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United States v. Hogan

April 27, 1995

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

JAMES HOGAN, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 CR 689--George W. Lindberg, Judge.

Before BAUER, CUDAHY and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

ARGUED JANUARY 17, 1995

DECIDED APRIL 27, 1995

James Hogan is an ex-sheriff who pleaded guilty to mail fraud in violation of 18 U.S.C. sec. 1341. As Director of Personnel for the Cook County Sheriff's Office, Hogan manipulated the recruiting process for deputy sheriffs and corrections officers. In particular, he made sure that certain applicants received passing scores on entrance exams and falsified records indicating that other applicants had received their general education degrees. On appeal, Hogan complains of the district court's sentencing determinations. He first suggests that the district court erred in determining that he was an "organizer or leader" of a criminal scheme involving five or more participants. Second, he complains of both the basis and the extent of the district court's upward departure. We find the district court's sentencing determinations largely unobjectionable. We therefore affirm the enhancement for Hogan's leadership role and the basis for determining that Hogan's actions warranted an upward departure. The district court failed, however, to justify the extent of its upward departure. We therefore remand for findings in this regard.

I.

James Hogan (Hogan) worked as Director of Personnel for the Cook County Sheriff's Office. As Director of Personnel, Hogan was in charge of hiring Cook County deputy sheriffs and corrections officers from the pool of applicants certified for hiring by the Cook County Sheriff's Merit Board. He ultimately used this position to engineer a fraudulent hiring scheme from early in 1987 until sometime in November of 1990.

The scheme largely involved manipulating and falsifying the qualifications of certain applicants for positions as Cook County corrections officers and deputy sheriffs. The Cook County Sheriff's Office can appoint only individuals who have been certified for the particular positions by the Cook County Sheriff's Merit Board. The Merit Board certifies applicants for positions based on a number of criteria--among these, the possession of a high school diploma or the equivalent and the passing of a written reading comprehension exam.

After Hogan became Director of Personnel for the Sheriff's Office he took a number of measures to ensure that certain favored applicants received positions as deputy sheriffs and corrections officers. In particular, he handed out stamped application forms to certain applicants at times when they were not available to the general public. He also made sure that certain applicants were given automatic passing scores on the required written entrance exams. And he had fictitious general education degree (GED) certificates placed in the files of other applicants.

Hogan acted in concert with others to accomplish this scheme. He apparently acted at the behest of an anonymous high level official. In addition, at least six others in the Sheriff's Department worked with him. Among these, only Jeffery Glass, the Assistant Director of the Cook County Sheriff's Merit Board, held a position of authority parallel to that of Hogan. The remainder of the individuals involved in the scheme were Hogan's subordinates and apparently acted pursuant to his orders. The government suggests that Glass, too, acted according to Hogan's orders. Apparently, when the high level official met with Hogan and Glass, the high level official told Glass that Glass should do whatever Hogan told him to do.

The record fails to indicate the precise number of unqualified individuals actually hired because of this scheme. Documentation does suggest, however, that at least 367 applicants for Deputy Sheriff and Corrections Officer positions were given a passing score on the entrance exam despite failing marks. In addition, at least 125 fictitious GED certificates were placed in the files of designated applicants who did not possess the required educational credentials.

Hogan ultimately pleaded guilty to mail fraud in violation of 18 U.S.C. sec. 1341 for these activities. The district judge sentenced him to twenty-four months in prison, followed by three years of supervised release. The court also ordered Hogan to perform three hundred hours of community service and to pay a fine of eighteen thousand dollars.

This sentence reflects a number of findings under the 1988 version of the Sentencing Guidelines. Finding that Hogan's base offense level was 6 under U.S.S.G. sec. 2F1.1(a) (Fraud and Deceit), the district court enhanced 2 levels pursuant to U.S.S.G. sec. 2F1.1(b)(2) for more than minimal planning and a scheme to defraud more than one victim. Because the total offense level was still less than 10, the district court then increased it to this level. U.S.S.G. sec. 2F1.1(b)(2). The district court then determined that Hogan was the organizer or leader of a criminal activity involving five or more participants and added a four-level enhancement. U.S.S.G. sec. 3B1.1(a). The court then reduced Hogan's offense level by two levels in light of his acceptance of responsibility. U.S.S.G. sec. 3E1.1.

These calculations gave Hogan an offense level of 12. Because he had no prior criminal record, he had a criminal history category of I. The district court believed that this offense level failed to adequately reflect the seriousness of Hogan's criminal conduct in light of the "multiplicity of offenses" that he had committed. The district court therefore departed upward four offense levels. To support its decision to depart, the district court cited numerous factors about the nature of Hogan's offense. Specifically, it believed that an upward departure was warranted in light of the sheer number of victims affected and ...


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