that "aged persons" are to be considered "unusually vulnerable" as a matter of law. (Slip Op. p.5, footnote 2).
The age category in the Sutherland case was higher (i.e. individuals age 60 and above were "identified as the 'elderly' victims) than in the case before this court; the Sutherland court still found that there was insufficient evidence to conclude that the war veterans were vulnerable victims within the meaning of § 3A1.1.
In United States v. Boult, 905 F.2d 1137, 1140 (8th Cir. 1990) a case in which the application of a § 3A1.1 enhancement was upheld, the victim's age, mental condition, small stature in comparison to the defrauder's and past associations with the defendants were all factors considered in determining the appropriateness of the enhancement. The evidence was sufficient there to find that the defendants targeted the victim in particular and exploited his unusual vulnerabilities. The facts in the case before this court are not so clear cut. Many different types of victims were attracted to the schemes of Boula and Gordon. The government has failed to provide sufficient evidence that every, or even any, victim over age 50 had unusual vulnerabilities and that the defendants targeted and exploited them on these bases. There is nothing unusual per se about a person having money to invest and finding it difficult to recoup his or her losses after having been the victim of fraud.
As the court in Creech noted, "it is logical to assume the intended victims of any premeditated offense will be selected because something in his or her persona or circumstances will make successful the intended criminal act." Creech at 782. Such factors, however, do not warrant the application of the § 3A1.1 enhancement.
The court concludes that there are a number of problems with applying the § 3A1.1 two-level enhancement to the defendants' sentences. Defining an age category is difficult, since all persons of age 50 are not vulnerable victims even if they should happen to fall prey to a fraudulent scheme. The government's statistical information does not indicate how old these "elderly" persons were when they made their investments. The vulnerable victim enhancement would not be appropriately applied simply because these individuals are in a category labelled "elderly" people.
The defendants have made a persuasive argument that the statistics proffered by the government demonstrate that the investors reflect a representative cross section of people of different age groups who were in a position financially to invest. (Defendants' Reply to Government's Statistics, p.2). The government has also failed to sufficiently demonstrate that the additional factors which make these "elderly" persons a group of vulnerable victims were not present to the same degree or more in the other investors. The psychological mind-set, the desire for security, the need for more income to pay for medical costs could be factors which are attributable to other investors who were under age 50 at the time they invested in the defendants' properties.
This court cannot conclude that all the investors who were over age 50 at the time of their investments were unusually vulnerable due to "age, physical, or mental condition". In other words each "elderly" individual's susceptibility to the fraud may have been different and thus there is nothing to join them together as a group of vulnerable victims or to distinguish them as a group from the other victims of the defendants' schemes. Therefore, the court finds that the defendants did not target vulnerable victims within the meaning of § 3A1.1.
Absent the § 3A1.1 two point level enhancement, the defendants' offense level remains at 24. An offense level of 24 with a criminal history category of I corresponds to a sentencing range of 51 to 63 months, a range which this court sincerely believes is grossly below the appropriate sentence for a calculated crime involving such an enormous number of victims over such a random protracted period of time. The Sentencing Guidelines Commission has given more deference to the prosecutors, and to the higher courts as it develops the law, than it gives to the trial court which in the history of common law has previously been able to structure, carve and apply with reasonable discretion the understanding and the knowledge obtained by listening firsthand to the evidence and the arguments. The Sentencing Commission's failure to take advantage of the observations and experience of the trial courts ignores the important role for which the courts were originally appointed under the Constitution.
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT