https://pcl.uscourts.gov/searchCase 1:11-cr-00028-SPM-GRJ Document 62 Filed 07/27/12
(Pages 1-16)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
CASE NO.: 1:11-CR-28-SPM-GRJ
v. ELECTRONICALLY FILED
ABBY HOGAN,
Defendant
_______________________________/
GOVERNMENT’S SENTENCING MEMORANDUMCOMES NOW the United States, by and through its undersigned counsel and hereby
respectfully submits its Sentencing Memorandum to assist the Court in determining Defendant’s sentence in this case. The Sentencing Guidelines, as correctly calculated in the Presentence Investigative Report, establish a reasonable sentencing range that appropriately accounts for each of the factors set forth in 18 U.S.C. § 3553(a). Accordingly,
the government requests that this Court impose a sentence within the applicable guideline range of 27-33 months.I. Defendant Engaged in a Scheme of False Statements and Obstructive Acts to Hinder
the Investigation into the Disappearance of her HusbandSometime after 10:00 p.m. on Thursday, September 24, 2009, James Hogan – the Vice Consul at the U.S. Consulate in the Caribbean island of Curacao – left his residence in the capital city of Willemstad. Shortly after midnight on Friday, September 25, James Hogan’s cell phone (located near a tourist resort called “Lion’s Dive”) called Defendant Abby Hogan. That two minute, 58-second phone call is the last confirmed contact with James Hogan. Later that
afternoon, a recreational diver discovered a pair of jeans with bloodstains, a pair of socks, and a pair of tennis shoes at a rocky beach area in Curacao known as Blue Rock. Dutch law enforcement also discovered blood on the beach and on rocks near the shore; the blood on the jeans and rocks matched James Hogan’s DNA. Investigators found James Hogan’s cell phone and a knife in the water near the blood-stained rocks. James Hogan’s body has never been found, and he is presumed dead.
American, Dutch, and Antillean officials mobilized immediately in an effort to locate James Hogan or to prevent the disposal of his body. Their primary source of information was Defendant Abby Hogan – James Hogan’s wife - who was the last known person to see or speak to him. In at least five interviews over the course of six months, Defendant told U.S. and Dutch law enforcement essentially the same story: that the evening James disappeared had been normal; that James had been in a good mood, nothing had been bothering him, and there were no marital problems. Defendant claimed that James had taken his normal evening walk and that she had taken a sleeping pill and slept through the evening. She was awakened briefly after midnight by a call from James to her cell phone. She could not remember anything from the nearly three minute conversation except that he was still out walking and she should leave the door unlocked. She then fell back asleep and did not notice he was missing until the next morning.
After her initial statement, Defendant amended her story to add that: (1) James had been worried that a recently-fired Consulate employee with a criminal record might seek revenge; and (2) someone had interrupted James during the midnight phone call.Subsequent investigation, however, revealed that Defendant’s version of events was
completely false. Defendant’s own emails (see Attach. 1) provide a timeline of events leading
up to Hogan’s disappearance and disclose a household in turmoil.
In March, 2009, Defendant reconnected with her high school boyfriend “Mike” (Attach. 1; Email 1). By early June, Defendant was planning a trip to Gainesville to see him (Email 2: “Do you understand I want to sleep with you?”); on August, 17, 2009, Defendant consummated the affair in Florida (Email 6). Even before returning to Curacao, Defendant broached the idea of leaving her husband for her lover. See, e.g. Email 7 (8/27/09: “If there’s any way I can do it we are going to be together). Within days of her return to Curacao, Defendant began exploring her options. See, e.g. Email 11 (9/1/09 email to sister asking about career options in Florida); Email 17 (9/8/09 email to friend “I’m thinking of leaving my 23+ year marriage”). Defendant, however, was concerned that James might “react very strongly” to her leaving (Email 13; Email 19); See also Email 21: (“will Jim let me leave”).
Upon her return, James Hogan became suspicious of his wife’s behavior and began asking questions about her trip. Email 10, 18, 23. Eventually, James caught his wife in a lie about seeing her high school boyfriend (Email 23), and two days before his disappearance, James discussed the lie in an email exchange (Email 25). On the night he disappeared, James Hogan
used Defendant’s pink Dell laptop to make a Skype video call to his step-daughter. Afterwards, sometime around 9:00 pm, he saw Defendant’s emails, including her emails to her lover. Email 49. At 9:20 pm, four emails were forwarded from Defendant’s email account to James Hogan’s email account. See Email 33-36. These contained references to the affair. See, e.g. Email 28 & 36 (“it is very difficult for me to pretend to love him [James] when my heart is there with you. To have sex when I don’t feel the love behind it.”) An argument ensued, which led Defendant to email her lover: “jim knows everything. it’s awful.” Email 37. During the argument, Defendant “refused to call” her lover and break off the relationship, as her husband requested, and as a result she might have “caused something terrible to happen.” Email 36.
Forensic analysis of various email accounts established that – after her husband’s disappearance – Defendant deleted at least 365 emails that were relevant to the investigation and responsive to questions she was being asked by U.S. law enforcement, including all emails discussed above. She deleted emails not only from her account, but she accessed her husband’s email account at least twice on different days and selectively deleted only those emails that related to the events leading up to his disappearance. The government was able to retrieve these deleted emails from various sources, including Defendant’s lover.
Computer analysis also established that Defendant was not asleep during the evening James Hogan disappeared, but in fact had been on the internet at least eleven times, including within minutes of the last phone call from James Hogan. Defendant also deleted information from her cell phone for the period of September 24-26, 2009.Shortly after her first in-depth interview with U.S. law enforcement, Defendant emailed a
friend who knew of the affair and requested that “if an investigator talks to you, please don’t tell him what i talked to you about.” Email 59.
Finally, on two separate occasions defendant lied about and withheld a pink Dell laptop
that was relevant to the investigation.
During a September 26, 2009 search of her home,
Defendant had told Dutch and U.S. law enforcement that the pink laptop belonged to her
children, and neither she nor James used it. Approximately six months later, when U.S. law
enforcement again asked about the pink laptop in a March 2010 interview, Defendant claimed
the pink laptop was broken and had been discarded in Florida in August 2009. A search of
Defendant’s household goods upon her return to the United States discovered this pink laptop; subsequent forensic analysis – coupled with other evidence – established that James Hogan had accessed this computer shortly before he disappeared (including to make a Skype call), and it was almost certainly the computer Defendant references in emails 24 and 49. Analysis further established that, within a few hours of the interview in which she claimed the pink laptop was broken and discarded, Defendant used the pink laptop to burn a CD of information from a Yahoo Web Mail folder, using a shortcut titled “Mike.”II. The Applicable Guideline Range is Appropriate and ReasonableEven though the Sentencing Guidelines are advisory, a sentencing court “must consult
those Guidelines and take them into account when sentencing.” United States v. Booker, 543
U.S. 220, 125 S. Ct. 738, 767 (2005). The Presentence Report correctly concluded that three
special offense characteristics apply to this case, all of which are substantiated by the facts.
(1) Substantial interference with the administration of justice (USSG § 2J1.2(b)(2)).
Defendant impeded an extensive, multi-national investigation involving three U.S. law
enforcement agencies, the U.S. Navy, and the Coast Guard, along with Dutch and Antillean law enforcement, and forensic resources. She did so knowing full well the scope of the investigation.
See, e.g., Email 40 (“the entire island is looking, including the Regional Security Officer (state
dept) from Venezuela, DEA, US military, local/dutch coast guard, local police, the us state dept in dc knows.”); Email 44 (“everyone they can get, us, dutch, local, are helping”); Email 45 (“navy search plane will start flying today and tracker dogs are coming from netherlands”);
Email 52: (“they are supposedly searching everything, on land, all over the island, and in the
water”).
(2) Destruction of a substantial number of records (USSG § 2J1.2(b)(3)(A)). As one of her obstructive acts, Defendant selectively deleted at least 365 relevant emails from two different email accounts on several different occasions. This qualifies as a “substantial number of records.”
(3) Obstructing or Impeding the Administration of Justice (USSG § 3C1.1). Under
USSG § 3C1.1, application note 7, a 2-level enhancement may apply to an obstruction of justice case “if a significant further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself * * *.” In this case, defendant took multiple separate steps to obstruct the investigation into her false statements to law enforcement. The most egregious are: (1) Defendant’s October 10, 2009 email to a friend asking: “if an investigator talks to you, please don't tell him what i talked to you about”; and (2) Defendant’s false statement during an interview on March 19, 2010, in which she claimed that the pink laptop was broken and discarded; within hours of that interview Defendant accessed that pink laptop and burned a CD from a Yahoo Web Mail folder with a shortcut used to access the Yahoo Web Mail labeled “Mike.” United States v. Roche, 321 F.3d 607, 608-11 (6th Cir. 2003), supports the conclusion that these actions constitute “significant further obstruction.” In that case, the defendant Roche – convicted of obstruction of justice – submitted a fraudulent character reference purportedly signed by the mother of his children, Ketura Kulberg. He subsequently “requested that she [Kulberg] advise the FBI that she * * * had consented to permit Roche to write the letter he had forged.” Id. at 609. The Sixth Circuit upheld application of the 2-level enhancement under § 3C1.1 based solely on this subsequent request to lie, holding that defendant’s “effort to convince Kulberg to forswear her statements clearly qualifies as a ‘further obstruction’ under § 3C1.1.” Id. at 611.
III. The Sentencing Guidelines are Reasonable and Consistent with the Sentencing
Factors Under 18 U.S.C. § 3553(a)In addition to the Sentencing Guidelines, the court must consider the factors set forth in
18 U.S.C. § 3553(a), including, inter alia, the nature and circumstances of the offense and the history and characteristics of the defendant; the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; the need for deterrence; and the need to protect the public. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
The Presentence Report has correctly calculated the Guideline Range in this case as a total offense level of 18 and a Guidelines’ Range of 27-33 months. This sentence is also reasonable under a consideration of the sentencing factors set forth in 18 U.S.C. § 3553(a).
A. The Nature of the Offense was Egregious and SeriousDefendant Abby Hogan engaged in a calculated, systematic scheme to conceal the events
leading up to the disappearance of James Hogan, including statements and obstructive acts that hindered U.S. law enforcement’s early efforts to locate him. She has remained committed to her scheme of deception – making the same false statements in at least five interviews, including one that occurred approximately six months after her husband’s disappearance. Defendant’s criminal activity was not impulsive or isolated. It was not motivated from embarrassment or desire to protect others.
Defendant’s purely selfish motives for lying to U.S. law enforcement are evident from
her own emails, which she deleted. First, she knew that she was a person of interest in a missing person investigation. As a lawyer and former military prosecutor, she knew how criminal investigations work. See Email 3 (“When I was prosecuting, one of the lessons I learned is that the jury only knows what I tell them and they only know it if I tell them.”). She also knew that she was a person of interest in the disappearance of her husband. See Email 41 (DEA asked her to take polygraph); Email 42 (Dutch searched family car: “I guess they think I loaded Jim’s body in it and took him somewhere”); Email 43 (“I was sort of accused by the DEA guys of knowing what happened and not telling”); Email 50 (friend advising her to obtain lawyer since she was a “person of interest”). Defendant’s affair, her desire to leave her husband, and her uncertainty regarding his reaction would have prompted closer scrutiny from law enforcement on Defendant as a possible suspect in the investigation – a fact Defendant knew would know full well as a lawyer and former prosecutor.
Second, Defendant’s emails reveal that she did not want her husband’s disappearance to
jeopardize her affair. On September 28, 2009, Defendant’s lover wrote: “if that poor soul has
done himself in there’s no way I could life (sic) with that and a life of constant reminder.” Email 53. Defendant sent two emails in reply: (1) “Please don’t blame me for what Jim has done. That’s not fair. (Email 54); and (2) “I am in shock from our conversation. * * * I am not to blame for what Jim has done. * * * You and I need to be together.” Email 55 By September 30, 2009 – while the search for her husband was on-going – Defendant emailed a real estate agent about houses in Gainesville. Email 56. By October 15, 2009, Defendant was discussing moving to Gainesville with her lover. See, e.g. Email 60 (10/15/09: “I just want to know if you’re going to give into my demands and say yes, you and I are going to start all over again.”); Email 62 (10/25/09: “I would love to come to Gainesville and be happy * * *. Are you in or out? Should I keep dreaming and working towards this?”).
Defendant’s persistent scheme of deception has produced a litany of harms. Most importantly, her actions hindered the initial search for James Hogan. In the early hours after
James Hogan’s disappearance, U.S. and foreign law enforcement worked around the clock to try and locate the missing father of four. As a result of Defendant’s actions, U.S. law enforcement missed opportunities to solve the disappearance of James Hogan, including a search of the pink laptop (used by James before he left the house), a search of the family residence, and the pursuit of any leads from Defendant’s cell phone and the last phone call with James Hogan. For example, a search of the pink laptop in September 2009 could have revealed information in the computer’s short-term memory, including any websites searched by James Hogan or Defendant.
A search of Defendant’s cell phone could have revealed any calls or texts to other persons – impossible at the time because Defendant had a pre-paid cell phone, and impossible after her return to the United States because information had been manually erased from that phone.Defendant’s implication of others, including a former Consulate employee, and her insistence that nothing unusual happened before her husband left the house, led the U.S. agents
to conclude that foul play was a likely scenario – and law enforcement responded accordingly.
Within 48 hours, the U.S. government began dispatching agents from multiple domestic and
foreign locations, eventually mobilizing approximately 25 agents within the first two weeks.
The Dutch and Antillean governments reacted similarly, committing significant resources to find James Hogan in the largest search in the history of the Netherland Antilles.
To this date, the disappearance of James Hogan remains unsolved, and Defendant has failed to reveal the truth of what happened that night, even declining a government request to speak after her guilty plea. Most significantly, Defendant has never told the truth about the last confirmed phone call from James Hogan after he left the house. Defendant’s claim in her March 2010 interview that she could not remember the nearly three-minute conversation because she was “groggy” is undeniably false, as her internet activity proves she was not asleep when her husband called and that she was alert enough to sign into her email account within minutes of concluding that call. This uncertainty and lack of closure has affected her family, including her children, see Email 70, and James Hogan’s mother and siblings.The calculated nature of the offense is particularly evident from the two day interview in
March, 2010. In that interview, Defendant lied repeatedly about every nuance that could have revealed the bigger lie. When asked if she knew anyone in Gainesville, she said no. When asked if she had been checking her email for anything specific, she said no, when it is clear she was awaiting an answer from her email that Jim knew everything and it was awful. See Email 37. She persisted in her story despite being told that U.S. agents had evidence of an affair.
Defendant stated repeatedly, that her lover was “just a friend,” she did not “sleep with Mike,” and that her husband and she had a minor disagreement, but it was not about her high school boyfriend. When Defendant was shown a nude photo of her lover that she had emailed to herself, Defendant was not embarrassed. When confronted with irrefutable proof of her affairs, she said simply “well, now you know.” When asked about the pink laptop, she lied, and lied in a way to prevent further inquiries (it was discarded). Within hours of the interview, she used that same pink laptop to access an internet shortcut to a file with her lover’s name and burned a CD from that link.
B. Just Punishment and Adequate Deterrencei. Defendant has Shown no Remorse or Respect for the LawA sentence within the Guidelines range is necessary as a just punishment for Defendant,
who has demonstrated no remorse over her actions, and has given no indication that she
understands the costs of her lies and obstructive actions. She has provided no closure to her
children or to James Hogan’s siblings and mother.
In her testimony before the Magistrate Judge seeking removal of a GPS monitoring device, Defendant displayed exactly the same behavior that was a hallmark of her interactions
with law enforcement. Specifically, when explaining why she had voluntarily returned to
Gainesville, she listed several factors, including her daughter’s decision to attend the University of Florida. Attach. 2 at 20. Notably absent from that list of reasons was any mention of her lover Mike. On cross-examination, when asked why she had not mentioned Mike, Defendant downplayed him. He was merely a “man she is seeing,” who she saw once, and had “an affair with him during the period of a week.” Id. at 26. All of these statements echoed her previous false statements to law enforcement. In fact, Mike was the “love of her life,” a man she was determined to be with (Email 7, 13, 14, 22, 31, 32, 34, 51), as soon as he signaled he was ready (Email 19, 27).
Similarly, Defendant’s claim that she moved to Gainesville because her children were
permanent, which was not “necessarily” true of her lover, Attach 2 at 26, also rings hollow in
light of her emails, in which she indicated that: (1) she was willing to leave her minor child
behind in order to be with her lover (Email 13, 14, 22); (2) she had decided to move to
Gainesville – and was looking for houses near her lover – within 5 days of her husband’s
disappearance (Email 56); and (3) she was pressing her lover for a commitment to the
relationship as a pre-requisite for moving to Gainesville. See, e.g., Emails 60, 62, 63, 64, 67, 68.
Defendant’s overwhelming reason to move to Gainesville was to be with her lover, not her
children. See Attach. Email 62 (“the thing I want most, you, is what’s driving the rest of my
decisions”); see also Email 13 (“I want to be in Gainesville if that’s where you are”); Email 61
(declining free place to live in Pensacola because her lover was not there); Email 67: (1/23/10: “do you want me to move to gville or not”); Email 68 (“i (sic) need to know. i (sic) can’t sign the contract for the house if you can’t even tell me you want me there.” See also Attach. 5 (12/31/09 text to lover: “there's no other reason for me to go there if not to see if we can be together. My “aggressiveness” doesn't extend that far.).
ii. Defendant’s Military Service Makes her Deceptions Even More EgregiousDefendant’s military service, and specifically her role as a Judge Advocate prosecutor,
makes her calculated deceptions all the more egregious and warrants a strong sentence as just punishment and deterrence. As a former prosecutor and licensed lawyer, Defendant knew full well the seriousness of her actions. Indeed, in her time as a Judge Advocate appellate lawyer, she argued to uphold the convictions of people who used deception to violate the law. See, e.g. United States v. Gray, 1996 CCA Lexis 482 (U.S. Navy-Marine Corps Court of Criminal Appeals 1996) (Lt. Abby Hogan, Appellate Government Counsel, defending conviction for, inter alia, possessing a fake identification card and wrongful obtaining by false pretenses). She knew full well what consequences her false statements and obstructive acts could have. She could foresee that her statements shifting suspicion to others would prompt law enforcement to take action. In this case, that action included wiretapping telephones and conducting numerous interviews, none of which produced any evidence substantiating Defendant’s allegations. It would be ironic, indeed, if Defendant were to receive a variance for her military service, when her service as a military prosecutor gave her special insight into the impact her false statements and obstructive actions would have on a criminal investigation. See United States v. Theunick, 651 F.3d 578, 583 (6th Cir. 2011) (finding defendant’s request for a variance “ironic” because “the crime wouldn’t have been able to have been committed in the way in which it was had it not been for the position of public authority and public trust that the defendant occupied as chief of police.”)(quoting lower court).
iii. Defendant’s Military Service Does Not Justify a Downward Departure or VarianceDefendant’s claims notwithstanding, her military career does not justify a downward
departure or variance from the Sentencing Guidelines. In 2010, following the Supreme Court’s
decision in Porter v. McCollum, 130 S. Ct. 447, 455 (2009), the Sentencing Guidelines
recognized, for the first time, that military service “may be relevant in determining whether a
departure is warranted, if [it], individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.” U.S. Sentencing Guidelines Manual § 5H1.11 (2010) at app. C, amend. 739 (emphasis added). Cases that considered military service both before and after the amendment have tended to grant variances either when there has been combat and disability or honor.
Compare United States v. Pipich, 688 F. Supp. 191, 192-93 (D. Md. 1988) (granting departure
under the statutory catch-all provision 18 U.S.C. § 3553(b) for “exceptional military record,”
including nearly 50 decorations), with United States v. Neil, 903 F.2d 564, 566 (8th Cir. 1990)
(denying departure where defendant’s “eleven years of duty [as a recruiter] within the
continental United States” was “not meaningfully distinguishable from the work history of
steadily employed individuals”). See also United States v. Peters, 978 F.2d 166, 171 (5th Cir.
1992) (affirming receipt of two Purple Hearts and Distinguished Flying Cross not extraordinary
enough to warrant departure); United States v. Cantu, 12 F.3d 1506, 1516 (9th Cir. 1993)
(holding district court erred in finding it could not depart, in sentence for possession of firearm by a felon, on account of defendant’s “grave affliction” after serving in Vietnam); United States v. Risse, 83 F.3d 212, 215. 217 (8th Cir. 1996) (affirming departure for diminished capacity where defendant suffered from post-traumatic stress disorder after serving in Vietnam and pled to use of firearm in drug trafficking).
Nothing about Defendant’s military service rises to this standard. She served for ten
years, all in the United States (San Diego, California and Washington, D.C.), as an
administrative officer, a legal assistant, and a lawyer (having attended law school during her
military career). She saw no combat, and she received only five standard military
commendations in ten years. See Attach 3. Of those, only two were individual awards; the
others were awarded based either on her unit’s performance (the Battle “E” ribbon awarded for unit preparedness for battle) or simply because she was active status during a certain time frame (National Defense Service Medal). As a result, she falls squarely within the rationale of Neil, 903 F.2d at 566, which held that a military recruiter, stationed in the United States, did not warrant a sentencing variance.
Indeed, Defendant’s military service pales in comparison to that of James Hogan’s 23 years of military service, including 80 days of combat in Operations Desert Shield and Desert Storm and over “360 hours of flying time in harsh African environment,” including “numerous sorties into hostile fire zones.” See Attach. 4. During his career, James Hogan received multiple
notable commendations, including a Navy Achievement Medal for being instructor pilot of the
year; a Navy Achievement Medal for volunteering for deployment in Operation Desert Shield &
Storm; a Navy Commendation Medal for a non-wartime deployment to the Arabian Gulf; a
Kuwait Liberation Medal; a Navy Achievement Medal for safely landing a disabled helicopter
on rough seas at dusk; a Defense Meritorious Service Medal presented by the Secretary of
Defense; a Navy Meritorious Service Medal presented by the Secretary of Navy; and a
Meritorious Unit Citation presented by the Secretary of Navy. Id. It would be unjust for
Defendant to receive a variance for her military record in a case in which she obstructed the
search for a decorated combat veteran.
IV. ConclusionDefendant Abby Hogan engaged in a calculated, systematic scheme of false statements
and obstructive acts designed to impede the investigation into the disappearance of her husband of nearly 24 years, a decorated military veteran, who was serving as a high-ranking Foreign Service Officer at the time of his disappearance. Her actions hindered the initial investigation and diverted significant resources from U.S. law enforcement as well as their Dutch and Antillean counterparts. Her false statements and destruction of evidence have denied answers and closure to James Hogan’s family, including his four children.
WHEREFORE, the United States respectfully requests that this Honorable Court sentence Defendant to a sentence within the Sentencing Guideline’s range of 27-33 months.
Respectfully submitted,
PAMELA C. MARSH
United States Attorney
F.C. WILLIAMS
Assistant U. S. Attorney
LANNY A. BREUER
Assistant Attorney General
Criminal Division
/s/ Teresa A. Wallbaum
Teresa A. Wallbaum
Senior Trial Attorney
U.S. Department of Justice
Human Rights & Special Prosecutions Sect.
John C. Keeney Bldg., Suite 200
10th & Constitution Ave., N.W.
Washington, DC 20530
(202) 616-5193
Date: July 27, 2012
Teresa.wallbaum@usdoj.govCERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
by electronic filing to: Gilbert A. Schaffnit, Esq., counsel for defendant, on this 27th day of
July, 2012.
Respectfully submitted,
/s/ Teresa A. Wallbaum
Teresa A. Wallbaum
