Government's Sentencing Position Regarding Defendant Peter Burns, No. 5:21-cr-00124 (C.D. Cal.)

Summary

Government's Sentencing Position Regarding Defendant Peter Burns, Document 29, filed 03/19/22, No. 5:21-cr-00124-AB, Central District of California, with sentencing noted for March 30, 2022 at 2:30 p.m. The government states that the defendant pleaded guilty to a single-count information charging Embezzlement and Theft of Labor Union Assets, in violation of 29 U.S.C. § 501(c). It concurs with a Presentence Report total offense level of 10, criminal history category I and a Guidelines sentencing range of 6 to 12 months' imprisonment. The government recommends two years' probation, with six months in the USPO's home detention program, a $100 special assessment, and restitution of $24,619.92 in monthly payments of at least $500. It is signed /s/ DAVID H. CHAO, Assistant United States Attorney.

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      Case 5:21-cr-00124-AB Document 29 Filed 03/19/22 Page 1 of 8 Page ID #:95



1    TRACY L. WILKISON
     United States Attorney
2    SCOTT M. GARRINGER
     Assistant United States Attorney
3    Chief, Criminal Division
     DAVID H. CHAO (Cal. Bar No. 273953)
4    Assistant United States Attorney
     Major Frauds Section
5         1100 United States Courthouse
          312 North Spring Street
6         Los Angeles, California 90012
          Telephone: (213) 894-4586
7         Facsimile: (213) 894-0141
          E-mail:    david.chao@usdoj.gov
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     Attorneys for Plaintiff
9    UNITED STATES OF AMERICA
10                          UNITED STATES DISTRICT COURT
11                    FOR THE CENTRAL DISTRICT OF CALIFORNIA
12   UNITED STATES OF AMERICA,               No. 5:21-cr-00124-AB

13             Plaintiff,                    GOVERNMENT’S SENTENCING POSITION
                                             REGARDING DEFENDANT PETER BURNS
14                   v.
                                             Sentencing:      March 30, 2022 at
15   PETER BURNS,                                             2:30 p.m.
                                             Location:        Courtroom of the
16             Defendant.                                     Hon. André Birotte
                                                              Jr.
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          Plaintiff United States of America, by and through its counsel
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     of record, the United States Attorney for the Central District of
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     California and Assistant United States Attorney David H. Chao, hereby
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     files its sentencing position with respect to defendant Peter Burns.
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      Case 5:21-cr-00124-AB Document 29 Filed 03/19/22 Page 2 of 8 Page ID #:96



1         This sentencing position is based upon the attached memorandum

2    of points and authorities and exhibits, the Presentence Report and

3    Recommendation Letter, the files and records in this case, and such

4    further evidence and argument as the Court may permit.

5    Dated: March 19, 2022                Respectfully submitted,

6                                         TRACY L. WILKISON
                                          United States Attorney
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                                          SCOTT M. GARRINGER
8                                         Assistant United States Attorney
                                          Chief, Criminal Division
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10                                              /s/
                                          DAVID H. CHAO
11                                        Assistant United States Attorney

12                                        Attorneys for Plaintiff
                                          UNITED STATES OF AMERICA
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      Case 5:21-cr-00124-AB Document 29 Filed 03/19/22 Page 3 of 8 Page ID #:97



1                      MEMORANDUM OF POINTS AND AUTHORITIES

2    I.    INTRODUCTION

3          For almost two years, defendant Peter Burns (“defendant”) abused

4    his position of trust to steal more than $20,000 from the union he

5    was supposed to serve.     For his crime, defendant pleaded guilty to

6    the single-count information, which charged him with Embezzlement and

7    Theft of Labor Union Assets, in violation of 29 U.S.C. § 501(c).

8    (Dkt. 6, 19.)

9          In the Presentence Report (“PSR”), the United States Probation
10   Office (“USPO”) determined that defendant’s total offense level under
11   the United States Sentencing Guidelines (the “Guidelines” or “USSG”)
12   is 10, his criminal history category is I, and the Guidelines
13   sentencing range is 6 to 12 months’ imprisonment.          (Dkt. 23.)    The
14   government concurs with these calculations.
15         For the reasons set forth below, the government recommends a
16   sentence of two years’ probation, with six months served in the
17   USPO’s home detention program, a $100 special assessment, and
18   restitution in the amount of $24,619.92.        Based on the USPO’s

19   reporting of defendant’s financial condition, the government further

20   requests that the Court order defendant to pay restitution in monthly

21   installments of at least $500 or 10% of defendant’s gross monthly

22   income, whichever is greater.

23   II.   OFFENSE CONDUCT 1

24         Between 2016 and 2017, defendant was the financial secretary of

25   the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy,

26   Allied Industrial and Service Workers International Union (“USW”),

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           1Unless otherwise noted, all facts stated herein are
28   established in the PSR (Dkt. 23) and Plea Agreement (Dkt. 6).
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      Case 5:21-cr-00124-AB Document 29 Filed 03/19/22 Page 4 of 8 Page ID #:98



1    Local Union 5632 (“Local 5632”), a labor organization engaged in

2    interstate commerce and operating within the Central District of

3    California.   As an officer, defendant was permitted to submit lost

4    time vouchers to claim reimbursement for wages that he lost from his

5    employer because of time spent on authorized union business.

6    Defendant was also a signatory on Local 5632’s bank account along

7    with the treasurer and president.

8         Defendant used his position as an officer of Local 5632 to

9    intentionally embezzle money from Local 5632.         Specifically,
10   defendant submitted 32 lost time vouchers that either overstated the
11   number of hours defendant spent working on Local 5632 business or
12   included claims of lost time for dates in the future, which were
13   hours that defendant could not have yet worked.          In fact, as
14   defendant knew, he did not lose wages to the extent claimed in those
15   vouchers, either because he worked the scheduled shift, was not
16   scheduled to work at all, or received paid sick leave.           Defendant
17   then caused to be drafted, and signed, checks that were issued from
18   Local 5632’s bank account to defendant based on those vouchers, and

19   deposited the checks into bank accounts defendant controlled.

20        For example, on or about October 5, 2016, defendant embezzled

21   $1,137.04 in funds belonging to Local 5632 by submitting a voucher

22   that falsely claimed he lost 48 hours of wages on October 12-15,

23   2016, when, in fact, as defendant then knew, he did not lose any

24   wages during that pay period.      Defendant drafted, signed, and

25   deposited a Local 5632 check in the amount of $1,137.04 based on that

26   voucher.

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      Case 5:21-cr-00124-AB Document 29 Filed 03/19/22 Page 5 of 8 Page ID #:99



1         In addition, defendant submitted 20 vouchers and deposited

2    corresponding checks containing an inflated monthly salary of $250

3    instead of $200 as authorized in Local 5632’s by laws as compensation

4    for serving as financial secretary.            In total, defendant embezzled

5    approximately $24,619.92 in funds belonging to Local 5632.

6    III. SENTENCING GUIDELINES CALCULATION

7         The USPO calculated a total offense level of 10 based on the

8    following calculation:

9      Base Offense Level                       6          U.S.S.G. § 2B1.1(a)(2)
10     Loss greater than $15,000 but
       less than $40,000                    +4          U.S.S.G. § 2B1.1(b)(1)(C)
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       Abuse of position of trust           +2                   U.S.S.G. § 3B1.3
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       Acceptance of Responsibility         -2                U.S.S.G. § 3E1.1(a)
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     (PSR ¶¶ 19-29.)    These calculations are consistent with the parties’
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     stipulations in the plea agreement.            (Dkt. 6 ¶ 12.)
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          The USPO calculated a criminal history score of zero and a
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     criminal history category of I.       (PSR ¶ 36-37.)       Based upon a total
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     offense level of 10 and a criminal history category of I, the USPO
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     calculated a Guidelines range of 6 to 12 months’ imprisonment.               (PSR
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     ¶ 77.)   As stipulated in the plea agreement, restitution in the total
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     amount of $24,619.92 is due to Local 5632.            (Dkt. 6 ¶ 6; PSR ¶ 88.)
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          Where, as here, the applicable Guidelines range is in Zone B of
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     the Sentencing Table, the minimum term may be satisfied by: (1) a
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     sentence of imprisonment; or (2) a sentence of imprisonment that
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     includes a term of supervised release with a condition that
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     substitutes community confinement or home detention, provided that at
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     least one-half of the minimum term is satisfied by imprisonment; or
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     (3) a sentence of probation that includes a condition or combination
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1    of conditions that substitute intermittent confinement, community

2    confinement, or home detention for imprisonment.          U.S.S.G.

3    § 5C1.1(c).

4    IV.   THE GOVERNMENT’S SENTENCING RECOMMENDATION

5          Based on the factors set forth in 18 U.S.C. § 3553(a), and

6    consistent with the plea agreement, the government recommends that

7    defendant be sentenced to two years of probation, with six months

8    served in the USPO’s home detention program, and be ordered to pay a

9    $100 special assessment and restitution in the amount of $24,619.92.
10         A.    The Nature and Circumstances of the Offense, the
                 Seriousness of the Offense, and the Need to Provide Just
11               Punishment Warrant a Guidelines Sentence
12         As the financial secretary for Local 5632, defendant was
13   entrusted with monitoring the finances of the union.           Instead,
14   defendant decided to exploit his position and enrich himself by
15   stealing the union’s money.      Defendant’s actions inflicted a loss of
16   more than $24,000 upon Local 5632.
17         The frequency and duration of defendant’s conduct demonstrate
18   that it was not a crime of opportunity, but of greed.           For nearly two

19   years, defendant repeatedly submitted fraudulent vouchers for

20   reimbursement and deposited union checks that were issued to him

21   based on those vouchers.      As reflected in the more than 30 separate

22   instances of such embezzlement, defendant’s conduct was not the

23   product of a momentary lapse in judgment, but was a calculated and

24   sustained fraud upon the union he was supposed to serve.            The

25   deliberate nature of defendant’s conduct support the recommended

26   sentence.

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      Case 5:21-cr-00124-AB Document 29 Filed 03/19/22 Page 7 of 8 Page ID #:101



1         B.    The Need for Deterrence Also Supports a Guidelines Sentence

2         A Guidelines sentence is also necessary to afford adequate

3    deterrence to defendant and to others generally.          The need for

4    general deterrence is particularly germane given the position of

5    trust that defendant occupied within the union.          Unless potential

6    offenders see that they will face meaningful sentences for such

7    crimes, they will be emboldened to continue to take advantage of

8    their unions.

9         C.    The History and Characteristics of Defendant Support the
                Government’s Recommended Sentence
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          The government acknowledges that there are certain mitigating
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     factors, including defendant’s early acceptance of responsibility,
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     relatively low risk of recidivism and stabilizing family
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     relationships.    While these factors mitigate the need for a custodial
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     term of imprisonment, they do not outweigh the other goals of
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     sentencing.    A term of home detention during probation is appropriate
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     to ensure just punishment, promote respect for the law, and provide
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     general deterrence.
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          D.    Restitution Payments
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          The USPO recommends that defendant be ordered to pay restitution
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     in nominal monthly payments of at least $50 or 10% of the defendant’s
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     gross monthly income, whichever is greater, during the period of
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     probation.    (USPO Rec., pp. 1-2.)     However, based on defendant’s
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     self-reported financial condition, defendant has the ability to pay
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     restitution at a monthly rate of at least $500.          According to the
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     PSR, defendant currently has unspecified monthly expenses --
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     characterized as “other expenses” -- totaling $1,495.           (PSR at 13.)
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     Given that these “other expenses” are not related to living
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      Case 5:21-cr-00124-AB Document 29 Filed 03/19/22 Page 8 of 8 Page ID #:102



1    necessities or debts accounted for elsewhere, it is reasonable and

2    proper to increase defendant’s monthly restitution obligation to more

3    accurately reflect his ability to pay.        Accordingly, the government

4    respectfully requests that the Court order defendant to pay

5    restitution in monthly payments of at least $500.

6    V.   CONCLUSION

7         For the foregoing reasons, the government recommends the Court

8    sentence defendant to two years of probation, with six months in home

9    detention, and order defendant to pay a mandatory special assessment
10   of $100 and restitution in the amount of $24,619.92 at a rate of $500
11   per month.
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