INTEREST OF
AMICI CURIAE
Amici are
organizations concerned about animal welfare and responsible dog
ownership. The work of a number of the amici is directly
related to the atrocities which give rise to this lawsuit: it
includes providing shelter and rehabilitation to abused and
neglected animals in general. Others have specialized expertise
in the assessment and rehabilitation of dogs rescued from the
fighting pits. Other organizations are engaged in educational
efforts to combat breed specific legislation and to promote
responsible dog ownership. Still others represent groups
dedicated to the promotion of the American Pit Bull Terrier,
once known as the all-American dog, through programs focusing
on responsible breeding and training.
They represent
diverse groups and interests from the East Coast to California,
from Oregon to Texas. Yet all are united in this brief in a
single purpose to speak for the voiceless victims of cruel world
of dogfighting so that the sentence imposed on the defendants
will truly hold them accountable for their conduct and to
provide the victims redress.
Amici focus their
attention in this brief on the importance of holding the
defendant Vick accountable for the atrocities he financed and
committed against these defenseless animals Amici believe that
this pending criminal action against Michael Vick and the other
defendants named in the indictment is a step towards justice
for the thousands of dogs trapped in the hellish world of
dogfighting. It is hoped that this brief will provide the
court with insight as to the suffering endured by the victims so
as to impose sanctions stiff enough to discourage such
atrocities from recurring. Providing a means of redress is of
singular importance to victims of this particular enterprise,
because the truth is that having survived a life of brutality
and unspeakable cruelty at the hands of those who gamble on
their deaths, betrayal and death await these dogs after they
are rescued". More than 90% of dogs rescued from fighting
pits are summarily euthanized because the shelters to which they
are entrusted have neither the expertise nor the resources to
properly assess and rehabilitate dogs who have been used in
dogfights. Amici offer the court an alternative to this tragic
end.
In addition, amici
offer their insight in order to assist the court in
understanding the impact of defendant’s conduct on all of the
responsible owners of American Pit Bull Terriers and American
Staffordshire Terriers.
Amici also seek to
provide the court with an understanding of the defendant who
will appear before the bench at sentencing in order to assist
the court in imposing a just and fair sentence which adequately
reflects the harm done by the defendant. To that end amici
provides a sentencing recommendation which urges the Court to
impose either an upward departure consistent with the United
States Sentencing Guidelines or to impose a non-guideline
sentence within the statutory maximum consistent with 18 U.S.C.
§3553. In addition, the court is urged to enter an order of
restitution and to impose the maximum statutory fine to be used
for education of the public as to the evils of dogfighting and
to dispel the myths which criminalize the victims instead of the
perpetrators. Finally, Amici seek an order dedicating the
property identified as 1915 Moonlight Road, Smithfield as a
shelter for neglected and abused animals.
Signatories are
listed in alphabetical order, by the name of the organization:
The
American Dog Owners’ Association
(hereinafter “ADOA”)
is a national organization which for the past 37 years has been
dedicated to protecting and defending the rights of responsible
dog ownership; opposing detrimental and supporting appropriate
regulations for dog owners; educating the public regarding
responsible dog ownership and promoting standards for safe and
civilized treatment of dogs.
American Working
Dog Federation
is a national organization whose purpose is to develop awareness
in the United States about the crucial need to provide a broader
base to represent the working dog throughout the world and to
preserve and protect the heritage of our respective breeds in
America.
The Animal
Adoption Center
is a no kill shelter in Lindenwold, New Jersey. The Animal
Adoption Center has taken in dogs in need of rehabilitation ever
since its inception more than 15 years ago, including Pit Bulls
and other dogs used in dog fighting. The Shelter has agreed to
take in two of the dogs and to provide expert training and
rehabilitation.
Best Friends
Animal Society and Sanctuary
runs the nation's largest sanctuary for abused and abandoned
animals. Located on 33,000 acres in Utah Best Friends
Sanctuary provides shelter for approximately 1,500 dogs, cats
and other animals who have come to the sanctuary for special
care from shelters and rescue groups all across the country.
Many are placed in new homes and others find lifetime care here
at the nation's largest sanctuary. Best Friends has offered and
continues to offer its resources to provide assessment and
rehabilitation for the dogs seized from the Bad Newz Kennels.
The
Cape Fear APBT Club
has a membership
drawn from the entire East Coast. The Club is dedicated to
promoting a positive image for the American Pit Bull Terrier, to
combat breed specific legislation, to encourage intelligent
breeding practices that accent the finest aspects of the breed
such as loyalty, intelligence, adaptability, courage, heart and
an affectionate disposition. In addition, the Club is committed
offering an alternative breed rescue program in areas in which
rescue organization do not place, but simply euthanize American
Pit Bull Terriers irrespective of health, disposition or age.
CHAKO (Coalition
of Human Advocates for K9s & Owners)
is a national Dog Owners' Education and Advocacy Group which
lobbies in support of the rights of responsible dog owners of
all breeds of dogs across the United States. CHAKO opposes breed
specific legislation and discrimination. In addition CHAKO
offers canine good citizen testing, educates the public about
responsible dog ownership and promotes the rights of persons
with disabilities to own and be accompanied by service dogs.
The Maryland Dog
Federation
is a statewide organization committed to presenting a balanced,
rational approach to dog ownership; preserving the special,
historic relationship between people and dogs; encouraging and
promoting the welfare of dogs; promoting, protecting and
defending the rights of responsible dog owners.
The National
Animal Interest Alliance
is a not-for-profit corporation organized for the purpose of
promoting animal welfare, supporting responsible animal use and
strengthening the bond between humans and animals. Its members
are pet owners, dog and cat clubs, obedience clubs and rescue
groups as well as breeders, trainers, veterinarians, research
scientists, farmers, fishermen, hunters and wildlife biologists.
The membership roster of NAIA includes some of America's most
respected animal professionals, advocates and enthusiasts
The
National American Pit Bull Terrier Association
is a national association whose purpose is to encourage and
promote responsible breeding and ownership of American Pit Bull
Terriers so as to enhance the qualities of the American Pit Bull
Terrier, to present the American Pit Bull Terrier to the public
in a positive light, to educate and make known to the public the
high standard of excellence of the United Kennel Club, Inc.
registered American Pit Bull Terrier.
The Real Pit
Bull Foundation for Advocacy and Rescue
has as its purpose to act on behalf of the American Pit Bull
Terrier) by educating the public, humane/rescue workers, and
others; rescuing when possible abused and neglected Pit Bulls,
combating animal abuse and fighting breed specific legislation.
Spindletop Refuge
located in Houston Texas, has for the past 18 years been
dedicated to the successful rehabilitation and rehoming of
homeless, abused and neglected dogs for over eighteen years,
specializing in the American Pit Bull Terriers and American
Staffordshire Terriers. Leah Purcell has been qualified as an
expert witness on the breed in several court cases and courts
nationwide have entrusted the care of seized dogs to Spindletop.
Spindletop has extensive experience in retraining,
rehabilitating, and rehoming former fighting dogs and abuse
cases. Spindletop has successfully rehabilitated more than 200
fighting dogs referred from shelters and by the courts.
Several of the court ordered fighting dogs have gone on to earn
titles in Agility and Obedience. They are loving family members
and great ambassadors for the breed. Spindletop is the National
Rescue for the National American Pit Bull Terrier Association,
the parent club for the breed in the United Kennel Club.
Spindletop has offered to take 5-10 of the dogs for
rehabilitation.
Worthy
Companions Domestic Animal Rescue
is a New Jersey based rescue group specializing in dogs who need
medical or behavioral rehabilitation before being placed in
loving, competent permanent homes. All of the associates of
Worthy Companions have both personal and professional experience
with Pit Bulls, own their own Pit Bulls and/or Pit mixes and
have a special interest to promotion of the breed and to
responsible dog ownership.
SUMMARY OF
THE ARGUMENT
The
Amicus brief speaks for the voiceless victims of the defendant’s
criminal conduct and in that way seeks to assist the court in
imposing a just and fair sentence. The Victim impact statement
is submitted on behalf of the 54 American Pit Bull terriers
seized from the Bad Newz Kennels and for those dogs which were
brutally slaughtered by Vick and his cohorts. The brief
includes a description of the systematic abuse and torture which
is inherent to the business of dogfighting as well as the
collateral effects of dogfighting which criminalizes a noble
breed of dog and tarnishes the reputation of responsible pit
bull owners everywhere.
In
addition, amici offer an alternative to killing those victims
which survived the defendants’ cruelty. Accordingly, offered
for the court’s consideration is a process to conduct
assessments to determine which of the survivors can be saved and
a plan to place as many dogs as possible in specialized care
where they can be rehabilitated and to provide sanctuary and
special care for those who have any potential quality of life.
To this end, the amicus brief includes a demand for restitution
to cover the cost of assessment and rehabilitation.
Finally, Amici seek to provide the court with a sentencing
recommendation which urges the Court to impose either an upward
departure consistent with the United States Sentencing
Guidelines or to impose a non-guideline sentence within the
statutory maximum consistent with 18 U.S.C. §3553 which
adequately reflects the abhorrent nature of the defendant’s
conduct and serves as a deterrent to others. In addition, the
court is urged to impose the maximum statutory fine to be used
for education of the public as to the evils of dogfighting and
to dispel the myths which criminalize the victims instead of the
perpetrators.
POINT I
A VICTIM IMPACT
STATEMENT ON BEHALF OF
THE BAD NEWZ
KENNEL DOGS
The only difference
in the lives of the thousands of pet pit bull dogs living
happily with
their
families and the lives of the dogs suffering in dire
circumstances is the hands into which they fell. A cruel twist
of fate or a blessing from above, all depending on in whose yard
the dog sits.
A.
If
the Dogs Could Speak
Unlike most forms
of sports gambling, dog fighting is not a victimless “sport”.
During the period covered by the Indictment (annexed hereto as
Exhibit A), with funds supplied by Defendant Vick , Bad News
Kennels acquired at least 15 dogs and 10 puppies including a
puppy named Magic (Exhibit A at ¶¶7-9). Of these dogs, four
were shot to death by Vick and his cohorts and one was doused
with water and electrocuted, others were drowned and yet others
were slammed to the ground until they were dead (Exhibit A at ¶¶13,
15, 16,17, 53 and
83). For Magic and the other survivors, the future was just as
grim.
The rearing process
for fighting dogs seems about as ugly as the event itself.
Dogs who are condemned to live in this underworld are spend
their lives on 10-12 ft heavy metal chains or locked in crowded
cages, far away enough not to kill each other, but close enough
so that their lives are spent in a constant state of
agitation. They are often starved, beaten, fed cayenne pepper
and gunpowder. They are pumped full of steroids and are
conditioned by spending hours on a treadmill or tied to the
back of a moving car - all to develop aggression and stamina for
the “pit”. Since fighting dogs tend to be owned by the most
sadistic members of human society, abuses such as starvation,
kicking/beating, burning, etc. especially when a dog is a
perceived loser, are common. . The United States Congress,
having heard testimony regarding dogfighting concluded the
following in the congressional commentary to 7 U.S.C. §2156:
Dog fighting itself is a grisly business
in which two dogs either trained specifically for the purpose or
maddened by drugs and abuse are set upon one another and
required to fight, usually to the death of at least one and
frequently both animals. The testimony indicated that a fight
between two trained dogs would often continue for over an hour
and that the dogs would literally chew out each others' eyes and
break or chew off each others' feet and legs, bloodying each
other extensively, all to the cheers and goading of handlers and
on-lookers. In the training of fighting dogs, live animals, such
as cats and sometimes even untrained dogs, are used as bait to
instill or enhance the fighting dog's taste for blood and, in
some instances, to give it practice in killing other animals.
H.R. REP. 94-801
In addition to the
fate which awaits a poor fighter or even dogs likely to become
poor fighters, there are other animal victims of this sadistic
enterprise. "Bait" animals are used to test a dog's fighting
instinct. Often "bait" animals are stolen pets, puppies,
kittens, rabbits, small dogs and even stock (pitbulls acquired
by the dogfighting ring which appear to be passive or less
dominant). Their snouts are often wrapped with duct tape to
prevent them from fighting back, the "bait" is torn apart which
the handlers observe, apparently deaf to the shrieks of pain
coming from these small defenseless animals who have been thrown
into the pit.
B.
Collateral Victims
The stigma
related to the American pit bull terrier didn’t always exist. In
fact, in the early 1900s, the pit bull was considered an
American icon and was the most popular and most highly regarded
family dog. Breed traits such as friendliness, tolerance towards
humans, bravery, and intelligence allowed pit bulls to serve in
the military, work as service dogs, and stand beside some of our
nation’s most respected leaders.
Pit bulls of
today face a far different set of circumstances. Severe
prejudice against this breed has been brought on by decades of
poor training, mistreatment, and neglect. Because of their great
strength and bravery, these animals have been exploited for the
most gruesome form of entertainment: dog fighting.
In a sad twist
of fate, when it comes to dog fighting the emphasis all too
often shifts from the perpetrator to the victim. As a result of
the atrocities inflicted on these dogs by men like Vick, every
responsible pitbull owner is eyed with suspicion, every
responsible breeder is suspected of breeding “fighting dogs”,
every household companion which belongs to a “bully breed”
becomes the victim of a media blitz in which they are
portrayed as the dangers to society as opposed to the criminals
who have misused and so badly abused them.
Vick’s
reprehensible conduct has not only harmed the obvious victims in
this case, but he has done irreparable harm to the reputations
of responsible owners and breeders throughout the country. It
will take years to wash the stain of the blood that he has
spattered on each and responsible pit bull owner.
POINT II
THE EXECUTION
OF THE VICTIMS IS NOT A JUST END TO A
CRIMINAL
PROCEEDING
“Ironically, while
Michael Vick has pled guilty to killing dogs because they
wouldn’t fight, these same dogs will likely be killed because
someone thinks that they might. They will have been “saved” only
to fall victim once again, this time to a system that places
little value on their lives. Although their method of execution
will certainly not be as horrific, the end result is death just
the same”3
The "fighting dog"
has few friends. They live lives of brutality and unspeakable
cruelty at the hands of those who gamble on their deaths, while
betrayal and death await them at "humane" societies if they are
"rescued". After they are no longer needed as “evidence”
approximately 90% of the victims generally suffer a similar fate
to the dogs that were tortured and killed. They will also die
alone and afraid.
However this result
is not inevitable. With proper assessment and rehabilitation,
the vast majority, if not all the dogs, rescued from the Bad
Newz Kennels can go on to live happy lives. However, because
of their traumatic experiences, these dogs require a highly
specialized form of assessment which few shelters are equipped
to provide. James Crosby has been qualified as an expert on
canine aggression in both federal and state courts. He has
advised shelters and rescue organizations across the United
States in the assessment and rehabilitation of aggressive dogs
and dogs which have been used for dog fighting. A copy of his
declaration and credentials are annexed hereto as Exhibit ___.
Mr. Crosby advises that temperament testing of fighting dogs is
not measured in minutes but in weeks. A dog which has been used
in fighting cannot be evaluated in the noisy environment of a
kennel surrounded by a chorus of barking dogs in open view
cages. This environment is usually too stressful and almost
guaranteed to provoke either fear or aggression in a dog which
has been traumatized. As a result the outcome is almost
predetermined. The dog will react badly and will fail the
temperament test and will be put to death. Because of their
traumatic experiences, these dogs require a highly specialized
form of assessment which few shelters are equipped to provide.
(Exhibit _ at ¶¶6)
Neither is simply
facing two fighting dogs off in a closed area a reasonable
predictor of future behavior. An aggressive display towards
another dog in close proximity is a behavior that has been
reinforced in these dogs prior to intervention. Such a display,
initially, is almost guaranteed, and confirms nothing but the
previous reinforcement of this behavior pattern. (Exhibit __ at
¶7)
Instead, a proper
assessment must be conducted over a period of weeks during which
time the dog is progressively introduced to varying stimuli and
is assessed and reassessed as he adjusts. Such assessment must
address the following topics;
Human interaction and display of human
directed aggression.
Acceptance of human-set boundaries and
limits to behavior.
Acceptance of behavioral modification
and training input from humans.
Decrease in animal directed aggressive
display and acceptance of alternate, safely directed behavior.
(Exhibit __ at 8)
The elements of a
successful rehabilitation program are based on the assessments
and will vary depending on the dog. Rehabilitation of fighting
dogs includes careful re-socialization, obedience training, and
desensitization/counterconditioning in which new boundaries are
set and periodically readjusted as the dog’s progress is
assessed. The ultimate goal of such rehabilitation is to enable
the dog’s reintegration into positive human society as a
dependable companion animal. (Exhibit __ at ¶13)
Amici recognize
that at the end all of the dogs may not be suitable for
placement. However, many of these dogs still be able to live
out their lives at Best Friends Sanctuary where they, along with
other animals who are not adoptable, can life the rest of their
lives in a safe healthy environment. (Exhibit __ at ¶15)
To this end, amici
seek an order (1) preventing any of the Vick dogs from being
destroyed except by order of the court; (2) ordering a second
assessment of the condemned dogs by amici’s expert, James
Crosby; (3) providing amici an opportunity to be heard
regarding viable alternatives before any of the Vick dogs are
destroyed.
POINT III
VICK’S
SENTENCE SHOULD REFLECT
THE
SERIOUSNESS OF HIS CONDUCT
The Committee
considers the practice of dog fighting, and the setting of one
dog upon another or upon other animals as bait, etc, in the
training of dogs for fighting to be dehumanizing, abhorrent, and
utterly without redeeming social value.
H.R. REP.
94-801
On August 17 2007
defendants Purnell Peace and Quanis Phillips pled guilty before
this court pursuant to a cooperation agreement with the
Government. Pursuant to their Plea Agreements both Peace and
Phillips stipulated to a statement of facts for purposes of
Section 1B1.2(a) of the Guidelines. (See Exhibit __: Peace
Statement of Facts and Exhibit __: Phillips Statement of Facts)
Peace and Phillips
both stipulated that Bad Newz Kennels was a gambling enterprise
which operated in violation of Virginia law (Exhibit __ at ¶4
and Exhibit __ at ¶4); that Vick was involved in started the
business (Phillips at ¶8); that he was involved in acquiring the
dogs (Phillips at 7); that The Bad Newz Kennels was almost
solely funded by Vick (Phillips at ¶4).
Both Peace and
Phillips told the Government that Vick participated in “rolling”
or testing the dogs to determine their fighting potential and
that Vick participated not only in selecting which dogs would
die but that Vick personally participated in killing at least 8
dogs by various methods including hanging and drowning. (Peace
at 46; Phillips at ¶46).
Ten days later,
faced with the mounting evidence against him, Vick plead guilty
to Count I of the indictment which alleged a §371 conspiracy to
Travel in Interstate Commerce in Aid of Unlawful Activities in
violation of 18 U.S.C.§1952 and to Sponsoring a Dog in an Animal
Fighting Venture in violation of 7 U.S.C.§2156(a). (Exhibit ___:
Vick Plea Agreement at ¶1).
The factual
predicate for the Plea was carefully crafted to avoid any direct
admission of engaging in gambling so as not to prejudice
Defendant Vick’s multi-million dollar football career. Having
acknowledged that the Bad Newz Kennels was a business enterprise
involved in gambling activities involving thousands of dollars
in violation of Virginia law (Exhibit __: Vick Statement of
Facts at ¶¶4-5) and that he financed the gambling and the
dogfighting operation (Exhibit __: Vick Statement of Facts at¶4)
, Vick go on to deny that he placed any side bets or that he
participated in the purses won by the Bad Newz Kennels (Exhibit
__: Vick Statement of Facts at ¶4). Based on his own
admissions, the only remaining inference to be drawn is that no
financial stake in the outcome of these dogfights, Vick
organized, funded and operated this grisly enterprise for the
sheer joy of watching two dogs tear each other apart and for
the sadistic pleasure of torturing and slaughtering those which
did not meet his expectations. (Exhibit __: Vick Statement of
Fact at ¶32)
As part of his
Plea and Cooperation Agreement, Vick stipulated to a upward
departure of nine levels to reach a base offense level of 15
acknowledging that the “underlying facts relating to the
victimization and killing of pit bull dogs as described in the
Statement of Facts creates aggravating circumstances not
adequately taken into account by the Sentencing Commission”.
Pursuant to the agreement, this sentencing level would be
further adjusted downward by three levels for acceptance of
responsibility resulting in an adjusted offense level of 13
which carries a range of 13-18 months imprisonment (Exhibit
__: Vick Plea Agreement at ¶2). Furthermore, depending upon the
value of his cooperation the Government agreed to move for a
further downward departure pursuant to Section 5K1.1 of the
Sentencing Guidelines or for a further reduction in the sentence
pursuant to Rule 35(b) of the Federal Rules of Criminal
Procedure. (Exhibit ___: Vick Plea Agreement at ¶13).
The parties agreed
that neither side would move for departure above or below the
guidelines and the Government agreed to recommend to the court
sentencing at the low end of the applicable guideline range
(Exhibit __: Vick Plea Agreement at ¶2).
However, amici are
not bound by this agreement and as the Government and the
defendant both acknowledged, neither is the court. (Exhibit ___:
Vick Plea Agreement at¶2, 4)
After United
States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d
621 (2005), the discretion of the district court is no longer
limited to the range prescribed by the sentencing guidelines.
However, the Court must determine, after making appropriate
findings of fact, the applicable sentencing range. United
States v. Hughes, 401 F.3d 540, 546 (4th Cir.2005). Next,
the court must “determine whether a sentence within that range
... serves the factors set forth in §§ 3553(a) and, if not,
select a sentence [within statutory limits] that does serve
those factors.”” United States v. Green, 436 F.3d 449,
456 (4th Cir.2006). The court must articulate the reasons for
the sentence imposed, particularly explaining any departure or
variance from the sentencing range. Hughes, 401 F.3d at
546 & n. 5. The explanation of a variance sentence must be tied
to the factors set forth in §§ 3553(a) and must be accompanied
by findings of fact. Green, 436 F.3d at 455-56.
A.
The Agreed Upon Offense Does Not Adequately Reflect The
Nature of Vick’s Conduct Nor His Role In The Offense
Although the plea
agreement does not set forth an detailed guideline analysis, it
appears that an upward departure of 9 levels under
U.S.S.G.§5K2.0 was applied to the the minimum base offense
level of 6 (U.S.S.G.§2E1.2.(Interstate or Foreign Travel or
Transportation in Aid of a Racketeering Enterprise) resulting in
a base offense level of 15.
This guideline
analysis fails to take into consideration the vulnerable nature
of the victims, defendant’s leadership role in the conspiracy
and the unique position that he occupied and the degree of abuse
and victimization suffered by the dogs in Vick’s care.
1.
A Four Level Sentencing Enhancement Is Warranted Under
U.S.S.G.§3A1.1(b)
U.S.S.G.
§3A1.1(b) provides in relevant part:
(1) If the defendant knew or
should have known that a victim of the offense was a vulnerable
victim, increase by 2 levels.
(2) If (A) subdivision (1)
applies; and (B) the offense involved a large number of
vulnerable victims, increase the offense level determined under
subdivision (1) by 2 additional levels.
In United States
v. Kum, 309 F.Supp.2d 1084 (E.D.Wis.,2004), a case involving
the illegal shipment of animals, the district court observed
that the cruelty depicted in the photographs, coupled with the
evidence that many of the animals defendant shipped did not
survive, may well have supported an offense level enhancement
under §§ 5K2.0. Cf. U.S.S.G. §§5K2.2 (allowing upward
departure for significant physical injury); §§ 5K2.3 (allowing
upward departure for extreme psychological injury); §§ 5K2.8
(allowing upward departure for conduct that ““was unusually
heinous, cruel, brutal, or degrading to the victim””). See
also United States v. Andersen, 45 F.3d 217 (7th
Cir. 1995)(upward departure may be warranted by the
non-monetizable risk to human and animal health caused by the
defendants' failure to follow FDA licensing regulations, failure
to conduct required purity testing and intentional marketing of
unapproved drugs.) Both cases appear to extend the term
“victim” to embrace animals in the custody or care of the
defendant.
The American Kennel
Club advises prospective dog owners as follows:
Among companion animals, dogs are
unmatched in their devotion, loyalty and friendship to
humankind. Anyone who has ever loved a dog can attest to its
hundred-fold return. The excitement your dog shows when you come
home, the wagging tail at the sound of the leash being taken
from its hook, the delight in the tossing of a tennis ball, and
the head nestled in your lap-those are only some of the rewards
of being a dog owner
Owning a dog is not just a
privilege-it's a responsibility. These animals depend on us for,
at minimum, food and shelter, and deserve much more. If you are
considering taking a dog into your life, you need to think
seriously about the commitment that dog ownership entails. If
you already have a dog, you need to consider if you are
fulfilling all your obligations as its owner.
By his own
admission, in or about 2001 Vick and his co-conspirators
purchased ten dogs and six puppies (Exhibit __: Vick Statement
of Facts at ¶9). However these puppies never knew the
excitement at the sound of Vick’s footsteps ready to take them
for a walk or out to play ball. They never knew the comfort of
nestling their heads in his lap. Instead, these vulnerable
victims, wholly dependent upon their owner for their very
existence were subjected to a grim world in which they were
fodder for a grisly blood sport. The unconditional love and
devotion that a dog gives his owner was repaid with brutality
and death. Other than child abuse, it is hard to imagine a more
vulnerable victim than the trapped in the Bad Newz Kennels.
Therefore, in the event that the Pre-Sentence Report does not
include an four-level enhancement for vulnerable victims, amici
request that the court amend the PSR to include this
enhancement.
2.
A Four Level Enhancement Is Warranted for the Defendant’s
Role in the Offense Pursuant to U.S.S.G.§3B1.1(a)
U.S.S.G. §3B1.1(a) provides:
If the defendant was an organizer or
leader of a criminal activity that involved five or more
participants or was otherwise extensive, increase by 4 levels.
Here, the
Indictment names four co-conspirators (Peace, Phillips, Taylor
and Vick). In addition, Vick acknowledges at least one more
identifiable co-conspirator (Cooperating Witness 3 who “traveled
to Surry County Virginina with a male pit bull to participate in
a dog fight against a male pit bull named “Tiny” owned by the
Bad Newz Kennels. (Exhibit __: Vick Statement of Facts at ¶25)
See also United States v. Atkinson, 966 F.2d 1270
(9th Cir. 1992) (Hunters involved in defendant's
illegal hunting expeditions were qualified as ““participants””
under Sentencing Guidelines provision permitting four level
enhancement for criminal activity involving five or more
participants).
Having proved that
the conspiracy involved at least five participants, the only
remaining issue is that of Defendant Vick’s role in the
offense. Here the answer is virtually self-evident. Vick
purchased the land. Vick provided the funds to build the
dogfighting venue. He was present when the scheme began in 2001,
only eight weeks after he signed his enormous NFL contract. He
was still involved at the end, when the police raided his
compound on April 25. Without Vick, there would have been no Bad
Newz Kennels. It was his money, his land, his leadership and his
conspiracy.
In this case, the
defendant has stipulated in his plea agreement that:
the victimization and killing of pit
bull dogs ... creates aggravating circumstances not adequately
taken into account by the Sentencing commission in formulating
the guidelines and that, in order to advance the objectives set
forth in 18 U.S.C.§3553(a)(2) an upward departure is necessary
in this care to achieve the statutory purposes and goals of
sentencing in this case.
Exhibit __: Vick
Plea Agreement at §2
Based on the above
calculations, the revised offense level computation is as
follows:
The Guideline for
Count One, a violation of 18 U.S.C. §371 is U.S.S.G. §§2X1.1
which directs that the base offense level from the guideline for
the substantive offense, plus any adjustments from such
guideline for any intended offense conduct that can be
established with reasonable certainty. In this case, the
underlying offenses 18 U.S.C.§1952 and 7 U.S.C. §2156(a) yields
a base offense level of 23 including an upward departure to
which the defendant has stipulated as follows:
Base
Offense Level: The guideline for this 18 U.S.C.§371
conspiracy is 2E1.2. based on the underlying offense
18
U.S.C.§1952
6
Victim Related Adjustment per Guideline
§3A1.1(b)(2) 4
Adjustment for Role in the Offense: The defendant was an
organizer or leader of a criminal activity that involved five
or
more participants or was otherwise extensive per
Guideline §3B1.1(a)
4
Stipulated Upward Departure as per Guideline §5K.20
9
Adjusted Offense
Level
23
Adjustment for Acceptance of Responsibility. Per
Guideline §§3E1.1(a) and
3E1.1(b)(2)
- 3
Total Offense
Level
20
Based on a total
offense level of 20 and assuming that the Defendant falls with
Criminal History Category I, the guideline imprisonment range is
33-41 months.
B.
A Variance From The Guidelines Is Warranted Based
On An Analysis Of Defendant’s Conduct In Light Of
The Sentencing Purposes Set Forth In 18 U.S.C.§3553(a)
If the court
finds that the departure range of the Guidelines is still
inadequate to achieve the goals of sentencing, the court may
impose a variance sentence. United States v. Green,
436 F.3d 449, 560-61 (4th Cir.), cert. denied, --- U.S.
----, 126 S.Ct. 2309, 164 L.Ed.2d 828 (2006).
Pursuant to 18
U.S.C. §3553(a) the Court “shall impose a sentence sufficient,
but not greater than necessary, to comply with the purposes set
forth in paragraph (2) of this subsection”. Paragraph 2
identifies the following factors which the Court must consider
in imposing sentence: (1) the nature and circumstance of the
offense and history and characteristics of the defendant; (2)
the need of the sentence to reflect the seriousness of the
offense, promote respect for the law, provide just punishment,
afford adequate deterrence and protect the public; (3) available
sentences; (4) Guidelines ranges, and (5) the need to avoid
sentencing disparities.
1. The Nature and Circumstance of the Offense and
the History and Characteristics Of the
Defendant
Even in the grim
world of the dogfighting pit, Vick’s sadistic conduct can only
be described as ghastly. How many times did Vick have to slam
the broken body of a 45 lb dog to the floor before it stopped
whimpering and found escape in death? How long it did Vick have
to submerge a dog’s head in water before it stopped struggling
to take its last breath? Did he hear the dog’s neck snap as
it struggled and twisted dangling from the hangman’s noose?
Like the majority
of violent criminals, the defendants in dog-fighting cases, as a
rule, reflect the brutal environment from they come. Their lack
of empathy for the dogs is merely a reflection of the lack of
empathy shown to them as human beings. However, Michael Vick
is not a poverty-stricken youth, himself the victim of a society
which rejected him. On the contrary, Vick is a college
graduate, a national sports hero with a multi-million dollar
contract who was idolized by fans from Maine to California.
Vick had everything and instead of using his money and prestige
to contribute something to society, he chose instead to dedicate
himself to the Bad Newz Kennels.
Shortly after he
pled guilty before this Court, the defendant made a public
statement to the press, the text of which is annexed hereto as
Exhibit __ in which he apologized to the Falcons, to
Commissioner Goodell. In addition he apologized to all the
young kids out there for his immature acts characterizing his
conduct as very immature and indicating that he needed to grow
up. Other than a cursory statement rejecting dog fighting, he
evinced no understanding whatsoever of the crime that he
committed. In fact, he dismissed his conduct as “bad
judgment”.
Amici respectfully
suggest to the court that joyriding in your father’s car is an
immature act reflecting bad judgment. The torture and slaughter
of helpless animals for fun and profit is not reflective of
“immaturity” or “bad judgment”. It is an indicia of a psyche
devoid of empathy, compassion or decency. That the defendant
should dismiss his conduct as an immature error in judgment,
demonstrates that while he may truly be sorry that he was
apprehended, he is incapable of feeling remorse for the crimes
he has committed.
2. The Need of the Sentence to Reflect the
Seriousness of the Offense, Promote Respect for the Law, Provide
Just Punishment, Afford Adequate Deterrence and Protect the
Public
Dog-fighting has
been with us for decades - deep in the woods, in the back alleys
and basements of our urban ghettos. It is a cancer hidden in
the shameful underbelly of society. But this case is different
because it has the potential to send a compelling message that
as a people we believe that all life is sacred and that we
reject the senseless brutalization of other living beings.
Imposition of a sentence of 57 months will send a compelling
message that the risks of engaging in this blood sport involve
more than a slap on the wrist. It will also provide sufficient
punishment so that the defendant may develop an appreciation of
the wrongfulness of his conduct and deter him from committing
the same offense once he his released.
3. Available Sentences And Guideline Ranges
The recommended
sentence of 57 months is below the statutory maximum and
represents a three level upward departure from the Guideline
range as calculated in Section A, supra. Amici submit
that, based on the above analysis of the first two factors under
§3553(a), the decision to impose a variance sentence is
reasonable as is the three level divergence from the sentencing
range. See United States v. Hernandez-Villanueva, 473
F.3d 118, 123 (4th Cir.2007).
4. Need To Avoid Sentencing Disparities
Few cases involving
dog-fighting rings have been prosecuted in federal court.
Therefore, a 57 month term of imprisonment can serve a
sentencing benchmark against which future federal convictions
may be judged.
C.
Restitution
Pursuant to the
Plea Agreement, Defendant Vick has agreed to:
...make restitution for the full amount
of the costs associated with the disposition of all dogs which
are currently the subject of United States v. Approximately
53 Pit Bull Dogs ---, [including] but not limited to, all
costs associated with the care of the dogs involved in that
case, including if necessary, the long term care and/or the
humane euthanasia of some or all of those animals as may be
directed by the court in that case.
Amici estimate an
average cost of $2,500 per dog for assessment and
rehabilitation. To the extent that the Government has calculated
an amount in excess of that figure, Amici adopt the amount
estimated by the Government.
D.
Forfeiture
Pursuant to
Paragraphs 15 and 16 of the Plea Agreement, Defendant Vick has
waived all defenses to forfeiture of the assets used in the
enterprise. Amici submit that the conversion of the asset known
as 1915 Moonlight Road, Smithfield, Virginia to a no-kill
shelter for abused and neglected dogs to be operated by a
qualified rescue organization would be a major step in righting
the wrong that the defendant has committed. In addition, amici
suggest that as part of the forfeiture of his ill-gotten gains
over a period of seven years, Vick be required to pay for the
costs of conversion of the shelter.
E.
Fine
Amici respectfully
suggest that the court impose the maximum fine of $250,000 and
that the proceeds of that fine be used as seed money to design a
public education campaign combating the crime of dogfighting and
to promote responsible dog ownership.
CONCLUSION
For the
foregoing reasons, amici request a brief opportunity to be heard
at sentencing. In addition, amici request an order:
1. preventing any of the Vick dogs from being destroyed
except by order of the court;
2. requiring a second assessment by amici’s expert,
James Crosby of any dog selected for euthanasia;
3. providing amici an opportunity to be heard
regarding viable alternatives before any of the Vick dogs are
destroyed.
In
addition, amici recommend that:
1. The Court impose a variance sentence of 57 months
with a $250,000 fine to be used for the design of a public
education program combating the crime of dogfighting and to
promote responsible dog ownership.
2. That the property known as 1915 Moonlight Road,
Smithfield, Virginia be subject to forfeiture and be to a
no-kill shelter for abused and neglected dogs to be operated by
a qualified rescue organization and that as part of the
forfeiture Vick be required to pay for the renovation and
conversion of the property.
3. That restitution be set at a minimum of $2,500 per
dog.
Respectfully submitted,
______________________
Flora
Edwards
Attorney for the Amici
115 Broadway - Suite 1505
New York, New York 10006
212-785-3344
Of Counsel On The
Brief
Flora Edwards, Esq.
Russ
Mead, Esq.
Side
Effects