordinary acceptance of responsibility
and warranted consideration of downward departure under Sentencing Guidelines
beyond the three-level credit for acceptance of responsibility; defendant
placed himself at risk of enhanced sentence by providing credible and useful
information. 17
U.S.C.A. § 506(a)(2); 18
U.S.C.A. § § 371, 2319(c)(1); U.S.S.G.
§ § 3E1.1,
5K1.1, p.s., 18 U.S.C.A.
[13] Sentencing and Punishment 861
Defendant's
extraordinary degree of acceptance of his responsibility for his crimes beyond
what is required to obtain the credit provided by the offense level adjustment
guideline may, in an appropriate case, justify a downward departure, but
circumstances permitting such departures are rare. U.S.S.G.
§ 3E1.1,
18 U.S.C.A.
[14] Sentencing and Punishment 854
Under
prior Sentencing Guideline applicable to defendant who pled guilty to
conspiracy to commit copyright infringement, non-profit motive of defendant
removed case from heartland of Sentencing Guidelines, and thus downward
departure in sentencing defendant was permissible; defendant had placed
software on web sites available to members free of charge, and no evidence
showed that defendant gained monetarily from membership in the software piracy
group. 17
U.S.C.A. § 506(a)(2); 18
U.S.C.A. § § 371, 2319(c)(1); U.S.S.G.
§ 1B1.1 et
seq., 18 U.S.C.A.; U.S.S.G.
§ 2B5.3(b)(3) (1998).
[15] Sentencing and Punishment 850
Two-level
departure under Sentencing Guidelines, for defendant convicted of conspiracy to
commit copyright infringement, was proper; defendant's extraordinary acceptance
of responsibility and extraordinary family circumstances combined to warrant
departure of one level and defendant's lack of financial gain or profit motive
accounted for one level. 17
U.S.C.A. § 506(a)(2); 18
U.S.C.A. § § 371, 2319(c)(1); U.S.S.G.
§ 3E1.1,
18 U.S.C.A.; U.S.S.G.
§ 2B5.3,
18 U.S.C.A. (1998).
*1011
Royal B. Martin, Jr., Martin, Brown & Sullivan,
Ltd., Chicago, IL, Joseph
F. Savage, Testa, Hurwitz & Thibeault,
Boston, MA, for Robin Rothberg.
James
A. Graham, Chicago, IL, for Diane Dionne.
Stephen
E. Eberhardt, Crestwood, IL, for Steven Ahnen.
Michael
O'Donnell, Serpico, Novelle & Navigato, Ltd.,
Westchester, IL, John
A. Amabile, Amabile and Burkly PC, Boston, MA,
for Christian Morley.
Scott
Jay Frankel, Frankel & Cohen, Chicago, IL,
for Justin Robbins.
Allan
A. Ackerman, Allan A. Ackerman, P.C., Chicago,
IL, for Jason Slater.
Paul
Augustus Wagner, Chicago, IL, for Todd Veillette.
James
Anthony Shapiro, Shapiro & Schwartz, Chicago,
IL, for Thomas Oliver.
Steven
Shobat, Chicago, IL, for Mark Stone.
Luis M. Galvan, Fed. Defender Program,
Chicago, IL, Francis C. Lipuma, Chicago, IL, for Jason Phillips.
Carl
Peter Clavelli, Chicago, IL, for Brian Riley.
Donald
V. Young, Donald V. Young & Assoc., Chicago,
IL, for Tyrone Augustine.
John
M. Beal, Chicago, IL, for Brian Boyanovsky.
Douglas
E. Whitney, McDermott, Will & Emery, Chicago,
IL, for John Geissberger.
Robert
H. Aronson, Chicago, IL, Stephen
E. Eberhardt, Crestwood, IL, for Gene Tacy.
*1012 Lisa Griffin, U.S. Attorney's
Office, Chicago, IL, for U.S.
MEMORANDUM OPINION AND ORDER
KENNELLY, District Judge.
Defendant Robin Rothberg entered a
"blind" plea of guilty (that is, without the benefit of a plea
agreement) to a charge of conspiracy under 18
U.S.C. § 371
to commit copyright infringement in violation of 17
U.S.C. § 506(a)(2) and 18
U.S.C. § 2319(c)(1). The conspiracy
involved a highly-organized Internet-based software piracy group called
"Pirates With Attitudes" that involved perhaps hundreds of
participants and members-only web sites that made available $1.4 million worth
of computer software for downloading by members. The background facts underlying this
seventeen-defendant prosecution are described in a prior decision by the Court,
United
States v. Rothberg,
No. 00 CR 85, 2002 WL 171963 (N.D.Ill. Feb.4, 2002),
and will not be repeated here.
Based on the Court's determination that the
value of the infringing items for purposes of U.S.S.G.
§ 2B5.3
(1998 version) was $1,424,640, and other Sentencing
Guidelines-related rulings, Rothberg's total offense level is seventeen, and
his criminal history category is I, making the sentencing range twenty-four to
thirty months imprisonment. Rothberg
moved for a downward departure on a variety of grounds. The Court made an oral ruling at the time of
sentencing granting Rothberg's motion in part and denying it in part, and
making a two-level downward departure based on a combination of several of the
factors that he had argued. The purpose
of this Memorandum Opinion is to elaborate further on the basis for the Court's
decision.
1. Consistency with other sentences in similar
cases
[1] The indictment alleged that the charged conspiracy began
no later than January 1998. Actually PWA
had existed and had obtained and made available pirated software before that
date, but January 1998 was significant in that it was the effective date of the
No Electronic Theft Act, which for the first time criminalized copyright
infringement not involving a profit motive or commercial advantage. See Pub.L.
105-147 (Dec. 16, 1997). Prior to that date it was questionable
whether copyright infringement that did not involve a profit motive was
illegal. See discussion infra
at 12.
Rothberg argues that no defendant in any prior
case brought since the passage of the NET Act has been sentenced to
prison. Relying on data from a
Department of Justice website, he says that the four post-NET Act defendants
sentenced for criminal copyright infringement who, like Rothberg, had no profit
motive, received sentences of
probation. He also says, citing the same
data, that there were six cases in which defendants were sentenced for criminal
copyright infringement for selling software on the Internet for profit; four of the defendants received sentences of
probation, one received a prison sentence of twelve months and one day, and one
received a sentence of seven months imprisonment plus seven months community
confinement. Based on this data, Rothberg
argues that a sentence within the Guideline range would be disproportionately
severe, and he requests a downward departure.
[2] The Seventh Circuit has held that the fact that a sentence
within the Guideline range would result in a punishment disproportionate to
those received nationwide may, in an appropriate case, provide a basis for a
downward departure. *1013United States v. McMutuary,
217 F.3d 477, 490 (7th Cir.2000). McMutuary, however, requires a
threshold finding of similarity, and Rothberg has not made such a showing: he has told us nothing about the other
cases. It is entirely possible that the
probationary sentences in the cases he cites were the product of Sentencing
Guideline calculations that (unlike in Rothberg's case) resulted in an offense
level that permitted the courts to impose probation rather than
imprisonment. Disparities that result
from a proper application of the Guidelines "should never be considered as
permissible bases for departure," id. at 489, citing United
States v. Meza,
127 F.3d 545, 549 (7th Cir.1996).
[3] The Court can
certainly imagine a case in which a sentence which sticks out like a sore thumb
from the mass of cases nationwide would meet McMutuary's criteria even
without a case-by-case comparison. But this is not such a case. The data base referenced by Rothberg--eleven
cases nationwide--is not large enough to provide by itself a meaningful basis
for a finding of inappropriate disparity.
Cf. Soria
v. Ozinga Bros., Inc.,
704 F.2d 990, 995 (7th Cir.1983) (rejecting, in
an employment discrimination case, a statistical conclusion based on data
involving fifteen incidents).
For these reasons, the Court rejects
Rothberg's disparity motion.
2. Diminished capacity
[4][5] Rothberg, supported by a report from Dr. Maressa Hecht
Orzack, a psychologist, argues that he suffers from an addiction to use of
computers and the Internet and that this resulted in an inability to control
his behavior. Guideline § 5K2.13 provides
that a downward departure may be warranted "if the defendant committed the
offense while suffering from a significantly reduced mental capacity," with
exceptions not applicable here. The
Seventh Circuit requires, as a basis for such a departure, a determination that
"had it not been for the defendant's mental illness, he would not have
committed the crime (or perhaps would have committed a lesser crime)." United
States v. Dyer,
216 F.3d 568, 570-71 (7th Cir.2000). Assuming for purposes of discussion that
Rothberg's alleged "Internet addiction" qualifies as a
"significantly reduced mental
capacity"--a question we need not address--Dr. Orzack's report is not sufficient to support
a finding of the sort required by Dyer. Specifically, the report fails
to establish any sort of a causal connection between Rothberg's alleged
addiction and any sort of compulsion to infringe copyrights; Dr. Orzack states this as a conclusion, but
that aspect of her report is unsupported and unexplained. Though there might be, in some extremely
attenuated sense, a connection between Rothberg's supposed compulsion to use
computers and the Internet and the fact that his crimes were committed by use
of the Internet (in the sense that if he had never used the Internet he would
not have had the opportunity to engage in this offense), that sort of
connection is far too attenuated to warrant a departure.
3. Substantial assistance to authorities
[6][7] Rothberg argues that he should get a downward departure
for his substantial assistance to the authorities even though the government
has not moved for one. Guideline § 5K1.1 and 18
U.S.C. § 3553(e) make the filing of a motion by the government a
prerequisite to a downward departure under that provision. In Wade
v. United States,
504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992), however, the Supreme Court held that a defendant may attack the
government's refusal to file a § 5K1.1
motion--and thus may seek a departure based on "substantial
assistance" without that prerequisite-- if the government's refusal to
file the motion *1014 was based on an unconstitutional
motive or was not rationally related to a legitimate governmental end. Id. at 186. Rothberg says that his case falls within
these narrow parameters.
The extensive record submitted by Rothberg
reflects that the government proposed a plea agreement that included an
agreed-upon § 5K1.1
departure, but with a limitation proposed pursuant to Fed.R.Crim.P.
11(e)(1)(C):
a maximum departure of one-third off the low end of the Guideline range
determined by the Court. The government
proposed and obtained similar agreements from one or two of the other
defendants in this case; several others
entered into plea agreements which provided for what is commonly known as a
"free-fall" downward departure--i.e., with the extent of the
departure left for the Court's determination.
Though it is not entirely clear, it appears that the government was
initially unwilling to do this in Rothberg's case based at least in part on its
view regarding his particular role in the offense. Rothberg, for his part, was unwilling to
agree to the proposed limitation on the degree of the departure. Though his counsel negotiated vigorously to
remove the limitation, the government would not agree to do so. A letter from
supervisory personnel in the United States Attorney's Office turning down
Rothberg's request indicated that it was believed that Rothberg's dispute with
the government over his alleged role in the offense--the government maintained
he had been one of the organizers of PWA--made him virtually worthless as a government
witness; the letter cited this as the
(or at least a) basis for rejecting the request to remove the limitation on the
extent of the departure. The government
was concerned that cited Rothberg's unwillingness to own up to what it
considered to be his role in the offense would give him a motive to shade his
testimony as a government witness in order to minimize his involvement, and
that this would result in a side-show if he testified, making him ineffectual
as a government witness. The government
also contended in the letter that Rothberg's cooperation had not truly led to
the prosecution of, or made the case against, anyone else. See Rothberg Appendix, Ex. 3 (letter
of July 20, 2000).
Rothberg argues that the government's desire
to control the extent of the departure is an inappropriate consideration which
fails the Wade test. There is some authority to support this
proposition. In United
States v. Stockdall,
45 F.3d 1257 (8th Cir.1995), the defendants pled
guilty to a variety of offenses with mandatory minimum sentences. Their plea agreements required them to
cooperate with the government and gave the government the discretion to decide
whether to move for a downward departure under § 5K1.1. At the
time of sentencing, the government filed substantial assistance motions but
limited them to certain of the offenses, expressly declining to make them as to
other offenses that included mandatory minimum sentences. The defendants moved to enforce their plea
agreements, construing them as requiring any § 5K1.1 motion to apply to all offenses. The trial court denied the motion after
holding a hearing at which the prosecution represented that it had acted as it
did in order to retain control over the degree of reduction. On appeal, the Eighth Circuit ruled that the
law permitted the government to limit a substantial assistance motion to
certain offenses, but it held that the government's desire to limit the
sentencing court's discretion regarding the degree of a substantial assistance
departure was an improper motivation under Wade. The court said that the
purpose of the statute that authorizes substantial assistance departures, 18
U.S.C. § 3553(e), was to give prosecutors the ability to obtain cooperation
and information, not "a general power *1015 to control the length
of sentences," which the court viewed as an inherently judicial
function. Id. at 1261. It held that "[t]he desire to dictate
the length of a defendant's sentence for reasons other than his or her
substantial assistance is not a permissible basis for exercising the
government's power under § 3553(e),"
and that if the government based its decision to file a § 5K1.1 motion on
that factor, or anything other than "its evaluation of the [defendant's]
substantial assistance," it acted improperly. Id. See also United
States v. Anzalone,
148 F.3d 940, 941 (8th Cir.1998); United
States v. Davis,
115 F.Supp.2d 101, 106 (D.Mass.2000) (
"[M]anipulating the length of a defendant's sentence is an improper
consideration when deciding whether to file a downward departure
motion."). But see United
States v. Butler,
272 F.3d 683, 687 (4th Cir.2001) (rejecting
proposition that decision to file motion must be based on nature of defendant's
assistance but affirming that decision must be rationally related to a
legitimate governmental end); United
States v. Duncan,
242 F.3d 940, 947 n. 11 (10th Cir.2001) (rejecting
argument that government cannot refuse to file motion for reasons other than
nature of defendant's assistance); United
States v. Nealy,
232 F.3d 825, 831 (11th Cir.2000)(same).
It is unclear whether the Seventh Circuit
would follow Stockdall. In United
States v. King,
62 F.3d 891 (7th Cir.1995), the court cited Stockdall
in noting that "[a] few courts have indicated that the prosecutor's
refusal to file a substantial assistance motion may be reviewable if irrational
or withheld in bad faith," but it did not comment on the merits of the
Eighth Circuit's position. Id. at
894 n. 2. The Seventh Circuit has recognized arbitrariness as a proper basis
under Wade for a challenge to the government's refusal to file a § 5K1.1 motion, see
United
States v. Santoyo,
146 F.3d 519, 523-24 (7th Cir.1998), but it noted
that "substantive due process claims of this nature are highly
disfavored." Id. at 523 n. 3
(also noting that in two earlier cases it had held that arbitrariness is not a
proper basis for a challenge). But as
best we can tell, the Seventh Circuit has never been called upon to address the
issue of whether a refusal to file a § 5K1.1 motion
due to its desire to control the length of the sentence--the argument made by Rothberg--is an irrational or
arbitrary consideration that violates Wade.
Fortunately we need not address this difficult
issue in Rothberg's case, for the record reflects that the government's
determination to limit the degree of a substantial assistance departure was
based largely, if not entirely, on its assessment of Rothberg's
cooperation. We have no basis to
discredit the government's contemporaneous statements to this effect, which
reflect what would be, even under Stockdall, a proper basis for refusing
to move for a downward departure.
Rothberg's motion for a downward departure on this basis is therefore
denied.
4. Combination of factors
[8] The Guidelines contemplate the possibility of a departure
based on a combination of factors each of which might be insufficient alone to
warrant a departure, though the Sentencing Commission believed that such cases
would be "extremely rare." See
Guideline § 5K2.0, Commentary. See also, e.g., United
States v. Jones,
158 F.3d 492, 499 (10th Cir.1998). A sentencing court is " 'required to
consider the particular factors of [a] case as a whole, and any combination
thereof, in determining whether there were sufficient extraordinary factors to
take [a defendant's] case out of the 'heartland' of ... cases.' " United
States v. Sabino,
274 F.3d 1053, 1078 (6th Cir.2001) (quoting United
States v. Coleman,
188 F.3d 354, 361 (6th Cir.1999) (en banc)).
*1016 a. Family circumstances
[9][10] A defendant's family ties and responsibilities ordinarily
are not a proper basis for a departure. U.S.S.G.
§ 5H1.6.
"But 'ordinarily' is not 'never.' "
United
States v. Wright,
218 F.3d 812, 814 (7th Cir.2000). A departure
based on a defendant's responsibilities to a child or an infirm family member
properly may serve as the basis for a departure, so long as the harm to the
family member is greater than the harm a normal family member would experience
from incarceration of a person in the defendant's position, and care from other
sources is not reasonably available to alleviate the harm. Id. at 815; United
States v. Stefonek,
179 F.3d 1030, 1038 (7th Cir.1999).
[11] Evidence submitted by Rothberg in connection with the
sentencing hearing indicates that he provides necessary care to Bob Dean, the
father of the woman to whom Rothberg is engaged to be married this coming
August. Mr. Dean suffers from
amyotrophic lateral sclerosis, sometimes called "Lou Gehrig's
disease." He is still living at
home with his wife and has to see his doctor frequently; travel to the doctor's office requires him to
be lifted in and out of an automobile.
Mrs. Dean, who had back problems, can no longer do the lifting, and in
any event she does not drive a car.
Rothberg provides both transportation and lifting assistance, which Ms.
Dean characterizes as "indispensable" to the family's ability to keep
her husband at home rather than consigning
him to an extended care facility.
Though the Court is sensitive to the concerns
of Rothberg's mother-in-law-to-be, in the particular circumstances of this case
we are not satisfied that Rothberg has established his entitlement to a
departure based on this factor alone.
The Seventh Circuit's decision in Wright suggested that a court
considering a "family circumstances" departure must consider whether
the lowered sentence will actually address the risk of harm to the young or
disabled family member (in that case, the trial judge had reduced the sentence
from 235 months to 170 months, which the Seventh Circuit said "would [not]
do the slightest good" for the defendant's seven year old child). Wright,
218 F.3d at 815.
Though we do not read Wright as ruling out family circumstances
departures unless the departure reasonably can be made to a level that keeps
the defendant out of prison, that case does indicate that a court must consider
whether the departure would actually address the factors that led the court to
consider making it in the first place.
In Rothberg's case, for the reasons stated in open court at the time of
sentencing, the Court is not prepared to depart downward to a sentence of
probation or community confinement. In
addition, though Mr. Dean unquestionably has significant needs as a result of
his disease, Rothberg's relationship with him is more attenuated than in the
usual case in which a departure based on family circumstances is contemplated,
and the Court is not entirely satisfied that there is no one reasonably available, at least for the near
term, who could lift Mr. Dean into and out of a car and take him back and forth
to the doctor. In short, Rothberg has
come close to establishing the basis for a departure on this ground alone, but
he has fallen just short. Because,
however, the basic predicate for a departure--an infirm relative for whom the
defendant provides care--exists in this case, the Court will consider this
factor in combination with the others discussed below.
b. Extraordinary acceptance of responsibility
[12][13] A defendant's extraordinary degree of acceptance of his
responsibility for his crimes beyond what is required to obtain the credit
provided in *1017U.S.S.G. §
3E1.1 may, in an appropriate case, justify
a downward departure, but "circumstances permitting such departures are
rare." United
States v. Bean,
18 F.3d 1367, 1369 (7th Cir.1994). The factors cited by Rothberg in support of
his request for a departure, though certainly indicative of a sincere and
thorough acceptance of responsibility, are with one exception not
"extraordinary" or outside the norm.
The one exception, however, is significant, it is not contemplated as
part of § 3E1.1, and it
puts Rothberg somewhat outside the heartland of what that Guideline
contemplates.
Despite the government's prior refusal to
file, commit to file, or do anything to hint that it would ever file a motion
for downward departure under U.S.S.G.
§ 5K1.1
based on substantial assistance, Rothberg continued to cooperate with the government, submit to
interviews, and provide information pertinent to the government's prosecution
of this case, including defendant Christian Morley, who went to trial. The information he provided is fairly
described as beneficial (even if it did not, as noted earlier, lead to the
prosecution of anyone else). Rothberg
did this with no realistic hope of getting anything from the government in
return. And in doing so, he put himself
at risk of a significant detriment:
without a plea agreement, there was nothing to prevent the government
from using the information he provided against him at sentencing. Cf. U.S.S.G.
§ 1B1.8(a)
(if defendant agrees to cooperate and government agrees not to use the
information defendant provides against him, the information may not be used in
determining the applicable guideline range).
Placing oneself at risk of an enhanced sentence by providing credible
and useful information that not only implicates others but also implicates
oneself goes beyond what § 3E1.1
contemplates. The Court finds that
Rothberg's efforts in this regard reflect a degree of acceptance of
responsibility that is outside the heartland of § 3E1.1,
warranting consideration of a departure beyond the three-level credit that he
obtained by virtue of the guideline.
c. Lack of financial gain or profit motive
There is no serious claim that Rothberg
committed the offense out of a desire to profit, or that he benefitted
financially from his participation in the conspiracy. The software that was placed on the PWA sites
was available to members free of charge.
Though, as we have previously noted in other contexts, PWA members had
to contribute something in order to earn the privilege of downloading, there is
no evidence that Rothberg obtained any monetary gain from his membership in the
group. [FN1]
FN1. Among other
things, we have no way of knowing whether Rothberg would have purchased any of
the software in question had it not been made available on the PWA sites.
Prior to 1998, it was debatable whether a
copyright infringement scheme like the one involved in this case--involving
arguably "free" distribution of copyrighted items--violated the
law. See former 17
U.S.C. § 506(a) (requiring proof that defendant infringed copyright
willfully "and for purpose of commercial advantage of private financial
gain"). The terms "commercial
advantage" and "private financial gain" do not necessarily
preclude barter-type arrangements like PWA. Cf. United
States v. Black,
116 F.3d 198, 202-03 (7th Cir.1997) (noting, in
context of construction of U.S.C. §
2G2.2(b)(2), which uses the term "pecuniary gain" in
connection with child pornography offenses, that "pecuniary gain" ...
does not exclude the possibility of swaps, barter, in-kind transactions, or
other valuable considerations). *1018 But in 1994, a federal court in
Massachusetts dismissed an indictment against an individual who had posted
copyrighted software on a computer bulletin board where it could be accessed by
subscribers to the bulletin board. The
Court held that the government could not prosecute under the mail and wire
fraud statutes an infringement that was not criminal under the laws governing
criminal copyright infringement. United
States v. LaMacchia,
871 F.Supp. 535 (D.Mass.1994). It was partly a desire to plug the perceived LaMacchia
gap that motivated Congress to pass the NET Act in December 1997. That statute added a provision to 17
U.S.C. § 506(a) making it a crime to infringe a copyright willfully by
reproducing or distributing one or more copies of copyrighted works worth more
than $1000--thus eliminating the requirement of proof of commercial or
financial motivation. See 17
U.S.C. § 506(a)(2). That is the
provision that Rothberg and the defendants in this case were charged with
conspiring to violate.
[14] There is no question that PWA's activities violated the
law in the post-NET Act environment. But
it is equally clear that the defendants sentenced for copyright infringement
offenses under the Guideline applicable in this case, U.S.S.G.
§ 2B5.3 (1998), were all defendants whose cases involved a profit or
commercial motive. This is partly a
function of the fact that it was not until May 2000 that a new guideline based
on the NET Act took effect-- one which directly takes into account the presence
or absence of commercial or financial gain, see
U.S.S.G.
§ 2B5.3(b)(3) (effective May 1, 2000) [FN2]--and partly a function of the fact that non-profit-motive
criminal copyright cases were (and perhaps are still) a rarity. But one way or the other, Rothberg has
established, and the government has not seriously disputed, that the heartland
of cases contemplated by and subject to the pre-2000 Guideline § 2B5.3 under
which Rothberg is being sentenced were offenses "motivated by a desire for
financial gain--either personally or commercially." See United
States Sentencing Commission, No Electronic Theft Act Policy Development Team
Report at 7 (Feb.1999), available at www.ussc.gov/publicat/netrpt99.pdf.
FN2. The fact that
the new Guideline defines "commercial advantage or private financial
gain" as including the receipt or expectation of receipt of anything of
value, including other copyrighted works, does not alter our conclusion that
non-profit-motive infringement cases are outside the heartland of the former
Guideline under which Rothberg is being sentenced.
Rothberg's is not such a case. His case therefore is an atypical one that
falls outside the heartland of the Guideline to which he is subject, the type
of case not considered or contemplated by the Sentencing Commission when it
promulgated that Guideline, thus permitting a departure. See generally Koon v.
United States,
518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).
d. Degree of departure
[15] As the Court explained at the sentencing hearing, we find
that a two-level departure properly takes account of the combination of factors
discussed above. Ordinarily an
"extraordinary acceptance of responsibility" departure, considered in
terms of the structure of the Guidelines, allows for a one-level downward
departure. As we have noted, Rothberg
falls just a bit short of what it would take to warrant a departure on that
basis alone. But Rothberg's family
circumstances argument, which is not sufficient by itself to warrant a
departure, allows us to "round up" to a one-level drop.
*1019 The absence of a profit motive or
financial gain, would, under the current (post-2000) Guidelines, warrant a
two-level decrease in the offense level, see U.S.S.G.
§ 2B5.3(b)(2) (2001), though the adoption of that provision was accompanied by
an increase in the base offense level provided in U.S.S.G.
§ 2B5.3(a). We conclude that an additional one-level
decrease appropriately takes into account the absence of a profit motive or
financial gain.
Conclusion
For the reasons explained above and those
discussed in open court at the time of sentencing, the Court grants defendant's
motion for downward departure in part and denies it in part. We grant a two-level downward departure based
on the combined factors of the lack of
financial gain or motive, the defendant's unusual degree of acceptance of
responsibility, and his family circumstances.
222 F.Supp.2d 1009
END OF
DOCUMENT