65 F.

3d 903

UNITED STATES of America, Plaintiff-Appellee,

v.
David G. PRICE, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
John G. PRICE, Defendant-Appellant.
Nos. 94-6141, 94-6152.

United States Court of Appeals,

Eleventh Circuit.
Sept. 29, 1995.

Jeffrey C. Duffey, Montgomery, AL, for appellant David G. Price.

Redding Pitt, Charles F. Teschner, Asst. U.S. Atty., Montgomery, AL, for
appellee.
Stephen R. Glassroth, Montgomery, AL, for appellant John G. Price.
Appeals from the United States District Court for the Middle District of
Alabama.
Before COX, Circuit Judge, RONEY and WOOD* , Senior Circuit Judges.
PER CURIAM:

John and David Price were convicted for conspiracy, in violation of 18 U.S.C.
Sec. 371 (1988), to commit murder and for the use of interstate commerce
facilities in violation of 18 U.S.C. Sec. 1958 (1988), with the intent to commit
murder-for-hire. John Price was also convicted of solicitation to commit a
crime of violence in violation of 18 U.S.C. Sec. 373 (1988), while David Price
was separately convicted for using interstate commerce facilities in violation of
18 U.S.C. Sec. 1958 (1988), with the intent to commit murder-for-hire.1 John
Price was sentenced to 360 months imprisonment and fined. David Price was
sentenced to 300 months in prison and was ordered to pay fines as well. The
Prices appeal, challenging their convictions and their sentences. We affirm their

convictions but vacate their sentences and remand for resentencing.

I. FACTS AND PROCEDURAL
HISTORY
2

John Price was president of Price Rubber Corporation, a business

headquartered in Montgomery, Alabama. His son David managed a Texas
rubber plant owned by the company. Several business-related incidents gave
rise to the convictions now at issue.

Before establishing operations in Montgomery, John Price owned a rubber

warehouse and distribution center in Auburn, Georgia. That facility burned in
1974, causing Price a three million dollar uninsured loss. The Prices have
always believed that Auburn resident David Hawthorne was responsible for the
arson. Nothing came of their suspicions for a time, however, because shortly
after the fire, the Prices left Auburn and moved to Montgomery to found Price
Rubber.

The Prices acquired more perceived enemies when, in 1986, Sy Shafer and Ellis
Lucas sold their printing concern, Pioneer Press, to Kenny Price, John Price's
nephew. Kenny was affiliated with the Prices' enterprise, and he ran the
printing business "parallel" to the principal rubber operation. (Gov't Ex. 6 at 1718.) Shafer and Lucas retained Leon Capouano, a Montgomery lawyer, to
handle the sale of Pioneer Press.

The acquisition proved troublesome for the Prices. The parties to the deal
became involved in litigation, and ultimately Shafer and Lucas obtained a
money judgment against Pioneer Press and Kenny Price. Litigation continued
through 1992; Sy Shafer had filed two suits directly against John Price by the
fall of 1991. Family relations turned so sour that John Price fired nephew
Kenny, on the belief that he was stealing from the company. After his
severance from the Price empire, Kenny became a prospective witness for Sy
Shafer against his uncle.

Further problems arose for Price Rubber in 1991, when Internal Revenue Agent
Dwight Huff initiated an examination of the company's tax records. Though
routine, the review spanned the next two years, in part because of the failure of
Price Rubber to timely provide information necessary for the audit's
completion.

Not fond of lawyers, John Price and his son David decided to bypass legal

Not fond of lawyers, John Price and his son David decided to bypass legal
recourse and deal with their woes through a sinister plot to pay back their
perceived enemies by hiring hitmen to wreak various degrees of havoc upon
them. Bobby Price (unrelated to, but acquainted with John and David Price)
was the Prices' initial contact with the underworld.2 In November, 1991, David
Price visited Bobby's auto body shop in Montgomery. At this meeting, David
handed Bobby $2000 and instructed him to find "the right people" to blow up
Leon Capouano's law office and to kill David Hawthorne in Auburn, Georgia.
(R. 18 at 329.) Later, David mailed Bobby two packages which contained
maps, photographs, and other information about Capouano and Hawthorne.
The second parcel also contained a note indicating that David Price had two
more names to add to the "hit list," apparently Kenny Price and Sy Shafer.

Meanwhile, Bobby Price was arrested July 8, 1992, for trafficking in

marijuana. In exchange for a lighter sentence, Bobby struck a deal with the
government, eventually providing information about the Prices' murder-for-hire
plot.3 After his agreement with the government, the federal agents orchestrated
a meeting on August 14, 1992, between Bobby Price and David Price, during
which David told Bobby that Kenny Price and David Hawthorne were still
prime targets. David also took Bobby out to Elmore County, Alabama, to
"case" Kenny's trailer. David paid Bobby $1500, and Bobby explained that he
had two friends (FBI special agents) who would be willing to do these jobs for
the Prices.

One week later, Bobby had a similar meeting with John Price. There, John
expressed his desire to have Kenny "busted up pretty good," (Gov't Ex. 2 at 59),
though he expressed hesitation about killing his nephew outright. As for David
Hawthorne, John stated that "the guy needs to be rubbed out. No question about
that." (Id. at 62.) 4

10

By September 16, Bobby had introduced David Price to the undercover FBI
agents, and meetings between the participants continued through the fall of
1992. During these meetings, the murders of Kenny Price, David Hawthorne,
and Sy Shafer, as well as the bombing of Leon Capouano's law office, were
planned and paid for by John and David Price.5 Finally, John Price sent a letter
to the agents in January, 1993, requesting the "well damaged carcass" of IRS
agent Dwight Huff, in retaliation for the inconvenience caused by the audit of
Price Rubber. (Gov't Ex. 63.)

11

The last meeting between the federal agents and John Price occurred on
January 27, 1993, in Montgomery. There the agents told Price that the first
murder, that of Sy Shafer, had been completed, and they showed him pictures

of what they said was the body. John Price paid the agents $20,000 and
expressed enthusiasm about the imminent success of the remaining jobs. Later
that day, he and son David were arrested.
12

A grand jury in the Middle District of Alabama indicted the Prices jointly, and
the case went to trial in June, 1993. The Prices were acquitted on two counts of
witness tampering, but the jury was unable to reach a verdict on the other
counts. As a result, a mistrial was declared as to those counts. Retrial began in
July, 1993, and the jury returned guilty verdicts against both defendants on the
remaining charges. The Prices filed a motion for a new trial, which alleged,
among other things, that juror misconduct deprived them of a fair trial. The
court questioned the jurors in camera to investigate the alleged improprieties,
and some instances of misconduct were found. The judge ruled that none of the
incidents prejudiced the defendants' rights and denied the motion for a new
trial.

13

David Price was sentenced to a total of 300 months in prison, a period of

supervised release, and was fined $726,712.40, which included a fine of
$200,000 and costs of incarceration and supervision. David was also ordered to
pay a $200 assessment and restitution of $350 to Leon Capouano. In calculating
David Price's sentence, the court applied an upward adjustment based on its
finding that he obstructed justice by giving false testimony at trial. See United
States Sentencing Commission, Guidelines Manual Sec. 3C1.1 (Nov. 1992).

14

John Price's sentence consisted of a total of 360 months in prison and a period
of supervised release. Additionally, John Price was fined $880,752.40,
comprised of a $250,000 fine and costs of incarceration and supervision. He
was also ordered to pay $350 in restitution to Capouano.

15

In calculating both Prices' sentences, the trial judge found that a two-level
upward departure was warranted because of the racial and ethnic motivation
behind the crimes, the severe psychological injury to the victims, and the threat
of harm to third parties. The Prices appealed.

II. ISSUES ON APPEAL

16

The Prices raise several issues on appeal. They contend that: (1) the trial court's
denial of their motions for acquittal was erroneous because they were entrapped
as a matter of law; (2) the trial court's imposition of cost-of-confinement fines
violated the Fifth and Eighth Amendments to the Constitution; and (3) the
court misapplied the sentencing guidelines when it calculated their sentences.6

III. DISCUSSION
A. Entrapment
17

The Prices invite us to overturn their convictions, arguing that the district court
should have granted their motions for acquittal because the government's
evidence was insufficient to negate their entrapment defense. Their argument
on this issue fails.

18

Entrapment is generally a jury question. United States v. Brown, 43 F.3d 618,

622 (11th Cir.1995) (citing Mathews v. United States, 485 U.S. 58, 61, 108
S.Ct. 883, 886, 99 L.Ed.2d 54 (1988); United States v. Costales, 5 F.3d 480,
487 (11th Cir.1993)). Therefore, appellate review of a defendant's contention
that he was entrapped as a matter of law is a sufficiency of the evidence
inquiry, limited to deciding whether the evidence was sufficient for a
reasonable jury to conclude that the defendant was predisposed to take part in
the illicit activity. Brown, 43 F.3d at 622 (citing United States v. Aibejeris, 28
F.3d 97, 99 (11th Cir.1994)). Review is de novo, but we must view all facts and
make all inferences in the government's favor. Id. (citing Aibejeris, 28 F.3d at
98). We cannot overturn a verdict if any reasonable construction of the
evidence would allow the jury to find the defendant guilty beyond a reasonable
doubt. Id. (citing United States v. Ventura, 936 F.2d 1228, 1230 (11th
Cir.1991)).

19

A valid entrapment defense consists of two elements: government inducement

and the defendant's lack of predisposition to commit the crime prior to the
inducement. Mathews, 485 U.S. at 63, 108 S.Ct. at 886 (citations omitted).
While the burden of production rests with the defendant to show inducement,
once that showing is made, the burden shifts to the government to prove beyond
a reasonable doubt that the accused was predisposed to commit the crime.
Brown, 43 F.3d at 623.

20

To establish government inducement, an "element of persuasion or mild

coercion" is necessary. Id. In this case, there are numerous instances of
government attempts to persuade or pressure John and David Price to commit
the crimes they planned. For example, Bobby Price invoked his relationship
with the Prices in offering to pay them back for past favors by arranging the
murders of the Prices' enemies. A reasonable jury could have believed that such
pressure induced the Prices to put their schemes in motion, so the court properly
decided to charge the jury on entrapment.

21

The flaw in the Prices' argument is their contention that no reasonable jury
could conclude that they were predisposed to engage in their murder-for-hire
plot. They argue that they were not "disposed" to commit the crimes charged
until after the initial contact with government agents. The Prices correctly assert
that "one may not become unentrapped when the disposition arises after
entrapment," (Appellant John Price's Br. at 24), and they claim, based on
excerpts from the conversations they had with Bobby Price and the FBI agents,
that they were reluctant to take part in the murder-for-hire scheme until after
government persuasion.

22

Predisposition is "necessarily a fact-intensive inquiry because it is a subjective

inquiry into a defendant's state of mind." Brown, 43 F.3d at 625 (rejecting fivefactor list used by other circuits in reviewing predisposition in favor of case-bycase analysis). To show predisposition, the government must prove beyond a
reasonable doubt that "the defendant was actually predisposed to commit the
underlying crime absent the government's role in assisting such commission."
Aibejeris, 28 F.3d at 99 (citing Jacobson v. United States, 503 U.S. 540, 54749, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992)); see also Brown, 43 F.3d at
624-25 (endorsing approach based on defendant's "readiness and willingness" to
commit the crime; listing several "guiding principles" to use in reviewing
predisposition findings, such as jury consideration of demeanor and credibility
evidence).

23

We cannot say that the evidence was insufficient for the jury to conclude
beyond a reasonable doubt that the Prices were predisposed to commit the
crimes of which they were convicted. While some statements made by both
John and David Price suggest hesitation to go as far as murder, there are other
indications of their readiness and willingness to have their perceived enemies
maimed or killed. Significantly, David Price met with Bobby Price and made
the first "downpayment" for their series of "hits" in November, 1991, long
before Bobby became a government agent. In negotiating with the FBI agents
about their fees, both John and David Price made reference to payments
previously given to Bobby. This further suggests that the Prices' disposition
arose before government agents allegedly pressured them to discuss murder.
B. Sentencing Issues

24

The Prices attack several aspects of their sentences. They argue that the fines
imposed to pay for costs of incarceration and supervision are unconstitutional,
and they also contest the two-level upward departure that the trial judge found
was merited because of the nature of the Prices' plans and actions.

1. Cost-of-Confinement Fines
25

The Prices argue that the fines levied upon them pursuant to U.S.S.G. Sec.
5E1.2(i) to pay for costs of incarceration are excessive under the Eighth
Amendment and violate due process under the Fifth Amendment because they
are not rationally related to the purposes of the Sentencing Reform Act. The
Prices argue that U.S.S.G. Sec. 5E1.2(i), which provides for cost-ofincarceration fines, and 18 U.S.C. Sec. 3553(a) (1988), which states that courts
shall "impose a sentence sufficient, but not greater than necessary," are in
conflict, since Sec. 5E1.2(i) imposes an "additional" fine on top of the fine
ranges contained in the table provided by Sec. 5E1.2(c).7 The government, on
the other hand, asserts that the fine is neither excessive nor irrational. Such
questions of law are subject to plenary review. See United States v. Weaver,
920 F.2d 1570, 1573 (11th Cir.1991).

26

The validity of U.S.S.G. Sec. 5E1.2(i) is an issue of first impression in this

circuit, and other circuits are split on the question. Compare United States v.
Spiropoulos, 976 F.2d 155, 165-67 (3d Cir.1992) (holding Sec. 5E1.2(i) to be
inconsistent with Sentencing Reform Act while avoiding due process question)
with United States v. Hagmann, 950 F.2d 175, 187 (5th Cir.1991), cert. denied,
--- U.S. ----, 113 S.Ct. 108, 121 L.Ed.2d 66 (1992) (finding that cost-ofincarceration fines are rational means to assist victims of crime collectively). In
declaring guideline Sec. 5E1.2(i) invalid, the Third Circuit found that the plain
language of the section indicated that the fines imposed thereunder were to
reimburse the government for the costs of imprisonment. Spiropoulos, 976 F.2d
at 166. The court concluded that the Sentencing Reform Act did not authorize
fines to cover costs of confinement, even though the money collected from the
fines went to the Crime Victims Fund and not actually to pay for penal
operations. Id. at 166-67.

27

We disagree with the assertion that Congress did not consider imposition of
cost-of-confinement fines to be within the scope of the Sentencing Reform
Act's goal of restitution. See 18 U.S.C.A. Sec. 3572(a)(6) (West Supp.1995)
(providing that courts can consider "the expected costs to the government of
any imprisonment, supervised release, or probation component of the sentence"
in setting amount of fine); 28 U.S.C.A. Sec. 994(y) (West Supp.1995) (stating
that Sentencing Commission may include as component of fine calculus the
expected costs of imprisonment). Instead, we find Hagmann to be persuasive.
We agree with the Fifth Circuit that "the uniform practice of fining criminals on
the basis of their individualistic terms of imprisonment--an indicator of the
actual harm each has inflicted upon society--is a rational means to assist the
victims of crime collectively." Hagmann, 950 F.2d at 187.

28

Although the Third Circuit in Spiropoulos found the analysis in Hagmann to be

"too facile," 976 F.2d at 168, Spiropoulos has been rejected, and Hagmann
followed, in every other circuit that has addressed the issue. See, e.g., United
States v. Zakhor, 58 F.3d 464, 466 (9th Cir.1995) (upholding cost-ofconfinement fines); United States v. May, 52 F.3d 885, 891 (10th Cir.1995)
(finding guideline rationally related to legitimate government interest); United
States v. Leonard, 37 F.3d 32, 39 (2d Cir.1994) (citing Hagmann and holding
Sec. 5E1.2(i) consistent with 18 U.S.C. Sec. 3553(a)); United States v. Turner,
998 F.2d 534, 538 (7th Cir.1993) (holding that Sec. 5E1.2(i) is authorized by
statute), cert. denied, --- U.S. ----, 114 S.Ct. 639, 126 L.Ed.2d 598 (1993). We
join the other circuits that have upheld U.S.S.G. Sec. 5E1.2(i), and we reject
both constitutional challenges made by the Prices.

29

2. Upward Departure Granted by the District Court

30

The trial court found that the Prices' crimes went beyond the "heartland" of
typical cases, see U.S.S.G. Sec. 5K2.0, and departed upward by two levels from
the applicable guidelines in calculating their sentences. (R. 31 at 103.) In
deciding that this case merited departure, the court found that three aspects of
the Prices' activities were not adequately considered by the guidelines: (1) their
extreme conduct, including the fact that harassment of Leon Capouano was
motivated by racial and ethnic prejudice, and that the Prices planned to mutilate
IRS agent David Huff; (2) the risk of harm to innocent bystanders because of
the plan to blow up Capouano's law firm; and (3) the extreme psychological
injury to Kenny Price and other victims.8 The court treated these factors as a
group, assigning no relative weight to one factor over another in making the
decision to depart from the guidelines. The Prices challenge the departure,
arguing that the sentencing guidelines adequately considered all aspects of their
crimes, and that there was insufficient factual support for the trial court's
findings. The government originally moved for a four-level departure, but on
appeal urges us to affirm the two-level departure as reasonable.

31

In sentencing determinations, a court may impose a sentence outside the range

established by the guidelines, if the court finds that "there exists an aggravating
or mitigating circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the guidelines that
should result in a sentence different from that described." 18 U.S.C. Sec.
3553(b) (1988). We review such departures by applying a three-step analysis.
United States v. Dailey, 24 F.3d 1323, 1325 (11th Cir.1994) (citing Weaver,
920 F.2d at 1573). We review de novo a decision as to whether the guidelines
adequately consider a particular factor so as to preclude a sentencing court's
reliance on it as a basis for departure. Id. Second, we review the factual

findings underlying the trial court's decision to depart for clear error. Id.
Finally, we review the departure itself for reasonableness. Id.; accord United
States v. Passmore, 984 F.2d 933, 937 (8th Cir.1993) (holding that extent of
upward departure is a "judgment call" by district court). We deal with each
factor relied upon by the trial court in turn.
32

a. Extreme conduct (racial/ethnic motivation for crimes; planned mutilation of

victims)

33

The Prices do not challenge the trial court's determination that racist or antisemitic motivation for a crime was a proper basis for departure.9 Instead, they
argue that their actions were not racially or ethnically motivated, and that it was
clear error for the trial court to find that they were. Our review, then, is limited
to determining whether the trial court's factual findings are clearly erroneous.

34

We find no clear error in the trial court's finding that the Prices were motivated
by ethnic hatred in their harassment of Leon Capouano. While it is true that the
court, as well as the government, acknowledged that two primary motivators
for the Prices' conduct were greed and business litigation, the trial court
concluded that racial and ethnic prejudice also played a part. See McAninch,
994 F.2d at 1388 (affirming trial court's conclusion that hatred was motivator of
crime despite evidence that psychological problems could have been the cause).
The Prices knew that Capouano was Jewish, and when they vandalized his
home they painted swastikas and anti-semitic and racist remarks designed to
strike at his religious heritage. The Prices also made repeated anti-semitic
remarks about Capouano and Jews in general. While the Prices counter that any
racist and anti-semitic conduct was impulsive and isolated, there is evidence
that the Prices put some thought into what they did and how they did it. See
United States v. Sanders, 41 F.3d 480, 485 (9th Cir.1994) (holding that racist
and anti-semitic letters, though short and simplistic, evidenced deliberation
where defendant had to look up addresses and tailor each message to the group
he was attacking), cert. denied, --- U.S. ----, 115 S.Ct. 2010, 131 L.Ed.2d 1009
(1995).

35

As for the proposed mutilation of IRS agent Dwight Huff, the Sentencing
Commission did not adequately provide for such a grisly variety of the crime
when it designed the applicable guidelines for conspiracy, solicitation, or
murder-for-hire. See U.S.S.G. Sec. 5K2.8 (allowing departure where
defendant's conduct was unusually heinous, cruel, brutal, or degrading to
victim). As the trial court concluded, these crimes were more depraved than the
typical cases the guidelines were designed to cover, so that a departure based in
part on the proposed mutilation of Huff was warranted. Further, we find no

clear error in the trial court's underlying factual findings. John Price explicitly
ordered Huff's "well-damaged carcass" in a taped conversation with the FBI.
36

b. Risk of harm to innocent third parties

37

The trial court held that the potential for "injury even to the point of death" to a
multitude of unknown victims as a result of the defendants' criminal activity
was a factor not adequately considered in the applicable guidelines. (R. 31 at
104.) The factual predicate to this holding was the probability of injury to
innocent bystanders had the scheme to blow up Leon Capouano's law office
succeeded. The Prices argue that any risk to bystanders was already taken into
account by the guidelines.

38

We first examine the guidelines to determine whether the district court

correctly concluded that the danger to innocent bystanders from a bombing was
not adequately considered. Reading U.S.S.G. Sec. 2K1.4, we agree with the
Prices that the risk of harm to third parties is already incorporated into the
guideline applicable to property damage caused by explosives. The presentence
investigation reports explicitly applied guideline Sec. 2K1.4(a)(1), which
provides for a greater base offense level where the crime "created a substantial
risk of death or serious bodily injury to any person other than a participant in
the offense...." (emphasis added). This includes people caught inside a building
as well as bystanders injured in a blast. There may well be bombing cases
involving risks to third parties of a kind outside the "heartland" of such cases.
But the government points to nothing in the record demonstrating that this is
such a case. As a result, we hold that the trial court misapplied the guidelines to
the extent that the risk to third parties was double-counted; the court's reliance
on the harm to innocent bystanders was thus misplaced as a ground for
departure.

39

c. Extreme psychological injury to Kenny Price

40

The Prices also challenge the court's reliance on its finding of extreme
psychological harm to several of the victims, most notably Kenny Price, as a
basis for upward departure. The Prices do not question the court's capacity to
increase their sentences where their victims suffered severe psychological
injury. See U.S.S.G. Sec. 5K2.3. They only argue that the evidence introduced
by the government did not show that Kenny Price or the other victims suffered
an "injury much more serious than that normally resulting" from being a target
for murder. See U.S.S.G. Sec. 5K2.3, p.s. Our review, then, is limited to
reviewing the court's factual findings for clear error.

41

To be sufficiently severe to warrant a departure, there must be "a substantial

impairment of the intellectual, psychological, emotional, or behavioral
functioning of a victim" likely to last for an extended duration and to manifest
itself by physical or psychological symptoms, or by changes in behavior.
U.S.S.G. Sec. 5K2.3. See United States v. Wilson, 993 F.2d 214, 218 (11th
Cir.1993) (stating that "[w]e doubt that feelings of foolishness, anger, or
disappointment are so far beyond the heartland of fraud offenses" to rise to the
level of extreme psychological harm). While we have never decided the extent
of harm needed to show "extreme psychological injury," other circuits have
affirmed trial courts that departed from the guidelines based on factual findings
similar to those in this case. See, e.g., United States v. Anderson, 5 F.3d 795,
804-805 (5th Cir.1993) (upholding departure based on letter of victim
describing "her ordeal and its effects on her life"), cert. denied, --- U.S. ----, 114
S.Ct. 1118, 127 L.Ed.2d 428 (1994); United States v. Miller, 993 F.2d 16, 21
(2d Cir.1993) (upholding departure where victim was afraid to answer phone,
open mail, or stay in New York area).

42

Upon review of the presentence investigation reports (PSIs), we cannot say that
the trial court clearly erred in finding that several of the victims suffered severe
psychological injuries of the type addressed by U.S.S.G. Sec. 5K2.3. The PSIs
state that this ordeal was very traumatic for Kenny Price. He attended
counseling sessions, and at one point contemplated suicide. Kenny suffered
from depression, and he stated that he no longer felt safe in his home or when
he went anywhere. IRS agent Dwight Huff stated in the PSIs that his whole
family changed their lifestyle to be "extra cautious of their surroundings," and
he also said that his children were psychologically affected. Leon Capouano
and David Hawthorne installed security systems in their houses and also
restricted their activities outside their homes after the incidents at issue in this
case. We find no error in the trial court's reliance on this evidence of extreme
psychological injury as a basis for upward departure under U.S.S.G. Sec.
5K2.3.

43

d. Reasonableness of the two-level upward departure

44

Our final task in weighing the trial court's decision to depart is to evaluate the
overall departure for reasonableness. Dailey, 24 F.3d at 1325. The trial court
did not separately assign a departure level to each ground in ordering an overall
departure of two levels. In light of our determination that one of the three
grounds for the departure was already considered in the relevant guidelines, we
are unable to say that the overall departure would have been the same based
only on the other two grounds. See Williams v. United States, 503 U.S. 193,
202-03, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341 (1992). Therefore, we

vacate the sentence and remand to the district court for resentencing consistent
with this opinion.
IV. CONCLUSION
45

For the foregoing reasons, we AFFIRM the Prices' convictions; we VACATE

their sentences and REMAND for resentencing.

46

CONVICTIONS AFFIRMED; SENTENCES VACATED and REMANDED

for RESENTENCING.

Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge for the Seventh
Circuit, sitting by designation

Both Prices were charged with tampering with witnesses, in violation of 18

U.S.C. Sec. 1512(b)(2)(A) (1988), but were acquitted on those two counts

Bobby Price had worked for the Prices during 1983-1984 and again during
1987. During those times, Bobby knew both Prices and had become friends
with David Price

Bobby provided information regarding drug traders in the Montgomery area

during "debriefing sessions" held in July, 1992. He did not mention John and
David Price until August 4, 1992, after the debriefing agents demanded to
know about phone calls made to Arlington, Texas. (R. 18 at 339-42.) Those
calls were to David Price and concerned the activities at issue in this case

John Price was more reluctant than his son to order the murder of their targets.
Instead, he graphically described how he would rather have them mutilated, so
that they would have to live with the damage for the rest of their lives. Still,
John Price was at best indifferent to his targets' survival: "... if [Hawthorne]
should ... should die I don't give a shit...." (Gov't Ex. 2 at 66; Gov't Ex. 6 at 2425.)

The Prices' plans became more grandiose as time passed. By December, 1992,
John Price sent the agents a "menu" of possible services for the agents to
perform and the payments he would make for each. (R. 17 at 189-92.) Later,
Price referred back to the menu to describe what he wanted done to two
attorneys, Dennis Pentazis and Tim Davis, who were involved in litigation
against him. (R. 17 at 198; 18 at 230.)

The Prices also argue that the trial court improperly denied their motions for a

new trial after allegedly prejudicial juror misconduct was discovered. They
further claim that the trial court abused its discretion in the manner in which it
conducted its investigation of the possible misconduct
The Prices allege several acts and omissions by the trial court which they
contend deprived them of a fair trial. They claim that: (1) the trial court's
entrapment instruction was inadequate; (2) the trial court erred by removing
from evidence the Attorney General's Guidelines on FBI Undercover
Operations; (3) the court erred by not allowing the defense to have an
unredacted copy of informant Bobby Price's diary; and, (4) the diary and other
information were required to be disclosed under Brady v. Maryland, 373 U.S.
83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). They also attack the trial court's
admission into evidence of a photograph containing inflammatory racial and
ethnic matter, the trial court's instruction given to remedy "improper" remarks
made by the prosecutor, and, finally, the judge's failure to recuse himself prior
to sentencing because of death threats purportedly made by the Prices.
David Price separately argues that it was error for the district court to enhance
his sentence under U.S.S.G. Sec. 3C1.1 on the ground that Price obstructed
justice by perjuring himself during the trial.
All these contentions are without merit and do not warrant further discussion.
See 11th Cir.R. 36-1.

The Prices argue that such a fine is by definition excessive under the Eighth
Amendment. We reject their argument. The penalties levied on the Prices are
neither excessive nor grossly disproportionate to the crimes committed, see
Alexander v. United States, --- U.S. ----, ----, 113 S.Ct. 2766, 2770, 125 L.Ed.2d
441 (1993); United States v. Elkins, 885 F.2d 775, 789 (11th Cir.1989), cert.
denied, 494 U.S. 1005, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990), and so pass
muster under the Eighth Amendment. Indeed, a fine based on a criminal's stay
in prison seems to be by definition proportional to the crime committed. The
Prices also argue that it is excessive to require them to pay for their
imprisonment costs when they have yet to incur them. This argument is beside
the point as well, since the fines are meant to penalize their criminal actions,
not to pay the bills as they accrue while in prison. Also, the money will go not
to their prison facilities but to the Crime Victims Fund, 42 U.S.C. Secs. 10601
to 10603 (1988)

(R.Ex. 210 at 6 (John Price), 208 at 6 (David Price).)

While we do not reach the issue here, we note that other circuits have allowed
departures based on racist or anti-semitic motivation. See, e.g., United States v.
McAninch, 994 F.2d 1380, 1387-89 (9th Cir.) (holding that defendant's racist

motivation is valid ground for departure because it is not otherwise treated in

guidelines), cert. denied, --- U.S. ----, 114 S.Ct. 394, 126 L.Ed.2d 342 (1993);
United States v. Salyer, 893 F.2d 113, 115-16 (6th Cir.1989) (race of victim
could be considered under U.S.S.G. Sec. 3A1.1 where defendant tailored
actions to exploit special vulnerability of African-American family to cross
burning)