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United States v. Kaim

United States District Court, S.D. Indiana, Indianapolis Division

October 10, 2018

MICHAEL KAIM, Defendant.



         This matter is before the Court on Defendant Michael Kaim's (“Kaim”) Motion for Reconsideration and to Correct Error under Fed. R. Crim. 35 (Filing No. 29). For the reasons stated below, the Motion is denied.


         Federal Rule of Criminal Procedure 35(a) provides a means for correcting clear error and allows a court to correct a sentence that resulted from arithmetical, technical, or other clear error. Sentence modification under Rule 35 is extremely limited. U.S v. Townsend, 762 F.3d 641, 645. (7th Cir. 2014). In the absence of a motion from the government, the court has authority to modify a sentence only if the sentence originally imposed “resulted from arithmetical, technical, or other clear error, ” and even then the court must act within 14 days after the sentence is orally announced. Fed. R. Crim. P. 35(a). Id.


         On September 18, 2018, Kaim entered a plea of guilty to Count 1 of the Information: Deprivation of Rights under Color of Law, in violation of 18 USC § 242, a Class A Misdemeanor. In exchange for his plea of guilty, the Government agreed to dismiss the Indictment docketed under Case Number 1:18-cr-00012-TWP-DML[1] at the time of sentencing. (Filing No. 6 at 1-2.) In addition, Kaim agreed to relinquish his future ability to be a police officer. The factual basis for the plea of guilty is the following:

MS. CHANNAPATI: On the afternoon of April 18, 2017, the defendant, a police officer at the Veterans Affairs Medical Center in Indianapolis, Indiana, was patrolling the hospital with his partner, Officer D.W. Defendant encountered this victim, D.J., a patient employee of the hospital, cursed, and asked D.J. if he had a problem. D.J. responded by cursing loudly back at the defendant and Officer D.W. as D.J. walked away from both officers. The defendant followed D.J., telling him that he was being disruptive and that he had to leave the hospital immediately. D.J. initially argued with the defendant that, as a veteran and a patient, he had a right to be in the hospital. However, when the defendant repeated his orders for D.J. to leave, D.J. complied. Defendant walked D.J. down the lobby corridor towards the exit with Officer D.W. following behind them. When D.J. and the two officers reached the vestibule before the hospital exit, D.J. stated he needed to go to the clinic. Officer D.W. informed D.J. that the clinic was closed and he should return tomorrow. D.J. then returned and walked -- excuse me, D.J. then turned and walked towards the exit to leave the hospital. The defendant then placed both of his hands on D.J., shoved him out the exit door and pushed D.J. against an exterior wall of the building. The defendant then brought D.J. to the ground, causing D.J. to fall face down onto the sidewalk. The defendant dropped on top of D.J. and with the defendant's hands struck D.J. approximately six to seven times in the head. The defendant remained on top of D.J. while he placed D.J.'s right hand behind his back. The defendant and Officer D.W. put D.J. in handcuffs and placed him under arrest. The defendant filed an investigative report about this incident in which he wrote that D.J. did not comply with defendant's instructions to leave and that D.J. resisted arrest, thus depriving D.J. of a right secured to him by the Fourth Amendment of the constitution, to witness the right to be free from unreasonable seizure.
THE COURT: And that was false; correct?

         Kaim, under oath, indicated that the factual basis was true and accurate. He was advised that his plea was pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B), the Court explained that it was not a binding agreement, therefore, the ultimate determination of the sentence is left to the Court's discretion. The Court, finding the plea was knowing and voluntary, accepted the plea of guilty and proceeded to sentencing on that same date. Other than correction of one typographical error, neither Kaim (nor his counsel) had any other changes or corrections to the Presentence Investigation Report (“PSR”) prepared by the United States Probation Department. The PSR was accepted by the Court, under seal. The sentencing guideline range calculated by the Court was 12 to 18 months' imprisonment. However, the mandatory maximum sentence for the offense is 12 months; accordingly, the guideline sentence became 12 months' imprisonment. The Court gave the following statement of reasons for the sentence:

The sentence that the Court is imposing is the guideline sentence. The Court has considered the 3553(a) factors, including the nature and circumstances of the offense, the defendant's lack of a criminal history, the defendant's characteristics, the need for the sentence to reflect the very seriousness of the offense, to promote respect for the law, to provide just punishment, and to provide adequate deterrence to criminal conduct of this nature by other law enforcement officers who might try to do similar things.
Mr. Kaim is a 28-year-old man before the Court for illegally and unjustifiably assaulting a patient at the Veterans Affairs Medical Center here in Indianapolis by repeatedly hitting the victim about the head and face. The veteran apparently said he was there because he was in need of medical care, and veterans in that hospital should be treated with dignity and respect, and the one place where a disabled veteran should feel safe should be in the Veterans Administration Hospital.
Great leniency has already been shown to this defendant because he was originally indicted by a Federal Grand Jury of felony civil rights violation and felony obstruction of justice, and the defendant originally faced a statutory sentence up to 10 years on the civil rights violation and up to 20 years on the obstruction of justice. The defendant has one of the best attorneys in these types of cases in the state of Indiana, and maybe in the whole country, who represented him, and he negotiated you a wonderful plea deal.
You've now pled guilty to an information on a misdemeanor, deprivation of rights under color of law. The guideline sentence for this offense would have been 12 to 18 months, but because it is a misdemeanor, the maximum the ...

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