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4th Circuit upholds bribery sentence

A defendant who pleaded guilty to taking kickbacks from a government contractor must serve a sentence based on the contracting company’s $9.5 million in ill-gotten profits, not on the estimated $340,000 in bribes the defendant received, the 4th U.S. Circuit Court of Appeals held last week.That translates into concurrent sentences of 46 months for Paul Thomas Kinter, instead of a maximum of 30 months’ imprisonment, according to the opinion.The opinion, written by Judge Paul V. Niemeyer on behalf of a three-judge panel, also concluded that the sentence was constitutionally valid.Kinter was the former father-in-law of Internal Revenue Service employee Scott King who, according to the opinion, told Kinter in the summer of 1990 that the IRS planned to contract with a yet-to-be-determined company for computer maintenance.King was the IRS technical representative for the Martinsburg, W.Va., office and advised IRS contracting officers.According to the opinion, King and Kinter decided to sell King’s influence. Kinter, a “consultant,” brought Washington Data Systems Inc. into the scheme, the opinion said, and King recommended the company to the appropriate IRS contracting officer. During the next five years Washington Data won about 30 short- and long-term IRS contracts.“As Kinter had anticipated, the revenues to Washington Data from these contracts exceeded $57 million, generating $9.5 million in profits for Washington Data,” Niemeyer wrote. “In the aggregate, Kinter received between $340,000 and $350,000 from Washington Data, and he paid a substantial portion of this amount to King.”A grand jury indicted Kinter in late 1998 on charges of conspiracy, bribery of a public official and payment of a gratuity to a public official.Kinter pleaded guilty and U.S. District Judge Deborah K. Chasanow sentenced him to two concurrent 46-month terms of imprisonment for bribery and conspiracy, and one concurrent 24-month term on the gratuity charge.She based the terms on sentencing guidelines applicable to the $9.5-millon benefit received by Washington Data.Kinter appealed the sentence and argued that sentencing guidelines dictate that the sentence be based on the amount of his “benefit received.”“[W]e conclude that ‘benefit received,’ for the purposes of sentencing Kinter, must include Washington Data’s $9.5 million profit from the IRS contracts,” Niemeyer wrote.Kinter “induced, procured, and willfully caused Washington Data to obtain the IRS contracts,” Niemeyer wrote, and he “foresaw the scope of the continued course of dealing.”Niemeyer quoted Chasanow, who said from the bench:“[It] is all part of the conduct that constitutes the bribery scheme. There was no break, no unforeseen intervening event that stopped the course of this bribery scheme.”Kinter’s argument would be valid if the facts were different, the appeals court noted.“If Kinter had acted within his individual capacity — if, for example, he had bribed the government official without Washington Data’s knowledge — Washington Data’s profits would not have been an accurate measure.”Kinter also challenged the constitutionality of federal sentencing guidelines and said that a jury should have determined his sentence.Kinter relied on Apprendi v. New Jersey, in which a New Jersey defendant pleaded guilty to a firearms violation and faced a 10-year maximum sentence. The trial judge concluded, however, that the defendant committed a hate crime and imposed a 12-year sentence under that statute.Noting that Kinter’s sentence was less than the 57-month maximum sentence provided for under the sentencing guidelines, the appeals court concluded that Kinter’s sentence was valid.None of the attorneys in the case could be reached for comment yesterday.<table width=”100%” border=”0″ cellspacing=”0″ cellpadding=”0″

WHAT THE COURT HELD

Case: United States of America v. Paul Thomas Kinter, US4th No. 99-4621. Published. Opinion by Niemeyer, J. Filed Dec. 19, 2000.Issue: Was it correct to sentence a defendant who pleaded guilty to taking kickbacks from a government contractor based on the contracting company’s $9.5 million in ill-gotten profits and not on the estimated $340,000 in bribes the defendant received?Holding: Yes. The bribery scheme was carried out with the contractor’s knowledge, the contractor’s profits were an accurate measure of the benefit received from the scheme.Counsel: Assistant Federal Public Defender Martin G. Bahl for appellant; Assistant U.S. Attorney Rod J. Rosenstein for appellee.RecordFax: 0-1219-60 (16 pages)