PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4616

EARL EDWIN PITTS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T.S. Ellis, III, District Judge.
(CR-96-483-A)

Argued: January 28, 1999

Decided: May 4, 1999

Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge,
and GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Goodwin wrote the opinion, in
which Chief Judge Wilkinson and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Nina Jean Ginsberg, DIMURO, GINSBERG & LIEBER-
MAN, P.C., Alexandria, Virginia, for Appellant. Randy I. Bellows,
Assistant United States Attorney, Alexandria, Virginia, for Appellee.
ON BRIEF: Helen F. Fahey, United States Attorney, Kathleen M.
Kahoe, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
OPINION

GOODWIN, District Judge:

Former FBI agent Earl Edwin Pitts pled guilty on February 28,
1997 to one count of conspiracy to commit espionage and one count
of attempted espionage in violation of 18 U.S.C.§ 794. Pitts now
challenges his sentence. He argues that the convictions for the two
offenses should have been grouped under the United States Sentenc-
ing Guidelines (Guidelines). Next, Pitts argues that the district court
erred in departing upward for an extraordinary abuse of trust. Finally,
Pitts urges that his post-arrest cooperation with the government war-
ranted a downward departure from the Guidelines range.1 We affirm.

I.

On September 18, 1983, Earl Edwin Pitts, a citizen of the United
States, joined the FBI as a special agent. He took the solemn oath of
office and signed an employment agreement, promising-- as all of
this nation's trusted FBI agents do -- "to support and defend the Con-
stitution of the United States" and to protect secret information
accessed during his tenure at the bureau. Less than four years later,
a dejected and angry Pitts entered into a conspiracy with agents of the
Union of Soviet Socialist Republics (Soviet Union) to betray his
country. In 1997, he would plead guilty to that conspiracy and to an
attempt to commit espionage. He was sentenced to 324 months
imprisonment.

Pitts was originally assigned to the FBI Field Office in Alexandria,
Virginia, where he investigated white collar and narcotics crimes.
After a brief stint in Fredericksburg, Virginia, Pitts was assigned to
work as a member of a foreign counterintelligence (FCI) squad in
New York City.
_________________________________________________________________

1 Pitts also appeals from the district court's alternative determination
that if the convictions did group, then the district court would depart
upward from the Sentencing Guidelines to reach the same offense level.
This Court does not reach that proposed assignment of error.

                    2
As an FCI agent, Pitts was responsible for investigating officers of
the Committee for State Security, Komitet Gosudarstvennoy Bezopas-
nosty (KGB), the former intelligence service for the Soviet Union. He
was trusted with access to very sensitive and highly classified materi-
als related to counterintelligence operations, surveillance of Soviet
officials assigned to the United Nations, and the true identities of
American agents and Soviet defectors. For example, Pitts had access
to the "Soviet Administrative List," a computerized listing of the
names, postings, and known or suspected intelligence affiliation of
each Soviet official assigned to the United States.

A law school graduate and retired Army Captain, Pitts, according
to his "psychiatric consultant," had dreamed of working for the FBI
as a means of escaping his small town Missouri roots. His assignment
to New York City to investigate agents of the "Evil Empire" would
reasonably have been expected to fulfill that dream. However, Pitts's
transition to New York City went badly. The consultant reported that

          [Pitts] blamed the FBI for his reduced prospects and circum-
          stances. A seeming inspiration arrived like a bolt of light-
          ning: If he were to self-recruit to work for the KGB, he
          could solve two problems at one stroke: dig out of his
          money morass, and get back at the FBI. He did so.

(J.A. at 784.)

On July 15, 1987, Pitts contacted a Soviet citizen whom he had
been surveilling. Pitts divulged surveillance information to the Soviet
that he previously had reported to the FBI in a memorandum classi-
fied as "Secret." The Soviet set up a meeting with a high-ranking
KGB officer, Alexandr Vasilyevich Karpov, whose duties included
the penetration of the intelligence and security services of the United
States. Karpov and Pitts met in the New York Public Library.

From October 1987 to October 1992, Pitts spied for the KGB and
its successor organization, the Sluzhba Vneshney Rasvedi Rossii
(SVRR). In direct violation of the trust placed in him by his country,
Pitts delivered classified materials -- including the important "Soviet
Administration List" -- to the Soviet Union and later to Russia in
return for at least $124,000 in cash payments and another $100,000

                    3
held in escrow. Pitts also passed FBI surveillance information con-
cerning Soviet diplomats and information concerning at least one FBI
human asset who had been reporting covertly on Russian intelligence
matters. The full extent of Pitts's treason may never be known.

While spying for the Soviets and Russians, Pitts requested a series
of job transfers that provided him with access to varying types of
operational and classified information. In 1989, Pitts was promoted to
Supervisory Special Agent and assigned to the Records Management
Division of the Document Classification Unit at FBI Headquarters in
Washington, D.C. There, he worked on classification appeals. In Jan-
uary 1991, he was transferred to the Security Programs Unit at FBI
Headquarters, where he worked on security issues related to Freedom
of Information Act requests. In September 1992, Pitts was assigned
to the DNA Legal Assistance Unit of the FBI's Legal Counsel Divi-
sion. Finally, in February 1994, Pitts was assigned to the Behavioral
Science Unit at Quantico, Virginia, where he served as an instructor
until his arrest. After his transfer to Washington, Pitts made nine trips
to New York to deliver classified and other materials to his Soviet and
Russian handlers. Pitts's active espionage continued uninterrupted
until finally ending in October 1992 when Pitts failed to attend a
scheduled meeting with his contact.

For almost three years following his missed meeting, Pitts had no
contact with his foreign co-conspirators. In August 1995, he unex-
pectedly received a letter at his home from the Soviet citizen whom
he had first contacted in 1987. Pitts did not respond. Two weeks later,
the former citizen -- now covertly working for the FBI in a sting
operation code-named "False Flag" -- visited Pitts at his residence.
He told Pitts that a "guest from Moscow" wished to meet with him.
Pitts agreed and later met with the "guest," who was an FBI under-
cover agent. At the meeting, the "guest" asked for Pitts's assistance
in further espionage and Pitts pledged to "do what I can."

Thereafter, from August 1995 until his arrest in December 1996,
Pitts attempted to engage in extensive espionage activities. He passed
classified and other materials to individuals whom he believed were
officers of the SVRR, but were, in fact, FBI agents, undercover offi-
cers, and FBI informants. During the course of False Flag, Pitts
attempted to provide or made preparations to provide his undercover

                    4
FBI handlers with computer diskettes containing information classi-
fied as "Secret;" confidential FBI internal information; personal, med-
ical, and familial information concerning a number of fellow FBI
agents; his personal identification badge for entry to the FBI Acad-
emy grounds and buildings; a key to a secure FBI Academy building;
an FBI National Academy briefcase; and other information designed
to facilitate access to the FBI Academy facilities. Further, Pitts
attempted to deliver a telecommunications device used to transmit
classified information. He accepted $65,000 for twenty-three drops of
FBI information and documents, nine telephone conversations, and
two face-to-face meetings with his undercover FBI handlers.

In December 1996, the FBI finally closed the False Flag sting oper-
ation. Agents arrested Pitts and halted his attempted espionage activi-
ties. Pitts was charged in a twelve-count indictment with conspiracy
to commit espionage in violation of 18 U.S.C. §§ 794(a), (c);
attempted espionage in violation of 18 U.S.C. § 794(a); communica-
tion of classified information without authority in violation of 50
U.S.C. §§ 783(a), (c); bribery in violation of 18 U.S.C. § 201(b)
(2)(C); and conveyance without authority of property of the United
States in violation of 18 U.S.C. § 641. On February 28, 1997, Pitts
pled guilty to one count of conspiracy to commit espionage and to one
count of attempted espionage. The remaining counts were dismissed
upon motion of the government.

On June 23, 1997, the district court sentenced Pitts to concurrent
terms of 324 months imprisonment to be followed by a five-year
period of supervised release and imposed a $200 special assessment.
United States v. Pitts, 

, 584 (E.D. Va. 1997). In cal-
culating the appropriate guideline range, the district court began with
a base offense level of thirty-seven. The court enhanced the offense
level by two due to Pitts's abuse of trust, applied the grouping rules
to increase the offense level by two more levels, reduced that total by
three for acceptance of responsibility, and then departed upward by
one level after finding that the abuse of trust enhancement did not
fully reflect Pitts's abuse of trust. The Court found the total offense
level to be thirty-nine.

II.

Pitts first contends that the district court erred when it determined
that his counts of conviction for attempted espionage and conspiracy

                    5
to commit espionage should not be grouped for sentencing purposes.
We review questions involving the legal interpretation of the Guide-
lines de novo. United States v. Wessells , 

, 168 (4th Cir.
1991); United States v. Toler, 

, 401 (4th Cir. 1990). The
district court's findings of facts, however, are reviewed for clear
error. United States v. Daughtrey, 

, 217-18 (4th Cir.
1989).

Section 3D1.2 of the Guidelines provides that "[a]ll counts involv-
ing substantially the same harm shall be grouped together into a sin-
gle Group." U.S.S.G. § 3D1.2. Counts implicate substantially the
same harm when they "involve the same victim and two or more acts
or transactions connected by a common criminal objective or consti-
tuting part of a common scheme or plan." U.S.S.G.§ 3D1.2(b).
Application Note 4 gives further instruction:

           [C]ounts that are part of a single course of conduct with
          a single criminal objective and represent essentially one
          composite harm to the same victim are to be grouped
          together, even if they constitute legally distinct offenses
          occurring at different times. This provision does not autho-
          rize the grouping of offenses that cannot be considered to
          represent essentially one composite harm (e.g. , robbery of
          the same victim on different occasions involve multiple,
          separate instances of fear and risk of harm, not one compos-
          ite harm).

           When one count charges a conspiracy or solicitation and
          the other charges a substantive offense that was the sole
          object of the conspiracy or solicitation, the counts will be
          grouped together under subsection (b).

(n.4).

The critical determinations relevant to the grouping decision are
whether or not the offenses constitute a single course of conduct and
whether or not the offenses are connected by a common criminal
objective.2 

are heavily fact specific. See 

_________________________________________________________________
2 Pitts contends that the victim of both offenses was the Nation's soci-
etal interest. We accept that characterization without making a specific
finding.

                    6
The determination of whether or not actions constitute a single
course of conduct is not necessarily an easy one for the district court
to make. See United States v. Bonner, 

, 525 (11th Cir.
1996) (finding that decision is "not always clear cut" and directing
sentencing courts to consider Guidelines' Introductory Commentary
because existing case law provides only "some guidance"). Neither
we, nor our sister circuits, have previously articulated factors appro-
priate for a district court to consider in making this determination. A
district court, when determining whether actions constitute a single
course of conduct should consider the Guidelines Commentary and
the following factors in making the critical determination of whether
or not multiple offenses constitute a single course of conduct: the
duration of the defendant's conduct and whether the conduct of con-
viction overlaps in time, the locations in which the conduct occurs,
the persons involved, the means used to accomplish the criminal pur-
pose, and the separateness of the fear and risks of harm created by the
defendant's multiple acts.3 No specific factor should control; the dis-
trict court is to weigh them as the facts and circumstances of the indi-
vidual case require.

Whether or not offenses are connected by a common criminal
objective is also a critical determination. While there are few pub-
lished decisions, we are of the opinion that a defendant cannot merely
define his scheme in broad fashion and argue that all of his conduct
was undertaken to satisfy that broad goal. Rather, a more particular-
ized definition of the defendant's intent is required. See United States
v. Norman, 

, 1185 (10th Cir. 1991) (rejecting govern-
ment position that scheme was narrowly designed and defining defen-
dant's purposes broadly); United States v. Wilson, 

,
1294 (6th Cir. 1990) (same).
_________________________________________________________________
3 See 

(finding the interval of time relevant);
see also United States v. Griswold, 

, 296 (3d Cir. 1995) (time
and separateness of fear and risk of harm); United States v. Miller, 

, 21 (2d Cir. 1993) (separate instances of psychological harm);
United States v. Sneezer, 

, 924 (9th Cir. 1992) (time);
United States v. Cousens, 

, 805-806 (1st Cir. 1991) (means
used to accomplish crime and time period; location; and people
involved); United States v. Wheelwright, 

, 231 (1st Cir.
1990) (same).

                    7
Where the criminal conduct of the defendant constitutes ongoing
behavior toward a single goal that is in fact accomplished only by the
entirety of the defendant's conduct, and where the behavior is ended
upon the completion of that single goal, then the district court must
group the offenses. See 

(analyzing grouping
guideline and related cases). Where, however, the defendant's crimi-
nal conduct constitutes single episodes of criminal behavior, each sat-
isfying an individual -- albeit identical -- goal, then the district court
does not group the offenses. See 

(same); 

(same).

Here, the district court properly determined that the counts of con-
viction did not constitute a single course of conduct with a single
objective. In deciding that the counts of conviction did not constitute
a single course of conduct, the district court carefully considered the
undisputed facts that the counts depended upon two separate time
periods, involved the supplying of information to two distinct sets of
people in two separate locations, and resulted in the passage of an
entirely different category of sensitive materials involving separate
and distinct instances of harm. 

.

It is also clear that the defendant's actions were not connected by
a common criminal objective. The defendant did not intend merely to
transfer a sum certain of sensitive information to a foreign power with
the intent to terminate the relationship as soon as that goal was com-
pleted. Rather, the defendant aimed to hand over as much sensitive
information as he could. Each act of espionage satisfied that goal to
a degree unrelated to and independent of every other act of espionage.

The district court determined that Pitts's conduct was not a single
course of conduct with a single objective as contemplated by the
Guidelines. We find no error in those conclusions.

III.

Pitts next contends that the district court erred in departing upward
one level based upon the district court's finding that the defendant's
abuse of trust was extraordinary. Pitts admits that he held a position
of trust and that he abused the trust placed in him. He therefore agrees
with the district court's decision to apply the two-level enhancement

                     8
pursuant to Section 3B1.3 of the Guidelines. However, Pitts argues
that because he was no more culpable than other counterintelligence
or supervisory agents who hold similar positions and who may also
commit crimes, a departure was unwarranted. We disagree.

A sentencing court is required by statute to impose a sentence of
the kind, and within the range, determined by a proper application of
the Guidelines, "unless 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 formulat-
ing the guidelines that should result in a sentence different from that
described." 18 U.S.C. § 3553. Typically, the sentencing court must
consider whether the facts and circumstances giving rise to the crime
involved are encompassed within the heartland of situations to which
the Guidelines range was intended to apply. Congress has further pro-
vided by statute that "[i]n determining whether a circumstance was
adequately taken into consideration, the court shall consider only the
sentencing guidelines, policy statements, and official commentary of
the Sentencing Commission." 

the decision of the district court to depart for an abuse
of discretion. See Koon v. United States, 

(1996); United
States v. Barber, 

, 282 (4th Cir. 1997). The district court
did not abuse its discretion here. It determined the circumstances and
consequences of the offense of conviction; decided that Pitts's abuse
of trust appeared "atypical," such that it would potentially take the
case out of the applicable guideline's heartland; and finally found that
the circumstances and consequences appropriately considered take the
case out of the applicable guideline's heartland and that a departure
from the guideline's specified sentencing range was therefore war-
ranted. 

.

When a sentencing court departs based upon a factor upon which
an enhancement rests, the departure is warranted only if the enhance-
ment is inadequate. See 

. It is therefore nec-
essary first to consider the parameters of the enhancement in order to
determine whether a particular case is outside of the heartland of ordi-
nary enhancement cases. 

that latter determination, we
compare the defendant's position and conduct to all defendants who

                    9
qualify for the enhancement, not just to those who commit the crime
with which he is charged.

We have held, in considering the Section 3B1.3 enhancement for
abuse of trust, that sentencing courts may consider: (1) whether the
defendant had special duties or "special access to information not
available to other employees;" (2) "the defendant's level of supervi-
sion or `degree of managerial discretion'"; and (3) whether an exami-
nation of the acts committed establishes that this defendant is "`more
culpable' than others who hold similar positions and who may com-
mit crimes." United States v. Glymph, 

, 727 (4th Cir.
1996). It is certainly also important to inquire into the level of harm
occasioned by the breach of trust. See United States v. Siciliano, 

, 942-43 (5th Cir. 1992) (finding that guard's abuse of trust
implicated security of prison he was charged with protecting); United
States v. Bartsh, 

, 935 (8th Cir. 1993) (finding that bank-
ruptcy trustee's fraud victimized very individuals he was to aid). But
see United States v. Kaye, 

, 54 (2d Cir. 1994) (finding harm
to victim irrelevant).

An upward departure from the Guidelines based upon an extraordi-
nary abuse of trust is warranted if the combination of the level of trust
violated by the defendant and the level of harm created solely by the
violation of that trust falls outside the heartland of cases that qualify
for the enhancement.

The district court found that the level of trust placed in Pitts was
nearly unmatched. 

. Pitts was a supervi-
sory special agent of the FBI and a foreign counterintelligence opera-
tive. His job, during much of the time in which he was betraying his
country, was to thwart the espionage activities of the very foreign
intelligence service with whom he conspired. He represented this
nation's defense against foreign espionage activity. In violating that
"awesome responsibility and trust," Pitts violated a level of trust to
which most men are never exposed. 

Furthermore, the dis-
trict court found significant harm arising from the breach of that trust:
"the protection of secret and confidential national security informa-
tion," "the ability and capacity to gather foreign intelligence informa-
tion," and "the reliance on the trustworthiness of American

                     10
intelligence and law enforcement officers" were each irreparably
damaged. 

n.11.

Pitts presents several other espionage cases in which the sentencing
court did not depart based upon abuse of trust. He argues that because
the courts in those spy cases did not depart, the district court erred in
departing in his case. He argues that this is so because the material
turned over to foreign powers by those other spies was more damag-
ing to our country than the material he turned over. We find the argu-
ment unpersuasive in part because it is premised on a fundamental
misconception of the basis for an abuse of trust departure and in part
because we find no factual support for it.

The harm resulting from the actual offense conduct is irrelevant to
a decision to depart based upon an extraordinary abuse of trust. In
considering comparative cases to determine whether particular cir-
cumstances fall within the heartland of abuse of trust cases, the rele-
vant harm is the harm created by the violation of trust, not from the
offense. The Sentencing Commission chose to assign a base offense
level for offense conduct in Chapter Two of the Guidelines. When
considering whether the Chapter Three two-level enhancement is suf-
ficient in a particular case, the court is concerned only with the harm
created solely by the violation of trust. Insofar as Pitts argues that the
information he divulged to foreign powers was less sensitive than that
turned over by other spies, that suggestion is relevant only to whether
a downward departure from the base offense level is warranted and
not to whether an upward departure for abuse of trust is warranted.

Further, courts considering whether or not to depart upward based
upon abuse of trust are cautioned not to compare the defendant's
abuse of trust to a narrowly defined group. Based on a factor we
found relevant in Glymph, Pitts proposes that we compare his abuse
of trust to the trust abused by other spies. His reliance on Glymph is
misplaced. Glymph is an abuse of trust case, not a departure case.
There the issue was the threshold question of whether the defendant's
position was one of trust in the first place, not the dynamic concern
of whether the abuse of trust was extraordinary. Thus, when we deter-
mined that it is relevant for a court to consider whether the defendant
is "`more culpable' than others who hold similar positions and who
may commit crimes," we held that a person, like a bank teller, who

                     11
does not otherwise qualify for the enhancement by title alone, may
nevertheless qualify if he is more culpable (i.e., more entrusted) than
others in that position. 

. We are not of the
opinion that a bank president, for example -- who would almost uni-
versally qualify for the enhancement -- could avoid the enhancement
because he is equally or less culpable than other corporate presidents.
Nor are we of the opinion that Pitts may avoid the upward departure
because he is no more trusted than his fellow traitors. That consider-
ation is irrelevant here. See United States v. Bartsh, 

, 935
(8th Cir. 1993) (finding abuse of trust departure for bankruptcy
trustee "almost compelled" by similar holding concerning another
bankruptcy trustee without regard for comparative culpability).

Even were we to accept Pitts's interpretation of the departure anal-
ysis -- which we do not -- we find no factual support for his conclu-
sion that the district court erred. In the espionage cases Pitts cites,
departures based upon abuse of trust were not considered by any
court. See United States v. Pollard, 

(D.C. Cir. 1992);
United States v. Morrison, 

(4th Cir. 1988); United
States v. Whitworth, 

(9th Cir. 1988); United States v.
Pelton, 

(4th Cir. 1986); United States v. Ames, No. 94-
166-A (E.D. Va. April 28, 1994); United States v. Nicholson, No. 96-
448-A (E.D. Va. June 5, 1997). In fact, enhancements were not even
considered. The cases are not appropriate for comparison purposes.4

Our sister circuits have found departures for abuse of trust war-
ranted under circumstances similar to those before us. See 

(departing upward when defendant defrauded great-aunt of
life's savings); 

(departing upward when bank-
ruptcy trustee -- a federal officer appointed by the court to assist vic-
tims of fraudulent activity -- "victimized those same individuals a
second time by embezzling over $1.5 million dollars"); United States
v. Barr, 

, 654 (3d Cir. 1992) (departing upward when
high-ranking official with Department of Justice made false written
_________________________________________________________________
4 Only in the materials submitted in the record by the defendant relating
to Nicholson is abuse of trust arguably even mentioned by implication
and that was merely in the context of a plea agreement in which the gov-
ernment agreed not to seek any departures from the Guidelines. (J.A. at
670.)

                    12
and oral statements to agency of United States and conspired to pos-
sess and did possess cocaine); 

(depart-
ing upward when deputy sheriff and prison guard sold drugs in prison
and thereby "jeopardiz[ed] the security of a prison he is charged with
protecting."). In each of those cases, the respective circuit court found
that the level of trust violated, combined with the harm solely result-
ing from that violation -- regardless of the harm resulting solely from
the offense of conviction -- justified a departure. We find that the
district court did not abuse its discretion.

IV.

Pitts finally contends that the sentencing judge should have been
more lenient in choosing his exact term of imprisonment within the
guidelines range. The court determined that Pitts had a total offense
level of thirty-nine and that the applicable guidelines range was 262
to 327 months. The court sentenced Pitts to 324 months imprisonment.5
Pitts argues that the sentencing judge erroneously believed that Pitts's
more than seventy hours of FBI debriefings were required for accep-
tance of responsibility and therefore failed to consider his unusual
cooperation in determining his sentence. Notably, Pitts does not argue
that the court should have departed downward for extraordinary
acceptance of responsibility nor that the court failed properly to
reduce his offense-level three levels for acceptance of responsibility.
Instead, he requests that this court strip the sentencing judge of his
discretion to set the defendant's sentence within the proper guidelines
range. This, we cannot do.6
_________________________________________________________________
5 The Court recognized that the Guidelines range exceeded 24 months
and specifically found that the sentence imposed met"the need for pun-
ishment and deterrence." (J.A. at 660.)
6 We can review a decision based upon a claim that the sentence "was
imposed in violation of law." 18 U.S.C. § 3742. It is possible to read the
defendant's appeal as one based on a claim that the district court improp-
erly believed that it could not consider the defendant's extraordinary
cooperation or that the district court gave impermissible or no reasons for
imposing a sentence at the upper end of the guidelines range. Neither
appeal would have merit. The sentencing court specifically stated that it
imposed the sentence of 324 months because the sentence "adequately
satisfies the Guidelines' goals relating to deterrence, retribution, and

                     13
As this Court held in response to a similar challenge in United
States v. Porter, 

, 794-95 (4th Cir. 1990), "[t]his chal-
lenge does not state an appealable question under 18 U.S.C. § 3742."

the sentence imposed by the district court is

AFFIRMED.
_________________________________________________________________
incapacitation." 

. The court did not indicate a
belief that it was foreclosed from considering Pitts's post-conviction
cooperation. In fact, the court did consider various excuses offered by
Pitts and found that they "can never justify or mitigate his actions. Even
to assert such excuses is a further affront." 

                    14