A U.S. District Court judge in Baltimore has rejected federal sentencing guidelines and refused to impose a prison term on a Bethesda man who stole TV rating equipment from Arbitron Co. for an attempted sale to the A.C. Nielsen Co., Arbitron's chief competitor.
Judge William N. Nickerson, the newest judge on the federal bench here, accepted defense arguments yesterday that the theft was "aberrant behavior" by the defendant, former Arbitron employee Barry D. Glick, who suffers from an unspecified personality disorder.
Glick, 45, of Bethesda, faced a no-parole prison term of 27 to 33 months under the guidelines, as calculated by a federal probation officer.
After hearing a defense psychiatrist say that Glick suffered "significantly impaired mental capacity" at the time he committed the crime, Nickerson ruled that he would "not use the guidelines" in sentencing the defendant.
Instead, Nickerson ordered Glick to serve five years on probation, undergo mental health counseling and perform 400 hours of community service.
The guidelines are mandatory for sentences on criminal offenses committed after Nov. 1, 1987, but federal judges are allowed to depart from them in some instances if the judges specifically find that the federal commission that wrote the guidelines did not take certain factors into account.
Nickerson said he sharply disagreed with the guideline level calculated by the probation officer because it did not take into account the aberrant nature of Glick's behavior, the defendant's mental state at the time he committed the theft or the fact that Glick is a first-time offender.
The judge also disagreed with a stipulation, signed by the defense and prosecution when Glick pleaded guilty in September, that set the value of the theft at about $240,000.
"I find that the items are valued at less than $100," Nickerson said, noting that they are "not marketable."
According to court papers, Glick, a former District of Columbia police officer, stole an Arbitron ratings manual, a training tape, an Arbitron ratings meter and other internal documents, and tried to sell them to Nielsen after he received an unsatisfactory performance rating last year, followed by a small pay raise early this year.
Glick anonymously contacted Nielsen four times while he attempted to set up the sale. But Nielsen officials immediately told Arbitron that they had been contacted about buying the proprietary items, and cooperated in an investigation that led to a charge against Glick of interstate transportation of stolen property.
Prosecutor Dale P. Kelberman argued in court that the case required a sentence of at least 27 months in prison, the low end of the guidelines, to send a message of deterrence to others who might consider such thefts.
Kelberman said after the hearing that he would consider appealing Nickerson's sentencing action to the 4th U.S. Circuit Court of Appeals in Richmond, Va.