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UNITED STATES v. SCHWEIHS

February 12, 1990

UNITED STATES OF AMERICA
v.
FRANK J. SCHWEIHS and ANTHONY F. DADDINO


Ann Claire Williams, United States District Judge.


The opinion of the court was delivered by: WILLIAMS

ANN CLAIRE WILLIAMS, UNITED STATES DISTRICT JUDGE

 Frank Schweihs was charged on October 12, 1988 in a fifteen-count indictment: in count 1, conspiracy to commit extortion in violation of 18 U.S.C. § 1951(a) and (b)(2); in counts 2 through 14, attempted extortion in violation of 18 U.S.C. § 1951(a) and (b)(2); and in count 15, solicitation to commit a crime of violence in violation of 18 U.S.C. § 373(a). On September 29, 1989, the jury returned a verdict of guilty on counts 1, 4 through 13, and 15, and a verdict of not guilty on counts 2, 3, and 14. Mr. Schweihs is now before the court for sentencing. Mr. Schweihs will be sentenced under the Sentencing Guidelines for counts 1 and 6 through 15, and under pre-Guidelines law for counts 4 and 5. Three issues must be resolved under the Guidelines. First, the government seeks to increase Mr. Schweihs's Criminal History Category from I to VI. Second, the government moves for an upward departure in assessing the seriousness of the offenses committed by Mr. Schweihs by having the court consider the role of organized crime in the offenses. Last, Mr. Schweihs objects to the probation officer's addition of 4 levels to his offense due to his alleged role as a leader of a criminal activity.

 Criminal History Category

 The probation officer found Mr. Schweihs's criminal history category to be I. He arrived at this category because Mr. Schweihs has no prior criminal sentences under § 4A1.1, and therefore, no criminal history points. The government argues that Mr. Schweihs should have a criminal history category VI, and points to § 4A1.3 in the Guidelines as authority for its position. This section of the Guidelines states:

 
. . . .
 
A departure under this provision is warranted when the criminal history category significantly under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit further crimes.

 The government cites several incidents involving Mr. Schweihs to support its argument for enhancement under § 4A1.3. The court considers only one of those incidents to be based on sufficiently "reliable information [that] indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct. . . ."

 Mr. Schweihs was convicted in Florida of willful possession of an electronics device, knowing that the device was primarily useful for surreptitious interception of wire communications, under 18 U.S.C. § 2512(1)(b). The following facts are taken from the Fifth Circuit opinion in that case, United States v. Schweihs, 569 F.2d 965 (5th Cir. 1978). Mr. Schweihs was apprehended at around 11:00 p.m. on May 4, 1975 when the owners of a car repair shop conducted a security check of their establishment. He was found hiding underneath a car, which was a couple of feet from a telephone pole and a junction box. The telephone pole was at the corner of a chain-link fence that surrounded a Wells Fargo facility. Ten feet away from Mr. Schweihs was a homemade "operational amplifier," alligator clips, a miniature Triplett volt-ohmmeter, and a Western Electric lug wrench. Furthermore: "The telephone company's underground terminal box was open, and the miniature Triplett volt-ohmmeter was attached to the exposed telephone wires. Next to these objects the police discovered a travel kit and a flashlight. A search under the front-end suspension of the Pinto produced a police 'scanner,' which was set on the local police frequency, and a pair of gloves." U.S. v. Schweihs, 569 F.2d at 967. Mr. Schweihs's operational amplifier was also equipped with an input capacitor, a device that stores electrical energy in such a way that, when the amplifier is hooked into a line of current, the capacitor holds the current drawn from the line constant and thereby keeps the voltage output of the supply constant. Id. at 970.

 The government's theory at trial was that Mr. Schweihs had been in the process of burglarizing the Wells Fargo facility, and the operational amplifier was to detect whether the facility's silent burglar alarm was being set off. Using an input capacitor with the amplifier would have enabled Mr. Schweihs to "listen" to the burglar alarm without being detected. That is, the amplifier would have monitored changes in electrical impulses, (an increase indicating that the silent alarm had gone off), while the input capacitor would have maintained a constant level of current, hiding the fact that the line was being tapped. Id. at 970. Mr. Schweihs was convicted and sentenced under 18 U.S.C. § 2512(1)(b). The Fifth Circuit reversed the conviction. The reversal was based on statutory construction; the Court of Appeals held that Mr. Schweihs's amplifier was not designed primarily for surreptitious interception of wire communications, as is required under § 2512(1)(b): "any person who willfully . . . (b) . . . possesses . . . any electronic . . . device, knowing . . . that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire . . . communications. . . ." Although it reversed on the legal issue, the court also made clear what facts had been shown at trial:

 
Although the homemade amplifier may well have been built for the purpose of surreptitious interception of wire communications, and although it was being so employed when discovered by police, its design characteristics do not render it primarily useful for that purpose. (emphasis added).

 United States v. Schweihs, 569 F.2d at 971.


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