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United States v. Malmstrom

United States District Court, D. Maine

February 27, 2019

UNITED STATES OF AMERICA,
v.
ERIC MALMSTROM, Defendant

          MEMORANDUM DECISION ON SENTENCING ISSUE

          D. Brock Hornby United States District Judge.

         The question I address here is whether a particular sentencing guideline enhancement applies when an employee of a foreign government is a victim. A jury convicted the defendant of three counts of threatening interstate communications directed at a Swedish Embassy employee in Washington, D.C. For sentencing purposes, the government requested, and the Presentence Report recommended, a 6-level enhancement in the Guideline range under Guideline Section 3A1.2(b). That enhancement applies if the victim was “a government officer or employee” and the offense “was motivated by such status.” See id.[1]The defendant argues that the enhancement does not apply in the case of foreign government officers or employees such as those of the Swedish Embassy. See Sentencing Mem. at 7 (ECF No. 101). I concluded at the sentencing hearing on February 26, 2019, that the enhancement does not apply but, because there is scant authority on the issue, I said that I would issue a written opinion, and I do so here.

         Text and Commentary of Guideline 3A1.2

         Guideline 3A1.2 does not define the scope of its terminology “a government officer or employee” in either the text or the Commentary.

         Application Note 1 does state (and has always stated): “This guideline does not apply when the only victim is an organization, agency, or the government.” (emphasis added). Perhaps that is some indication that the Commission's focus is the United States government, not governments of other countries. But it is hardly determinative.

         Text and Commentary of other Guidelines

         Unlike 3A1.2, other guidelines make clear when they apply to foreign governments. For example, Guideline 2B1.1, involving various theft, embezzlement and fraud crimes, specifies an enhancement for trade secret misappropriation where the defendant knew or intended that “the offense would benefit a foreign government, foreign instrumentality, or foreign agent.” U.S.S.G. § 2B1.1(b)(14)(B).

         That same guideline also uses the term “government entity” for a different enhancement, 2B1.1(b)(19)(A)(i). That enhancement deals with crimes under 18 U.S.C. § 1030, and Application Note 15 provides that “‘Government entity' has the meaning given that term in 18 U.S.C. § 1030(e)(9).” The latter provision says explicitly that the term government entity there includes “any foreign country.” Guideline 2B3.2 involves certain types of extortion and is also applicable to certain section 1030 crimes. It provides an enhancement for damage to a computer system used “by or for a government entity in furtherance of the administration of justice, national defense, or national security, ” 2B3.2(b)(3)(B)(i). There the Commission states in Application Note 1 that “‘Government entity' has the meaning given that term in 18 U.S.C. § 1030(e)(9), ” again citing the provision that refers explicitly to foreign countries.

         Guideline 2C1.1 involves bribes of public officials. The Background Note states:

Section 2C1.1 also applies to offenses under 15 U.S.C. §§ 78dd-1, 78dd-2, and 78dd-3. Such offenses generally involve a payment to a foreign public official, candidate for public office, or agent or intermediary, with the intent to influence an official act or decision of a foreign government or political party. Typically, a case prosecuted under these provisions will involve an intent to influence governmental action.

         Guideline 2C1.8 deals with election campaign fraud. It provides for enhancements when, as part of an illegal transaction, money comes from a “foreign national” or a “government of a foreign country.” Id. at b(2). Application Note 1 defines those terms.

         Guidelines 2M2.1, 2M3.1, 2M3.2, and 2M3.3 deal, respectively, with destruction of military material and use of national defense information to the advantage a foreign government or nation. They state explicitly that they do so. See, e.g., U.S.S.G. § 2M3.2 cmt. background (“The statutes covered in this section proscribe diverse forms of obtaining and transmitting national defense information with intent or reason to believe the information would injure the United States or be used to the advantage of a foreign government.”)

         These other guidelines[2] reveal that, in promulgating the guidelines, the Commission was aware that some crimes could involve foreign governments. The Commission made explicit provision for enhancements in those instances. Its failure to do so in Guideline 3A1.2 is, thus, some indication that the 3A1.2 enhancement is not directed at cases involving foreign government officers or employees.

         Amendment History ...


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