UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

UNITED STATES OF AMERICA )

)

v. ) Crim. No. 06-99

)

NICK SUTTON )

Defendant )

RESPONSE TO DEFENDANT’S MOTION FOR DOWNWARD DEPARTURE

NOW COMES the United States of America (“the government”), by undersigned counsel, and hereby responds in opposition to the Defendant’s Motion for Downward Departure (“Motion”).

BACKGROUND

Since January 2000, Nick Sutton (“Sutton”) has been the Chief Executive Officer of the Casco Chair Company (“Casco”). (Pros. Version at 2). Beginning in 2002, Casco and the principal consumer of its products, Acme Chair Suppliers (“Acme”), operated pursuant to contract terms requiring thirty days notice of termination. (Motion at 2). In early 2006, Casco and Acme began negotiating terms for a new contract that would have required a 360 days notice of termination. Pursuant to those negotiations, Sutton sent an email on February 15, 2006, to Acme employee, Carol Miller (“Miller”). (Motion at 2). In that email, Sutton wrote Miller, “In terms of the amended contract, what is holding this up? After our meetings with Jeff, I thought that everything was agreed to.” (Pros. Version at 2). Miller never responded to Sutton’s inquiry. (Pros. Version at 2). The new contract never materialized, and the two companies continued to operate under the terms of their existing agreement. (Motion at 2).

On July 14, 2006, Acme provided Casco with thirty days notice that it was terminating their business relationship. (Motion at 2). On July 17, 2006, Sutton met with Casco’s attorneys to discuss the company’s legal options, including the need to file a Temporary Restraining Order (“TRO”) to prevent Acme from terminating the contract. (Motion at 2). During those conversations, Sutton claimed agreement on the new contract terms had been reached. (Motion at 2). The attorneys informed him; however, that any new contract would not be enforceable without a written confirmation. (Motion at 2).

That night, Sutton went home and searched for his February 15, 2006, email to Carol Miller. (Motion at 2). Once located, Sutton carefully altered the email to make it appear that Miller had responded, and that an agreement had been reached. (Pros. Version at 2). The following morning, July 18, Sutton provided this falsified email exchange to Casco’s attorneys. (Motion at 3). He also signed an affidavit verifying its authenticity. (Motion at 3). Later that same day, Casco’s attorneys filed Sutton’s fraudulent affidavit, together with the fabricated email marked as Exhibit 17, as part of the motion for a TRO. (Motion at 3).

Acme responded to the TRO motion two days later, on July 20, 2006. (Motion at 3). Included in the Acme response was an affidavit from Miller “questioning the genuineness” of Exhibit 17. (Motion at 3). On July 21, 2006, Casco’s attorneys confronted Sutton about the veracity of Exhibit 17. (Motion at 3). Sutton re-affirmed its authenticity and filed a second affidavit with the court. (Motion at 3). In that affidavit, Sutton declared that Exhibit 17 was a “true and accurate copy of an e-mail that I received from Carol Miller.” (Motion at 3).

Finally, on July 22, 2006, Sutton phoned Casco’s attorneys and confessed to them that he had fabricated Miller’s response in Exhibit 17, and had lied in both of his affidavits. (Motion at 3). Two days later, Casco’s attorneys informed the Court of Sutton’s actions and moved to dismiss Casco’s civil case against Acme. (Motion at 3). On September 6, 2006, the U.S. Attorney’s office charged Sutton with perjury. (Motion at 3). Sutton pled guilty to the charge. (Motion at 3). On September 22, 2006, Sutton filed a motion for a downward departure. (Motion at 1). Sutton claims to qualify for a downward departure because his actions were aberrant behavior. (Motion at 1).

STANDARDS FOR DOWNWARD DEPARTURE

The Guidelines used in evaluating a downward departure for aberrant behavior are contained in U.S.S.G § 5K2.20 (2002). The statue provides: “A sentence below the applicable guideline range may be warranted in an extraordinary case if the defendant’s criminal conduct constituted aberrant behavior.” Id. Application Note 1 of the Guideline Commentary to § 5K2.20 defines aberrant behavior as follows:

“Aberrant behavior” means a single criminal occurrence or single criminal transaction that (A) was committed without significant planning; (B) was of limited duration; and (C) represents a marked deviation by the defendant from an otherwise law-abiding life.

ARGUMENT

Sutton does not merit a downward departure because his actions do not constitute aberrant behavior. First, Sutton’s actions cannot be considered a single criminal occurrence or transaction. Second, Sutton’s fraudulent pursuit of a specific, considered aim was not taken “without significant planning.”

I.  Sutton’s Conduct Was Not a Single Criminal Act

To qualify as aberrant behavior, a defendant must limit wrongdoing to “a single criminal occurrence or single criminal transaction.” U.S.S.G § 5K2.20 (2002). The Eleventh Circuit interpreted this requirement in United States v. Orrega, 363 F.3d 1093 (11th Cir. 2004). In Orrega, the court reversed a decision to grant a downward departure to a defendant who engaged in two separate conversations with the same person for the same illicit purpose. Id. at 1095. The court held that each conversation was a distinct “criminal act” within the meaning of the Guidelines, and barred the defendant from a downward departure. Id. at 1095.

In this case, the defendant has committed three distinct criminal acts. First, Sutton manufactured evidence for use in a civil trial. Second, Sutton signed an affidavit swearing that the manufactured email was an authentic document. Third, after the genuineness of the falsified email was questioned, Sutton lied again, affirming the authenticity of his email in a second affidavit. Under the Orrega analysis, each of these actions is a separate criminal act. Therefore, Sutton is barred from receiving an aberrant behavior departure.

II.  Sutton Did Not Act Without Significant Planning

Sutton also acted with a plan to deceive the court about a crucial fact in the ongoing civil litigation between Casco and Acme. Pursuant to the Guidelines, aberrant behavior must transpire “without significant planning.” This Court interpreted the meaning of “significant planning” in United States v. Bailey, 377 F.Supp.2d 268 (D. Me. 2005). In Bailey, the Court denied a motion for downward departure because the defendant, an elementary school teacher, had engaged in significant planning when he used a school computer to access child pornography websites, joined child pornography clubs, and received emails related to child pornography. Id. at 269.

As in Bailey, Sutton took several and repeated actions to accomplish his goal of defrauding the Court. He manufactured an email exchange. He gave a false document to Casco’s attorneys and allowed them to submit it to the Court as Exhibit 17. He signed an affidavit swearing to the veracity of Exhibit 17. Four days later, when confronted with his misdeeds, Sutton lied again to Casco’s attorneys and steadfastly defended the authenticity of Exhibit 17. He then lied in a second affidavit. These actions demonstrate that Sutton, like the defendant in Bailey, acted in a calculated fashion. Hence, Sutton did not act “without significant planning,” and is not entitled to a downward departure for aberrant behavior.

CONCLUSION

WHEREFORE, for the forgoing reasons, the Court should deny the Defendant’s Motion for Downward Departure.

Respectfully submitted,

Jeffrey Shafto

Assistant U.S. Attorney