IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE, AT KNOXVILLE UNITED STATES OF AMERICA vs. RICHARD R. BAUMGARTNER ) ) ) ) ) ) ) ) ) ) ) Case No: 3:12-CR-60 JUDGE GREER SENTENCING MEMORANDUM ON BEHALF OF RICHARD R. BAUMGARTNER THE BOSCH LAW FIRM, P.C. Donald A. Bosch (BPR # 013168) Ann C. Short (BPR # 009645) 712 S. Gay Street Knoxville, Tennessee 37902 865.637.2142 Counsel for Richard R. Baumgartner Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 1 of 32 PageID #: 1874 INTRODUCTION COMES NOW the defendant, Richard R. Baumgartner, by and through counsel, pursuant to Rules 32 and 35 of the Federal Rules of Criminal Procedure; 18 U.S.C. ? 3553(a), (e), (f); 28 U.S.C. ? 944(j); United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), Gall v. United States, 552 U.S. 38, 128 S. Ct. 586 (2007), Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007), Spears v. United States, 555 U.S. 261, 129 S. Ct. 840 (2009), and other authorities set forth herein, and respectfully submits this Sentencing Memorandum to the Court setting forth the reasons this Court should impose a guideline-range sentence in Zone A to be served on probation for a term of 24 months, with a condition of probation to be work in community service. See USSG ? 5B1.2. Such a sentence is sufficient but not greater than necessary to comply with the purposes set out in 18 U.S.C. ? 3553(a)(2). Mr. Baumgartner paid his $500 special assessment on March 12, 2013. 2 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 2 of 32 PageID #: 1875 I. 18 U.S.C. ? 3553(a) SENTENCING FACTORS Section 3553(a) lists seven factors that a sentencing court must consider. The first factor is a broad command to consider "the nature and circumstances of the offense and the history and characteristics of the defendant." 18 U.S.C. ? 3553(a)(1). The second factor requires the consideration of the general purposes of sentencing, including the need for the sentence imposed--"(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense"; "(B) to afford adequate deterrence to criminal conduct"; "(C) to protect the public from further crimes of the defendant"; and "(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." Id. ? 3553(a)(2). The third factor pertains to "the kinds of sentences available," id. ? 3553(a)(3); the fourth, to the Sentencing Guidelines, id. ? 3553(a)(4); the fifth, to any relevant policy statement issued by the Sentencing Commission, id. ? 3553(a)(5); the sixth, to "the need to avoid unwarranted sentence disparities," id. ? 3553(a)(6); and the seventh, to "the need to provide restitution to any victim," id. ? 3553(a)(7).1 Preceding this list is the overriding directive to "impose a sentence sufficient, but not greater than necessary," to achieve the sentencing purposes. 1 The ? 3553 factors in (a)(2)(D), related to correctional treatment, and (a)(7), related to restitution to victims of the offense, do not appear applicable in this instance. 3 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 3 of 32 PageID #: 1876 II. FACTUAL AND PROCEDURAL BACKGROUND In May 2012, Mr. Baumgartner was charged federally with seven counts of misprision of a felony, 18 U.S.C. ? 4, covering a time period of 16 months, from June 2009 through October 2010. Previously, in March 2011, Mr. Baumgartner pleaded guilty in state court to official misconduct in violation of Tennessee Code Annotated section 39-16-402, related to obtaining/purchasing controlled substances from convicted felon Christopher Gibson, who was serving a probated sentence out of his court. Mr. Baumgartner received in state court a maximum sentence of two years for his offense that was classified as a Class E felony; judgment was deferred under the provisions of Tennessee Code section 40-35-315. Mr. Baumgartner retained - at that time -- his state pension, but he resigned his position as Knox County Criminal Court Judge that he had held for nearly 19 years. He publically admitted his addiction to pain medications, and he permanently surrendered his license to practice law. In federal court, Mr. Baumgartner challenged, inter alia, whether the indictment, as pleaded, charged a federal offense and whether the prosecution represented a violation of the Commerce Clause and the First and Tenth Amendments to the United States Constitution - issues of first impression. To preserve those significant issues and challenges, Mr. Baumgartner invoked his right to trial by jury, and slightly more than five months after federal indictment, his case timely proceeded to trial. As part of his defense, Mr. Baumgartner did not dispute his addiction to prescription opiates; did not dispute obtaining prescription opiates from Denna Castleman and, later, Chris Gibson; did not dispute that he was involved in an intimate relationship with Castleman; did not dispute that he tried to help Castleman; and did not dispute that he spoke with 4 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 4 of 32 PageID #: 1877 the individuals identified in Counts One through Seven of the Indictment. Trial began on October 23, 2012. At the conclusion of the government's case-in-chief, this Court granted a judgment of acquittal and dismissed Count 3 of the indictment. Over the course of several days, the jury deliberated on the remaining charges. On November 2, 2012, the jury returned its verdict, finding Mr. Baumgartner not guilty of Count 2 and guilty of Counts 1, 4, 5, 6, and 7. His convictions have resulted in the termination of all state pension benefits that he earned over the course of 19 years of service - 17 years of which had no connection with the activities involved in this case. Throughout this prosecution, Mr. Baumgartner has complied with all Court-ordered conditions of release. 5 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 5 of 32 PageID #: 1878 III. ADVISORY GUIDELINES CALCULATION The government has filed a notice of no objections to the Presentence Investigation Report. [Doc. 156]. Mr. Baumgartner has one objection relating to adjustment for acceptance of responsibility. USSG ? 3E1.1. USSG ? 2X4.1 is the relevant guideline section for the offense of misprision of a felony. Neither party objects to the calculated offense level for the underlying offense as 12, with a corresponding Base Offense calculation being 9 levels lower, but in no event less than 4. Likewise, neither party objects to a two-level adjustment for role in the offense, bringing the subtotal adjusted offense level to 6. The Presentence Investigation Report recommends no other adjustments, such that with a Criminal History Category I, the advisory guideline imprisonment range is 0 to 6 months. Because the applicable guideline range is in Zone A of the Sentencing Table, a sentence of imprisonment is not required in this case. Accordingly, Mr. Baumgartner is eligible for imposition of a term of probation. USSG ? 5B1.1. Mr. Baumgartner objects, however, to the advisory guideline calculation because he submits that he is eligible for acceptance of responsibility consideration, which would reduce from 6 to 4 the total offense level in his case. The guidelines provide and the law is settled that a conviction at trial does not automatically preclude consideration for an acceptance of responsibility reduction. Indeed, Application Note 2 to USSG ? 3E1.1 provides: 2. This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, 6 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 6 of 32 PageID #: 1879 does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. USSG ? 3E1.1, Application Note 2. th In United States v. Kraig, 99 F.3d 1361 (6 Cir. 1996), the Sixth Circuit rejected the government's cross-appeal contention that the defendant was not entitled to consideration for acceptance of responsibility after trial. Conviction by trial does not automatically preclude a defendant from consideration for a reduction based on acceptance of responsibility. In certain circumstances a defendant may clearly demonstrate an acceptance of responsibility even though he exercises his right to trial. In granting the request, the District Court recognized that it was a "close call" and acknowledged that he had not encountered a case quite like this one before. The District Court seemed to rely primarily on the points that (1) Kraig was a lawyer with an unblemished record up to that point, (2) his conduct resulted from Kraig's zealous advocacy on behalf of Sturman in his adult entertainment business and (3) Kraig believed that the government was "out to get" Sturman any way it could to stop his adult entertainment business. The standard of review here is whether the finding was clearly erroneous. While we recognize that other sentencing courts may have come to a different conclusion regarding this matter, acceptance of responsibility is uniquely within the province of the District Court and we do not find clear error. U.S.S.G. ? 3E1.1, comment. (n.5); United States v. Fleener, 900 F.2d 914, 917 (6th Cir. 1990) (grant of reduction for acceptance of responsibility affirmed even though defendant put government to its burden at trial). 7 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 7 of 32 PageID #: 1880 Mr. Baumgartner's case is one of those rare situations when acceptance of responsibility has been shown despite exercising his constitutional right to trial. As noted previously, pretrial Mr. Baumgartner vigorously challenged, inter alia, whether the indictment, as pleaded, charged a federal offense and whether the prosecution represented a violation of the Commerce Clause and the First and Tenth Amendments to the United States Constitution - issues of first impression. To preserve those significant issues and challenges, Mr. Baumgartner invoked his right to trial by jury. As part of his defense, Mr. Baumgartner did not dispute his addiction to prescription opiates; did not dispute obtaining prescription opiates from Denna Castleman and, later, Chris Gibson; did not dispute that he was involved in an intimate relationship with Castleman; did not dispute that he tried to help Castleman; and did not dispute that he spoke with the individuals identified in Counts One through Seven of the Indictment. Another relevant consideration should be that Mr. Baumgartner voluntarily retired from his position as Knox County Criminal Court Judge in February 2011 and soon thereafter surrendered his law license. To be sure, those actions occurred after the time period alleged in the federal indictment, but they occurred, nonetheless, well prior to the return of the federal indictment in this case. The Court "is in a unique position to evaluate a defendant's acceptance of responsibility," and "[f]or this reason, the determination of the sentencing judge is entitled to great deference on review." USSG ? 3E1.1, Application Note 5. Accordingly, Mr. Baumgartner asks the Court to find and rule that he has accepted responsibility for which he is entitled to a two-level reduction. As for financial condition and ability to pay a fine, Mr. Baumgartner specifically asks the 8 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 8 of 32 PageID #: 1881 Court to take into consideration that his pension was terminated following his federal conviction, which has drastically cut his total monthly income, as shown in the Presentence Investigation Report. His community-based work is done on an uncompensated, volunteer basis, and he has found no meaningful part-time or full-time paid employment. His monthly expenses reflected in the Presentence Investigation Report are not extravagant, but his total monthly cash flow is in the negative. In addition, Mr. Baumgartner intends to appeal his conviction, but his assets are such that he will not qualify for appointment of a CJA panel attorney; he, therefore, will have to use his own assets and income to retain private counsel to handle the appeal. 9 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 9 of 32 PageID #: 1882 IV. NATURE AND CIRCUMSTANCES OF THE OFFENSE The trial transcripts have been prepared and electronically filed in this case. [Docs. 151-55]. The nature of the offense, 18 U.S.C. ? 4, has generated much professional and respectful debate and has resulted in thoughtful and reasoned written memoranda and orders in this case. Accordingly, it should be unnecessary to repeat the respective positions of the parties or this Court. Mr. Baumgartner will further address those matters in the appropriate appellate forum. Regarding the circumstances of the offense, the defense relies on the transcripts that have been filed as the best source for summarizing the trial proof, testimony, and court rulings. 10 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 10 of 32 PageID #: 1883 V. MR. BAUMGARTNER'S SOCIAL BACKGROUND AND HISTORY "It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue." Koon v. United States, 518 U.S. 81, 113, 116 S. Ct. 2035 (1996). ************************* The Presentence Investigation Report sets out an accurate, although highly abbreviated summary of Mr. Baumgartner's social history. Hardly anyone speaking with Richard Baumgartner today would suspect from his accent that he was born and spent the first 19 years of his life in New York. Richard grew up in rural New York on an apple farm. His father's passion was the 400 apple trees on the property, and the fall harvest was a busy time for the family. Most of the neighbors were dairy farmers, and in the summers Richard worked for the neighboring farmers, helping with the cows, the tractors, and growing corn. To be charitable, Richard was an underachiever in high school. He wryly recalls, however, auditioning in the 10th grade for his high school talent show and shocking his faculty advisor by playing a Rachmaninoff Piano Concerto. After graduating high school in 1966, Richard took a job working third shift in a GE factory. The Vietnam War was in full swing at the time, and Richard received a call to report for a physical, which led to his 1967 enlistment in the Navy. He chose that branch because his Uncle had served in the Navy during World War II. Later that same year, Richard married his high school sweetheart. 11 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 11 of 32 PageID #: 1884 Richard served four years in the Navy; he was assigned to an aviation squadron and was deployed on two cruises, both times to the Gulf of Tonkin. The first deployment was from January 1, 1968, until Thanksgiving of that same year; the second, from July 1969 until June of 1970. His technical title was aviation radar technician, and he was a plane "captain" responsible for all maintenance on a particular plane assigned to him. Richard was honorably discharged from service in October 1970. Shortly thereafter, he enrolled in East Tennessee State University in December 1970. His move to Tennessee was prompted by his parents' relocation to Kingsport in 1967 to join his Uncle's construction business, and when his parents moved, Richard's wife also came to Tennessee and lived with them while he completed his military service. When Richard was discharged, he and his wife moved to Johnson City so he could attend ETSU. Richard's time in the military changed his attitude about education. Richard was a serious and successful student at ETSU and became interested in economics. He graduated with a major in business and economics and a minor in history, and he planned to enroll in the PhD program in economics at the University of South Carolina. Those plans changed completely, however, when he was invited his senior year of college to participate in a state legislative internship program. Spring semester, Richard went to Nashville and interned with the Judiciary Committee. Richard describes being totally "smitten" by the legislative process, so much so that in April he took the LSAT, applied to the University of Tennessee College of Law, and was accepted. Richard enrolled in law school, and for the next two summers in 1974 and 1975, he was hired to work for the Tennessee Legislature's Judiciary Committee. In the summer of 1976, he 12 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 12 of 32 PageID #: 1885 worked in the campaign to elect Jim Sasser to the United States Senate. He remained with the campaign during the fall, returning to law school in January 1977 and graduating in December 1977. Working with the political campaign, Richard met a lot of people across the State and learned a lot about the state political structure. After graduating law school, Richard went to work with the Knoxville law firm, Gilreath, Pryor and Rowland. He took the bar examination in February 1978 and became licensed in May 1978. He recalls in the early years of his career, taking whatever cases "came in the door." Richard's only child, a daughter, was born in 1980, and Richard remained with the law firm until 1981, when it dissolved and became Pryor, Flynn and Priest. Richard was divorced in 1982, and in 1985, he remarried. Throughout the years, Richard has been a good father, and his daughter has benefitted from being raised by loving parents and step-parents. Over the years, Richard never lost his farming roots. Even after his family moved to Tennessee, Richard and his father regularly returned to the farm in New York to pick apples. Richard's wife, Vicki, grew up on a farm where her father raised beef cattle, and Richard and Vicki naturally gravitated toward looking for a few acres of property to acquire and develop. In August 1992, Richard was appointed to serve as Knox County Criminal Court Judge, and two months later the couple took the plunge and purchased 20 acres of land in rural East Knoxville. A house, built in 1864, was on the property. It was in serviceable condition, and Richard and Vicki devoted most of their spare time to renovating their new home. Their efforts extended to clearing and improving the land. They both have a passion for gardening; she for flower gardening and Richard for vegetable gardening. An apple orchard was planted, along with fruit, berry, and flower 13 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 13 of 32 PageID #: 1886 gardens, and for a time cattle were pastured on the farm. As Richard explains, the farm is their life and sanctuary. They are not golfers or tennis players. They do not belong to a country club; they are not boaters; they do not own a lake house. They enjoy entertaining friends at their home. As Vicki once observed: "Our friends golf, boat, and ski, we weed and mow." While on the bench, Richard was a judicial innovator. He was the first Knox County Judge to allow cameras in the courtroom. Former Tennessee Supreme Court Justice Riley Anderson selected him to attend a summit on jury reform in New York City. When he returned, Richard worked with Neal Cohen on a pilot program for jury reform, including rules to govern jury questioning of witnesses and how expert testimony may be presented. He served on the Tennessee Criminal Pattern Jury Instructions Committee, and the Judicial Conference selected him to be a member of the Judicial Education Committee. He attended the National Judicial College on numerous occasions and was recruited to serve as a moderator and faculty member. Topics of instruction included death penalty issues and handling high profile cases. And, Richard helped establish Knox County a drug court program, which at that time was one of only three or four such drug courts in Tennessee. Beginning in the 1980s, before he was appointed to the bench, and continuing to the present time, Richard Baumgartner has had significant health problems. He has undergone three back and two foot surgeries. He has been treated numerous times for nodules and lesions in his lungs, and his lungs are checked twice a year for new nodules. He also has been treated for pancreatitis and associated chronic pain, lumbar disc displacement, and colon polyps. He is 14 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 14 of 32 PageID #: 1887 currently being treated for COPD and serious emphysema. Richard began drinking socially in law school, and his drinking intensified over the years, leading to in-patient treatment in August 2008 for alcohol abuse. He was introduced to prescription opiates as part of his treatment for pain management and other medical problems. In early 2011, he entered and successfully completed another in-patient treatment program, this time for opiate addiction and abuse. Mr. Baumgartner is a recovering addict, and he understands that recovery is a life-long process. Some in the legal and judicial communities have expressed disappointment that Richard has not publically apologized to his legal and judicial colleagues for his conduct and for the disrepute that his actions have brought to the legal system and those who honorably carry on their work every day. Others, perhaps, just question whether he is remorseful at all. Because of the criminal investigation and the resulting state and federal criminal charges, Richard has been constrained by the advice of his counsel to avoid all such public apologies. Even so, experience teaches that significant insights into human nature can be gleaned from the thoughtful observations of others, and in this case, the Court has the benefit of many such observations. What those on the outside may regard as "arrogance" on Richard's part, those who are closest to him recognize as sobriety, humility, contrition, composure, and commitment to this community. The Executive Director of Second Harvest Food Bank of East Tennessee writes of Richard Baumgartner coming to her and asking if there was anything he could do to help the mission of feeding the hungry. "Like others who have known Richard for some time, I could plainly see the toll his mistakes had taken on him, and I was well aware that the man who came to my 15 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 15 of 32 PageID #: 1888 office that day was at the lowest point of his life. I told him we could use his help." (Attachment 1). Since that time, and for the past two years, Richard has volunteered with the Food for Kids and Kids Caf? programs, which feeds more than 11,000 hungry children each week. His work does not occur behind a desk; it puts him in direct contact with those who know chronic hunger. As the Executive Director explains, He pulls orders in the warehouse for hours on end and helps load and deliver food to more than 200 schools. The work is physically demanding and occurs in all weather conditions, but it has clearly become representative of what I believe is his desire to begin to reclaim the life of service his actions cost him. . . . Richard has become an essential part of our child hunger initiatives - he has truly been as important and as reliable as any paid staff person. Moreover, I witnessed Richard win over quite a few initially skeptical staff members, several of whom had very strong feelings about the unintended ramifications of his regrettable actions. (Attachment 1). An east Knox County neighbour and friend reflects that when he looks at Richard, he asks "what good might Richard do if not sent to prison?" (Attachment 2). For him, Richard's work with Second Harvest serves as an example of humble recovery. I know people who have gained a sense of promise and hope in their own lives after seeing Richard Baumgartner unload a delivery truck. . . . Richard Baumgartner's example of humble service is helping others avoid the mistakes he made. (Attachment 2). He concludes, "There is no greater public service a man can perform than to serve as a positive example of how to deal with massive, self-inflicted adversity." (Attachment 2). Redemption is also the central message from Richard's neighbour in the Riverdale/Kodak/French Broad River area. This neighbour served with Richard on the Board of 16 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 16 of 32 PageID #: 1889 Directors of the Knoxville Area Chapter of the American Red Cross, and he explains the positive impact that Richard has had on his life and career. "It is an enduring respect that speaks to his core qualities." (Attachment 3). He believes that the "sooner Richard has the opportunity to renew his positive presence in the community, the greater benefit he can be," and Richard's neighbour asks only that this Court's "sentencing decisions for Richard Baumgartner acknowledge his value to our community as well as any errors he has made and to balance the two" because "[h]e has earned that consideration." (Attachment 3). The Vice President and Chief Clinical Officer of The Helen Ross McNabb Center has considerable first-hand experience with individuals whose lives have been or are in shambles - legally, emotionally, and medically - from the prescription drug addiction epidemic. And this Court's work frequently requires it to confront what Dr. Tennison describes as "the addiction mentality that twists logic and dissolves coherence." (Attachment 4). Beyond his expert credentials, however, Dr. Tennison personally "grieve[s] the loss" of Richard Baumgartner, the man who inspired [him] to serve our local courts better and more thoroughly by expanding related services in the community, pursuing ongoing education in mental health law and other interfaces between medicine and the law, and actively advocating for more access to appropriate mental health and substance abuse treatment options and for effective, evidence-based jail diversions for nonviolent offenders whose misadventures were secondary to mental illness and/or substance abuse. (Attachment 4). Despite his personal and professional grief, Dr. Tennison nevertheless believes "that Richard can still serve his community." (Attachment 4). Dr. Tennison realizes and predicts that 17 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 17 of 32 PageID #: 1890 Richard "will be rejected by many and avoided by more," but Dr. Tennison has a unique professional take on the subject, and his central thesis is sobriety through "reattachment to the rest of us." (Attachment 4). Awakening from long patterns of addiction behaviour and thinking requires clearly seeing - even if at first only in brief glimpses - the illusion of our separateness. Rehabilitation comes from active involvement with others, not isolation. Restoring one's true promise must be done, not just considered. (Attachment 4). Individuals with whom Richard and his family have worshipped offer the Court their insights. Dr. Robert Haskins, Pastor at French Broad United Methodist Church, explains that Richard is "much involved in the life of the French Broad Church" and "is an invaluable part of the Church." (Attachment 5). He is the Chair of the Finance Committee, plays the piano on a shared basis with another member of the church, serves as a Trustee, is a member of our Church Council and helps with the Men's Breakfast held once a month. He is a regular attender at both the worship service and the Adult Sunday School. Last August we decided to hold outdoor Camp Meeting services under a big tent. Richard was somewhat dubious as to whether we could pull this off. Every Sunday he was there helping to put out chairs, carry out sound equipment and anything else needed. He was part of what made the services such a huge success. (Attachment 5). Pastor Haskins concludes with a heartfelt observation, "He is a vital, and I use the 'vital' advisedly and sincerely, part of our church. I would not like to think of the vacuum his removal from the church would cause as it is a rather small church that I serve and of which Richard is a faithful member." (Attachment 5). 18 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 18 of 32 PageID #: 1891 Richard and his family had been active members of Sequoyah Hills Presbyterian Church in Knoxville before they joined the French Broad United Methodist Church, which is closer to their home. Dr. William R. Barron, Pastor Emeritus of the Sequoyah Hills Presbyterian Church, meets regularly with Richard. He explains that their earlier relationship was re-established about 16 months ago when a mutual friend brought them together for lunch. Since that time, Pastor Barron and Richard meet "together at the Panera Bread Company in Bearden, often for as long as two hours per visit." (Attachment 6). Pastor Barron assures the Court that Richard does not minimize the wrong he has done. In our lengthy conversations I had the opportunity to see deeply into the soul of my friend. He has lived with the anguish and grief of causing great pain to throngs of people in the community who trusted him and to the people most precious in his life. (Attachment 6). As do others who have written letters, Pastor Barron remarks on "Richard's remarkable gifts in service to others." (Attachment 6). Pastor Barron points out that Richard served on the Board of Directors of the Joy of Music School in Knoxville, which offers free musical instruments and instruction for disadvantaged youth. "Richard," he writes, "has a strong passion for giving these young people the opportunity to develop their abilities despite their economic restrictions." (Attachment 6). To sum up, "Richard has much to offer." (Attachment 6). Other church members have written, (Attachments 7), who have witnessed Richard's community service firsthand and respect his contributions. This Court also has the benefit of the thoughts of Richard's AA sponsor, who attests to Richard's continuing commitment to sobriety. (Attachment 8). 19 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 19 of 32 PageID #: 1892 Finally, the Court has the benefit of the observations of those in the legal system. Andrew Dix started out as a janitor at the City-County Building; he later served as a County Commissioner and has been a courtroom bailiff for many of the courts and judges in the City-County Building. He presently works in the Knox County Trustee's Office. Mr. Dix describes Judge Baumgartner as "one of the most even-tempered judges" ever to sit on the bench. (Attachment 9). Mr. Dix explains that Judge Baumgartner "knew exactly when to dispense stern justice, and when to come down on the side of mercy," and Mr. Dix witnessed how Judge Baumgartner's "compassionate nature led him to start and be supportive of initiatives in the community aimed at prevention, treatment and rehabilitation." (Attachment 9). Mr. Dix's closing thoughts are undoubtedly shared by many: Respectfully, your honor, I ask that the court consider the many positive things that Judge Baumgartner did, as he appears for sentencing. His compassion and his belief in giving opportunities for rehabilitation and second chances helped make him the fair-minded judge that he was. It also changed many lives, I suspect. I ask, humbly, that he be afforded some measure of that same compassion on leniency. (Attachment 9). Former United States Magistrate Judge Robert P. Murrian has known Richard and his wife for many years. Mr. Murrian, who is now retired from the private practice of law, remains in contact with Richard, and the pair enjoy regular lunch outings. Judge Murrian, as he is known to this day by colleagues who respect his lifetime of work in this community, is hardly a novice in dealing with individuals who the criminal justice system holds accountable for their actions. That is to say, Judge Murrian's assessment that Richard is "truly remorseful" and "worthy of leniency" should be entitled to considerable deference. In Judge Murrian's opinion, Richard was "a fine trial 20 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 20 of 32 PageID #: 1893 judge . . . and his fall from grace and the public humiliation and embarrassment he brought upon himself and his family has also been serious punishment." (Attachment 10). Another highly respected member of our legal community, John K. Harber, has known Richard for almost 40 years. Richard and Mr. Harber were law partners for a numbers of years after their law school graduation. As do many, many others, Mr. Harber expresses disappointment with Richard's conduct, but he knows how "out of character" that conduct was. (Attachment 11). Mr. Harber sums up Richard's current situation and adds his own suggestion: Richard has been publically and professionally humiliated. He has been disbarred. He has lost his pension. He is frequently the topic of public anger. It will take many years for Richard's misdeeds to pass from a subject of current events. Richard has fallen as far as one can fall, and I believe that he has suffered enough. (Attachment 11). Knoxville attorney Albert Harb has known Richard since 1975 - even before Mr. Harb attended law school. Their paths crossed from time to time, an Mr. Harb notes that on those rare occasions when he appeared before Judge Baumgartner, Judge Baumgartner "demeanor was exemplary, his grasp of the law was always on point and he ran his courtroom in an efficient and professional manner." (Attachment 12). Then in 2004, Mr. Harb and Richard were invited to join a Leadership Knoxville Class. They collaborated throughout the year-long program, focusing on ways to improve the Knoxville community. The Richard Baumgartner that Mr. Harb knows and respects is wholly unlike the conduct which precipitated Richard's "untimely fall from grace." (Attachment 12). Professor Penny White, the Director of the Center for advocacy and Dispute Resolution at 21 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 21 of 32 PageID #: 1894 the University of Tennessee College of Law, has known Richard since 1990 when she became a member of the Tennessee Judicial Conference. After leaving the bench, Professor White had routine contact with Richard, appearing in his court on several occasions while working with the UT Legal Clinic on a first degree murder case and inviting him on numerous occasions to be a guest speaker at the College of Law. (Attachment 13). In particular, Professor White worked years with Richard forming and implementing the College of Law's Judicial Externship Program. As she explains: [M]ore than a dozen years ago, Richard began working with the Knoxville Bar Association to provide research assistance from law students to state court judges in Knoxville. . . . [inasmuch as] the state does not provide judicial clerks for state trial judges. . . . Richard initiated a conversation with the dean of the College of Law seeking to have the College design and support a program in which students could receive credit for working in judicial chambers. Eventually, the Dean turned to me and Richard and I, aided by other Knox County judges, developed a pilot judicial externship program. Richard was instrumental in this process. He devoted hours of time to helping assure the pedagogical soundness of the experience for the students and to convincing other judges of the program's merits. This enabled me to secure faculty approval for the program on a pilot basis and eventually as a permanent course offering. (Attachment 13). Professor White speaks fondly and proudly of the program's results over the last ten years, with approximately 100 students completing the program and learning "in an applied, hands-on setting." (Attachment 13). The program has to date provided in excess of 120,000 hours of assistance to Tennessee's judges. She notes that the students who externed with Judge Baumgartner "uniformly praised the guidance and tutelage that they received from him, with many of them maintaining contact with him following their graduation." (Attachment 13). 22 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 22 of 32 PageID #: 1895 Professor White concludes, As you consider the many legal and practical factors that you must in determining the appropriate sentence for Richard Baumgartner, I thought it might be beneficial to know about this one example of lasting positive contribution that he has had on the lives of many others. (Attachment 13). The final insights into Richard Baumgartner's character come from Knoxville attorney William "Bill" Vines who has known Richard for more than 30 years. (Attachment 14). For more than 20 years, Mr. Vines has chaired the Knoxville Bar Association Committee that selects and presents its highest award to practicing attorneys and that ever so rarely recommends that a special award be given to a judge, known as the "Judicial Excellence Award." In the history of the KBA, prior to 2010, the Judicial Excellence Award had only been given twice - to a Supreme Court Justice and to a Federal Judge. As Mr. Vines explains, For several years before 2010, the members of the Award Committee (which committee if often comprised of several past presidents) had suggested that Judge Baumgartner be given the Judicial Excellence Award. The Committee was very sensitive to giving a sitting judge an award for numerous reasons including any political implications that it might have. The giving of the award was reserved to subsequent years but many felt it was deserved. In 2010, the Committee decided that, considering all factors, the award should be given. It was given [to Judge Baumgartner] on December 10, 2010 . . . . When the award was presented, he received a standing ovation at the annual meeting. (Attachment 14). 23 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 23 of 32 PageID #: 1896 VI. DETERRENCE & PROTECTION OF THE PUBLIC Among the 3553(a) factors is the need for the sentence imposed "to afford adequate deterrence to criminal conduct" and "to protect the public from further crimes of the defendant." 18 U.S.C. ? 3553(a)(2)(B), (C). Neither of these factors weighs heavily in favor of an incarcerative sentence or, for that matter, a maximum probationary sentence. Mr. Baumgartner poses no danger to the public. He no longer occupies any position of public office or trust, and he will never be authorized to engage again in the practice of law. He is a recovering addict, and the law and common sense do not categorize recovering addicts as ipso facto dangers to the public or community. Similarly, neither an incarcerative sentence nor a maximum probationary sentence is necessary to afford "specific" deterrence - sometimes referred to as "incapacitation" -- to Mr. Baumgartner committing any future crimes. Prior to the events leading both to the state and federal prosecutions, Mr. Baumgartner had a spotless criminal record. He will have completed his state probationary sentence by the time he is before this Court for sentencing. He has been totally amenable and compliant with the terms of his probation and with the terms of supervised release that this Court imposed. The collateral consequences brought about by Mr. Baumgartner's conduct are more than adequate to satisfy any specific deterrence concerns. General deterrence, which has been held to be a valid sentencing consideration, see United States v. Phinazee, 515 F.3d 511 (6th Cir. 2008), is not an imperative sentencing consideration in this case. General deterrence usually becomes important when the sentence imposed is required to send a clear signal that a defendant's crimes are so violative of societal norms that those 24 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 24 of 32 PageID #: 1897 convicted will be incarcerated for a substantial period of time. Child pornography, for example, is one such offense for which general deterrence is often a critical sentencing factor. Mr. Baumgartner stands convicted of five counts of an offense, 18 U.S.C. ? 4, that is, to be fair, quite obscure and antiquated. It is, however, the conviction offense to which general deterrence attaches, not some other perceived wrongdoing. Nonetheless, if the concern is for deterring other judicial officers, that message has already been delivered through Mr. Baumgartner's public humiliation, loss of judicial position, disbarment, loss of pension benefits, and the stigma of having a permanent felony conviction and through the fact that the federal government stepped in to bring charges at a time when many in the public thought Mr. Baumgartner was treated too leniently in state court and should have forfeited his pension earlier. 25 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 25 of 32 PageID #: 1898 VII. KINDS OF SENTENCES AVAILABLE Subsection (a)(3) of 18 U.S.C. ? 3553 directs the Court to consider the kinds of sentences available. The statutory range of incarceration for a violation of 18 U.S.C. ? 4, as in this case, is up to three years. Incarceration, in other words, is not statutorily required. Likewise, the guideline calculation for the offense in this case does not require incarceration. The Sentencing Reform Act of 1984 requires that the federal sentencing guidelines "reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defender a first offender who has not been convicted of a crime of violence or an otherwise serious offense." 28 U.S.C. ? 994(j). The Act established probation as an actual sentencing option rather than an instrument used in suspending prison sentences. According to the United States Sentencing Commission's January 2009 Report, "Alternative Sentencing in the Federal Criminal Justice System," in fiscal year 2007, three-quarters (75.5%) of United States citizens in Zone A were sentenced to probation. See http://www.ussc.gov/Research/ Research_Projects/Alternatives/20090206_Alternatives.pdf at 4-5 (Table 5). The report concludes, "Effective alternative sanctions are important options for federal, state, and local criminal justice systems. For the appropriate offenders, alternatives to incarceration can provide a substitute for costly incarceration." Id. at 20. From the foregoing, it would be appropriate to impose a sentence other than imprisonment for Mr. Baumgartner. 26 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 26 of 32 PageID #: 1899 VIII. NEED TO AVOID UNWARRANTED SENTENCE DISPARITIES Unwarranted sentencing disparity is not a factor that can be meaningfully analyzed in this case. USSG ? 2X4.1 calculates the base offense level to be 9 levels lower than the offense level for the underlying offense, but in no event less than 4, or more than 19. Accordingly, the base offense level can and will vary widely depending on the underlying offense with an absolute guideline range of level 4 (0 to 6 months imprisonment) to level 19 (30 to 37 months imprisonment). The statutory imprisonment maximum is three years. Some insight can be gained from the U.S. Sentencing Commission's Preliminary Quarterly Data Report, 4th Quarter Release, Preliminary Fiscal Year 2012 Data Through September 30, 2012. (Attachment 15) (relevant excerpts only). Table 5, at pages 13 through 16, sets out sentences relative to the guideline range by each primary sentencing guideline. For the period October 1, 2011, through September 30, 2012, a total of 351 sentences were imposed under the guideline applicable to misprision of a felony, ? 2X4.1. Of those 351 sentences, 177 sentences were within the guideline range; 11 sentences represented downward departures; and 61 sentences were below range. 84 sentences were government sponsored departures, such as for ? 5K1.1 and ? 5K3.1. Only 18 sentences represented upward departures and above range. To the extent these statistics are helpful, they suggest that to avoid unwarranted sentence disparities, the Court should impose a guideline range or below guideline range sentence. Of course, factor (6) of ? 3353(a) is aimed at the need to avoid unwarranted sentence disparities "among defendants with similar records who have been found guilty of similar conduct." The qualifications for "similar records" and "similar conduct" are important, because 27 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 27 of 32 PageID #: 1900 the only other misprision of a felony prosecution in this District in recent memory occurred in United States v. Eric Dwayne Boyd, 640 F.3d 657 (6th Cir. 2011). In that case, Boyd was convicted of being an accessory after the fact to a carjacking that resulted in serious bodily injury and death in violation of 18 U.S.C. ? 3, and (2) misprision of a carjacking that resulted in serious bodily injury and death in violation of 18 U.S.C. ? 4. The district court sentenced Boyd to 180 months for being an accessory after the fact, and 36 months for misprision of a felony. Boyd's conduct and record are vastly different than those for Mr. Baumgartner. That case, it is submitted, should play no role in a sentencing disparity analysis. 28 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 28 of 32 PageID #: 1901 IX. SERIOUSNESS OF OFFENSE, PROMOTE RESPECT FOR THE LAW, AND PROVIDE JUST PUNISHMENT The Presentence Investigation Report suggests that the Court may wish to consider a variance in this case to reflect the seriousness of the offense, to promote respect for the law and provide just punishment. 18 U.S.C. ? 3553(a)(2)(A). The reason given is that Mr. Baumgartner benefitted from the drug conspiracy because he was receiving prescription medication from Deena Castleman. Mr. Baumgartner respectfully disagrees. Despite the prosecution's repeated suggestions and statements during trial, the proof did not bear out the existence of a drug "trafficking" conspiracy - at least not any kind of drug trafficking conspiracy that makes it to the federal radar screen, so to speak. Rather the proof showed a street-level addict, Deena Castleman, buying from other street-level addicts to provide opiates to Mr. Baumgartner, who himself was an addict. Indeed, it is worth noting that no one the prosecution claims was connected with or involved in the drug trafficking conspiracy was ever federally prosecuted, nor does the scale or amount of prescription medication shown in this case rise to the level of federal intervention. Receiving prescription medication from Deena Castleman did not tie Mr. Baumgartner to any conspiracy because a buyer-seller relationship is insufficient for that purpose. See United States v. Cole, 59 F. App'x 696, 699 (6th Cir. 2003). Mr. Baumgartner could have been charged federally for illegal possession of prescription medication, 21 U.S.C. ? 844, but that offense is punished only by a term of imprisonment of not more than one year. Just punishment has already been exacted, and the federal prosecution of Mr. Baumgartner has promoted respect for the law and given recognition to the seriousness of the 29 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 29 of 32 PageID #: 1902 offense. Nothing more by way of incarceration is required. 30 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 30 of 32 PageID #: 1903 X. CONCLUSION There are some who view probation as second-class punishment. Yet, Mr. Baumgartner is among the most empirically identifiable group of guideline federal offenders who are the least likely to re-offend and who clearly qualify for probation. A structured and monitored probationary sentence represents meaningful punishment in this case and serves as a substantial restriction of Mr. Baumgartner's freedom. As recognized in United States v. Knights, 534 U.S. 112, 119, 122 S. Ct. 587 (2001), "Inherent in the very nature of probation is that probationers 'do not enjoy the absolute liberty to which every citizen is entitled.'" Accordingly, for all of the reasons discussed herein, Mr. Baumgartner asks that this Court sentence him to probation for a term of 24 months, with a condition of probation to be work in community service. See USSG ? 5B1.2. Respectfully submitted this 13th day of March, 2013. THE BOSCH LAW FIRM, P.C. By: s/Donald A. Bosch DONALD A. BOSCH (BPR # 013168) ANN C. SHORT (BPR # 009645) 712 South Gay Street Knoxville, TN 37902 (865) 637-2142 Counsel for Richard R. Baumgartner 31 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 31 of 32 PageID #: 1904 CERTIFICATE OF SERVICE The undersigned hereby certifies on this date a copy of the foregoing document was filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to all parties indicated on the electronic filing receipt. Parties may access this filing through the Court's electronic filing system. th This the 13 day of March, 2013. THE BOSCH LAW FIRM, P.C. By: s/Donald A. Bosch Donald A. Bosch 32 Case 3:12-cr-00060 Document 160 Filed 03/13/13 Page 32 of 32 PageID #: 1905