DEFENDANT DOUG RICHARDS SENTENCING MEMORANDUM. Doug Richards was a Luzerne County employee, Human Relations

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1 IN UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : : vs. : : DOUGLAS RICHARDS : No. 3:CR ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT DOUG RICHARDS SENTENCING MEMORANDUM I. INTRODUCTION: Doug Richards was a Luzerne County employee, Human Relations Director, until he was arrested on the current charge. He has since resigned. Mr. Richards will stand before this Court for sentencing. He is a devoted husband, father of three; he was a volunteer high school coach and community worker. He is still that devoted father, but is now no longer a coach at Meyers. He has suffered shame, humiliation, and economic hardship. Since his initial appearance after an information was filed on December 9, 2009, Mr. Richards has sought non-public employment, and he is now the manager of the local branch of a national company. He remains a reliable and valued employee. (See letter of his employer provided to the Court).

2 A. Doug Richards Life Before His Arrest Mr. Richards was in a job he enjoyed immensely. He was doing something at his old high school that he loved to do. He was a volunteer assistant football coach. This position required three things, love of the players, knowledge of the game, and the willingness to devote hundreds of hours without pay. The players liked and respected Doug and the coaches appreciated his service. (See letters provided). Doug was active also in the youth athletic leagues in the community. He helped raise funds and donated his time to the kids. Many of the people providing letters attested to this. Anthony Gipson, a student/football player tells of a typical act of kindness by Mr. Richards. He states, [W]hen my grandmother passed away, I didn t have anyone to really turn to for moral support. Mr. Richards and his family didn t hesitate to let me stay with them for awhile and talk to me to make things a lot easier. Anthony s letter continues, Mr. Richards is not just a coach or just a father he is also a friend to so many people. As for Mr. Richards work in the wider community the letter of Bryon McManus, Sr., is illustrative. Mr. McManus writes about Doug s work as a football coach, but relates also that Doug was the treasurer of Field Hockey Boosters, and spoke of Doug s role in founding the Mickey Gorham 2

3 Scholarship Fund, whose mission is the financial support of scholar athletes, a cause much beloved by the late Coach Gorham who was Doug s high school coach. On the personal side and aside from the boys Doug coached, Irene Muth Soucy s letter is typical. She says, Doug and his family were the first to help care for my mom after my father died. He was the father figure to my children while my husband was deployed in Iraq. Another letter-writer states that Doug has helped his family and him with support when the writer lost his job. Tellingly he says Doug has done all of this in the midst of his own turmoil The Dean of Students at Meyers writes, Doug has served as a mentor to countless children in our community. We had a senior all but abandoned by his family. Doug and Sandy were the first to step up and help the young man by providing clothing, money and food. The young man is now doing well in college after he graduated from Meyers. Another member of the Meyers family puts it in these words, His [Doug s] passion for improving the lives of others comes from the heart and is a mirror image of his role as a father and husband. Michael Namey, Athletic Director, Meyers H.S. 3

4 Almost every letter we have submitted attests to Doug s role as an excellent father and husband. He was always and is now a hands on supportive father participating and supporting his children in academics and activities. Susan Gorham, widow of Mickey Gorham, a long time Meyers football coach, says in her letter that when her husband and daughter passed away, Doug reached out to my son and offered him support at the most difficult time in his life. Doug Richards, according to Sue Gorham had character encouraged by his coach and the character Doug tried to import to his players. Michael Hirthler says in his letter that he witnessed a remarkable act of kindness. Doug and Sandi took into their home a child that was homeless and without family locally. They did that despite their own financial difficulties. B. Doug Richards Life Since His Arrest When Mr. Richards was charged, he knew that he had something important to do. Maybe, the toughest among all of the things he had to do was a talk with his father, then with his children, and finally his team. He had to tell each of them in turn that the man they had come to admire and respect was at least flawed enough to make an awful mistake. That man had 4

5 violated the code he had learned from his father and taught the young people. Doug had those talks, each in turn. The feeling in Doug s throat and stomach during these talks were comparable only to the feelings he experienced at the death of a close friend or family member. This man who was a model citizen, an example for young people, a molder of character for his players had to tell them, I let you down. Despite the shame, humiliation, and remorse, Mr. Richards continues what, with this important exception, is the life of a productive worker and good citizen of this community. Mr. Richard s current employer, President of a company with multistate locations, writes in his letter, With Doug s joining my firm, I have confidently added to my workforce I have just invested tens of thousands of dollars in equipment, supplies and training of staff in the wood floor restoration line of work. Doug admitted to his employer that he made terrible decisions in his job with Luzerne County. His employer believes, that the greatest sentence he [Doug] ever suffered is his deep heart-felt and agonizing sorrow for the anguish he caused his wife, Sandi and three young children. 5

6 Another letter sheds strong light on Doug s post-offense character. On the day the news broke about this offense, Doug was at youth hockey practice. One of the players was injured. Doug drove the player and his mother to the emergency room. The player s mother, Amber Urban says in her letter that she told Doug, I know you have a lot going on right now, I will be fine. Doug looked at her and said, making sure Jacob is okay is more important right now. Mr. Richards has begun to repair the damage he has done to his family and those who respected and admired him. He is doing his best to repay the entire community. He does this by attempting to continue the good works that he always did as a matter of life style before this offense. Denise Thomas in her letter says she sits on many church boards with Mr. Richards and has worked with him during numerous church functions. She feels, It would be a devastating loss to our church if we were to lose him. John Murphy, an officer in the military, writes, I know first hand about accountability. In my humble opinion, this community will not benefit with Doug Richards behind bars. 6

7 II. Sentencing Guideline Calculation Under the Advisory Sentencing Guidelines, Doug Richard s offense level is 11. The Probation Office has added two levels for more than on gratuity and four levels alleging that Mr. Richards is a high-level government official making the adjusted level seventeen less three levels for acceptance of responsibility for a total offense level of fourteen. The Defendant has filed an objection to the four level enhancement. III. Dough Richards Is Not A High-Level Decision Maker Hence This Court Should Sustain Defendant s Objection To Paragraph 31 The government is seeking to enhance Mr. Richards advisory guideline level by alleging that he was in a high-level decision-making or sensitive position. Doug Richards was merely a human resource officer, a position which reported to Deputy Clerk Bill Brace, who in turn was subservient to the County Commissioners. Moreover, Mr. Richards was subservient also to Chief Clerk Guesto. (See Luzerne County Senior Staff Reporting Chart attached as Ex. 1). The application notes to the Guideline define high-level decisionmaking or sensitive position, as, a position characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision making process. Examples of high level type positions are a prosecuting attorney, a judge, an agency administrator, or any other public 7

8 official with a similar level of authority. A juror, law enforcement officer or an election official, holds a sensitive position. USSG. 2c1.1 App. Note 4, Sub Sec.(b)(3). The Government in U.S. v. Stephenson, 895 F.2d 867 (2d Cir 1990) requested it does have that the trial court should depart upward based on the Defendant s high-level, sensitive position. There the trial court denied the departure; and the Second Circuit affirmed. There the Defendant s duties involved some degree of discretion in the U.S. Department of Commerce. The Defendant had a security clearance. Defendant Stephensen was an Export Licensing Officer at the United States Department of Commerce in Washington D.C. id at 877. He reviewed applications for federal approval to export high-technology equipment from the U.S. to the Soviet Union and the Peoples Republic of China. He was responsible also for seeking additional information or clarification from parties that submitted deficient applications. Id. at 869. In the Stephensen scheme the Defendant had the power to grant an exporter a license. The exporter asked Stephensen how much a license would cost, Stephensen replied, Surprise me. Id. at 869. Stephensen eventually received payments over the period of thirteen months. He received costly jewelry with the value ranging from $5,000 to $30,000 each 8

9 payment. After one of the payments the Defendant paid $37,000 cash for a Mercedes. Id. at 370. Mr. Richards in contrast did not have the capacity to bargain for cash in exchange for the awarding of anything similar in value to an export license. He did not need a security clearance, nor did he have one. Stephensen s position was more sensitive; moreover, Stephensen was a decision maker as evidenced by his power to deny licenses. Mr. Richards had no comparable decision making power. Additionally, he did not have power over freedom or imprisonment as did the Defendant in U.S. v. Alter, 788 F. Supp 756 (S.D.N.Y.1992) rev d on other grounds, U.S. v. Alter, 985 F.2d 105(2d Cir 1993). In Alter, the Defendant was a director of a halfway house. He pleaded guilty to receiving a bribe in the form of sexual favors for approving a resident s pass to leave the halfway house. Here again, the government sought an enhancement based on Alter s status as a high-level official or sensitive position holder. The Court denied the requested enhancement. It reasoned that although alter possessed a sensitive position, some degree of discretion, and de-facto authority, these characteristics do not render one a high-level government official. 788 F. Supp at

10 Similarly, Mr. Richards has some degree of discretion, e.g. he could select three candidates among several for the Commissioners and others to decide to hire. In contrast to Alter, Mr. Richards did not have the power to give anyone freedom. A position may qualify as a high-level position under the Guidelines if the Defendant s discretion include a final decision-making authority or involves substantial responsibility for funds. U.S. v. Tomblin, 46 F.3d (5 th Cir 1995). There the Court found a high-level official because the person bribed was a Senator s top administrative aide. Tomblin reasons that a senator s top aide holds a position of substantial influence because he often serves as the senator s functional equivalent. Id. at See also Gravel v. U.S., 408 U.S.606(1972)(Senator s top aide is alter ego of the senator). In accord, U.S. v. Lazare, 14 F.3d 580(11 th Cir 1994)(Defendant held discretion over parole decisions regarding Haitian detainee); U.S. v. Matzkin, 14 F.3d (1014,1021(4 th Cir 1991)(sensitive position for Dept. of Navy employee who exercised considerable discretion in awarding contracts and supervised other employees). Doug Richards was not the alter-ego of a U.S. Senator; he was not in a position to grant parole; he did not have considerable discretion in awarding contracts, nor did he supervise others. Mr. Richards had no sensitive 10

11 information nor the power over others. Moreover, his supervisor, a person to whom he reported, was sentenced by this Court for an offense similar to the one at bar. There the government did not seek the enhancement, nor did the Probation Office find that Mr. Richard s superior was a high-level government officer. IV. This Court Should Sentence Doug Richards To A Sentence Suffiicient But Not Greater Than Necessary Home confinement/probation would be an appropriate sentence in accord with the policies underlying 3553(a). The deterrent effect has been more than mildly served in the instant case given the collateral consequences specified below. Moreover, the history and character of the Defendant are exemplary. Probation/home confinement are sufficient to reflect the seriousness of the offense, given the social stigma and would provide respect for the law. Mr. Richard s current employment, his education, and his family and community support are all factors which will guarantee the public protection from any further crimes of Mr. Richards. Put simply, Mr. Richards will not ever commit another crime. It is within the discretion of this Court in the post Booker world to impose a sentence that does not include incarceration. Probation is Punishment Probation is on a continuation of possible punishments, and probationers, do not enjoy the absolute liberty of other citizens, Sampson v. Cal, 547 U.S. 843, (2006). (quoting Griffin v. Wisconsin, 483 U.S. 868, 874(1987). Probation is 11

12 not granted out of a spirit of leniency. Probation is not merely letting an offender off easily. Gall v. U.S., 552 U.S 38, 49, N.4(2007). Moreover, probation conditions imposed on an individual can have a significant impact on the person and society. id. If this Court sentences Mr. Richards to probation, he will not be able to leave the area, move, or change jobs without notifying, and in some cases receiving permission from the probation officer or the Court. He will have to report regularly to the probation office, permit unannounced visits to his home, and refrain from associating with certain people. He may be required also to abide by certain special conditions. See id. At 48 (outlining further restrictions on probationer s liberty). These restrictions would impact anyone s liberty. Impairing them on a 46 year old man who has owned his own business, managed a business, and was a high school coach would be especially significant. Mr. Richards was used to traveling on short notice. His jobs although responsible and time consuming allowed him freedom accorded those who do not watch the clocks on starting or leaving work. Doug Richards Has Been Punished: Mr. Richards having been accused and pled to a felony offense has been subjected to embarrassment, ridicule, and shame out of proportion to the offense. The media attention of this matter has exceeded coverage given to many murder cases. His picture has appeared prominently in the newspapers. 12

13 Mr. Richards has formerly enjoyed the pleasures and privileges of citizenship. Certain of those privileges will now be curtailed, if not forbidden. He will be barred from serving on a jury, his ability to travel will be limited, his business opportunities as well as employment will be forever hindered. For example, he will not be eligible for government business loans. Many states will not allow him to vote, a privilege of which Mr. Richards has always used. Doug Richards will always be a convicted felon. This may be the harshest punishment of all. It will never go away. It will be a permanent status. Registration laws are common and their range is wide. Lambert v. Cal., 355 U.S. 225, 229 (1957). Mr. Richards will be required to register in certain cities and states, whether traveling on business or pleasure. For a man of 46 years, this humiliation and embarrassment is significant punishment. The registration laws and cases upholding them are voluminous. Id. at 244, (Frankfurter, J. Dessenting). Barring exceptional circumstances, Mr. Richards will be employed in a job under utilizing his education and experience. His employment in the human resource profession will be limited by his inability to get a recommendation from Luzerne County. Educational institutions will be very reluctant if they do not refuse altogether to hire him. That leaves Mr. Richards little alternative. Either he accepts charity from his family or gets a job below his educational and professional qualifications. The purposes of 3553 (a) will be well served if this Court imposes a sentence which does not include incarceration. Mr. Richards age, his 13

14 educational accomplishments, his extremely close family ties, his ties to the community and his obvious and extreme remorse are indicators that he will not re-offend. The general community is very much aware of the shame and embarrassment which Mr. Richards has undergone. This alone is a deterrent to others. As this memorandum has set forth above, probation/home confinement are punishments with long ranging consequences. That type of punishment would be sufficient to satisfy all of the goals of 3353 (a) while not so harsh as to offend the dictate that punishment should be the least severe under the circumstances. Respectfully submitted: /s/ William Ruzzo WILLIAM RUZZO, ESQUIRE Attorney I.D.# Rutter Avenue Kingston, PA Attorney for Defendant 14