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UNITED STATES v. BERKOWITZ

May 26, 1989

UNITED STATES OF AMERICA, Plaintiff,
v.
MARVIN BERKOWITZ, Defendant



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE.

 On January 9, 1989, the jury in this case found defendant Marvin Berkowitz guilty on all charges contained in the indictment. The court must now sentence Berkowitz for the crimes of which he has been convicted. As a basis for Berkowitz's sentence, the court makes the following findings of fact and conclusions of law.

 I. FINDINGS OF FACT

 A. Personal Background

 Berkowitz was born on March 4, 1947, in Munich, Germany. Shortly thereafter, he moved with his parents to San Francisco, where he spent his formative years and attended high school. After graduating from the University of California at Berkeley, Berkowitz attended the Ner Israel Rabbinical College located in Baltimore, where he studied but did not receive a degree.

 In January 1971, he married his wife, Rena Berkowitz (nee Weil), in Chicago. He took a job at the Loop Synagogue in Chicago, where he worked for five years managing the synagogue's daily affairs. Berkowitz left his employment at the synagogue in 1976. Since then, he has been self-employed as a real estate and equipment leasing specialist. Mrs. Berkowitz is employed as a food service supervisor at a nursing home. The Berkowitzes have five children, whose ages range from six to sixteen.

 Berkowitz faithfully practices the Orthodox Jewish religion. He is physically fit. In addition, he has never sought or received the help of a psychiatrist or other mental health professional. He is a social drinker who has never abused alcohol or drugs to excess. He has no juvenile record. However, he was charged with uttering a forged document in Crown Point, Indiana, in 1977. In addition, on April 13, 1988, he was indicted on mail fraud and tax fraud charges by a federal grand jury in the Northern District of Illinois. Those charges are still pending before Judge Marshall.

 B. Charges and Conviction

 The indictment alleged that Berkowitz stole and destroyed certain government tax documents which he knew were material to the prosecution of the mail fraud and tax fraud charges pending against him. According to the indictment, Berkowitz stole the documents from the United States Attorney's Office while conducting discovery concerning the fraud charges on which he had previously been indicted. At the time, he was out on bond. Count I of the indictment alleged that Berkowitz obstructed justice, in violation of 18 U.S.C. § 1503, by stealing the documents. Count II charged Berkowitz with further obstructing justice, in violation of 18 U.S.C. § 1503, by destroying some of the documents. Count III charged Berkowitz with stealing property of the United States in violation of 18 U.S.C. § 641.

 Berkowitz pled not guilty to all three counts and demanded a jury trial. During the trial, which lasted five days, the government presented evidence which showed that Berkowitz had the motive, opportunity, and ability to steal the documents. The evidence also showed that Berkowitz had many of the documents in his possession when he was arrested at his home on November 7, 1988. After hearing the evidence, the jury convicted Berkowitz on all charges.

 II. CONCLUSIONS OF LAW

 A. Application of the Federal Sentencing Guidelines

 Since the offenses Berkowitz committed occurred after November 1, 1987, the Sentencing Reform Act of 1984, as amended, 18 U.S.C. § 3551 et seq. (1982 ed., Supp. IV) and 28 U.S.C. §§ 991-998 (1982 ed., Supp. IV), is applicable. Therefore, Berkowitz must be sentenced pursuant to the federal sentencing guidelines, which the Supreme Court held constitutional in Mistretta v. U.S., 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989). Pursuant to the guidelines, two factors essentially determine the applicable sentencing range in a particular case: the "total offense level" and the defendant's "criminal history category." See § 1B1.1(g) of the United States Sentencing Commission Guidelines Manual. (All references ...


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