UNITED STATES of America, Appellant v. Fred E. COOPER, 394 F.3d 172

ORDER NYGAARD, Circuit Judge. The opinion of the court filed in this appeal on December 23, 2004 as well as the dissenting opinion authored by Judge SLOVITER, are hereby VACATED and the foregoing majority and dissenting opinions are to be filed in its place. It is so ordered. OPINION OF THE COURT NYGAARD, Circuit Judge. Appellee, Fred Cooper, pleaded guilty to one count of securities fraud, in violation of 15 U.S.C. § 788(

b) and 18 U.S.C. § 2, and to one count of making and subscribing to a false tax return, in violation of 26 U.S.C. § 7206(1). He also accepted responsibility for under-reported income. The District Court sentenced him to thirty-six months probation, including six months house arrest, after granting him a downward departure based on his charitable works and donations. The government appeals this sentencing decision, and we will affirm. I.

FACTUAL AND PROCEDURAL BACKGROUND Sentencing is essentially a fact-driven analysis, even under the standards announced in Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub.L. No. 108-21, 117 Stat. 650. Our review of sentences imposed by a district court is likewise driven by the particular factual background of each case. We must therefore first turn our attention to the undisputed evidence presented to the District Court in the present case.

Cooper is the former CEO and CFO of Biocontrol Technology, Inc. (“BICO”), a publicly-traded Pennsylvania corporation engaged in the development of medical devices. Under Cooper, BICO stock lost 98.5 percent of its value, declining to a mere $.05 per share. Eventually, BICO declared bankruptcy, leaving thousands of shareholders, including Cooper himself, with worthless stock. And yet ironically, while at BICO, Cooper received valuable bonuses in the form of warrants to purchase stock, in addition to his substantial salary, which doubled from just under $600,000 in 1996 to $1.3 Million by 2000.

In 1994 he exercised some of these warrants, generating $321,217 in taxable income. Although he did not sell the stock and thus receive actual cash income from it, the tax code required Cooper to report the exercise of the warrants as income. He did not do so. Nor did he report the fact that he pledged these warrants as collateral for personal loans. Between 1995 and 1997, Cooper continued to exercise warrants, generating $891,153 in taxable income-albeit without actual cash realization-which he again failed to report. As a result, his total unpaid tax liability for 1994 through 1997 was approximately $487,000.

In addition, in 1996 Cooper and two other BICO officers pledged BICO certificates of deposit as collateral for three personal loans totaling $623,000 without getting approval from the BICO board of directors. Although required by law to report these actions to the Securities and Exchange Commission, Cooper did not do so, thereby misleading the investing public about BICO’s financial condition. For his failure to fully report his 1994 income, Cooper pleaded guilty to one count of making and subscribing to a false tax return, in violation of 26 U.S.C. § 7206(1).

For his failure to report the use of the certificates of deposit, Cooper also pleaded guilty to one count of securities fraud, in violation of 15 U.S.C. §§ 78j(

b) and 18 U.S.C. § 2. As part of the terms of his plea agreement, Cooper accepted responsibility for the under-reported income in his tax returns between 1995 and 1997. At the sentencing hearing, several witnesses testified on Cooper’s behalf, including: Cooper’s oldest son, Garrett; two men from a church in Aliquippa; Alonzo Roebuck, a young man Cooper helped through high school and college; and former Pittsburgh Steeler Mel Blount, who runs a boys’ home in Pennsylvania. The District Court also received twenty-four letters concerning Cooper, most pleading for leniency.

The witnesses and letters described a variety of Cooper’s charitable donations and activities. They recount his generosities with both his money and his time for the benefit of others.

Specifically, the evidence showed that Cooper engaged in the following “good works”: 1) For twenty-seven years Cooper threw an annual Christmas party for underprivileged children, buying them valuable gifts with his own money. 2) He founded and funded, at an unknown cost, an area athletic organization entitled “Athletes Against Drugs and Violence,” and provided equipment for the organization. 3) He organized two youth football teams-one of which included his son-and went into inner-city Pittsburgh to offer kids the chance to participate, driving many of them back and forth to the subui’bs for practice. 4) He donated his own money to enable four boys who participated on one of the football teams to leave their inner-city school and attend a better school in the suburbs.

He also donated money to help some of them through college. 5) He extensively mentored Roebuck, one of the boys on Cooper’s football team. Cooper frequently invited Roebuck to his house and helped him with family and school problems. Roebuck went on to graduate from college, and attributes his success to Cooper’s intervention. 6) He arranged for BICO to make donations to several charities for two computer learning centers in depressed areas, -to the Allegheny County Special Olympics, and to Pittsburgh’s Mercy Foundation.

At Cooper’s behest, BICO also sponsored a charity event to raise money- 7) He helped advise the Mel Blount Youth Home. The presentence report gave Cooper a base offense level of seventeen. The government recommended a three-level reduction for acceptance of responsibility. With a corresponding score of fourteen and a criminal history category of I, the guidelines sentencing range suggested a term of fifteen to twenty-one months in prison.

However, Cooper filed a motion seeking a two-level downward reduction on the grounds that the tax loss tables overstated the seriousness of his offense, arguing that he had never received any actual income from the undeclared stocks. He also sought a three-level downward departure in recognition of his community and charitable events. The District Court denied Cooper’s request for a departure on the basis of the overstated seriousness of the offense, but granted a four-level departure for his charitable activities-one level more than he had requested.

Accordingly, the District Court sentenced Cooper to thirty-six months probation, including six months house arrest. From the bench the District Court explained its reasons for departure as follows: I think his community and charitable activities have been truly exceptional, and that’s just not the amount of money he spent on the things, but also the amount of personal effort, and work, and help that he has given to so many people, starting long before the criminal investigation began in this case. Therefore, resulting in a downward departure, going to be four levels in this case on that basis....

Now, the reason for the imposition of this sentence is as follows. A sentence of three years’ probation, with the condition of six months’ home detention, reflects the seriousness of the offenses in this case [and] takes into consideration the extensive charitable work that has been done by Mr. Cooper before and since the investigation began ... which resulted in the present charges. And the three years probation addresses the sentencing goals of punishment and deterrence. App. at 169, 174. The government appeals from the District Court’s downward departure. II. DISCUSSION A.

The PROTECT Act and the Standard of Review When signed into law in April of 2003, the PROTECT Act brought about several fundamental changes in federal sentencing law. For instance, the Act: prohibits downward departures based on new grounds on remand; requires a government motion as a condition for the grant of a level reduction for extraordinary acceptance of responsibility; and reduces the number of federal judges on the United States Sentencing Commission from at least three of the seven members to no more than three. See PROTECT Act, Pub.L. No. 108-21, § 401.

Presently relevant though, is the provision amending 18 U.S.C. § 3742(e). Before that particular amendment, the Courts of Appeal did not review a downward departure decision de novo, but instead asked whether the sentencing court abused its discretion in granting the’ departure. Koon v. United States, 518 U.S. 81, 91, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Now, however, the Courts of Appeal must engage in de novo review, not only of a district court’s ultimate decision to depart, but also of its “application of the guidelines to the facts.” 18 U.S.C. § 3742(e).

If a departure is warranted, then the extent of the departure granted by the district court is still reviewed under the pre-PROTECT Act abuse of discretion standard. United States v. Dickerson, 381 F.3d 251, 264 (3d Cir.2004) (“[W]e are to continue to apply an abuse of discretion standard as we review the extent of departures that have been properly granted.”); United States v. Frazier, 340 F.3d 5, 14 n. 4 (1st Cir.2003); see also United States v. Mallon, 345 F.3d 943, 946 (7th Cir.2003); United States v. Jones, 332 F.3d 1294, 1300 (10th Cir.2003).

As for a district court’s findings of fact, our standard of review remains unchanged, and we review them for clear error. Dickerson, 381 F.3d at 261. The PROTECT Act also requires a sentencing judge to explain any departure from the guidelines “with specificity in the written order of judgment and commitment.” 18 U.S.C. § 3553(c)(2). Although here the District Court did not issue written reasons for its grant of a departure, it did explain its reasoning orally.

We agree with the other Courts of Appeal that have concluded that failing to provide a written explanation for a departure is not cause for remand if the departure is otherwise permissible and the district court’s reasoning is persuasive. See United States v. Santiago, 384 F.3d 31, 36 (2d Cir.2004); United States v. Daychild, 357 F.3d 1082, 1107-08 (9th Cir.2004); United States v. Orchard, 332 F.3d 1133, 1141 (8th Cir.2003). B. Application of the De Novo Standard of Review to the Downward Departure The District Court granted Cooper a downward departure based on his good works.

The sentencing guidelines discourage departures for good works. United States v. Thurston, 358 F.3d 51, 78 (1st Cir.2004). Only when those works are “exceptional” do the guidelines permit them to serve as a basis for departure. Id. at 78-79. Whether good works qualify as exceptional is evaluated with reference to the offender’s wealth and status in life. See id. at 80. More is expected of “high-level business executives” who enjoy “sufficient income and community status so that they have the opportunities to engage in charitable and benevolent activities.” United States v.

Haversat, 22 F.3d 790, 796 (8th Cir.1994). Indeed, “it is usual and ordinary, in the prosecution of similar white-collar crimes involving high-ranking corporate executives ... to find that a defendant was involved as a leader in com-nrnnity charities, civic organizations, and church efforts.” United States v. Kohlbach, 38 F.3d 832, 838 (6th Cir.1994). Moreover, we must be mindful that individuals “who donate large sums because they can should not gain an advantage over those who do not make such donations because they cannot.” Thurston, 358 F.3d at 80.

The relevant inquiry, therefore, is not whether Cooper performed charitable works, but whether those works, as found by the District Court, “were exceptional enough to overcome the judgment of the Sentencing Commission that a record of good works is a discouraged basis for departure.” Id. at 79. We begin our analysis with the evidence of good works presented to the District Court. Like many similarly-situated defendants, Cooper presented evidence of financial donations he made personally and had BICO make to various charitable organizations.

Were this Cooper’s only evidence of good works, we would not affirm the downward departure. Cooper, however, presents more. He organized and ran a youth football team in a depressed area of Pittsburgh. Not only did he coach the young men who participated, he became their mentor as well. Cooper even went so far as to pay for four of the players on the team, including Roebuck, to attend a suburban high school where they would find better opportunities. And it was Cooper who expended the effort to find a school that would accept the boys as a group, ensuring that they could adjust to the new setting together.

In addition, Cooper helped Roebuck go to college: First to the University of Pittsburgh, and when he did not get enough playing time on the University’s football team, then to Edinboro University of Pennsylvania. Roebuck graduated from Edinboro after a successful four years of athletics and academics, and he attributes his success to Cooper. These are not the detached acts of charity one might ordinarily expect from a wealthy business executive. They are, in a very real way, hands-on personal sacrifices, which have had a dramatic and positive impact on the lives of others.

Moreover, when compared with a similarly-situated defendant who received a downward departure based on good works, Cooper fares well. In United States v. Serafini, 233 F.3d 758 (3d Cir.2000), we affirmed a downward departure for a wealthy state legislator who mentored a young man with a disability. Serafini encouraged the young man to attend college and loaned him tuition money. Id. at 774. The young man eventually became an attorney, and attributed his success to the defendant. Id.

We explained that the defendant’s good works were personal in nature, thereby “distinguishing his acts from the impersonal writing of checks that is the norm for many wealthy individuals.” Id. at 776. Cooper’s good works, specifically as they relate to Roebuck, are no less personal and substantial. He mentored the underprivileged young man, who later attributed his success to Cooper. Cooper also paid for not one, but four young men to attend a high school together where they would have a better opportunity to succeed. These acts are qualitatively different from the detached donation of money.

They are more personal, and we find them to be exceptional. We must acknowledge, however, that there exists case law that is seemingly to the contrary. In United States v. Morken, 133 F.3d 628 (8th Cir.1998), the Eighth Circuit reversed a downward departure for a high-profile businessman who advised local businesses, hired young people, served on his church council, and raised money for charity. In United States v.

Thurston, the First Circuit held that a downward departure could not stand for a wealthy businessman who, inter alia, took both family members and others into his home for several weeks, tithed ten percent of his income, and devoted several hours a week for unpaid service to his church. 358 F.3d at 51. These cases, however, are either distinguishable or unpersuasive. Morken is distinguishable for the same reason that we distinguished it in Serafini: the good works by the defendant in Morken were “somewhat impersonal” in nature. Serafini, 233 F.3d at 775.

By contrast, here, as in Serafini, Cooper did not merely donate money or serve in an advisory role in the community. Among other things, he took it upon himself to mentor Roebuck and others-a sacrifice of a personal nature. It is true that the good works in Thur-ston could also be construed as personal in nature-at least so far as the defendant took others into his home for several weeks-and thus that case would be more difficult to distinguish. However, we find Serafini to be more presently analogous.

As we have already explained, in Serafini we found the defendant’s act of mentoring-to which a young man attributed his success-to be an extraordinary good work. Cooper mentored Roebuck and others in a similar fashion, and Roebuck attributes his success to Cooper. We fail to see why Cooper’s good works were any less extraordinary than those in Serafini. We are aware of the fact that Cooper’s failure to make accurate reports to his shareholders contributed to the misconceptions that they held about BICO’s financial health.

We are also mindful of the fact that thousands of shareholders lost millions of dollars when the value of BICO’s stock plummeted. Downward departures for good works, however, are permissible when the works are exceptional. Cooper’s good works are exceptional, and we agree with the District Court’s grant of a downward departure. For these same reasons, and considering the deference we must give to the District Court’s decision regarding the extent of the downward departure, we will affirm the District Court’s order granting Cooper a four-level downward departure. .

We decided Serafini before the new standard of review required by the PROTECT Act. While we noted that our review of the decision to depart was-at that time-deferential, at no point did we intimate that we would have reversed the departure if our review was de novo as it is now. See Serafini, 233 F.3d at 775. On the contrary, we explained that the decision to grant a downward departure was not clearly out of line with other then-existing reported cases. Id. (citing United States v. Woods, 159 F.3d 1132, 1136 (8th Cir.1998)).