In U.S. v. Devegter, No. 04-14075 (Feb. 16, 2006), the Court agreed with the government that the district court erred in calculating a sentence under the commercial bribery guideline, USSG § 2B4.1.
The bribery guideline provides that the severity of sentence is based on either the amount of the bribe or the net value of the improper benefit conferred as a result of the bribe. The district court noted that some of the benefit from the bribe was paid out by the beneficiary (Lazard Freres & Co.) in the form of bonuses to its employees at year’s end. The district court, finding that these bonuses were a cost which reduced the value of the benefit from the bribe, and that the government failed to pinpoint the cost amount to be deducted, reasoned that the sentence could not be fairly calculated based on a benefit, but should be based on the amount of the bribe.
The Court reversed. Finding that the amount of bonuses is merely a "variable" and "indirect" cost to Lazard, the Court found that the "inherent difficulty" in calculating it should take it outside the realm of the direct costs that should be subtracted from profits in determining the net improper benefit. The Court held that the full benefit of the bribe, without taking account of the bonuses, should be the basis for the sentence.
The Court also reversed downward departures based on the combination of aberrant behavior, physical condition, and family circumstances. The Court found that the defendant’s "repeated acts of wrongdoing" undermined a finding of aberrant behavior. The Court further found that the defendant’s physical condition had healed. Finally, while noting the special family circumstances of the defendant, the Court pointed out that departures on this basis was not permitted under the Guidelines.
