The opinion of the court was delivered by: Blanche M. Manning, United States District Judge
On November 13, 2001, a federal grand jury returned a one count indictment against Defendant Nirali Patel alleging bank robbery by force, violence and intimidation, in violation of 18 U.S.C. § 2113 (a) and 2. Subsequently, on February 13, 2002, a superceding indictment was returned against Patel alleging, in addition to the original count, a second count of bank fraud, in violation of 18 U.S.C. § 1344 and 2. Patel subsequently pled guilty to Count Two (bank fraud) and persisted in her plea of not guilty on Count One and proceeded to trial. She was tried twice for the bank robbery, each trial resulting in a hung jury. After two mistrials, the Government dismissed Count One (bank robbery) without prejudice. The present matter comes before this Court for sentencing on the bank fraud charge.
Count One of the Superceding Indictment alleges that on August 11, 2001, Patel conspired to rob Fifth Third National Bank in Naperville, Illinois ("Fifth Third") by force, violence, and intimidation. The Government alleges that Patel, who was a Fifth Third employee at the time, helped plan and execute the robbery, knowing at the time that it would involve violence against a fellow bank employee. Patel allegedly admitted two men into the bank before it opened and agreed to leave the vault open with an unusually large amount of cash in it and supply the men with the surveillance videotape. To make the robbery look "teal" Patel allegedly agreed that the robbers would "push them [The bank employees] around." As a result of the scheme, the two robbers threatened another bank employee with death, kicked him in the stomach and leg, and hit him in the head with a gun. In all, the robbers made off with $166,000. Two days after the heist, Patel allegedly confessed to the crime.
Count Two of the Superceding Indictment alleges that Patel executed a plan to defraud Fifth Third bank customers by knowingly withdrawing funds from customer accounts without authorization by using fraudulent automatic teller machine ("ATM") cards and stolen checks.
On March 13, 2002, one month after the Superceding Indictment was returned, adding Count Two, Patel moved to sever the two counts. On July 17, 2002, this Court denied the motion to sever. Subsequently, on July 19, 2002, the Friday before the trial was to begin, Patel pled guilty to Count Two.
After pleading guilty to the bank fraud count, Patel proceeded to trial on Count One. At trial, Detective Cammiso of the Naperville Police Department testified that Patel confessed to him and FBI Special Agent Fragomeli. The Government also presented evidence that Patel allegedly violated internal bank procedures to ensure that there was more money than usual in the bank on the day of the robbery. Patel, in turn, testified that she did not confess to the robbery. Agent Fragomeli did not testify. The jury was unable to reach a unanimous verdict, and this Court declared a mistrial.
After this Court denied her motion for judgment of acquittal, Patel moved to suppress her alleged confession to the bank robbery, which this Court likewise denied. Thereafter, Patel went to trial a second time. At the second trial, both detective Cammiso and agent Fragomeli testified that Patel confessed to the robbery. On cross-examination, however, Patel's attorney was able to point out glaring inconsistencies in the versions of the alleged confession. Patel exercised her Fifth Amendment right and did not testify at the second trial. As in the first trial, the jury was unable to reach a unanimous verdict, and this Court declared a mistrial. The Government subsequently dismissed Count One without prejudice.
After the Government dismissed Count One, Probation completed a PSR for Patel on the bank fraud charge. Probation calculated the total offense level for Patel using the 2002 United States Sentencing Guidelines ("USSG" or "the Guidelines") as follows:
Base Offense Level for 18 U.S.C. § 1344 6
(USSG § 2B1.1)
Adjustment for Value 6
of Loss which is less than
$70,000 but more than
$30,000 (2B1.1 (b)(1)(D))
Use of Device Making Equipment 2
Abuse of Trust (3B1.3) 2
Adjustment for Acceptance of Responsibility -2
Total Offense Level 14
In response to the PSR, Patel has filed: (1) an objection to Probation not including an additional one level reduction for "timely notification" of her plea, pursuant to section 3E1.1 (b)(2); and (2) a motion for downward departure. The Court will discuss each of these contentions in turn.
I. Downward Adjustment Under Section ...