Jason Zullo's Sentencing Memorandum
Imagine my surprise tonight when a reporter from a local paper sent me an email asking to see a copy of my sentencing memorandum in the Jason Zullo case. I told them I had filed one today, too. They asked for a copy. Can't you get it on-line, I asked?
No, the reporter responded. The Government had emailed a copy to the paper at 6 p.m. So I emailed mine to the paper.
I've never seen the Government quite so desperate to win a case in the papers as this one. It indicted Zullo, an East Haven cop, and charged him with civil rights violations for preying upon Latinos. In the end, the Government elected not to pursue any of those charges, instead settling for a guilty plea by Zullo for having omitted information about a collision Zullo had with a man -- an Italian-American -- who was fleeing police on a motorcycle.
The Government wants to claim victory, however. So it is treating its sentencing memorandum as a press release. I've never seen the Government stoop that low. But, then again, I've never seen the Government hold a man out to the world as a racist criminal, and then walk away from the charges.
Here's our sentencing memorandum. Sentencing will take place in Hartford federal court at 2 p.m. on January 8, 201
DEFENDANT’S SENTENCING MEMORANDUM
Jason Zullo was arrested and introduced to the world as a “bully with a badge” at a press conference by federal prosecutors almost one year ago. He was accused of engaging in a conspiracy with others -- the so-called “Miller boys” -- to violate the civil rights of Hispanic residents of East Haven by engaging in a series of unlawful motor vehicle stops, illegal searches and the use of unreasonable force. At the time of his arrest, he was an East Haven police officer. So were the three other defendants in this case.
Sergeant John Miller, the eponymous leader of the so-called conspiracy, pleaded guilty to a single count of conspiracy to violate civil rights in violation of 18 U.S.C. Section 242, for punching a non-Hispanic. The claims related to the his role as a co-conspirator in the targeting of Hispanics disappeared.
Mr. Zullo has now entered a plea also, to a single count in a superceding information. Like Mr. Miller, Mr. Zullo pleaded guilty to a claim unrelated to the initial conspiracy. Mr. Zullo pleaded guilty to omitting information about a collision with a motorcyclist who was actively fleeing Mr. Zullo’s efforts to question him. The driver of the motorcycle is an Italian-American.
The Government’s ballyhooed prosecution of bullies with badges for targeting Hispanics has yet to yield either a single conviction or a single guilty plea. Judged by the standards applicable to an action arising under 42 U.S.C. Section 1983, it is unlikely any of the race-based conspiracy claims advanced by the Government could withstand a motion for summary judgment as there was arguable probable cause to support each and every stop and search. Because this is a criminal action, the defendants had no choice but to stand trial on these damning charges, and then to move for a motion for a judgment of acquittal. Rather than run the risk of failure at trial, the Government appears to have settled for what it could get in this case – the punch of one Caucasian, and the failure of another officer to include information about a collision in a police report involving the chase of another Caucasian.
The prosecution, unveiled to the public at large as a bold declaration about the rule of law and the Government’s determination to see that it is applied equally to people of all races and ethnicity, has now been transformed into the sort of garden-variety police misconduct case common to this Court’s civil docket.
The Government now seeks prison for Mr. Zullo. Mr. Zullo is barred by the terms of a plea agreement that this Court is free to enforce or reject, from arguing for a sentence of less than 12 months in a federal prison.
II. General Sentencing Considerations
Although the federal sentencing guidelines are no longer mandatory, United States v. Booker, 125 S.Ct. 738 (2005), they are far from moot. The Second Circuit instructs sentencing courts that their duty is to “consider” the Guidelines. United States v. Crosby, 397 F.3d 103 (2d Cir., 2005). Anticipating the need to sculpt a new category of sentences, the Circuit offered the following formulation for sentences imposed in a “non-Guidelines” manner: “We think it advisable to refer to a sentence that is neither within the applicable Guidelines range nor imposed pursuant to the departure authority in the Commission’s policy statements as a `non-Guidelines sentence’ in order to distinguish it from the term `departure.’”
Imposition of a non-guideline sentence need only be reasonable. As Crosby noted, there are no bright-line tests for determining what an appropriate sentence should be; mere “robotic incantations” do not suffice when weighing the factors a sentencing judge must consider.
III. Factors To Be Considered At Sentencing
Various factors to be considered in imposing sentence are set forth in 18 USCA §§ 3553(a). Under §§ 3553(a), the sentencing court must impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in 18 USCA §§ 3553(a)(2), which provides that the court, in determining the particular sentence to be imposed, must consider the need for the sentence imposed to (1) reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (2) afford adequate deterrence to criminal conduct; (3) protect the public from further crimes of the defendant; and (4) provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. Section 3553(a) further provides that in determining the particular sentence to be imposed, the court must also consider:
* The nature and circumstances of the offense and the history and characteristics of the defendant.
* The kinds of sentences available.
* The kinds of sentences and the sentencing ranges established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines issued by the Sentencing Commission and in effect on the date the defendant is sentenced, or (in the case of a violation of probation or supervised release) the applicable guidelines or policy statements issued by the Sentencing Commission.
* Any pertinent policy statement issued by the Sentencing Commission that is in effect on the date the defendant is sentenced.
* The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.
* The need to provide restitution to any victims of the offense.
A sentencing court must impose a sentence of the kind, and within the range, established by the relevant provisions of the Sentencing Guidelines, unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. The court, in determining whether to impose a term of imprisonment, and, if one is to be imposed, in determining the length of the term, must consider the factors set out in 18 USCA §§ 3553(a) to the extent that they are applicable. In determining whether to make a recommendation concerning the type of prison facility appropriate for the defendant, the court must consider any pertinent policy statements issued by the Sentencing Commission pursuant to 28 USCA §§ 994(a)(2).
IV. The Guilty Plea In This Case And The Stipulation Of Offense Conduct
Mr. Zullo pleaded guilty to one count of Obstruction, in violation of 18 U.S.C. Section 1519. According to the Stipulation of Offense Conduct, Mr. Zullo omitted reference to an isolated chase of a motorcyclist, and to a collision with the motorcycle, in an effort to impede or instruct a “possible excessive force investigation” within the jurisdiction of the Federal Bureau of Investigation. (Stipulation of Offense Conduct, Paras. 1-4) The defendant did not plead to any other counts of the original indictment, and, while the stipulation reserves to the Government the right to “present additional relevant offense conduct to the attention of the Court,” the Government has, to date, provided no notice of what other offense conduct it deems relevant.
The Government does not claim that the pursuit of the motorcyclist was unjustified. Indeed, the grand jury transcript of the motorcycle operator’s testimony makes clear that he knew Mr. Zullo was trying to stop him, and that he took evasive efforts in order to avoid being cited for unlawful operation of the vehicle. The plea, unlike that of Mr. Miller’s, involves no claim of excessive force. The defendant contends that the contact with the operator’s vehicle was incidental, and not intentional; he would not have entered a plea to engaging in unreasonable force. To suggest that the defendant’s failure to include reference to the contact his cruiser made with the motorcycle as part of an ongoing “conspiracy” to violate the civil rights of Hispanics makes no sense whatsoever. The motorcycle operator is an Italian-American.
Mr. Zullo contends there is no other relevant offense conduct in this case, and that the Government’s efforts to offer evidence of such conduct should be barred. It was the Government that chose to characterize the “Miller boys” as race-inflamed criminals. The Government abandoned that theory in the pleas it has thus far taken. To suggest, as it must in this instance if it truly intends to offer other acts of alleged misconduct as evidence of a conspiracy to violate the rights of East Haven residents strains credulity. On this theory, any set of isolated acts of misconduct can be stitched together to form a sinister mosaic. The Government had its chance to prove this strained theory of liability by insisting on a trial at which both this Court and, perhaps, should the case survive a motion for a judgment of acquittal, a jury could pass judgment on the Government’s claim. Having opted out of a trial on the conspiracy charges, the Government ought not to be permitted at this late date to revive the claim.
V. An Appropriate Sentence In This Case
A. The Guidelines
The parties disagree about Guidelines sentence in this case. The defendant asserts that the base level of 14 should reflect a two-point reduction for acceptance of responsibility, for a total offense-level of 12. Given the defendant’s lack of criminal history, his Guidelines sentence would be 12. (Plea Agreement at p. 4)
The Government contends that a base level of 12 should be enhanced by two points, reflecting the vulnerability of the victim, under U.S.S.G. Section 3A1.1(b), and two more points for abuse of a position of authority, under U.S.S.G. Section 3B1.3. An offense level of 18 would warrant a three-level downward departure for acceptance of responsibility, for a total offense level of 15. Given the defendant’s criminal history of I, the Government’s calculations call for a sentence of 18 to 24 months of incarceration. (Id.)
The plea agreement entered by the parties contains unusual language. The Government agreed not to seek a sentence of more than 24 months of incarceration; the defendant agreed not to argue for a sentence of less than 12 months. (Plea Agreement, at p. 4) The agreement also reflects the parties’ understanding that “the Court will determine the sentence in this case and is in no way bound by terms of this agreement or the Guideline ranges specified herein.” (Id.)
B. Why The Government’s Enhancements Are Inapplicable
The offense of conviction is Obstruction by wilfull failure to include information about a collision in a police report. Just how this offense supports an enhancement for a vulnerable victim is by no means clear. There is apparently no dispute that Mr. Zullo was justified in seeking to stop a man who was fleeing from him on a motor vehicle. Neither is there a dispute that the man had a duty to stop. There is no agreement by the parties that unreasonable force was used on the motorcycle driver.
“The vulnerable victim guideline is primarily concerned with the impaired capacity of the victim to detect or prevent the crime,....” U.S. v. Gill, 99 F.3d 484, 486 (1st Cir. 1996). Merely suffering great harm does not necessarily support a vulnerable victim enhancement. U.S. v. Stover, 93 F.3d 1379 (8th Cir. 1996).
The Government appears to believe that the collision between the defendant’s cruiser during the chase of the driver was intentional, and that it is therefore relevant offense conduct. The defendant contends the contact was incidental, and resulted from the evasive actions the motorcycle driver attempted to take while the driver was fleeing the officer. There is no claim that the driver was in any sense impaired. He knew full well what he was doing. At the time of the chase, he was a convicted felon who had been in and out of the court system for most of his adult life. It is not plausible to contend that he was unaware of his legal duty to comply with an officer’s attempt to stop him. The alleged victim in this instance had the both the ability to detect and to prevent the harm caused by the collision – he simply needed to pull over during the chase. The enhancement, if applied, would transform anyone fleeing from a police officer into a vulnerable victim if the office uses any force to stop them. This is not a use of the enhancement contemplated by the Guidelines drafters.
Similarly, the Government’s attempt to rely upon an enhancement for abuse of a position of trust is unavailing. Section 3B1.3 of the Guidelines reads, in pertinent part, as follows: “If the defendant abused a position of public ... trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels. Thus adjustment may not be employed if an abuse of trust or skill is included in the base offense level or specific offense characteristic.” Mr. Zullo contends that the Government is not entitled to this enhancement because the very definition of the crime of conviction is that the defendant, a police officer, did not include material in a report. In other words, concealment is the very nature of the crime charged, and is, by definition, included in the base offense level or specific offense characteristic.
Mr. Zullo pleaded guilty to one count of Obstruction pursuant to 18 U.S.C. Section 1519. The first element sounds in concealment by means of omission in a record, in this case a police report. Presumably, the Government believes the defendant abused his trust by concealing material by omitting it in a police report. This is the very sort of “double counting” of offense conduct prohibited by U.S.S.G. 3B1.3. A two-point enhancement is, therefore, in appropriate.
C. House Arrest
After a brief period of detention in Rhode Island as the details of his bond package were worked out, Mr. Zullo has been confined to his home, only recently winning the right to be absent from his home on a curfew. For the past year, although presumed innocent, he has nonetheless had his movements monitored and his liberty restricted. The Second Circuit has recognized that a lengthy period of home confinement is a legally sufficient basis for a downward departure. U.S. v. Carpenter, 320 F.3d 334 (2d Cir., 2003).
The plea negotiations in this case were especially difficult. Mr. Zullo’s hope and desire is to be physically present for his children throughout their childhood, something his own father did not manage to accomplish. He hopes, in effect, to break a cycle of abandonment. The author of the Pre-Sentence Report has acknowledged the significance of Mr. Zullo’s commitment to his family, noting that, although his family ties might not warrant a departure from Guidelines sentence, they may warrant a non-Guidelines sentence. PSR, Para., 73.
Jason Zullo is no longer a police officer. He has pleaded guilty to one count of Obstruction, a career-ending plea, resulting from failure to include information related to a motor vehicle collision. He has not pleaded guilty to a conspiracy to violate the rights of East Haven citizens or to prey upon minorities. The Government did not insist upon a plea to any of the charges in the initial indictment, yet it seeks to load the sentencing record with material Mr. Zullo has never had the opportunity to contest by way of an evidentiary hearing. Instead, the Government may seek to provide the Court with grand jury testimony containing such jejune whoppers as asking witnesses whether their rights were read to them at the time of their arrest, when custodial statements of witnesses have not ever been an issue in this case.
The defendant objects to the consideration of offense conduct unrelated to his failing to disclose details about a motor vehicle chase of an Italian-American male.
Mr. Zullo requests a non-Guidelines sentence. Because he is barred from advocating for a sentence of less than one year, he simply requests that this Court do justice. If this Court sentences Mr. Zullo to less than one year, let the Government explain to the United States Court of Appeals for the Second Circuit, if cares to, and if it can, why it promised the world a case involving a bully with a badge and then delivered so much less as to raise questions whether this case should ever have been filed at all.
BY: /s/ NORMAN A. PATTIS /s/