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U.S. v. BORDINARO
777 F.Supp. 1229 (1991)
UNITED STATES of America
v.
James A. BORDINARO.
Crim. No. 91-84-01.
United States District Court, E.D. Pennsylvania.
November 4, 1991.
Timothy P. Crowley and John P. Yatsko, Trial Attys., Antitrust Div., Philadelphia, Pa., for plaintiff.
William H. Kettlewell, Dwyer Collora & Gertner, Boston, Mass., for defendant.
OPINIONVAN ANTWERPEN, District Judge. On October 11, 1991, in Easton Pennsylvania, this court, sentenced the defendant James A. Bordinaro to twelve months imprisonment and imposed a fine of $55,000 based on a two-count guilty plea. After reviewing the presentence report, counsel's memoranda, and all arguments presented at the sentencing hearing, the court made specific findings on the record and imposed sentence pursuant to the federal sentencing guidelines. To ensure that the defendant's rights are fully protected, we issue this opinion. FACTUAL BACKGROUNDOn March 4, 1991, the defendant James A. Bordinaro was named in a two-count information filed in the Eastern District of Pennsylvania. Count I charges Bordinaro with conspiring to rig bids on frozen seafood contracts awarded by the Defense Personnel Support Center (DPSC) between 1981 and September 1989 in violation of the Sherman Act (15 U.S.C. § 1 et seq.). Count II charges Bordinaro with conspiring to submit false statements to the DPSC concerning the origin of the fish used to fulfill DPSC contracts during the period of May 1986 to September 1989 in violation of 18 U.S.C. §§ 371 and 1001. a. The Antitrust Conspiracy. The DPSC, located in Philadelphia, Pennsylvania, is one of six purchasing centers operated by the United States Department of Defense (DOD). The DPSC is responsible, inter alia, for purchasing frozen seafood products, the subjects of this information. Regulations require that each bidder certify that its bids are independently determined and not the product of consultation, communication, or agreement with any other bidder.
1. The following companies were involved with the bid rigging conspiracy at various times: Empire Fish Company, F.J. O'Hara and Sons, Inc., Ocean Crest Seafood, Inc., Channel Fish Co., Channel Fish Processing Co., Inc., Maine Fisheries, Tichon Seafood Corporation, Inc., Cozy Harbor Seafood, Inc., Anthony Parco, Edward McCollum, Jr., Leonard Parco, Roy Zaffiro, John Zaffiro, Sebastian Milano, Roy Silvestro, David Bergson, David Harmon, Daniel Tichon, and John Norton, Jr. 2. In many ways, a false statement offense is a "victimless" crime, a crime for which "society at large is the victim." § 3D1.2, application note 2. Submitting false statements to the government, in an effort to circumvent a regulation promulgated for the benefit of society at large, is akin to the victimless crimes of obstructing justice, stealing government documents, or illegally procuring food stamps. See e.g. United States v. Egson,897 F.2d 353, 354 n. 2 (8th Cir.1990); United States v. Berkowitz,712 F.Supp. 707, 710 (N.D.Ill.1989), rev'd on other grounds,927 F.2d 1376 (7th Cir.1991). The victim for purposes of a victimless crime is "the societal interest that [has been] harmed." § 3D1.2, application note 2. 3. Even if we were to agree with the defendant that the DPSC was the victim of the false statement offense, the result would be the same. Circuits have held that, where the "victim" appears to be the United States, as represented by an agency, the victim is defined by the governmental interest which has been violated. United States v. Reyes,908 F.2d 281, 289 (8th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 1111, 113 L.Ed.2d 220 (1991); United States v. Kim,896 F.2d 678, 687 (2d Cir.1990). While we recognize that both Reyes and Kim involved offenses against the United States as represented by different government agencies, we see no reason why this reasoning should not apply to offenses against the United States, as represented by one government agency. 4. Contrary to the defendant's assertions, the fact that each of the defendant's co-conspirators were also charged with conspiring to submit false statements is irrelevant. Although they faced similar charges, there is no evidence that the co-conspirators conspired with each other to make false statements. Rather, the co-conspirators conspired collectively to rig bids, and each co-conspirator conspired independently with his own company to make false statements. 5. Accord United States v. Channel Fish Processing Co., Inc. et al., No. 91-00159 (E.D.Pa. July 25, 1991) and United States v. Zaffiro, No. 91-00158 (E.D.Pa. September 27, 1991) (related cases in which the court refused to group the antitrust and false statement offenses, pursuant to § 3D1.2(b), in sentencing defendant's co-conspirators); contra United States v. F.J. O'Hara & Sons, Inc., Nos. 90-00026-B and 90-00027-B, 1991 WL 286175 (D.Me. September 13, 1991) (a related case finding that the two offenses, although separate, were part of the defendant's scheme to sell fish to DPSC — as much fish product as he could at the greatest possible profit to his company). For the reasons discussed above we believe that the reasoning of Channel Fish and Zaffiro is most persuasive. 6. Even if we were to consider the language of § 3D1.2(d) more closely, we find that the defendant's base offense levels are not calculated in a similar way nor was his behavior ongoing and continuous. While both offense levels are determined monetarily, the severity of the anti-trust offense is measured by the total volume of commerce attributable to the bid-rigging scheme and the severity of the fraud offense is measured by the amount of loss to the victim. Moreover, offenses resulting from continuous conduct can only be grouped if the offense guidelines specifically provide for upward adjustments in the offense level for repeated behavior. United States v. Pilgrim Mkt. Corp.,944 F.2d 14, 19-20 (1st Cir.1991). There are no such adjustments under §§ 2F1.1 and 2R1.1. 7.
Antitrust Violation:
Base offense level 9 § 2R1.1(a)
Bid Rigging + 1 § 2R1.1(b)(1)
Volume of Commerce + 1 § 2R1.1(b)(2)
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Total 11
False Statement Offense:
Base offense level 6 § 2F1.1(a)
More than minimal planning + 2 § 2F1.1(b)(2)
________
Total 8
8. Defendant's counsel presented the following factors: the defendant was the second co-conspirator to accept responsibility for his offenses; the defendant arranged to sell his company so that ninety (90) percent of his employees could retain their jobs; all unsecured and secured creditors of the company have been paid; and the United States Government has been paid. Moreover, the defendant has primary responsibility for his aged father. 9. We are mindful that at least one goal of the guidelines is to minimize disparities in sentences. United States Sentencing Commission, Guidelines Manual, Part A (Introduction and General Application Principles). However, we find our sentence to be in keeping with those imposed on the defendant's co-conspirators. Judge Green, Eastern District of Pennsylvania, sentenced John Zaffiro, a minor player in the conspiracy, to eight (8) non-split months. Judge Gawthrop, Eastern District of Pennsylvania, sentenced Roy Zaffiro, a more active participant, to ten (10) non-split months.
While Judge Hornby, District of Maine, sentenced John O'Hara, the defendant's ring-leader, to six (6) months, Judge Hornby's sentence was based largely on his decision to group the defendant's offenses under § 3D1.2, a decision we disagree with. 10. Section 2R1.1(c) provides in pertinent part:
The guideline fine range for an individual conspirator is from 4 to 10 percent of the volume of commerce, but not less than $20,000.
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