responsible for overseeing the office's fraud monitoring system. During her tenure at the Trustee's office, Rasnak has personally reviewed hundreds of Chapter 7 bankruptcy petitions for fraud.
At the hearing, Rasnak identified Franklin as a "regular" at the bankruptcy court. A February 1993 United States Trustees report (Government Exhibit 2) supports this assertion, listing Franklin as the attorney of record in 29 Chapter 7 bankruptcy cases then pending in the Northern District of Illinois. Having reviewed the Gibson's Chapter 7 bankruptcy petition filed by Franklin, Rasnak testified that she believed Franklin's special expertise as a bankruptcy attorney, especially in Chapter 7 "no assets" cases, allowed him to anticipate safeguards in the U.S. Trustee's detection process and to avoid common pitfalls facing pro se petitioners unfamiliar with the U.S. Trustee's operating procedures. In particular, Rasnak noted that pro se petitioners often attempt to fraudulently shield their assets by claiming that they gave the assets away as gifts or that the assets had been lost, stolen, or destroyed. This kind of fraud, according to Rasnak, is far easier for the Trustee's office to detect than are claimed gambling losses, especially when these claimed losses are accompanied by hotel and casino receipts.
Rasnak also observed that the filing of a "no assets" petition further enhanced the scheme's likelihood of success. For "no assets" petitions, unlike other types of petitions, the trustee receives only $ 45 for her representation of the petitioner's creditors. According to Rasnak, Franklin ensured his client a limited review process by filing a "no assets" petition on his behalf.
Based in part on Rasnak's testimony, but also on the court's review of the briefs and the applicable case law, the court concludes that Franklin used a special skill to significantly facilitate his crime. Although the defendant's plan to defraud his client's creditors was not elaborate, it clearly was enhanced by his special knowledge of the legal process generally, and as a regular before the bankruptcy court, of bankruptcy proceedings in particular. Franklin's familiarity with the constraints on the bankruptcy's court's ability to verify claims made in bankruptcy petitions, unquestionably facilitated the scheme to defraud his client's creditors. Absent such information, Franklin could not have confidently advised his client that all he needed to document his claimed gambling losses were a couple of hotel and car rental receipts. Similarly, he would not have known that his client could claim as much as $ 100,000 in gambling losses without arousing undue suspicion. Finally, simply by completing other sections of his client's petition in a complete and professional manner, Franklin was able to lend an air of credibility to the petition that pro se filings often lack.
Franklin's special knowledge of bankruptcy law and the legal process in general is the direct result of his professional training and his 16 years of experience as a practicing attorney. Franklin used these skills to significantly facilitate his crime. Under Section 3B1.3 of the Sentencing Guidelines, a two-level enhancement of his sentencing level is warranted. C.f. U.S. v. White, 972 F.2d 590, 601 (7th Cir. 1992) (holding enhancement under § 3B1.3 appropriate where lawyer used knowledge and skills gained as a criminal defense attorney and prosecutor to conceal drug trafficking scheme).
Abuse of a Position of Trust
Even if Franklin had not used his special skills as an attorney to significantly facilitate his crime, he would qualify for a two level enhancement for abusing a position of public trust. The Seventh Circuit recently addressed the issue of what types of occupations qualify as positions of trust under Section 3B1.3 in United States v. Lamb, 6 F.3d 415, 1993 U.S. App. LEXIS 21911 (7th Cir. 1993). Although the court did not resolve the specific issue of whether and under what circumstances an attorney occupies a position of trust, the opinion is nevertheless instructive.
According to the court in Lamb, the court's primary inquiry in determining whether an individual occupies a position of trust should be "whether the employee's position provided access to items of value or the employee was a sworn public servant engaged in the performance of public duties." Id. at 419. At issue was whether a letter carrier for the United States postal service convicted of embezzlement of U.S. mail had abused a position of public trust. The defendant had allegedly stolen or destroyed approximately 1500 pieces of mail including 37 state and federal tax returns. Id. at 417. Noting that the defendant had sworn to "uphold the law" and faithfully discharge his duties as a public servant, the court concluded that the defendant had abused his position of public trust through his embezzlement of the U.S. mail. Id. at 421. According to the court, the defendant's position was analogous to the position held by police officers found to have violated the very laws they had been charged with enforcing. Id. citing United States v. Foreman, 926 F.2d 792, 796 (9th Cir. 1990). Accord United States v. Gould, 983 F.2d 92, 94 (7th Cir. 1993) (assuming that a police officer occupies a position of trust).
Though not a government employee, Franklin, as a licensed attorney, occupied a position of public trust similar to the positions held by the mail carrier in Lamb and the police officers in Foreman and Gould. See Illinois Rules of Professional Conduct, Preamble ("the practice of law is a public trust . . . and lawyers therefore are responsible for . . . defending the integrity of the judicial system against those who would corrupt, abuse or defraud it"). As a member of the Illinois bar, Franklin swore on oath to protect, preserve, and uphold the law. Not merely an advocate, Franklin was an officer of the court, entrusted with preserving the integrity of the judicial process. See In re Sawyer, 360 U.S. 622, 668, 3 L. Ed. 2d 1473, 79 S. Ct. 1376 (1959) (Frankfurter, J. dissenting) ("[the lawyer] is an intimate and trusted and essential part of the machinery of justice, an officer of the court in the most compelling sense"). By conspiring to obstruct the very judicial process that he had sworn to defend, Franklin abused his position of public trust in precisely the same manner that a letter carrier who embezzles U.S. mail abuses his position. Moreover, as discussed above, Franklin's abuse of his position of trust significantly facilitated the commission of the crime.
Still, as Franklin correctly notes in his objection to the PSI, the two-level enhancement under this section of the Guidelines does not apply if the "abuse of trust or skill is included in the base offense level or specific offense characteristic." U.S.S.G. § 3B1.3. Franklin errs, however, in asserting that the abuse of a position of trust or the use of special skills are elements of the base offense of obstruction of justice.
18 U.S.C. § 1503 provides: "Whoever corruptly . . . endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $ 5,000 or imprisoned not more than 5 years, or both." Thus, under its express terms, the statute applies to any individual who attempts to obstruct justice, not just those individuals with special skills or in a position of trust. Accord United States v. Cintolo, 818 F.2d 980, 991 (1st Cir. 1987) ("acceptable notions of evenhanded justice require that statutes like § 1503 apply to all persons, without preferment or favor."). As the government points out, the broad reach and general applicability of the statute is borne out in the case law. See United States v. Balzano, 916 F.2d 1273, 1291 (7th Cir. 1990) (use of a threatening hand gesture can constitute obstruction of justice); United States v. Rovetuso, 768 F.2d 809, 823 (7th Cir. 1985) (attempted murder of a government witness constitutes obstruction of justice); United States v. Berkowitz, 712 F. Supp. 707 (N.D. Ill. 1989), rev'd on other grounds, 927 F.2d 1376 (7th Cir. 1991) (theft and destruction of government evidence). Because neither the use of a special skill nor the abuse of a position of trust was an element of his base offense, defendant's objection to the two-level enhancement of his sentence is denied.
Downward Departure for Attempted Assistance
Franklin requests a two-level downward departure in recognition of his attempt to provide the government "with substantial assistance" in the investigation of an unrelated criminal matter. (Defendant's PSI Brief at 6). According to Franklin, he and his lawyer met with two assistant United States attorneys to discuss the possibility of assisting the U.S. Attorney's office in its investigation into alleged criminal conduct in the Village of Maywood. (Defendant's PSI Brief at 6). As a former counsel to the Board of the Village of Maywood and an acquaintance of several targets of the investigation, Franklin claims he was well situated to assist the government in its investigation. Id. Although the government neither accepted his assistance nor asked this court to consider Franklin's offer in its sentencing decision, Franklin believes he is nevertheless entitled to a two-level downward departure for the proffer. Id. at 6-7.
Downward departures for providing substantial assistance to authorities are governed by Section 5K1.1 of the United States Sentencing Guidelines. Section 5K1.1 provides in part:
Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
U.S.S.G. § 5K1.1 (emphasis added).
Here, the government has made no motion for downward departure under Section 5K1.1. Under the clear language of the provision and the law of this circuit, this court need not, and except under the rarest of circumstances, cannot grant the requested departure absent a government motion. See U.S. v. Brick, 905 F.2d 1092, 1098-99 (7th Cir. 1990); U.S. v. Donatiu, 922 F.2d 1331 (7th Cir. 1991). Franklin's motion for downward departure for substantial assistance of authorities is therefore denied.
Downward Departure on Equitable Grounds
Finally, Franklin urges the court to authorize a two-level downward departure from the sentencing guidelines on various equitable grounds. In particular, defendant notes that as a result of his crime, he has already lost the right to practice his chosen profession, and suffered the "ignomy of adverse publicity" in various professional journals and newspapers. He also asks the court to consider his long involvement in public interest organizations, and his substantial family and community ties. (Defendant's PSI Brief at 7-11).
Under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside the range established by the applicable guideline if the court finds "that there exists an aggravating or mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." See also U.S.S.G. § 5K2.0 Grounds for Departure (Policy Statement). Though Franklin's case undoubtedly inspires sympathy,
it does not present the kind of "mitigating circumstances" that warrant downward departure. In fact, virtually all of the factors highlighted by defendant are specifically cited by the Sentencing Commission as "not ordinarily relevant in determining whether a sentence should be outside the applicable guidelines range. See U.S.S.G. § 5H. Accordingly, Franklin's request for a two-level downward departure on various equitable grounds is denied.
For the foregoing reasons, the court denies defendant's objections to his presentence investigation report. Defendant's adjusted offense level is 12. Having no prior offenses, his criminal history category is I. Thus, under the sentencing guidelines, defendant's sentencing range is 10 to 16 months.
Ann Claire Williams, Judge
United States District Court
Dated: NOV 3 1993