The opinion of the court was delivered by: MUIR
On August 28, 1996, Defendant Mitchell F. Paster was charged in a one-count indictment with first degree murder, a violation of 18 U.S.C. § 1111. On November 19, 1997, Paster entered a plea of guilty to second degree murder. Second degree murder is a lesser included offense under the same statute. On February 4, 1998, a presentence report and an addendum were submitted to the court. On February 25, 1998, a second addendum and a presentence report with corresponding revisions were submitted.
On February 4, 1998, the Government filed a motion for upward departures based upon the following Sentencing Guidelines: (1) Section 5K2.8 - Extreme Conduct, (2) Section 5K2.0 - Premeditation and (3) Section 5K2.6 - Weapons and Dangerous Instrumentalities.
Paster challenged the upward adjustment to the guideline imprisonment range calculated by the Probation Officer for obstruction of justice and challenged the lack of adjustment for acceptance of responsibility. Paster also "challenged the upward departures for Extreme Conduct and Grounds for Departure § 5K2.0 [and] the lack of downward departure . . . for Aberrant Behavior and Victim's Conduct." Although no motions for downward departures were filed by counsel for Paster, we will treat the downward departure "challenges" by defense counsel as if appropriate motions for downward departures had been filed.
On February 9, 1998, a pre-sentence conference was held and on February 12, 1998, we issued an order which set forth a briefing schedule for Paster's objections to the pre-sentence report, his challenges as to downward departures and the Government's motion for upward departures. Those matters have been fully briefed. We held a hearing regarding the same on March 18 and 19, 1998.
The following are the Court's findings of fact, discussion, recapitulation as to guidelines calculations and conclusions of law with respect to Paster's objections to the presentence report, his challenges as to downward departures and the Government's motion for upward departures.
1. On August 16, 1996, Paster was arrested for the murder of his wife, Margaret Bostrom, at their home on the United States Penitentiary-Lewisburg.
2. On August 28, 1998, a Grand Jury sitting in Williamsport returned a one count indictment charging Paster with First Degree Murder in violation of 18 U.S.C. §§ 7(3) and 1111. (Undisputed, hereinafter "U")
3. Counsel for the Government had attempted to obtain permission to seek the death penalty as a possible sentence. (U)
4. The testimony of Paster during the November 22, 1996 suppression hearing was inaccurate.
5. On November 19, 1997, Paster entered a plea of guilty to Murder in the Second Degree, a lesser included offense of the Indictment. (U)
6. On March 18 and 19, 1998, a presentence hearing was held before the undersigned, concerning the issues of downward adjustments and departures sought by Paster and upward adjustments and departures requested by the Government. (U)
7. During the telephone call to his mother after the murder, Paster was extremely upset when he informed her that something terrible has happened, I stabbed Margaret." (U)
8. The actual telephone call with Paster's mother was less than one minute as she became hysterical and her boss, Mr. Sauver, had to take the telephone call. Mr Sauver told Paster to call "911" immediately and terminated the telephone call. (U)
9. Paster immediately and at approximately 11:10 a.m. on August 16, 1996 contacted the "911" operator, reported that he had stabbed his wife and requested medical assistance for his wife.
10. Paster provided his name, address, directions to his home and the location of the murder weapon. Paster remained on the telephone with the "911" operator until personnel from the Bureau of Prisons and the Union County Emergency Medical Services arrived.
11. On the "911" audiotape with the Union County telecommunicator, Paster's first words are unintelligible.
12. Paster was extremely upset on the telephone, repeatedly sobbing and saying "Oh my God" and requesting the Emergency Medical Service personnel to help his wife. (U)
13. Paster cooperated with the personnel from the Bureau of Prisons and was detained in his home for approximately four (4) hours while the crime scene was investigated. (U)
14. While detained Paster was at times very upset, crying and shaking, and was often times despondent. (U)
15. When interrogated by agents from the Federal Bureau of Investigation on August 16, 1996, Paster was unable to remember many of the details of the murder.
16. When interviewed by FBI agents, Paster told the agents that while in the kitchen downstairs, he took a knife which was silver in color with a black handle from the butcher block and started upstairs with the knife as his wife was getting out of the shower.
17. Paster's testimony at the sentencing hearing that he did not tell the agents that he got a knife from the kitchen and started upstairs with it is not credible.
18. Paster initially told the agents that he did not remember what happened upstairs. (U)
19. When questioned further by the agents, Paster told them that he did not want to talk about what happened upstairs nor did he remember what happened upstairs.
20. Hours earlier in his conversation with the Union County "911" operator, Paster, in response to questions by the operator, said that he stabbed his wife in the chest. (U)
21. Hours earlier in his conversation with the Union County "911" operator, Paster informed the operator that the knife was in the sink downstairs. (U)
22. When interviewed by FBI agents, Paster told the agents that he believed he put the knife in the kitchen sink because he heard later that that is where the knife was found.
23. Up until a few minutes prior to the stabbing, Paster had no plan to kill his wife.
24. Dr. Samuel Land conducted the autopsy on Margaret Bostrom on August 17, 1996. (U)
25. Dr. Land is a medical doctor specializing in forensic pathology, and has testified as an expert in this field in approximately 100 cases. (U)
26. Dr. Land has conducted approximately 1500 autopsies with approximately 300 of them being homicide cases, including 65-75 stabbing cases. (U)
27. Dr. Land concluded that Margaret Bostrom died of multiple stab wounds to various vital ...