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United States v. Pabey

United States Court of Appeals for the Seventh Circuit

October 19, 2011, Argued; December 28, 2011, Decided

No. 11-2046

Opinion

 [*1088]  Flaum, Circuit Judge. On September 24, 2010, George Pabey, former mayor of East Chicago, and Jose Camacho, East Chicago's head of the Engineering Department, were convicted of conspiring to embezzle government funds and embezzling government funds. According to the district court, Pabey and Camacho used government funds and government employees to renovate a house (the "Property") that Pabey and his wife purchased in October 2007. During trial, Pabey claimed that he was unaware of the scheme to use city funds and employees. In response to this denial, the district court gave the jury a conscious avoidance instruction,  [**2] informing them that Pabey's knowledge of the scheme can be inferred if they find that he deliberately avoided the knowledge necessary for his conviction. The jury convicted Pabey, and he appeals the court's issuance of the conscious avoidance instruction.

In the event that we do not upset his verdict, Pabey asks that we reduce the length of his sentence. Pabey was given an initial offense level of 10 under the United States Sentencing Guidelines ("U.S.S.G."), but the court increased his offense level with several enhancements. The court applied a two-point enhancement for obstruction of justice, a four-point enhancement for Pabey's leadership role in the offense, and a two-point enhancement for abuse of a position of trust, bringing Pabey's total offense level to 18. With a criminal history level of one, Pabey's guideline range was 27-33 months' imprisonment. The district court found that Pabey's offense warranted an upward departure from the guidelines and sentenced him to 60 months' imprisonment, along with a $60,000 fine, more than $14,000 in restitution, a $200 special assessment fee, and three years of supervised release. Pabey contests each of the sentence enhancements as well  [**3] as the reasonableness of the court's upward departure from the sentencing guidelines.

For the following reasons, we affirm both Pabey's conviction and the sentence imposed by the district court.

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664 F.3d 1084 *; 2011 U.S. App. LEXIS 25870 **

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GEORGE PABEY, Defendant-Appellant.

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:10 CR 17—James T. Moody, Judge.

United States v. Pabey, 2011 U.S. Dist. LEXIS 48711 (N.D. Ind., May 5, 2011)

CORE TERMS

district court, sentence, enhancement, renovation, deliberately, embezzlement, city worker, guidelines, ostrich, work hours, argues, funds, knobs, paint, departure, bought, leader, position of trust, challenges, employees, installed, obstruction of justice, receipts, perjury, levels, city money, convicted, suborned, supplies, helped

Criminal Law & Procedure, Jury Instructions, Particular Instructions, Elements of Offense, Acts & Mental States, Mens Rea, Knowledge, Standards of Review, Abuse of Discretion, Evidence, Appeals, Clear Error Review, De Novo Review, Sentencing Guidelines, Adjustments & Enhancements, Obstruction of Justice, Obstruction of Administration of Justice, Perjury, Elements, Aggravating Role, Inchoate Crimes, Conspiracy, Departures From Guidelines, Upward Departures, Public Welfare, Abuse of Discretion, Sentencing, Proportionality & Reasonableness Review, General Overview, Judicial Review, Imposition of Sentence, Factors, Governmental Disruption