United States District Court, D. Maine
MEMORANDUM DECISION ON SENTENCING ISSUE
Brock Hornby United States District Judge.
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.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.
and Commentary of Guideline 3A1.2
3A1.2 does not define the scope of its terminology “a
government officer or employee” in either the text or
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
and Commentary of other Guidelines
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).
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
2C1.1 involves bribes of public officials. The Background
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.
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.
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
other guidelines 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.