Survey of the Federal Sentencing Guidelines - Section 5K1.1 - Punch and Jurists, Ltd.

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SURVEY OF

THE GUIDELINES

A summary of recent cases from the Federal Courts

Dealing with the Federal Sentencing Guidelines


Section 5K1.1 - Substantial Assistance to Authorities


U.S. v. Truman, No. 01-5072 (6th Cir. 08/29/2002)

This is an important Guidelines' decision that will probably ignite an immediate debate about the scope of U.S.S.G. § 5K1.1 - and set off a flurry of a whole range of new departure motions. In addition, if it is not reversed by an en banc ruling, it will probably also lead to calls from the Department of Justice for a change in the language of the substantial assistance provisions of the Guidelines.

The basis for the controversy was the Court's ruling that "when a defendant moves for a downward departure on the basis of cooperation or assistance to government authorities which does not involve the investigation or prosecution of another person, U.S.S.G. § 5K1.1 does not apply and the sentencing court is not precluded from considering the defendant's arguments solely because the government has not made a motion to depart." (Emphasis added).

The defendant, Sven Truman, worked as a machinist at Roxanne Laboratories, a pharmaceutical company that manufactures a number of drugs, including morphine and methadone, which are labeled by the DEA as Schedule II controlled substances. Over a period of time, Truman stole large quantities of tablets containing those drugs from Roxanne. In February, 2000, he attempted to sell 8,000 of such tablets to an undercover agent. He was promptly arrested by the DEA and he immediately agreed to confess to his crime and to "come clean." With Truman's consent, the DEA searched his car and found an additional 14,000 tablets containing the same drugs.

During his subsequent interrogations, Truman described at length the lax and minimal security procedures at Roxanne that had enable him to steal thousands of prohibited tablets simply by hiding them in his socks. The information provided by Truman ultimately led to the implementation of significant upgrades in the security procedures used by Roxanne.

The plea agreement called for a sentencing range of 121 to 151 months; and, while the Government agreed to recommend a sentence at the lowest end of the applicable Guideline range, it did not promise to seek a downward departure for substantial assistance under § 5K1.1. Nevertheless, Truman moved for a downward departure based on U.S.S.G. § 5K2.0, which permits departure for, inter alia, circumstances not contemplated by the Sentencing Commission in formulating the Guidelines. He particularly highlighted his significant cooperation with the DEA investigators that had led to the upgrade in Roxanne's security procedures as a ground for departure.

The district court (Judge Johnstone of the W.D.Ky.) acknowledged that Truman's role had been instrumental in the security changes adopted by Roxanne, but concluded that it did not have the authority to reduce Truman's sentence under § 5K2.0, stating that such a reduction could only be triggered by a Government motion. The court stated: "I believe you granted all the assistance that you could to the state and federal authorities. I have found, however, that I have no power to make these motions for them. It's up to them." The court then imposed a sentence of 121 months in prison.

Truman appealed, arguing that § 5K1.1 "is not the exclusive provision for dealing with all cooperation, but rather the court may consider a defendant's cooperation not contemplated by § 5K1.1 under the grant of discretion to sentencing judges embodied in § 5K2.0." He urged the Court to follow the Second Circuit's decision in U.S. v. Kaye, 140 F.3d 86 (2d Cir. 1998), in which the court limited § 5K1.1's application to cooperation with federal authorities. Truman argued that his cooperation was directed to state and local authorities and thus outside the scope, and limitation, of § 5K1.1.

The Government countered that the district court correctly concluded that it lacked discretion to depart downward since the basis of Truman's request was his substantial assistance to authorities, and "all substantial assistance motions are governed by U.S.S.G. § 5K1.1."

The Sixth Circuit noted that, in U.S. v. Love, 985 F.3d 732 (3rd Cir. 1993), the Third Circuit had rejected the precise argument approved by the Second Circuit in Kaye. However, it concluded that it did not have to weigh in on that issue in order to resolve the instant appeal - since it could be resolved "from the plain language of the Guideline Section at issue and the statute on which it is based."

Citing the language of 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, the Court noted that both provisions qualify the term "substantial assistance" with the phrase "in the investigation or prosecution of another person who has committed [a crime]." Thus, it concluded that "[w]here the ‘substantial assistance' is directed other than toward the prosecution of another person, the limitation of § 5K1.1 - i.e., the requirement of a government motion as a triggering mechanism - does not apply."

The Court then went on to explain that there were several "compelling reasons" for requiring a Government motion when the substantial assistance involves the prosecution of another - such as the Government's ability to evaluate both the cooperation rendered and the appropriate timing of such motions "in light of its trial needs in the prosecution of others." However, the Court emphasized, "[w]here cooperation does not involve the prosecution of another, these justifications dissipate and militate in favor of seating the authority for exercising sentencing discretion where it traditionally has been found: with the sentencing judge."

Based on that rationale, the Court concluded: "It is the district court in which the authority is vested to calculate the correct Guideline Range and determine the appropriate sentence in criminal cases in the exercise of its sound discretion. . . . A district court's refusal to depart downward because it misapprehends its authority, however, requires that the sentence be redetermined in full recognition of the discretion which the law confers on sentencing courts. Because the lower court erroneously concluded that it lacked discretion to consider the defendant's asserted grounds for a downward departure absent a motion from the government, we vacate the sentence and remand the matter to the district court for resentencing."

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United States v. Torres, 251 F.3d 138 (3rd Cir. 2001)

Each week, out of the 70-odd new criminal decisions published by the Federal courts, there are, on average - at least by our count - some 10% of those cases that involve claims by defendants who argue that they were improperly denied the sentencing relief they were promised based on their "substantial cooperation" to the Government. It is, of course, impossible to determine how many defendants attempt to cooperate with the Government - although the correct figure is certainly well in excess of the average of nineteen (19%) percent of all defendants who have received sentencing departures based on substantial assistance over the past five years. (See, the 1999 Sourcebook of Federal Sentencing Statistics, published by the U.S. Sentencing Commission).

While there are no statistics that show the percentage of defendants who claim that they were led down the garden path by the Government only to be denied any sentence reduction, it is clear that there appears to be a growing number of reported cases in which defendants are claiming that the Government breached its obligation to make a motion for a sentence reduction under U.S.S.G. § 5K1.1. It is also equally clear that, in the overwhelming majority of those cases, relief is denied because the defendants are unable to "prove" that the prosecutors had some unconstitutional motive in refusing to move for a downward departure.

On a much smaller scale, we also see a number of cases in which the defendant contends that the sentencing court abused its discretion by awarding a downward departure that was too low when measured against the cooperation rendered. Once again, while there are no statistics on the numbers of such claims, what is clear from our weekly review of all the published criminal decisions is that relief is denied in an overwhelming majority of those cases - both because it is almost impossible to prove that the judge abused his or her discretion in determining the extent of the appropriate departure - or because, as the Third Circuit held in this case, an appellate court simply lacks jurisdiction to review a district court's discretionary decisions regarding the extent of an appropriate departure.

The defendant in the instant case pled guilty in 1995 to one count of bank fraud; and he was originally sentenced to 24 months in prison. However, he appealed that sentence and, in a decision reported at 92 F.3d 1174 (3rd Cir. 1996), the Third Circuit concluded that the district court (Judge Walls of the D.N.J.) had abused its discretion by declining to reduce Torres' offense level for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Thus, it vacated the sentence and remanded for resentencing.

Upon remand, the district court granted the parties' joint requests for a continuance to allow Torres to cooperate in a broad federal investigation of police corruption and illegal gambling activities in northern New Jersey. And cooperate he did. As the Court explained: "According to the government, which submitted a six-page letter to the District Court exhaustively detailing and commending Torres's assistance, the cooperation lasted for approximately five years and eventually resulted in the criminal convictions of thirty individuals on charges of racketeering, extortion, and obstruction of justice."

When the resentencing finally came about in 2000, the district court did grant the defendant a two-level sentence reduction for acceptance of responsibility as directed by the Third Circuit; but the principal issue at the resentencing became the size of the downward departure that would be granted by the district court for the defendant's cooperation. Despite the key role played by Torres, the government's unusually strong presentation, and its recommendation of a sentence of probation, Judge Walls chose to reduce Torres's sentence by only one month below the applicable twelve to eighteen month Guideline range, sentencing Torres to eleven months incarceration.

Torres appealed, essentially making two main arguments. First, he argued that Judge Walls had failed to examine and weigh § 5K1.1's enumerated factors in a sufficiently thorough manner. Since that issue involved an incorrect application of the Guidelines, the Court acknowledged that it had appellate jurisdiction to review the claim. Nevertheless, despite concluding that Judge Wall's review of the relevant factors was only "minimally adequate," the Court denied any relief on that issue. It held that while § 5K1.1 "includes a list of relevant factors for measuring substantial assistance and determining the extent of a reduction," it "does not explicitly require the consideration of these factors. . . . Thus, a sentencing judge is not confined to § 5K1.1's enumerated factors."

Torres' second argument was that Judge Walls had abused his discretion in granting only a one-month sentence reduction. Since that issue involved the extent of a district court's discretionary departure, rather than a mistake of law or an incorrect application of the Guidelines, the Third Circuit held that it lacked jurisdiction to review the claim. For the record, we note that there is no mention in the decision about whether Torres argued that Judge Walls' decision at resentencing was a vindictive response to his successful first appeal.

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In Re Sealed Case, 244 F.3d 961 (D.C. Cir. 2001)
United States v. Duncan, 242 F.3d 940 (10th Cir. 2001)
United States v. Johnson, 241 F.3d 1049 (8th Cir. 2001)

These three cases present an excellent overview of the current status of the law on the permissible scope of judicial review of the power of the prosecutors to make or withhold motions for downward departures, pursuant to U.S.S.G. § 5K1.1, based on a defendant’s substantial assistance to the Government. These cases also show that the courts continue to express hollow concerns about the potentials for abuse from that awesome prosecutorial power; and yet those concerns always seem to produce the same cavalier attitude from the prosecutors: "We hear you, but stay out of our business."

A major concern of the courts is that "a prosecutor may induce cooperation plus a guilty plea by promising a 5K1.1 motion and then pull the rug out from under a defendant." United States v. Smith, 953 F.2d 1060, 1066 (7th Cir. 1992). Despite those concerns, the law is quite clear. The prosecutors don’t have to listen to what the courts say on this topic because their power to grant or withhold departures for substantial assistance is virtually unreviewable. As Circuit Judge Selya has explained: "The simple, unvarnished fact remains that, without a government motion, a sentencing court cannot [reduce a sentence] under U.S.S.G. § 5K1.1, despite meanspiritedness, or even arbitrariness, on the government's part." United States v. Romolo, 937 F.2d 20, 24 (1st Cir. 1991).

Essentially, the ability of the prosecutors to dangle their sugar-coated promises before defendants and then pull the rug out from under them stems principally from two separate events that occurred early in the life of § 5K1.1. In 1989, the Sentencing Commission adopted Amendment No. 290 to the Guidelines, which became effective on November 1, 1989. Up to that date, U.S.S.G. § 5K1 provided for a possible sentence reduction whenever the defendant made a "good faith effort" to provide substantial assistance to the Government on his own or on other cases. However, at the insistence of the Department of Justice, that provision was amended by deleting any "good faith" element from § 5K1.1 - thus effectively removing the possibility of any judicial review of the prosecutor’s motives.

Then, in 1992, the Supreme Court issued its decision in Wade v. U.S., 504 U.S. 181, 185-86 (1992), which held that the district courts have the authority to review a prosecutor’s refusal to file a substantial-assistance motion only if they find that the refusal was (a) based on an unconstitutional motive, such as the defendant’s race or religion, or (b) "was not rationally related to any legitimate Government end."

Duncan: In this case, District Judge Vasquez of New Mexico had granted a 36-month downward departure to a defendant convicted of drug and gun charges, even though the Government refused to file a substantial assistance motion. In doing so, she noted that the defendant’s assistance was "extraordinary" and yet the Government had not "offered any kind of evidence indicating that they in fact considered defendant’s assistance in making their plea offer." (Id., at 944). Based on those factors, she concluded that "the issue here is whether the defendant’s assistance to state authorities . . . is egregious enough . . . as to cry out for meaningful relief" under a doctrine known as the "egregious case exception." She held the case fell within that "egregious case exception" and the Government appealed.

The "egregious case exception" was first identified in U.S. v. Kuntz, 908 F.2d 655, 657 (10th Cir. 1990), where the Tenth Circuit concluded: "We do not preclude the possibility that ‘perhaps in an egregious case - a case where the prosecution stubbornly refuses to file a motion despite overwhelming evidence that the accused's assistance has been so substantial as to cry out for meaningful relief - the court would be justified in taking some corrective action’."

In reversing the departure, the Court stated the "egregious case exception" had been "eliminated" by the Supreme Court’s decision in Wade (even though the Tenth Circuit had "repeated [that] rule in numerous opinions issued after Wade." (Id., at 945)). The Court also noted that the First, Fifth and Eighth Circuits, which had "initially speculated in dicta that there might be an ‘egregious’ case or ‘extraordinary’ assistance exception to the motion requirement, . . . [have now] narrowed that exception to cases involving unconstitutional motives or irrational or bad faith refusals to file by the government." (Id., at 947).

Accordingly, the court concluded that the "correct statement of the law" was that "a district court's authority to review the government's refusal to file a substantial assistance motion is limited to determining whether the decision was: (1) animated by an unconstitutional motive, or (2) not rationally related to a legitimate government end." (Id., at 947). It then found that, despite the Government’s refusal even to consider the defendant’s assistance to state authorities, its refusal to file a motion for a downward departure was rationally related to at least two legitimate Government ends: its interest in according finality to the plea negotiations, and its policy that the Government will only reward cooperation following a defendant’s arrest. (Id., at 949).

Finally, the Court also noted that its holding brought the Tenth Circuit case law in line with the rule followed in the First, Second, Third, Fourth, Seventh, Ninth, and D.C. Circuits. (The Fifth, Sixth and Eleventh Circuits follow an even more rigid rule, namely that a district court’s authority to review the government’s refusal to file a substantial assistance motion is limited to cases in which the government had an unconstitutional motive, such as the defendant’s race or religion. (Id., at 947-48, n. 11)).

In Re Sealed Case: The defendant in this drug case signed what the Court described as a "boilerplate" plea agreement that was "hardly a model of clarity." (Id., at 963). The agreement contained a standard assurance that the "Departure Guideline Committee" would authorize the filing of a § 5K1.1 motion if it determined that he provided substantial assistance to the prosecutor. (In the District of Columbia, the Departure Committee, rather than the individual prosecutor in charge of the case, decides whether a defendant’s assistance warrants the filing of a § 5K1.1 motion.)

The Government conceded that defendant’s assistance helped to secure indictments against several individuals who thereafter pled guilty; and that he provided helpful information to law-enforcement officers during the investigation phase of a second case - but he ultimately refused to testify in that case out of fear for his safety and the safety of his family. Nevertheless, the prosecutor recommended that the Departure Committee authorize the filing of a § 5K1.1 motion seeking a "modest departure" from the district court.

The Departure Committee disagreed, however, and refused to authorize the filing of a downward departure motion. Although the Departure Committee provided no reason for its decision, at oral argument the Government contended that "nothing in the agreement obligates the Government ever to authorize a § 5K1.1 motion absent full cooperation." (Id., at 967). Claiming that the Government had breached the plea agreement by not giving him any credit for the assistance that he did render, the defendant asked the district court to compel the filing of the § 5K1.1 motion. The district court denied that motion, and the D.C. Circuit affirmed, stating that it had "no authority to . . . undermine the Government’s discretion to determine whether or not to file a § 5K1.1 motion." (Id., at 963).

What sets this decision apart was the Court’s repeated references to its frustrations and concerns about this issue. In explaining its concerns, the Court stated: " Though we are convinced from the record that the Government did not breach the plea agreement in the present case, we pause to emphasize some of the concerns we expressed six years ago in Jones [U.S. v. Jones, 58 F.3d 688, 691-92 (D.C.Cir. 1995)]. There, the Departure Committee refused to authorize filing a § 5K1.1 motion despite the fact that Jones had cooperated fully under a similar boilerplate plea agreement. We held that the terms of the agreement did not make full cooperation a sufficient condition for finding that a defendant's assistance was substantial. Nevertheless, the court was deeply concerned that ‘prosecutors might dangle the [boilerplate] suggestion of a section 5K1.1 motion in front of defendants to lure them into plea agreements, all the while knowing that the defendant's cooperation could not possibly constitute assistance valuable enough for the Departure Committee to find it "substantial".' " (Id., at 966).

In explaining its frustrations, the Court noted that it has repeatedly called upon the prosecutor’s office to change some of its practices when dealing with defendants who seek to cooperate. For example, it addressed the Departure Committee’s refusal to explain its reasons for its actions. Citing Jones again, the Court noted that since 1995 it has urged the prosecutors to summarize for the district court the information provided to the Departure Committee - a practice that would help both the trial judge and the reviewing court "with information that might help them weigh an allegation of bad faith." (Id., at 966). That suggestion has just been ignored.

The Court also complained that the Government’s use of "the same basic boilerplate provisions" in its standard cooperation agreement, six years after that practice was criticized in Jones, "raises similar concerns. Whereas the Government is a repeat player in this ritual, each defendant approaches the provisions of his plea agreement anew with the understandable belief that the agreement and its terms are tailored to that defendant's particular circumstance. By indiscriminately implying in each and every case not only that a § 5K1.1 motion is a possibility, but also that partial cooperation might in a given case be sufficient, the agreement is arguably deceptive." (Id.) Perhaps flaunting its power, the Government has also stonewalled that suggestion.

Johnson: This case represents a rare exception to general rule that the courts have virtually no power to review the prosecutors’ refusals to file a § 5K1.1 motion; and it also presents a vivid example of the type of arrogant insolence that prosecutors can exhibit when they want the courts to stop questioning their motives and decisions.

Here the defendant pled guilty to various drug and gun charges, and he signed a cooperation agreement which provided that if the U.S. Attorney concluded that he had provided substantial assistance, "the United States shall file a motion with the sentencing court" requesting a downward departure. (Emphasis added). At the sentencing hearing, the prosecutor refused a file a § 5K1.1 motion for a downward departure, and he was sentenced to 324 months in prison.

However, at the close of the sentencing proceeding, the prosecutor asked leave to file a motion, pursuant to Fed.R.Crim.P. 35(b), seeking a reduction of the sentence that had just been imposed "due to Defendant’s substantial assistance to the government." Although the district court granted that request, nothing further happened on the Rule 35(b) motion, apparently because the Government was angered when the defendant appealed his sentence, arguing that the Government had breached its plea agreement with him.

The Government, of course, opposed the defendant’s appeal - on two grounds. First, it made the astonishing claim that it had not filed a § 5K1.1 motion at sentencing because it had not known the extent of the defendant’s cooperation at the time of sentencing. Although the Court’s response to that argument was buried in a footnote, its language was blunt: "The government challenges the boundaries of our imaginations when it asks us to accept the premise that it did not know the extent of Johnson's cooperation during sentencing but suddenly had an epiphany later that day - an epiphany that was apparently already emerging prior to sentencing." (Id., at 1053, n. 2).

Second, the Government argued that the Court had no jurisdiction to review its refusal to make a § 5K1.1 motion unless the refusal "was irrational or based on an unconstitutional motive." (Id., at 1051). The Court’s terse response was: "The argument is misplaced." The issue was not the Government’s motives; rather it was "whether the government breached its plea agreement." (Id., at 1052).

The Court continued: "Although, typically, a trial court may not depart from the Sentencing Guidelines without a motion by the government, the defendant may ‘nevertheless have a remedy for the government's refusal to file the motion if the plea agreement[] between the [defendant] and the government bound the government to file such a motion.’ . . . If the government fails to fulfill the terms of a plea agreement, the defendant may seek either specific performance of the agreement or withdrawal of his guilty plea. . . .

"In the present case, the language of the plea agreement is clear and the government's failure to file a departure motion prior to sentencing-when it had already determined that Johnson had provided substantial assistance-breached that agreement. . . . Because Johnson is entitled to specific performance of the plea agreement, upon remand, the government is to file a motion or motions in accordance with the plea agreement." (Id., at 1054-55).

The Court also warned the Government that Rule 35(b) (which permits the Government to move for sentence reductions in the year following a defendant’s sentencing based on both pre- and post-sentencing cooperation) "is not a mechanism to string a defendant along once the government has concluded he has already satisfied his obligation under a plea agreement-indefinitely holding a departure motion over his head like Damocles' sword." (Id., at 1054).

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United States v. Alegria, 192 F.3d 179 (1st Cir. 1999)

As this case shows, the courts continue to struggle over the issue of whether they have the authority to intercede when the Government refuses to file a motion for a sentence reduction based on a defendant’s "substantial assistance" pursuant to U.S.S.G. § 5K1.1 and that refusal is alleged to be the result of bad faith. The Government, of course, jealously guards its autocratic power under § 5K1.1, and insists that is has the right to refuse to file such a motion for any reason or for no reason, in part because it alone has the ability to determine whether the defendant has, in fact, provided substantial assistance.

Most of the Circuits have agreed with that position, subject only to the caveat, established in Wade v. U.S., 504 U.S. 181 (1992), that the Government cannot use an unconstitutional motive, such as race, as the basis for its refusal to file the motion. (See, e.g., U.S. v. Solis, 169 F.3d 224 (5th Cir. 1999), which was discussed in the 4/14/99 issue of P&J, and In Re Sealed Case, 181 F.3d 178 (D.C.Cir. 1999) (en banc), which was discussed in the 7/12/99 issue of P&J.) A few courts, however, have inferred a duty on the part of the Government to evaluate, in good faith, whether the defendant’s cooperation rises to the level of "substantial assistance." (See, e.g., U.S. v. Isaac, 141 F.3d 477 (3rd Cir. 1998), which was reviewed in the 6/29/98 issue of P&J.)

In the instant case, the defendant pled guilty to bank fraud and related offenses and agreed to provide "full, complete, and truthful cooperation. In the agreement, the Government retained the "sole discretion" to determine whether the defendant’s cooperation amounted to "substantial assistance." When the Government decided not to file the § 5K1.1 motion, the defendant appealed, arguing that the Government decision was based on bad faith. Ultimately, the Court held that the Government had met its burden of producing evidence of a good faith consideration of the motion; and it observed that the information supplied by the defendant was "meager", often filled with hearsay, and that it included "self-serving rationalizations."

In its decision, the First Circuit did affirm that the Government does have a duty to evaluate § 5K1.1 motions in good faith - and that holding is mildly surprising because, in U.S. v. Romolo, 937 F.3d 20, 24 (1st Cir. 1991), the First Circuit had previously stated that "[t]he simple, unvarnished fact remains that, without a government motion, a sentencing court cannot depart downward under U.S.S.G. § 5K1.1, despite meanspiritedness, or even arbitrariness, on the government's part" - a statement that certainly seems to encompass bad faith.

Here, without once referring to its oft-quoted statement in Romolo, this panel used a pre-Guidelines case, U.S. v. Garcia, 698 F.2d 31 (1st Cir. 1983), to establish the principle that a district court may review the Government’s refusal to file a departure motion for bad faith. Because Romolo was never discussed in that context (although it was cited in a footnote on another issue), it is hard to reconcile the two decisions. The Court simply said that Garcia’s "central concept - that the government must perform in good faith the discretionary obligations that it affirmatively undertakes in a plea agreement - remains good law." It remains to be seen whether this decision will survive the Government’s expected counter-offensive; but, politics aside, Garcia’s "central concept" does not appear to impose an unfair or catastrophic burden on prosecutors seeking justice.

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In Re Sealed Case (Sentencing Guidelines "Substantial Assistance"), 181 F.3d 128 (D.C.Cir. 1999) (En Banc)

Almost from the beginning, the provisions of U.S.S.G. § 5K1.1 have spawned enormous controversy. That section permits a sentencing court to impose a sentence below the sentencing range called for by the Guidelines if the defendant provides substantial assistance to the authorities, and if the Government files a § 5K1.1 motion recommending such a sentence reduction. The trouble, however, has always been: What happens if the defendant, in good faith, gives the Government all the information he has, but the prosecutor decides it’s just not enough to suit his [the prosecutor’s] purposes. In such cases, most courts have held that they are virtually powerless to intervene, even if the Government’s decision is based on "meanspiritedness" or "arbitrariness". (See., e.g., U.S. v. Romolo, 937 F.2d 20, 24 (1st Cir. 1991)).

In large part, the Government’ s unfettered power emanates from the Supreme Court’s decision in Wade v. U.S., 504 U.S. 181 (1992), which interpreted the nearly identical language of 18 U.S.C. § 3553(e) to require a government motion before a court may depart from a mandatory minimum sentence. In that case the defendant conceded that the court could not depart without a motion, and merely challenged the government's refusal to file one. In response to that issue, Wade held that the government’s refusal can be challenged only if it was based on an "unconstitutional motive" like race or religion or the refusal "was not rationally related to any legitimate Government end." [Although we have long felt that this latter ground provides a fertile area for exploration by defense counsel, we have seen few cases that have argued that the Government’s refusal to file a § 5K1.1 motion is not "rationally related to any legitimate Government end"; and we would welcome any briefs or unpublished decisions that explored that concept so we could publish them in our data base.]

In any event it is clear that Wade’s limited bases for review have left a number of judges deeply perturbed, openly questioning whether the prosecutors can use the promise of § 5K1 motions as a basis for inducing plea agreements and encouraging proffer sessions when there is no real chance of any § 5K1.1 motion.

Last summer, a three-judge panel from the D.C. Circuit held that a sentencing court is not invariably prohibited by the Government's refusal to file a motion under U.S.S.G. § 5K1.1 from granting a defendant a downward departure based on his substantial assistance to the Government. See, In Re Sealed Case, 149 F.3d 1198 (D.C.Cir. 1998) (Sealed Case I), (see below). The panel noted that § 5K1.1 is only a policy statement that is not binding on the courts; and it agreed with the defendant that a substantial assistance departure without a government motion does not fit neatly into any of the four categories of factors outlined by the Supreme Court in its landmark decision, Koon v. U.S., 518 U.S. 81 (1996). Those four factors are departures that are "forbidden", "discouraged", "encouraged" or "unmentioned." Because the panel concluded that "substantial assistance without a Government motion" was an unmentioned factor that was not adequately considered by the Sentencing Commission, it held that a district court could grant such a departure if the facts supported a finding that the case was outside the "heartland" of the applicable Guidelines. Thus, it remanded the case back to the district court for a determination of whether the circumstances of this case took it outside the relevant Guidelines' heartland in light of Koon.

The Government immediately squawked that the decision interfered with its core prosecutorial functions; and the full court quickly granted the government's request for rehearing en banc, vacating the portion of the panel's opinion which held that departures for substantial assistance are available in the absence of a government motion. Now the full court has unanimously agreed that a Federal district court may never grant a defendant a downward sentencing departure in recognition of the defendant’s "substantial assistance" to the Government unless the Government moves for such a departure by filing a § 5K1.1 motion.

While the Court agreed that the language of § 5K1 does not necessarily compel a reading that a Government motion is required, it concluded that the correctness of that reading become apparent when § 5K1 is considered in light of two other provisions, 18 U.S.C. § 3553(e) and Fed.R.Crim.P. 35(b). Taken together, the Court concluded that they evidence a "congressional tradition" that "the courts may act only upon a request from the Government. The Court stated: "The point is not that courts are incapable of making such evaluations. Nor is it that letting them do so will always result in debilitating intrusions into core prosecutorial functions. It is simply that the ‘upon motion of the government’ proviso falls squarely within a tradition of deferring to prosecutorial initiative in order to avert such a possibility, and that this tradition formed the backdrop for the Commission's drafting of section 5K1.1."

In analyzing the panel’s decision, the en banc Court stated: "[W]e reject the defendant's proposed application of Koon to section 5K1.1 for two specific reasons. First, he misidentifies the departure factor at issue in this case, and hence misplaces the factor within the Koon taxonomy. Second, he incorrectly assumes that a ‘clear statement’ canon governs the reading of the entire Guidelines Manual, and particularly of section 5K1.1.

"The relevant departure factor here is neither ‘substantial assistance to authorities without a government motion’ nor ‘substantial assistance to authorities with a government motion.’ Rather, the appropriate characterization of the factor is the one the Commission itself used in titling section 5K1.1: ‘Substantial Assistance to Authorities,’ simpliciter. The government motion proviso is a procedural limitation upon the applicability of the factor, but it is not a defining aspect of the factor itself."

Based on the rulings from the other Circuits, the en banc court’s reversal in this case was not unexpected; and the behind-the-scenes pressure from the Justice Department must have been fierce. The DOJ, of course, has long claimed that only its prosecutors can really measure the value of a defendant’s cooperation; and thus it must have the unfettered discretion to file § 5K1 motions without being questioned as to its motives.

What was mildly surprising was the sudden change of position of Judges Edwards and Tatel, two of the three judges who joined in writing Sealed Case I. (Judge Buckley, a senior Circuit judge, did not participate in the en banc review). In the instant decision, Judges Edwards and Tatel wrote: "We originally viewed this case as turning on the difference between two distinct departure factors--substantial assistance with a government motion versus substantial assistance without a government motion - but we are now persuaded otherwise. Having benefitted from en banc review, we are convinced by the Guidelines' language, structure, and drafting history that the relevant departure factor is properly characterized simply as substantial assistance, that the government motion requirement constitutes a procedural limitation on its availability, and that the Sentencing Commission ‘did intend to preclude departures without [government] motions’."

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United States v. Solis, 169 F.3d 224 (5th Cir. 1999)

This is an interesting case in which three judges, Judges Duhé, Smith and Wiener, executed a near-perfect flip-flop. In their earlier decision (reported at 161 F.3d 281 (Solis I), see below) those Judges flatly held that "even where the government files no motion [for a downward departure based on substantial assistance pursuant to U.S.S.G. § 5K1.1], Koon [v. U.S., 518 U.S. 81 (1996)] authorizes district courts to depart from the Guidelines based on a defendant’s substantial assistance where circumstances take the case outside of the relevant guideline heartland." (Solis I, id., at 284).

In rendering that decision, the Judges relied heavily on the D.C. Circuit’s ruling in In Re Sealed Case, 149 F.3d 1198 (D.C.Cir. 1998), (see P&J, 7/13/98), where that Court also held that the courts have the right to review the Government’s arbitrary and unexplained refusal to grant downward departures based on substantial assistance. The D.C. Circuit reasoned that "a substantial assistance departure without a government motion is neither encompassed by nor equivalent to any mentioned, encouraged, or discouraged factor, and was thus not adequately considered by the Commission." Based on that, it concluded that Koon mandated a new evaluation of its prior precedents which had interpreted § 5K1.1 to deprive district courts of authority to depart based on a defendant's assistance in the absence of a Government motion, and it squarely held that "Koon authorizes district courts to depart from the Guidelines based on a defendant’s substantial assistance where circumstances take the case out if the relevant guideline heartland." (Sealed Case, id., at 1204).

[It should be noted that the Government quickly persuaded the D.C. Circuit to withdraw that decision also; and on 11/3/98 the D.C. Circuit agreed to rehear this decision en banc (see 159 F.3d 1362). We are still waiting for the D.C. Circuit’s expected reversal in that en banc rehearing.]

Suddenly, less than five months later, on a Government motion to reconsider, those same three judges have now concluded that "§ 5K2.0 does not afford district courts any additional authority to consider substantial assistance departures without a Government motion." (Id., at 227).

The revised opinion is, not surprisingly, short on the reasons explaining the sudden reversal. The decision does state that the judges were "persuaded by the Third Circuit’s reasoning in [U.S. v. Abuhouran, 161 F.3d 206 (3rd Cir. 1998)]. But in fact, the ruling goes much further. In Abuhouran, the Third Circuit noted that although the Government retains "sole discretion" over whether or not to offer a § 5K1.1 motion, district courts may still depart in cases where the Government refuses to offer the motion in bad faith. (Abuhouran, id., at 212). Here, openly endorsing the Government’s entire policy on the subject, the Fifth Circuit even rejected the concept that the Government’s bad faith could be questioned. Rather, the now enlightened Court said that the Government’s refusal to file a motion for a downward departure "is reviewable only for an unconstitutional motive." (Id., at 227, n. 3).

It is understandable that the Department of Justice would view the earlier decision as an unacceptable threat to the untrammeled power of prosecutors to dispense or withhold sentence reductions for cooperators based solely on their own evaluation of the quality of the information provided by the cooperators. It is far less clear why the Court would now decide that even the Government’s bad faith can no longer be questioned - particularly since there is so little in the latest decision to explain what really happened behind the scenes to cause those three Judges suddenly to see the light!

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United States v. Solis, 161 F.3d 281 (5th Cir. 1998)

Lately it seems as if the courts are beginning to question, with greater frequency, the arbitrariness of the Government in the exercise of its powers to grant motions for downward sentencing departures based on substantial assistance pursuant to U.S.S.G. § 5K1.1. In the instant case the defendant was a former INS agent who not only provided his co-conspirators with information on law enforcement activities, he also acted as a narcotics broker. He pled guilty to various charges related to a drug conspiracy under a plea agreement which provided that the Government would move for a downward departure if it determined that he had provided substantial assistance.

The defendant was debriefed by the Government on four separate occasions on a substantial number of topics. However, prior to sentencing, the Government advised him that it did not intend to move for a downward departure. (The decision is silent as to the reasons, if any, given by the Government for its refusal to move for a downward departure.) Concluding that the defendant’s debriefings "covered topics that were relevant to the investigation," the district court (Judge Hoyt) decided to grant the defendant’s motion for a five level sentence reduction. However, the Court erroneously cited the "safety valve" provisions of U.S.S.G. § 5C1.2 as the basis for its departure.

The Government appealed, arguing that § 5C1.2 could not serve as the basis for a departure in this case because the Guideline sentencing range was higher than the statutory minimum; and § 5C1.2 only addresses departures from the applicable mandatory minimum sentence. The Fifth Circuit agreed that the district court had misapplied § 5C1.2, but it continued that the error was "one of form, not of substance." (Id., at 283). Since the sentencing transcript showed that the departure "was largely based on Solis’s assistance to the Government," the reduced sentence would still be approved if there was "an aggravating or mitigating circumstance of a kind or to a degree not adequately taken into consideration by the Sentencing Commission."

After reviewing the facts of this case, the Court held that "even where the government files no motion, Koon [Koon v. U.S., 518 U.S. 81 (1996)] authorizes district courts to depart from the Guidelines based on a defendant’s substantial assistance where circumstances take the case outside of the relevant guideline heartland." (Id., at 284). The Court then ruled that "the district court did not abuse its discretion by departing from the Guidelines despite the fact that it improperly cited § 5C1.2 as the authority for its departure." The Court also concluded that "We are persuaded by the D.C. Circuit’s reasoning in In Re Sealed Case [149 F.3d 1198 (D.C.Cir. 1998)] and therefore we adopt it." (Id.).

Sealed Case was an important decision that discussed at length in the July 13, 1998 issue of P&J. In that case, a panel from the D.C. Circuit held that even when the Government refuses to file a § 5K1.1 motion, a district court is not invariably prohibited from granting a downward departure based on a defendant’s substantial cooperation. The Court’s conclusion was based on two reasons. First, the Court questioned § 5K1.1's vitality on the grounds that the Commission issued it as a policy statement rather than as a Guideline. Second, even assuming § 5K1.1's vitality, the Court reasoned that the Supreme Court's decision in Koon v. U.S., 518 U.S. 81 (1996) permits departures for substantial assistance even in the absence of a Government motion because the factor was not adequately taken into account by the Sentencing Commission. "A substantial assistance departure without a government motion is neither encompassed by nor equivalent to any mentioned, encouraged, or discouraged factor, and was thus not adequately considered by the Commission." (Sealed Case, id., at 1203).

[As we have previously noted in our issues dated November 16 and 23, 1998, the decision in In Re Sealed Case has since been vacated by the D.C. Circuit when the full court agreed to rehear the case en banc; and, the Third Circuit recently rejected its reasoning in U.S. v. Abuhouran, 161 F.3d 206 (3rd Cir. 1998). Thus, at the present time, the courts are evenly divided on this issue with one review pending.]

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United States v. Abuhouran, 161 F.3d 206 (3rd Cir. 1998)

On Nov. 3, 1998, the Court of Appeals for the D.C. Circuit announced that it would rehear en banc a decision entitled In Re Sealed Case, 149 F.3d 1998 (D.C.Cir. 1998) which we reported in the July 13, 1998 issue of Punch and Jurists. In Sealed Case a panel had ruled that a government motion is not an absolute prerequisite to a downward sentencing departure for "substantial assistance" to authorities under U.S.S.G. § 5K1.1. The D.C. Circuit reasoned that although U.S.S.G. § 5K1.1 discusses substantial assistance accompanied by a Government motion, § 5K1.1 is only a policy statement and it does not reflect adequate consideration of substantial assistance in the absence of a Government motion. Thus that court ruled that a district judge may depart under U.S.S.G. § 5K2.0 - even in the absence of a Government motion - on the basis of an "unmentioned" sentencing factor (as that term was used in Koon v. U.S., 518 U.S. 81 (1996)) if the judge finds that the factor is present to an unusual degree that distinguishes the case from the "heartland" created by the applicable guidelines.

In the instant case, the defendant pled guilty to various bank fraud crimes and he agreed to provide assistance to the Government in exchange for a reduced sentence. Although the defendant provided the Government with information on a wide variety of matters, the Government refused to file a § 5K1.1 motion at sentencing, alleging that the defendant had engaged in continued criminal activity and that he had lied. The defendant then moved for a downward departure under § 5K2.0, which the district court denied concluding that it lacked any authority to grant the motion. This appeal was then filed.

In the words of the Court the central issue was "whether the district court had the authority to grant a motion under § 5K2.0 when the Government refused to file a motion § 5K1.1." Effectively, the defendant argued that § 5K2.0 allows the district court to trump § 5K1.1 and grant a downward departure even in the absence of a Government motion; and the Government argued that substantial assistance is absolutely prohibited as a basis for a departure under § 5K2.0 since it is already taken into account in § 5K1.1. The Court disagreed with both views. It held that "a district court has no authority to grant a downward departure under § 5K2.0 for substantial assistance, aside from that authority it has under § 5K1.1." (Emphasis added.).

Thus, on one hand, the Third Circuit disagreed with the Sealed Case analysis that the absence of a Government motion concerning assistance can be a "sentencing factor" that was not adequately taken into account by the Sentencing Commission. It reasoned that, because 28 U.S.C. § 994(c) and (d) and U.S.S.G. § 1A1.2 direct that differences in sentencing schemes be based on "categories of offense behavior and offender characteristics", the only things that can be "sentencing factors" are "relevant offense or offender characteristics." The absence of a Government motion is not a "sentencing factor" that may be considered by the court but rather is merely a condition limiting the court’s authority to grant a defendant a substantial assistance departure.

On the other hand, the Court specifically held that "departures are permissible under § 5K2.0 for substantial assistance without a government motion [but] only in those cases in which a departure is already permitted in the absence of a government motion under § 5K1.1." Thus, a motion under § 5K2.0 would be proper if the Government refuses to make the motion either because of an unconstitutional motive or because it has acted in bad faith with regard to the plea agreement. The Court wrote: "[T]he Guidelines do not specifically preclude the possibility of a departure based on substantial assistance outside of § 5K1.1. . . . [C]ontrary to the government’s assertions . . .Koon does not support the conclusion that substantial assistance without a government motion is a prohibited factor under § 5K2.0."

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United States v. Anzalone, 148 F.3d 940 (8th Cir. 1998)

This is another case involving the Government’s misuse of its power under U.S.S.G. § 5K1.1; and it shows the growing concern of the courts that the Government frequently seeks to use that provision to control the length of sentences. Here, the defendant signed a plea agreement in which he agreed to provide the Government with assistance in the investigation and prosecution of others. When it came time for the Government to file its § 5K1.1 motion, it refused because it had received information that the defendant had recently used and possessed controlled substances. The Government argued that such drug use violated a provision of the plea agreement that the defendant "shall not commit any additional crimes whatsoever."

The district court (Judge Cambridge) agreed that the Government’s position was rational, and he denied the defendant’s motion to compel the Government to file a § 5K1.1 motion. On appeal, the Eighth Circuit reversed. While the Court recognized that a court is without authority to grant a downward departure for substantial assistance absent a Government motion, it also noted that "some limited exceptions to this rule exist." In that context it firmly held that "the government cannot base its [§ 5K1.1 motion] decision on factors other than the substantial assistance provided by the defendant." (Id., at 941).

Citing several decisions, the Court continued: "[The Government’s] refusal to file a substantial assistance motion was based entirely upon a reason unrelated to the quality of Anzalone’s assistance in investigating and prosecuting other offenders. But § 5K1.1 and the related statute governing mandatory minimum sentences, 18 U.S.C. § 3553(e), do not grant prosecutors a general power to control the length of sentences. . . . ‘The desire to dictate the length of a defendant’s sentence for reasons other than his or her substantial assistance is not a permissible basis for exercising the government’s power under § 3553(e) [or § 5K1.1]’." (Id.)

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In Re Sealed Case (Sentencing Guidelines’ "Substantial Assistance"), 149 F.3d 1998 (D.C.Cir. 1998)

Recently there have been a number of decisions that have addressed the Government’s often capricious and arbitrary refusal to file a motion for a downward departure pursuant to the provisions of U.S.S.G. § 5K1.1, after a defendant has provided substantial assistance. (See, for example, our discussion of U.S. v. Isaac, 141 F.3d 477 (3rd Cir. 1998) in the June 29, 1998 issue of P&J.) Those cases may reflect a growing awareness and concern about the shabby treatment given to many snitches by prosecutors who are annoyed when the snitches can’t provide them with information about those career-making cases that the prosecutor wants.

In this significant case, defense counsel challenged the district court’s decision not to depart on two grounds. First, it astutely challenged § 5K1.1's validity on the grounds that the Commission issued it as a policy statement rather than as a Guideline. Second, it argued that, even assuming § 5K1.1's validity, the Supreme Court’s decision in Koon v. U.S., 518 U.S. 81 (1996) permits departures for substantial assistance even in the absence of a Government motion because the factor was not adequately taken into account by the Sentencing Commission. (18 U.S.C. § 3553(b)).

The D.C. Circuit openly accepted both arguments. Although it agreed with the Government that the first argument posed "a classic case of statutory ambiguity", it also agreed that Guidelines and policy statements differ in several significant ways, not the least of which is that Guidelines require Congressional approval, whereas policy statements do not. However, the thrust of its decision was that the departure sought by the defendant was not prohibited under the Guidelines; and that the circumstances raised by this case did not "fit neatly into Koon’s remaining encouraged/discouraged/ unmentioned categories." Thus, the Court ultimately agreed with the defendant that "a substantial assistance departure without a government motion is neither encompassed by nor equivalent to any mentioned, encouraged, or discouraged factor, and was thus not adequately considered by the Commission." Based on that, it held that Koon mandated a new evaluation of its prior precedents which had interpreted § 5K1.1 to deprive district courts of authority to depart based on a defendant’s assistance in the absence of a Government motion (see, e.g., U.S. v. Ortez, 902 F.2d 61, 64 (D.C.Cir. 1990); and it remanded the case for a determination of whether the circumstances of this case took it outside the relevant Guidelines’ heartland in light of the Court’s ruling.

[Editor’s Note: On Nov. 3, 1998, the en banc Court of Appeals for the D.C.Circuit announced that it would rehear this decision; and, as part of its order, it vacated - at least temporarily ruling - Part III of the panel’s ruling which held that a government motion is not an absolute prerequisite to a downward sentencing departure for "substantial assistance" to authorities under U.S.S.G. § 5K1.1. Obviously, the Government didn’t like this decision and viewed it as an unwarranted intrusion into its unbridled prerogative to dispense all substantial assistance departures; and even though many judges have come to believe that § 5K1.1 has become an autocratic and arbitrary tool in the hands of many prosecutors, we assume that the full court will soon bow to pressure from the Department of Justice and decide that the panel’s decision was a heretical aberration.]

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United States v. Isaac, 141 F.3d 477 (3rd Cir. 1998)

In our discussion of the Singleton case last week we noted that a number of courts have held that the district courts are virtually powerless to intervene when a prosecutor refuses to file a promised motion for a downward departure under U.S.S.G. § 5K1.1, "despite meanspiritedness, or even arbitrariness, on the government's part."  United States v. Romolo, 937 F.2d 20, 24 (1st Cir. 1991).  In large part, that philosophy emanates from the Supreme Court's decision in Wade v. U.S., 504 U.S. 181 (1982) which outlined a narrow space within which defendants can challenge the Government's refusal to file a § 5K1.1 motion.  Wade held that a prosecutor's discretion to file the motion is almost unfettered: the government's refusal could only be challenged if it "was based on an unconstitutional motive" like race or religion or the refusal "was not rationally related to any legitimate Government end."

In this case, the Third Circuit took a fresh look at Wade and concluded that a close reading of that case "indicates that its teachings are confined to situations in which there is no plea agreement."  (Id., at 482).  Thus, when a plea agreement is involved, as was the case here, the obligations of the parties are contractual in nature and therefore "the district courts must be able to review the parties' performance under the terms of" the provisions of the plea agreement and that means that the district courts are required "to make certain the prosecutor exercises ‘good faith' in carrying out her obligations under the contract."  (Id.)  Certainly, the Court continued "Good faith is not a concept novel to the courts."  (Id., at 483).

In its discussion of this issue, the Court relied heavily on the Second Circuit's holdings in U.S. v. Rexach, 896 F.2d 710 (2nd Cir. 1990) and U.S. v. Knights, 968 F.2d 1483 (2nd Cir. 1993).  In Rexach, the Court  reasoned that, when the prosecutor entered into a plea agreement which promised a § 5K1.1 motion, that plea agreement is governed by contract law principles.  Thus, while a prosecutor's discretion to withhold the motion is broad, it is not "completely unlimited" and the Government's reservation of discretion in the plea agreement merely limits, but does not strip, the district court of power to review the government's performance under the agreement.  Although Rexach was written before Wade, the Court emphasized that Knights was written post-Wade.  In the end, the Court firmly ruled that "a district court has jurisdiction to determine whether the government's refusal to file a § 5K1.1 motion . . . is attributable to bad faith and, accordingly, in violation of the plea agreement."  (Id., at 484).

In a revealing discourse that reflects the prevailing (but disturbing) reluctance of the courts to challenge in any manner the awesome power of prosecutors, Judge Mannsman dissented.  Ignoring the principle that all power corrupts, and absolute power corrupts absolutely, he theorized that "prosecutorial discretion is particularly ill-suited to judicial review; prosecutorial decisions are not readily susceptible to the kind of analysis courts are competent to undertake."  (Id., at 486).

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United States v. Campo, 140 F.3d 415 (2nd. Cir. 1998)
United States v. Kaye, 140 F.3d 86 (2nd Cir. 1998)

Although neither of these cases have yet been published, they are noted because (a) they make significant statements about the policies and legal principles that control the fate of those defendants who seek sentence reductions by providing "substantial assistance" to the Government, and (b) they may never be published in the Federal Reporter because decisions such as these, which are either unusually critical of Government policies or which open up new and broad avenues of appeal, often - and strangely - never find their way into the official case Reporters.  If either case is not published in the Federal Reporter, its future use will be severely limited by the Second Circuit's own rule that prohibits defense counsel from citing such "unpublished" decisions (i.e., cases not appearing in the Federal Reporter)  "as precedential authority to this or any other court" although the case "may be called to the attention of this or any other court in a subsequent stage of this case, in a related case, or in any case for purposes of collateral estoppel or res judicata."

Campo deals with Judge Platt's long battle to force the Government to be more honest with the courts (and with defendants) in dishing out its infamous § 5K1.1 letters.  As we all know, U.S.S.G. § 5K1.1 authorizes a sentencing court to impose a sentence below the applicable Guidelines range if it determines that the defendant-turned-snitch has cooperated fully with the Government and has provided substantial assistance to law-enforcement authorities.  In this case, the Government entered into a second cooperation agreement with Campo after he had apparently breached an earlier cooperation agreement.  When it came time to sentence the defendant and two co-defendants, the Government did file § 5K1.1 motions with the district court, requesting the court to consider the defendants' cooperation in determining appropriate sentences for the three defendants - but none of the motions recommended a specific below- Guidelines sentence.  In addition, in the case of defendant Campo, the Government sent mixed signals to the court because it also asked the court to consider his earlier breach of first cooperation agreement.

Annoyed with such open ambivalence, Judge Platt stated: "The 5K letters are meaningless because the government refuses to make any recommendations.  And I have told the government this and I have said it for 20 years in this court that until the government writes a meaningful 5K1 letter, I have just no obligation in this court to do anything about it."  When defense counsel argued that it would be unfair to defendants to refuse to impose a below-Guidelines sentence based on the Government's failure to recommend a specific sentence, Judge Platt responded:

"I think it is unfair, too, but I am not the Government.  And the Government has been taking this unfair position for twenty-two and a half years, for as long as I have been on the bench.  When I was a prosecutor 40 years ago, we stood up before a judge and said this man deserves this because he's done thus and so.  Or this man has done nothing and he deserves that.  There is not a man or woman in the prosecutor's office who has the guts to do it today. . . . They first used to tell me it was a departmental policy.  I went down and talked to the department and they said there was no such policy.  What am I supposed to do?"  (Emphasis added).

The court then asked the prosecutor whether she wished to respond.  She explained that she was "constrained by the [non-existent?] policies of the U.S. Attorney's Office for the Eastern District of New York not to make a specific sentenc[ing] recommendation."  When the Court continued to press, she finally relented a bit by stating that the only statement she could make was that the Government would not oppose probationary sentences for Campo's two co-defendants; but that she would make no specific recommendation with respect to Campo.  Based on that, Judge Platt then sentenced the two co- defendants to five years probation, and he sentenced Campo to six years imprisonment.

The next day, the Government filed an application, pursuant to Fed.R.Crim.P. 35(c), seeking to have Campo resentenced.  Its grounds?  None other than the usually strenuously-fought contention that Judge Platt had failed to advise Campo of his right to appeal his sentence - which only goes to show the rank hypocrisy of the sentencing games that are so often played.  When Campo appealed to the Second Circuit, it agreed that Judge Platt had been wrong because judges may not "interfere with the prosecutor's decision either to make or not to make a § 5K1.1 motion, as prosecutorial discretion is traditionally exclusive and absolute."  Thus, it held Judge Platt's refusal to exercise his discretion when presented with a 5K1.1 motion (notwithstanding the Government's cowardice in refusing to take a position on what sentence should be imposed) resulted in a sentence that was "imposed in violation of law" within the meaning of 18 U.S.C. § 3742(a)(1).  The sentence was vacated and the case was then remanded to a different judge in order to "preserve the appearance of justice."  Essentially, the case sends the message that, because snitching is such an important part of law enforcement, even the perplexed courts have to put up with the whims and infinitely variable inconsistencies of the Department of Justice.

The Kaye decision is a landmark; and, if followed by other courts, it could have major repercussions on the Government's "exclusive and absolute" power to determine the fate of cooperating defendants.  In this case, although there was the usual joint task force of Federal and State officials, the Government took the disingenuous, but common, position that the defendant was not entitled to a downward sentencing departure because he cooperated primarily with Nassau County law-enforcement officials.  The defendant then asked the district court (Judge Mishler) to grant him a downward departure, pursuant to U.S.S.G. § 5K2.0 based on his assistance to the Nassau officials.  Judge Mishler refused to grant such a departure on the grounds that he lacked the authority to do so; and, on appeal, the Second Circuit initially affirmed in a decision reported at U.S. v. Kaye, 65 F.3d 240 (2nd Cir. 1995).

The defendant then filed a petition for a rehearing.  The case promptly fell into a judicial limbo: nothing happened for more than two years.  Finally, the Court realized the case had been in limbo when Judge Winter readily acknowledged that the long delay in ruling on the petition was "entirely" his responsibility due to his failure to keep track of whether the case was still pending.  It is often said that it takes a big person to admit a mistake.  Consistent therewith, this time around, the same panel reconsidered the merits of defendant's argument and reversed its earlier decision.  Over the strong dissent of Judge Van Graafeiland, the Court endorsed in principle a downward departure under § 5K2.0, based on the defendant's cooperation with local law enforcement officials.

The essence of the Court's decision was that the term "offense" as used in § 5K1.1 "is properly interpreted to refer only to federal offenses and that § 5K1.1 addresses assistance only to federal authorities."  That factor, coupled with the "tension" between Federal and State law enforcement authorities, led the court to conclude that the Federal Government is "ill-suited" to evaluate a defendant's cooperation with local authorities.  Thus, concluding that Judge Mishler was wrong when he stated that he lacked the authority to grant a sentence reduction pursuant to § 5K2.0 on the basis of cooperation with state and local authorities, the Court remanded the case back to Judge Mishler with instructions to consider a departure on the basis of the defendant's cooperation with such local law enforcement authorities.

As can be expected, the decision infuriated the Justice Department, and it has already filed for an en banc rehearing.  The Justice Department simply cannot stomach the idea that it might have to share any sentencing authority and discretion with an underling local county law enforcement department.  Such a ruling strikes at the very heart of its "exclusive and absolute" power and autonomy that was casually affirmed in the Campo case.  Because of the importance of this decision, we have posted on the Briefs and Motions Section of our legal research center on the Internet a copy of the brief filed in this case by Attorney Allan Sturim of Kew Gardens.

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United States v. Benjamin, 138 F.3d 1069 (6th Cir. 1998)

This case is noted for its brief discussion of a recurring problem: Perhaps because snitching on one's friends and relatives is such a universally detested practice, the Government has long engaged in one of its favorite pastimes - dumping on the snitches as soon as they have given the Government what it wants.  Sometimes, as happened in this case, the courts will limit that practice.  Here, the defendant's plea agreement provided that "if the defendant fully complies with all his obligations, . . . the government will, at the time of sentencing, move for a four-level reduction for substantial assistance" under U.S.S.G. 5K1.1.  (Id., at 1074).

Although the defendant gave the Government the information that he promised, at sentencing the Government took the position that it was not obligated to make the departure motion because it had "probable cause" to believe that the defendant had breached his plea agreement by failing to admit his suspected role in an unrelated homicide.  (Apparently, the defendant's name had "surfaced" in connection with the investigation of that murder, but the Government was unable to recover any firearm or to locate a key witness, and the defendant invoked his Fifth Amendment right and declined to cooperate with the investigation, so charges were never brought against the defendant.)  Based on the Government's suspicions, the district court (Judge Carr) agreed with the Government's assessment that it had "probable cause" to believe that the defendant had breached his plea agreement; and it refused to enforce the cooperation agreement.

On appeal, the Sixth Circuit held that the district court had erred.  Regardless of whether there was probable cause, the Court ruled that "the level of proof did not rise to a preponderance of evidence. . . . Because the government failed to meet its evidentiary standard, it was not free to decline to make the substantial assistance motion."  (Id., at 1074).  Thus, the Court vacated the sentence and remanded with instructions that the defendant be provided with the benefits promised in the plea agreement.  The Court indirectly emphasized the importance of clarifying every provision in a plea agreement.  It noted that the use of the mandatory "will" language in the plea agreement [compared with the more usual "may" language] made it clear that "the parties did not intend that the government retain its discretion" to withhold the promised motion.

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United States v. Mitchell, 136 F.3d 1192 (8th Cir. 1998)

This is one of those rare but revealing cases in which the Court saw through one of the Government’s favorite “pretend charades” and ruled that the Government had breached both the letter and the spirit of a plea agreement by repudiating the promises made to file a motion for a downward departure under U.S.S.G. § 5K1.1.  Here, the written plea agreement provided that, in exchange for the defendant’s agreement to testify against his co-conspirators, the Government would consolidate several unrelated cases for sentencing purposes, would recommend that the defendant’s sentences be served concurrently, and would recommend a downward departure of up to 50% based on the defendant’s cooperation.

At sentencing, the Government did file a luke-warm § 5K1 motion, but it also told the district court that it had “no specific recommendation as to the sentence” and suggested to the court that the defendant had already “earned his reward” by being charged with assault rather than robbery.  It further introduced victim-impact statements from two victim bank tellers who testified generally about the poor condition of their lives after the robbery.  The district court (Judge Reasoner) denied the § 5K1 motion, adopting the Government’s reasoning that the defendant had already been rewarded for his assistance by being charged with a lesser offense.

The defendant appealed, arguing that the Government had breached its plea agreement.  The Eighth Circuit agreed.  It vacated the sentence and remanded the case to another judge for resentencing.  While it acknowledged that the Government had “technically adhered to its promise to make a § 5K1.1 motion”, it found that the Government had violated both the letter and the spirit of its plea agreement.  It concluded that the Government’s refusal to make a recommendation as to the sentence “was a breach of its promise to recommend a downward departure of up to fifty percent” (id., at 1194); and it rejected “as meritless” the Government’s contention that it was required by Rule 32 of the Fed.R.Crim.P. to introduce victim-impact statements.  Finally, and most significantly, the Court tartly stated that by “effectively oppos[ing]” any sentence adjustment, the Government had violated the holding in Santobello v. New York, 404 U.S. 257 (1971) which prohibited Government’s “end-runs” around promises contained in plea agreements.

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United States v. Rounsavall, 128 F.3d 665 (8th Cir. 1997)

This is an important case that deals with the fairly customary practice of putting the screws to cooperating witnesses after they have cooperated.  Here, the defendant appealed her 20-year sentence for drug trafficking and money laundering which she received after she had received a 5K1 letter from the Government and after she had testified against her own brother in two separate criminal proceedings and enabled the Government to get a life sentence against him.  She contended that she had been promised a sentence of 7 to 10 years if she cooperated and that the Government had acted "irrationally and/or in bad faith in refusing to file a motion pursuant to 18 U.S.C. § 3553(e) to reduce her sentence below the statutory twenty-year mandatory minimum." [In one of the great traps for the unwary, some circuits have held that even if the Government files a motion under U.S.S.G. §5K1.1, but fails or refuses to file a counterpart motion under § 3553(e), the district courts can depart from the Guidelines sentencing range but not the otherwise applicable statutory mandatory minimum sentence.  (See, e.g. United States v. Melendez,  55 F.3d 130 (3rd Cir. 1995) and United States v. Womack, 985 F.2d 395 (8th Cir. 1993))].

The Government did file a motion pursuant to U.S.S.G. § 5K1.1; but, exercising its God-like power to control the sentencing process, it refused to file the required motion pursuant to 18 U.S.C. § 3553(e).  It claimed, inter alia, that (a) the defendant had waited until her second trial before she had agreed to testify against her own brother; (b) no other person could be prosecuted as a result of her cooperation; and (c) she had failed to give reliable and complete testimony regarding money laundering.  The district court "strongly disagreed" with the Government's position; but concluded that it lacked the authority to depart below the mandatory minimum, and so it even refused to hold an evidentiary hearing to determine whether the Government had breached the terms of its plea agreement.

On appeal, the Eighth Circuit held that "a defendant is entitled to an evidentiary hearing to determine whether the government acted improperly if she is able to make a substantial threshold showing that the government acted irrationally, in bad faith, or in violation of one's constitutional rights."  (Id., at 668). The Court then stated that in this case the AUSA "should have made the § 3553(e) motion for a statutory downward departure" and that the defendant had made "a sufficient threshold showing to require that an evidentiary hearing be held to determine whether the United States Attorney's reasons for not granting the motion were irrational and/or were made in bad faith."  (Id., at 668).

The Court also caustically rejected the AUSA's stated reasons for not filing the § 3553(e) motion.  It noted that the plea agreement in question was not even entered into until the defendant's second trial; and therefore if the Government was going to argue that it was too late, it "should have said so at that time rather than after the fact."  It rejected the contention that the defendant's testimony was not reliable and complete, noting that she testified against her own brother for five days and he was convicted "largely because of her testimony."  It rejected as "equally specious" the Government's contention that no other persons could be prosecuted.  "If this, in fact, were a condition of her agreement, then the prosecutor should have made it clear before he accepted her plea agreement.  He failed to do so." (Id., at 668).

Finally, the Court also addressed the Government's contemptuous (and revealing) response to the claim that it had promised a sentence of 7 to 10 years.  At oral argument the AUSA simply contended that "whether he had made such representations is outside the record!"  The astonished Court responded that imperious attitude by holding that the representations made to the defendant "may have superseded the broad discretion prosecutors generally enjoy in determining whether to file a substantial assistance motion under § 3553(e) . . . . [Accordingly] notwithstanding the language of the agreement, if the Government's refusal to file a § 3553(e) motion is irrational and/or in bad faith, particularly in light of representations made to a defendant, a district court may require the government to make a downward departure motion."  (Id., at 668-69) (Emphasis added).  Because what happened in this case is, sadly, an all-too-common occurrence, the ruling of this Court, properly used, can be an effective muzzle on the unrestrained enthusiasm of some prosecutors who prefer to make false promises to get their convictions rather than messing up their tough-guy images by filing a motion for a downward departure. 

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United States v. Pipes, 125 F.3d 638 (8th Cir. 1997)

It has long been accepted that motions for downward departures under U.S.S.G. § 5K1.1 have become the modern day version of Judas's Kiss: they grant the Government almost unfettered discretion to pull the rug from under those snitches who have agreed to cooperate.  One reason why that power is so uncontrolled is that the courts have shown little resolve in attempting to place rational limits on the Government's power.  One court explained explained that lack of resolve with the simple statement that:  "The simple, unvarnished fact remains that, without a government motion, a sentencing court cannot [reduce a sentence] under U.S.S.G. § 5K1.1, despite meanspiritedness, or even arbitrariness, on the government's part."  United States v. Romolo, 937 F.2d 20, 24 (1st Cir. 1991).

That attitude, of course, was fostered by the Supreme Court's decision in Wade v. U.S., 504 U.S. 181, 185 (1992) where, in a statement filled with pregnant double entendre, the Court ruled that good faith on the part of the prosecutors is not a requirement when dealing with snitches:  "We see no reason why courts should treat a prosecutor's refusal to file a substantial-assistance motion differently from a prosecutor's other decisions."  The Wade case therefore concluded that a snitch had no recourse to the courts unless he could show that the Government's refusal to grant a 5K1.1 motion was not "rationally related to a legitimate government end."

We have seen surprisingly few cases that have challenged the Government's refusal to file § 5K1.1 motions on the grounds that the Government's decision was "irrational".  This case is one such example and it not only opens up a new line of attack on the Government's practice of refusing to make 5K1 motions, it may also evidence a slowly evolving concern of the courts that "meanspiritedness", "arbitrariness" and the "absolute right" to determine when sentence reductions are doled out are attitudes that are no longer acceptable.  (See, for example, last week's discussion of U.S. v. Croft, 124 F.3d 1109 (9th Cir. 1997)).

Here, Roderick Pipes was convicted of possession of cocaine base with intent to distribute; and he promptly agreed to cooperate with the Government in exchange for a § 5K1.1 letter.  Unfortunately (for Pipes), once he agreed to give evidence against another defendant in another case, that defendant pled guilty - making Pipes' testimony unnecessary.  Thus, Pipes took the pipe.  Even though the FBI agent in the case testified that Pipes had been "very cooperative in answering all of his questions, that the information appeared truthful and accurate as it corroborated other evidence, and that the information would be helpful" in the case against the other defendant (id., at 641), the Government, in its infinite wisdom, decided not to file a § 5K1.1 motion.  The district court (Judge Kopf) refused to grant a downward departure, even though it acknowledged that the defendant had presented "some reliable information" that the Government had acted "irrationally."

The defendant appealed, and the Eighth Circuit reversed, holding that due "particularly [to] the lack of any concrete explanation for the . . . prosecutor's decision, the district court should have conducted an evidentiary hearing to determine whether the . . . prosecutor's failure to file a downward-departure motion was irrational. " (id., at 641-42).

The decision seems to suggest that just maybe the courts will start to look at more than just racial prejudice as a grounds for compelling the Government to fulfill its promises; and it certainly opens the door to a whole new basis for attacking the Government's refusal to grant a 5K1 motion.  We don't think that the Government will look favorably on motions that may require it to prove that its motives were "rational" - and that could be a big advantage for defense counsel.
 
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United States v. Barresse, 115 F.3d 610 (8th Cir. 1997)
United States v. Alvarez, 115 F.3d 839 (11th Cir. 1997)

Both of these cases deal with that treacherous "Judas' Kiss" provision of the Guidelines - § 5K1.1 - which allows the Government to lure defendants into becoming snitches with poisoned bait.  With astonishing boldness and unnerving guile, the typical snitch (i.e., one not fortunate enough to have committed 19 murders as Sammy "The Bull" Gravano did) is promised the world if he will testify against his cohorts, and then, after he does, the Government pulls the rug out from under him at sentencing.  Courts have long expressed concern that snitches are wiped out at sentencing by prosecutors who don't want the ignominy of having ever moved for sentence reduction to appear on their resumes.  Judge Easterbrook, for example, once wrote: "Judges have expressed concern that a prosecutor may induce cooperation plus a guilty plea by promising a 5K1.1 motion and then pull the rug out from under a defendant."  United States v. Smith, 953 F.2d 1060, 1066 (7th Cir. 1992).  The Supreme Court summarily dismissed most of those concerns in Wade v. U.S., 504 U.S. 181, 185 (1992), when it held that good faith on the part of the prosecutors is not a requirement when dealing with snitches.  In a statement that says it all, the Court concluded: "We see no reason why courts should treat a prosecutor's refusal to file a substantial- assistance motion differently from a prosecutor's other decisions."  So the practice of zapping the rats goes on; and incredibly they still fall for the Government's false promises.

Since Wade, few courts have even been willing to listen to complaints alleging that the Government improperly withheld a § 5K1.1 motion - but these two cases are exceptions. In Barresse, the defendant's cooperation agreement was a little different than usual.  It read: "In exchange for [the defendant] providing truthful information, complete cooperation, truthful testimony and assistance . . . the Government agrees to: File a motion pursuant to [§ 5K1.1] recommending a downward-departure."  When the Government refused to file a § 5K1.1 motion, the defendant appealed.  The Court noted that the cooperation agree ment "did not reserve to the government its customary discretion to decide whether Berresse's coopera tion warranted a substantial assistance motion. . . . To defendants and defense attorneys who negotiate such agreements, ‘complete cooperation' may well connote doing all one can do to assist - an objective standard - whereas providing ‘substantial assistance' connotes doing enough to satisfy the government's unilateral notion of what assistance is ‘substantial'."  (Id., at 612).   Based on that technicality, the court remanded the case back to the district court for further proceedings to determine what the parties meant by "complete cooperation" - although it refused to express any views on the merits of the defendant's claims.  Obviously, the Court felt that two can tango to the discordant music of § 5K1.1.

Alvarez dealt with a more subtle trick frequently used by the Government.  At the time the defendant in this case came up for sentencing, he had not finished cooperating with the Government.  Exercising its unfettered power to control the sentencing process, the Government offered to do one of two things - but not both.  It said that it would either file a § 5K1 motion reflecting the defendant's assistance to date; or it could defer making any motion until after the defendant had completed snitching, at which time it would file a motion under Rule 35(b) of the Fed.R.Crim.P. advising the court of the defendant's pervious cooperation as well as the later assistance once it was concluded.  The unsuspecting defendant, obviously thinking that it would be better for him if the court was aware that he had continued to cooper ate even after he was imprisoned, chose the second alternative.  As the Eleventh Circuit noted, that choice led to a problem.  Section 5K1 covers assistance provided before sentencing; and, at least in the Eleventh Circuit, Rule 35(b) only covers assistance provided subsequent to sentencing.  Thus, once the defendant chose the Rule 35(b) route, he was precluded from getting the benefit of all his cooperation rendered before sentencing.  The Court did note that a number of Circuits have held that a Rule 35(b) motion may encompass the totality of the defendant's cooperation - but that is not the rule in the Eleventh Circuit. Nevertheless, the Court did recognize that the defendant had been led down the proverbial garden path; and it decided to remedy his plight.  Since the defendant had been "induced" to exercise his choice based on an "erroneous assumption and representation", it decided to vacate the sentence in its entirety - and it noted that the district court was now free to consider the defendant's cooperation in its entirety since he had now completed all his assistance.  Ah, the machinations of § 5 K1.1.

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United States v. Amaya, 111 F.3d 386 (5th Cir. 1997)

Justice Lummus of the Supreme Judicial Court of Massachusetts once observed: "If all the defendants should combine to refuse to plead guilty, and should dare to hold out, they could break down the administration of criminal justice in any state in the Union. . . . The truth is, that a criminal court can operate only by inducing the great mass of actually guilty defendants to plead guilty, paying in leniency the price for the plea."  (As quoted in United States v. Wiley, 184 F.Supp. 679 (N.D.Ill. 1960)).  In view of that reality, one would think that the Government would treat its rats with some degree of fairness.  After all, their continued cooperation is the very lifeblood of the entire criminal justice system.  Yet, as this case candidly notes, rats are just thrown away once they have given the Government the testimony it wants.  In this case, Judge Kent of Texas told the defendant not to worry.  "[I]f the defendants live up to their side [of their cooperation agreement under U.S.S.G. § 5K1.1], this Court will ensure that the Government lives up to its side.  So have no apprehensions in that regard."  (Id., at 387).  Judge Kent was apparently moved to offer such assurances because of his concern about the way in which the Government treats its rats.  At the defendants sentencing hearing, he observed: "[T]his happens with some frequency, where there is lots of talk of Section 5K1.1 motions at the time of plea, and then that magically disappears at the time of sentencing.  This is an epidemic problem that's occurring in this court.  Every time I take a plea with the United States Attorney's office, there's lots of discussion about 5K1.1 at the time of taking the plea and then once in a while a Section 5K1.1 motion is, in fact, filed, but much more often than not there isn't. . . . [ ] I'm troubled by the notion that a defendant is seemingly induced to pleas on the implied promise of a motion which is then not forthcoming at the time of sentence."  Of course, in defiance of those announced concerns, the Government still refused to file a motion for a downward departure.  The savvy defendant then appealed his conviction on the grounds that his guilty plea was not made knowingly and voluntarily.  The Fifth Circuit agreed: Judge Kent had misrepresented the law to the defendant.  Although the law is clear that the court has no power to grant a § 5K1.1 sentence departure unless the Government files a motion to have the sentence reduced, the law is equally clear that a guilty plea must be both knowing and intelligent.  If the guilty plea "is induced by deception, an unfulfillable promise, or misrepresentation to enter a plea of guilty", it is invalid because it is not voluntary.  Quoting from the Supreme Court's oft-ignored decision in Brady v. United States, 397 U.S. 742, 755 (1970), it wrote: "A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper . . . ".  The Court determined that the defendant had pleaded guilty "under the mistaken belief, offered and fostered by the district court" that the district court could sua sponte examine his substantial assistance eligibility and sua sponte make a § 5K1.1 departure in sentencing.  Because that was a misreading of the law, the Court concluded that "we cannot find that Amaya pleaded guilty voluntarily and knowingly" (Id., at 389); and it remanded the case to allow the defendant to plead anew.

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United States v. Price, 95 F.3d 364 (5th Cir. 1996) 

This is another one of those "Zap the Rat" cases which shows both the seductive, but deceptive, traps for the unwary that are set out by the Government to induce defendants to provide substantial assistance and the semantic parodies engaged in by the courts to justify the seduction. Here, after the defendant signed a cooperation agreement pursuant to U.S.S.G. § 5K1, the Government simply refused to provide him with the opportunity to provide any substantial assistance. The Court held that, absent some unconstitutional motive, the Government wasn't obligated to give the defendant a chance to earn a sentence reduction. Somewhat ignoring the realities of plea bargaining, it ruled that "the question whether or not the government has retained its discretion to refuse to move for a downward departure for substantial assistance turns on the specific language of the plea agreement at issue. In those cases in which the government indicates in the plea agreement that it 'will file' a motion, or other language to that effect, in exchange for the defendant's substantial assistance, we have held that the government has surrendered its discretion. By contrast, where the plea agreement expressly states that the government retains 'sole discretion' over the decision as to whether or not to submit a motion, we have held that a refusal to do so is reviewable only for unconstitutional motive." (Id., at 368)

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United States v. Ming He, 94 F.3d 782 (2nd Cir. 1996)

It was a typical beginning. The defendant, who had previously served as a Government informant in a prior case, pled guilty to a single charge of racketeering in a new case; and he agreed to cooperate with the Government. At sentencing, although the Government did reluctantly file a § 5K1 motion for a downward departure, it also claimed that the defendant had not cooperated fully and it "disparaged" his assistance to Judge Raggi. Citing the defendant's "evasiveness" at his debriefings, Judge Raggi knocked only three months off the defendant's Guideline range and she gave him a sentence of 60 months.

The defendant appealed, asserting that the Judge had relied on impermissible factors derived from his debriefing by the Government, and that his Sixth Amendment rights had been violated because his debriefing sessions had taken place without his counsel's presence and without her permission. Defense counsel argued that had she been present at the debriefings she could have reduced her client's anxiety and resultant confusion. The Government's response was also typical. Ignoring the merits of the issue raised, it simply retorted that it was both "routine" and "standard practice" not to have counsel present during such debriefings; and the aspiring Judge Raggi found that practice unremarkable.

The Second Circuit's response was far from typical. After noting that "the potential for unfair treatment [of cooperating witnesses] is troubling", it exercised it supervisory authority to bring to an end the autocratic practice of uncounseled debriefing sessions of snitches in the Eastern District of New York; and it vacated the sentence and remanded with instructions that Judge Raggi should resentence the defendant "paying no heed to any disparagement of his cooperation which derives from whatever occurred during the debriefing sessions at which he was not represented by counsel."

In its decision, the Court covered three issues of note. First, while it acknowledged the enormous power of the prosecutors to refuse to file a § 5K1 motion, it also ruled that when such refusal is premised on an impermissible consideration the defendant is entitled to challenge the inadequacy of that motion on appeal. Second, it admonished the Government for its "cramped" view of the role of defense counsel during debriefing interviews; and it criticized as "specious" the Government's argument that the defendant was "only a witness". Among other things it pointed out that despite the cooperation agreement, the Government remains the cooperating witness's adversary; and that it has the power to set-aside the cooperation agreement, re-indict him on additional charges and use his statements at the debriefing against him "both directly and indirectly in a new criminal proceeding." Since the Government had failed to pay attention to the Court's previous admonitions to avoid such "unseemly" conduct, the Court exercised its supervisory powers to put an end to the practice of debriefings without counsel. It wrote: "A federal court, 'guided by considerations of justice' . . . may exercise its supervisory powers to formulate procedural rules not mandated by the Constitution." (Id., at 792). Finally, in one of those perplexing gratuitous assists to the Government, the Court diluted much of its holding by presenting the prosecution with a map of an easy escape route from the impact of its holding: it told the prosecutors that they could have avoided the entire problem by "conditioning [the] cooperation agreement on the defendant's waiver of this protection" (Id., at 793) - a waiver that it felt was perfectly consistent with its otherwise strong endorsement of the witness's need for the protection of counsel during debriefings. 

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United States v. Cosgrove, 73 F.3d 297 (11th Cir. 1996) 

In this case, three defendants pled guilty pursuant to cooperation agreements with the Government. At sentencing, the Government recommended sentences of 66, 84 and 60 months, reflecting the defendants' relative culpability and degree of cooperation. The district court rejected those recommendations and sentenced all to 100 month prison terms, representing a one-third downward departure from the Guideline range. The defendants appealed, arguing that this "rigid" sentencing policy violated the law, the Guidelines and due process because it failed to recognize the individual culpability and cooperation of each of the defendants. On appeal, the Court observed that the defendants had raised a "serious question" about the legality of the district court's sentencing policy under § 5K1. However, it ruled that since those objections had not been raised at the time of sentencing or in a § 2255 appeal, they could only be reviewed under the plain error doctrine. Under that standard, the Court found no plain error since all the sentences were well below the statutory maximum. However, it did suggest that if the defendants were unaware of the judges sentencing policy at the time they were sentenced, they might challenge their sentences in a § 2255 appeal. 

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United States v. White, 71 F.3d 920 (D.C.Cir. 1995) 

Here's another one of those frequent "zap the rat" cases, where once again the rat get burned after providing the Government with assistance, thereby subjecting himself and his family to danger. In this case, the defendant gave substantial assistance in the "hope" that Government would file a 5K1 motion recommending a downward departure, but without any agreement to that effect. At sentencing the Government refused, without any explanation, to make any downward departure motion. Citing Wade v. U.S., 504 U.S. 181, 186 (1992), the defendant argued that the Government's decision was not "rationally related to a legitimate government end." The D.C. Circuit rejects that argument, holding inter alia that Wade "simply does not endorse, in the absence of a plea agreement that includes a substantial assistance provision, a 'fairness' or 'bad faith' review." (Id., at 924-25.) Alternatively, the defendant asked the district court to depart downward under U.S.S.G. § 5K2.0 to recognize his alleged :extraordinary" assistance. He argued that by cooperating with the Government he confronted a risk of danger "to a degree" not adequately considered by the Guideline's Commission. Once again, the Court rejected that argument, noting that the Commission did in fact consider the "danger or risk of injury to the defendant or his family resulting from his assistance" by including it as one of the factors to be considered by the court in determining the appropriate extent of a 5K1 departure. Perhaps the most significant aspect of the case appears In footnote 3, where the Court notes that the Supreme Court has finally agreed to resolve the issue of whether a downward departure from a mandatory minimum sentence requires both a motion under § 5K1 of the Guidelines and a motion under 18 U.S.C. § 3553(e). Both the Third and the Eighth Circuits, for example, have ruled that the sentencing judge has no legal authority to reduce a defendant's sentence below any applicable mandatory minimum sentence if the prosecutor makes his motion solely on the basis of the authority provided for in § 5K1 of the Guidelines. (See, United States v. Melendez, 55 F.3d 130 (3rd Cir. 1995) and United States v. Womack, 985 F.2d 395 (8th Cir. 1993)). 

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United States v. Murphy, 65 F.3d 758 (9th Cir. 1995) 

This case reviews the circumstances under which the Government can lawfully refuse to file a § 5K1.1 motion for substantial assistance. Here, the defendant was offered a plea agreement under which he would have been sentenced at an offense level as low as twelve - which calls for a sentence of 10-16 months. However, that proposal also required him to accept an enhancement for obstruction of justice. He rejected that proposal and went to trial, after which the Government refused to make the motion for any downward departure. He argued that the Government was punishing him for exercising his Sixth Amendment right to a jury trial. The Court, quoting U.S. v. Goodwin, 457 U.S. 368, 372 (1982), observes that "To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort." It also notes that the Government "cannot refuse to file a § 5K1.1 motion on the basis of an unconstitutional motive (e.g., racial discrimination), or arbitrarily (i.e., for reasons not rationally related to any legitimate governmental interest)." (Id., at 762). Thus, the Court implies that if the government's refusal to file a § 5K1.1 motion was to punish a defendant for exercising his Sixth Amendment right to a trial, it would be "vindictive" and violative of the law within the meaning of Wade v. U.S., 504 U.S. 181, 184-86 (1992). Nevertheless, after all those sanctimonious pronouncements, the Court concluded that the defendant had failed to "prove" by any "objective evidence" that the Government's decision was "arbitrary" or was motivated by a desire to punish him for exercising his right to trial. Although Judge Hawkins concurs in the decision, he does so half-heartedly, noting that apparently there is "no power on earth can compel a prosecutor to move for a downward departure." However, he questions such sharp tactics and suggests that "rules of ethics should govern" the plea bargaining process. 

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United States v. Khoury, 62 F.3d 1138 (9th Cir. 1995) 

With unusually strong words, the majority in this case condemns the Government for refusing to make a 5K1 Motion in retaliation for the defendant's decision to go to trial rather than plead guilty. The defendant initially signed a plea agreement in which the Government acknowledged that the defendant had already provided substantial cooperation that led to the arrest of a fugitive. Later he moved to withdraw his plea. The court denied the motion and he appealed. Before the appeal was heard, the Government, by stipulation, agreed to allow the defendant to withdraw his appeal and it offered to "sweeten" the deal by offering to recommend a one year sentence reduction if he again pled guilty. He refused, went to trial and lost. At sentencing the Government refused to renew its 5K1 motion. The Court of Appeals found that the record supported the defendant's contention that the Government acted vindictively in retaliation for his election to go to trial and remanded the case for resentencing. It calls the Government's arguments "incredible" and "disingenuous" and says that its actions were inspired by an "unconstitutional motive". 

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United States v. Underwood, 61 F.3d 306 (5th Cir. 1995) 

In this case, after the rat signed a cooperation agreement, the Government refused to file the 5K1 Motion, and the rat moved either for specific performance or for an order declaring that § 5K1.1 was invalid because it was a "policy statement" rather than a "guideline" that violated the Congressional mandate. He loses on both counts; but the decision contains a good listing of citations concerning the validity of § 5K1. The rat was in a poor position because the judge offered him a chance to withdraw his plea once he learned that the Government would not file the 5K1 Motion - and he refused. 

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United States v. Jones, 58 F.3d 688 (D.C.Cir. 1995) 

Here's one of those Zap the Rat cases - this one notable because of the Court's comment that § 5K1 of the Guidelines give the U.S. Attorneys "extraordinary power" because it enables the prosecutors to "dangle the suggestion of a 5K1.1 motion in front of defendants to lure them into plea agreements, all the while knowing that the defendant's cooperation could not possibly constitute assistance valuable enough" to the Government to find it substantial. (Id. at 691-92). 

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United States v. Garza, 57 F.3d 950 (10th Cir. 1995) 

After the district court granted a substantial downward departure at sentencing, the Government appealed and the departure was reversed. On remand, the district court again gave a substantial departure, this time on the basis of a "super acceptance of responsibility", based in part on the defendant's assistance to the Government (even though no 5K1 letter was given), in part on his "significant post-offense rehabilitation while in prison" and in part on his use of prison income to support his minor daughter (relying on § 5H1.6 of the Guidelines). Despite the district court's creativity and persistence, the departure is, once again, reversed. 

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United States v. Melendez, 55 F.3d 130 (3rd Cir. 1995) 

Another Zap the Rat case in which the Third Circuit joins the Eighth Circuit in holding that in order to grant a downward departure under § 5K1 of the Guidelines, the Government must promise to make the required motion under § 5K1 and must also agree to make a motion under 18 U.S.C. § 3553(e) - otherwise the court can't depart below the mandatory minimum sentence. (See, U. S. v. Womack, 985 F.2d 395 (8th Cir. 1993); and U.S. v. Rodriquez-Morales, 958 F.2d 1441 (8th Cir. 1992)). This ploy makes a mockery of the Government's sincerity in promising rewards in exchange for cooperation and it points out the risks of dealing with the Government in negotiating 5K1 Letters. 

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United States v. Leonard, 50 F.3d 1152 (2nd Cir. 1995) 

Here's another of the frequent "Zap the Rat" cases, where once again the defendant charges that the Government breached its obligations to file a 5K1 Motion as promised. This case opens a very tiny crack in the door of the usual pronouncement that the Government's refusal, even in bad faith, will not be reviewed. Here, the court says that if the plea agreement provides that the Government will file such a motion, in that case the court's review of what happened "will be more searching." Quoting U.S. v. Knights, 968 F.2d 1483 (2nd Cir. 1992), the Court states that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 

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United States v. Harris, 188 F.Supp.2d 294 (W.D.N.Y 2002) (Judge Larimer)

The defendant in this case was originally convicted in 1993 and sentenced to 240 months imprisonment for engaging in a continuing criminal enterprise and tax evasion. Some four years later, he filed a habeas corpus petition, alleging, inter alia, that the district court had committed error by failing to advise him of his right to appeal. The district court granted the writ, but held that there was no need to resentence him de novo. Thus the district court declined to consider the defendant's alternate claim that the Government had acted in bad faith by failing to file a motion for a downward departure pursuant to U.S.S.G. § 5K1.1, and it reimposed the same sentence of 240 months. The defendant then appealed to the Second Circuit which affirmed his conviction but remanded for a de novo resentencing. (See, U.S. v. Harris, 209 F.3d 156 (2nd Cir. 2000)).

At his second resentencing, the defendant moved in the alternative to withdraw his guilty plea and/or to to compel the Government to comply with the terms of his plea agreement and to file a motion for departure based on his cooperation with the Government subsequent to the entry of his plea.

In response to those motions, Judge Larimer concluded that the defendant did not have grounds, under old Rule 32(d) [now Rule 32(e)] of the Fed.R.Crim.P., to withdraw his plea, essentially because he could not establish any "fair and just reason" for such a withdrawal under the standards applicable to that Rule.

However, with unusually stern language, the Court did find that "the Government affirmatively and actively thwarted Harris's efforts to fulfill his obligations" under his § 5K1.1 cooperation agreement. (Id., at 306). Because acting in such a manner "constitutes bad faith," the Court concluded that the appropriate remedy was to compel the Government to live up to its obligations under the agreement by granting the defendant's alternate motion for specific performance. (Id.).

Referring to the language of the plea agreement and after carefully reviewing the facts presented to it, the Court concluded: "It is true that the Agreement vested discretion in the Government concerning the decision to seek departure. But that discretion is controlled by the nature of the contractual arrangement, the obligations of the contracting parties and, most importantly, the requirement that both parties act in good faith toward each other to bring about the objectives of the Agreement. The Agreement did not give the Government carte blanche authority to do whatever it wanted to do. Such an interpretation vitiates rudimentary principles of contract law. . . . The truth appears to be that the Government never intended to work with Harris on his cooperation efforts." (Id., at 305).

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United States v. Fernandez, 2000 WL 534449 (S.D.N.Y. 5/3/00)

In his typical fashion, District Judge Martin of New York started this evocative decision with a bang. He wrote: "The adoption of the Sentencing Guidelines has substantially changed the role of the criminal defense lawyer. Counsel’s ability to persuade the judge or jury is now far less important than his ability to persuade the prosecutor that the defendant will be allowed to cooperate with the government and thereby obtain a 5K1.1 letter, which will enable the judge to depart from the sentence that the Guidelines would otherwise mandate. The Court concludes that, in the age of the Sentencing Guidelines, it is malpractice for a lawyer to fail to give his client timely advice concerning the importance of cooperation with the government as a means of reducing the defendant’s sentence."

The defendant, Ramon Fernandez, a low level drug dealer, was arrested after he had participated in two sales of heroin that had been recorded by confidential informants. Also arrested were two co-defendants who were the main principals in the drug organization. Early in his decision, Judge Martin concluded that "it was clear that [Fernandez] had no defense to the charge"; and that the case against the co-defendants was "strong," conceding that "Fernandez was not needed as a witness" against them.

Eight months after they were arrested, all three defendants pled guilty pursuant to a global plea agreement that provided that each of them would be sentenced within a Guideline range of 108 to 135 months. Three months later, and before sentencing, the defendant asked for new counsel, alleging that his first counsel had "misled" him regarding his chances of cooperating with the Government. New counsel was appointed, and he filed a motion for a downward departure on the grounds that prior counsel had not represented Fernandez properly "by failing to pursue a course of cooperation with the government."

An evidentiary hearing was held, at which time the prior counsel testified that the first time he had discussed the topic of cooperation with the prosecutor was two days before the plea was entered, at which time the prosecutor had responded that he was not interested in any cooperation agreement with the defendant "at this late stage in the case" .

The Government, clearly nervous about the potential impact of a ruling on the downward departure motion, argued that the Court could not grant the defendant a downward departure from the Guideline sentencing range simply because his counsel failed to provide adequate representation, citing U.S. v. Bicaksiz, 194 F.3d 390, 398 (2nd Cir. 1999), where the Court held that "[i]neffective assistance of counsel is not a basis for a downward departure at sentencing." The Court reasoned that "[a] finding that a convicted defendant has received ineffective assistance of counsel necessarily calls into question the validity of the conviction. By contrast, the imposition of a sentence (with or without a downward departure) and the entry of judgment necessarily assumes the validity of the conviction. A downward departure on ineffective assistance grounds is impermissible because it simultaneously assumes the validity of a defendant's conviction and conspicuously calls its validity into doubt."

Judge Martin did grant relief to the defendant - although not in the form of a downward departure. Rather he treated the case as if the defendant had been sentenced to 108 to 135 months and had then filed a § 2255 motion based on ineffective assistance of counsel. Using that approach, he held that "the advent of the Sentencing Guidelines now makes it mandatory that every defendant be advised at an early stage that cooperation may be the only course that can substantially reduce the sentence that will ultimately be imposed." He then concluded that, in the instant case, an "unreasonable lapse in representation occurred when counsel failed to advise the defendant early in the case of the importance of cooperation with the government as a means of reducing his sentence."

Acknowledging that he could not put the defendant back in the same position he was in shortly after his arrest, he fashioned a different solution. Concluding that "[t]he violation of his right to counsel here would clearly entitle the defendant to have his conviction vacated," he held that "the only meaningful remedy for the violation of Fernandez’s right to counsel would be an order setting aside the conviction and ordering the release of the defendant unless within 30 days the Government offered him a plea agreement that would result in a stipulated guideline range of 46 to 57 months."

The range of 46 to 57 months was his "best estimation" of the likely sentence "had his lawyer pursued a course of cooperation early in the case." That estimation was based on two broad conclusions, which many might dispute. First, he said that "[s]ince the largest sale of heroin in which Ramon Fernandez engaged involved only eighty grams, the Government probably would not have required him to plead to a conspiracy involving [the] kilogram" of heroin that was found in the apartment of one of the co-defendants.

Second, even though the defendant may have had little to offer the Government, Judge Martin stated: "It has been the Court’s experience that the Government is often generous in allowing lower level members of a criminal enterprise to enter into cooperation agreements even though they can offer little more than a willingness to testify against their superiors. . . . [E]ven if the Government did not agree to enter into a cooperation agreement, the defendant’s willingness to testify against his co-defendants might have induced the Government to enter into a more favorable plea agreement."

We have been unable to determine whether the Government will appeal this decision, but, whether reversed on appeal or not, Judge Martin’s decision has already created a furor. Members of the New York State Association of Criminal Defense Lawyers have engaged in an emotional debate about the scope of the Court’s holding and the propriety of Judge Martin’s emphasis on the "importance" of defense counsel’s role in pushing for cooperation at the earliest possible moment.

Among the scores of messages posted on the NYSACDL’s Web site about this case, one attorney commented that "it is clear that less experienced counsel will see this decision as mandating that they encourage cooperation . . . and a plea, and will play into the hands of prosecutors, who already have all the bargaining power, by suggesting that the lawyer is professionally obligated to advocate for cooperation with the client." Another attorney stated "I cannot accept our primary function as defense counsel to be institutionalized as facilitators of government cooperators." Others saw the decision as a statement of the reality: Like it or not, early cooperation is often the only way under the Guidelines to minimize a defendant’s prison time.

But whatever the lawyers may have to say about this case, Judge Martin’s comments are destined to open a Pandora’s box for the Government as prisoners all across the country will seek to use this decision as a basis for appeals, claiming that because their counsel failed to encourage cooperation they were denied effective assistance of counsel.

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United States v. Abercrombie, 59 F.Supp.2d 585 (S.D.W.Va. 1999)

At one point in this decision, Judge Goodwin observed that "[n]o appellate court has addressed the issue of whether assistance rendered by a third party may justify a substantial assistance motion." (Id., at 589). The dearth of reported cases may not accurately reflect the prevalence of this practice; and the Court did cite several district court cases that he have addressed the issue. It particularly cited the "seminal decision" U.S. v. Doe, 870 F.Supp. 702 (E.D.Va. 1994), where the Government moved for, and the court approved, a downward departure based on assistance provided by the defendant’s son. It also cited a subsequent decision, U.S. v. Bush, 896 F.Supp. 424 (E.D.Pa. 1995), where the court refused to approve a downward departure based on assistance provided by the defendant’s paramour because the assistance provided was inconsistent with the text of Fed.R.CrimP. 35(b) and U.S.S.G. § 5K1.1.

In the instant case, the defendant was being held in prison on a drug charge without bail, and he had no information about the criminal activities of any other individuals. So he asked his girlfriend to assist the Government, in return for no personal compensation and exclusively for his benefit. She then assisted the Government in four controlled purchases of cocaine from two separate suspected drug dealers. At the completion of her work, the Government moved for a downward departure for the defendant based on information provided both by the defendant and by his paramour. In analyzing the propriety of that motion, Judge Goodwin noted that "[a]s both the Guidelines and the enabling statute explicitly reveal, a departure from the Guidelines based upon the substantial assistance is available if and only if the assistance is provided by the defendant." (Id., at 588).

Judge Goodwin noted that, in Doe, the district court had held that "Rule 35(b) and § 5K1.1 motions may be based on assistance rendered by a defendant’s surrogate when (1) the defendant plays some role in instigating, requesting, providing, or directing the assistance; (2) the government would not have received the assistance but for the defendant’s participation; (3) the assistance is rendered gratuitously; and (4) the court finds that no other circumstances weigh against rewarding the assistance." (Doe, id., at 708). However, he disagreed with the first element of the Doe test in that it requires only that the defendant play "some role" in garnering the assistance required to qualify for a § 5K1.1 downward departure motion. Thus, he concluded that "Section 5K1.1 does not permit a downward departure where the only ‘substantial’ assistance is rendered by a person other than the defendant" (id., at 590); and he denied the Government’s motion on that ground.

Nevertheless, the Court also concluded that a defendant "may receive the benefit of a Rule 35(b) or Section 5K1.1 motion due to assistance rendered in part by third persons" - not based on the express language of § 5K1.1 - but rather based on the language of 18 U.S.C. § 3553(b). That section permits a sentencing departure if there is a "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." He noted that substantial assistance by a defendant is an "encouraged" basis for departure under the Guidelines; and yet third party assistance is not mentioned in the Guidelines. Looking at "the structure and theory" of the Guidelines, he reasoned that "it would be arbitrary to allow the prosecutor to bargain only with criminal defendants and convicts. Rather, to the extent that bargains with criminal defendants and convicts are encouraged, bargaining with third parties should also be encouraged." (Id., at 591).

The Court then adopted its own, quite different four-part test for use in determining whether or not a downward departure is warranted where a third party has provided substantial assistance in the investigation or prosecution of another person who has committed an offense:

"First, the court must consider whether the assistance rendered by the third party - had the third party been a defendant - was sufficient to justify a downward departure pursuant to U.S.S.G. § 5K1.1. In considering this element, the court is to weigh heavily the Government's evaluation of the usefulness of the assistance rendered.

"Second, the court must consider whether the assistance provided by the third party could have been received absent the Government's ability to offer a motion for departure as an incentive. The court is to weigh heavily the Government's evaluation of the evidence with respect to this element as well.

"Third, the court must consider whether the assistance was rendered gratuitously.

"Finally, the court must consider whether any other circumstances weigh against rewarding the assistance." (Id., at 592).

Concluding that the assistance provided by the defendant’s paramour in this case met that four-part test, the Court granted the Government’s motion on the basis of her cooperation and departed downward from an unspecified sentence by three levels.

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U.S. v. Hernandez-Ospina, 997 F.Supp. 218 (D.Puerto Rico)

In this Guidelines case Judge Cerezo addressed a frequently asked question: when, if ever, can a court intervene and grant a downward sentencing departure under the provisions of U.S.S.G. § 5K2.0 based on  substantial assistance rendered to the Government by a defendant after the Government has refused to file  such a motion under the provisions of U.S.S.G. § 5K1.1?   Most courts will quickly rule that the provisions of §  5K1.1 are exclusive; and that, absent a Government motion, the courts have no power to utilize the provisions  of § 5K2.0, even to rectify arbitrary and mean-spirited actions by the Government. This case suggests that there may well be situations in which the sentencing court can intervene.

Citing three Circuit court cases, namely U.S. v. Kahn, 920 F.2d 1100 (2nd Cir. 1990), U.S. v. Garcia, 926 F.2d 125 (2nd Cir. 1991), and U.S. v. DeMonte, 25 F.3d 343 (6th Cir. 1994), the Court was persuaded in this case at least to order an evidentiary hearing to permit the defendant to present evidence regarding actions which he took to demonstrate his eligibility for such a sentencing reduction.

Based on her analysis of those three cases, Judge Cerezo concluded that "where there is no cooperation agreement to deal with, the Court's discretion in making a 5K2.0 determination has a wider scope" (Id., at 219). (That theme appears to be at variance with the holding in U.S. v. Isaac, 141 F.3d 477 (3rd Cir. 1998), which is discussed above and which held that, when there is no plea agreement, the prosecutor's discretion to refuse to file a § 51.1 motion is virtually unfettered. The Isaac's court's ruling was based on the Supreme Court's decision in Wade v. U.S., 504 U.S. 181 (1992)). In any event, Judge Cerezo noted that DeMonte had recognized a defendant's "unusual willingness to cooperate" as a valid basis for a departure under § 5K2.0 and that Garcia had recognized the need for "sensible flexibility" to depart when the defendant provides information outside the scope of cooperating with the Government. Thus, when a defendant's activities results in other defendants pleading guilty, such assistance, while outside the scope of that which is contemplated in § 5K1.1, may well qualify under § 5K2.0 as cooperation "which facilitates ‘the proper administration of justice in the District Courts'." (Id.)

Finally, Judge Cerezo observed that "where there is a cooperation agreement and a rejection by the government of substantial assistance by the defendant, the Court's discretion, although recognized under § 5K2.0, is limited to the only exception stated at page 1107 of the Kahn opinion, to wit: where defendant offers information regarding actions which he took which could not be used by the government to prosecute others." (Id.) (Emphasis in original). In such cases, the Judge concluded, § 5K1.0 is rendered inapplicable and the defendant's cooperation could be used as a "mitigating circumstance" for purposes of § 5K2.0. It should be noted that the Kahn case, upon which Judge Cerezo relied for this conclusion, was written before the Supreme Court's ruling in Wade v. U.S. and, under Isaac's reading of Wade, a sentencing court's authority to intervene in
cases where there is a written plea agreement is far broader than her opinion suggests.

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United States v. Hoffenberg, 908 F.Supp. 1265 (S.D.N.Y. 1995)

In this case, the Government terminated a cooperation agreement with the defendant due to the defendant's alleged untruthfulness. He moved to enforce the agreement, and although Judge Sweet denied the motion, the decision contains a detailed discussion of the Government's right to terminate such 5K1 agreements. One of the more significant holdings is that "The Government may not refuse to make a substantial assistance motion by relying on facts which it knew at the time it entered into the agreement. Such a decision would amount to fraudulently inducing a defendant's plea with a promise that the Government already knew it would not keep" and the decision cites U.S. v. Knights, 968 F.2d at 1488 and U.S. v. Leonard, 50 F.3d at 1158 in support of that proposition. 

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United States v. Scholz, 907 F.Supp. 329 (D.Nev. 1995)

One of the issues in this case was whether the Government's refusal to file a § 5K1.1 motion was based on unconstitutional motives. The defendant claimed that A.U.S.A. Ronald Rachow had promised not to prosecute him if he agreed to cooperate with the Government. He then cooperated; but he was still prosecuted. The defendant's attorney testified that the same prosecutor had threatened his client with a heavier sentence if he moved to dismiss the case on the grounds of that alleged agreement. Based on those circumstances, the defendant claimed that the Government had acted out of sheer vindictiveness when it withdrew its earlier promise of a § 5K1.1 motion in retaliation for his motion to dismiss. Judge Reed disagrees and he states: "The interest served by enforcing threats made during plea bargaining is rationally related to the legitimate government interest in maintaining the effectiveness of the plea negotiation process." (Id., at 335). That's a rather large carte blanche that is just slightly oblivious to the lying that takes place during the plea bargaining process. 

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United States v. Guiro, 887 F.Supp. 66 (E.D.N.Y. 1995) 

Here's another gem from Judge Weinstein that is bound to be appealed. A drug defendant-turned snitch is given a 5K1 letter and Judge Weinstein sentences her to eight months in a half-way house, provided a "suitable one" could be found close to her home and job in New Jersey. When the probation department advised that no such facility existed in New Jersey, the Judge changed the sentence to three years probation. He cites 18 U.S.C. § 3553(a) and (b) and says that judges are required to consider the goals of sentencing and the "kinds of sentences available". The Judge goes on to state that with respect to probationary sentences the court is not limited to choosing facilities maintained or under contract with the Bureau of Prisons; it can also choose private and uncontracted facilities if they meet the goals of sentencing. He even takes exception to the BOP's "unnecessarily rigid" position that it alone has the right to designate the appropriate halfway house. 

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Section 5K1.2 - Refusal to Assist


United States v. Burgos, 276 F.3d 1284 (11th Cir. 2001)

This is an important sentencing case in which the Eleventh Circuit held that the Sentencing Guidelines do not authorize a sentencing court to penalize a defendant for refusing to cooperate with the Government in a criminal investigation unrelated to the offense for which the defendant is to be sentenced.

The defendant, Adriana Maria Burgos, was caught at the Miami airport attempting to transport some $33,000 in U.S. currency to Columbia, in violation of currency reporting requirements of 31 U.S.C. §§ 5316(a)(1)(A) and 5322(a). She pled guilty pursuant to a plea agreement that provided the prosecution could refuse to recommend a two-level acceptance of responsibility sentence reduction (pursuant to U.S.S.G. § 3E1.1), if she "failed or refused to make a full, accurate and complete disclosure to the probation office of the circumstances surrounding the relevant offense conduct." The plea agreement made no mention of Burgos' cooperation with the Government in any other pending cases.

Burgos provided "extensive cooperation" in her own case, and she accepted full responsibility for her criminal conduct. As a result, the probation department recommended that she be granted the two level sentence reduction for acceptance of responsibility. Her Guideline sentencing range was zero to six months; and Burgos was thus eligible for a sentence of probation.

Several months after she entered her plea, Burgos' husband was indicted for money laundering - a fact that was noted, over Burgos' objection, in her presentence report. At sentencing, citing her cooperation with the Government, her early guilty plea, and the fact that she was the mother of two children, her counsel urged the court to impose a non-incarcerative sentence. In response, the Government argued that she should not be given a sentence of probation, and that she should be sentenced to prison at the high end of her Guideline range "because of the indictment filed against her husband" - even though (a) he could not show that the husband's case was related to hers, and (b) he had never asked Burgos to cooperate in the case against her husband.

That was all the inimitable District Judge Moore of the S.D.Fla. needed. Declaring that Burgos' cooperation in her husband's case "would be relevant in terms of where, within the guideline range, she ought to be sentenced," he deferred the sentencing hearing and issued what the Eleventh Circuit described as "an ultimatum":

"If [Burgos] is willing to cooperate, if she does cooperate, if she can be forthright and demonstrate that she's done everything she can do to be cooperative, then I think she earns the bottom end of the guidelines. If, on the other hand, she's unwilling or she refuses or she's uncooperative in another pending law enforcement investigation, then it seems to me she doesn't earn it. And I wouldn't want to reward her or penalize her today with that as a question mark."

Judge Moore then adjourned Burgos' sentencing hearing for 15 days to give the Government the chance to demand that she cooperate in the unrelated case against her husband. Citing both her self-incrimination rights under the Fifth Amendment and her spousal privileges, Burgos refused to cooperate against her husband. When the sentencing hearing was reconvened, an angry Judge Moore stated that if she wanted to continue to refuse to cooperate against her husband, she would have to "accept the consequences" - and her sentenced her to a term of six month in prison. Burgos appealed. The Eleventh Circuit held that the six month sentence was "unlawful" and thus it reversed the sentence and remanded for resentencing.

Interestingly, Burgos argued that the sentence violated the provisions of U.S.S.G. § 5K1.2, a policy statement entitled "Refusal to Assist." That section stated that "[a] defendant's refusal to assist authorities in the investigation of other persons may not be considered as an aggravating sentencing factor." The Court held that § 5K1.2 was inapplicable to the facts of this case. Citing one of the few cases to have interpreted § 5K1.2, namely U.S. v. Klotz, 943 F.2d 707 (7th Cir. 1991), the Court held that § 5K1.2 "appears to apply only to departures from the guideline range" and thus it was "irrelevant to the imposition of a sentence within the proper guideline range." (Emphasis added.).

However, despite its view that § 5K1.2 was inapplicable to this case, the Court did firmly held that Federal sentencing law "barred the district court from taking the refusal to cooperate into account in fashioning Burgos' sentence" based on other statutory provisions.

Citing the provisions of 18 U.S.C. § 3661and U.S.S.G. § 1B1.4, the prosecutor had argued that the six month sentence of imprisonment was proper because, in choosing the appropriate sentence within a guideline range, a district court is authorized to consider "without limitation, any information concerning the background, character, and conduct of the defendant."

The Eleventh Circuit replied that while §§ 3661 and 1B1.4 "appear to give a district court wide discretion in sentencing a defendant," the court's actual sentencing discretion "is limited in two significant ways. First, in enacting 18 U.S.C. § 3553(a)(2) . . . , Congress codified four sentencing objectives courts must take into account in fashioning a sentence: punishment, general deterrence, specific deterrence, and rehabilitation. If a district court gives weight to a factor irrelevant to these purposes, then the imposed sentence necessarily exceeds the court's sentencing discretion. Second, Congress set specific and definite perimeters to constrain the Sentencing Commission in establishing the guidelines and, necessarily, any district court imposing a sentence under the guidelines."

Similarly, § 1B1.4 states that the sentencing court "may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law." (Emphasis added.). Since § 1B1.4 "is subject to the constraints of other federal law," including specifically 18 U.S.C. § 3553(a)(2), that means that "any sentence imposed to accomplish some other purpose [than the four penological goals specifically set forth therein] would violate section 3553(a) and would be unlawful."

Applying those principles to the case at hand, the Court concluded that "we cannot perceive any legitimate purpose to justify a district court, in fashioning Burgos' sentence within the Guideline range, to take into account whether or not she cooperated with the government in the case against her husband. Indeed, neither the district court nor the prosecution has pointed to any such purpose. . . Penalizing Burgos for refusing to cooperate in the case against her husband simply does not achieve any of the goals set forth in section 3553(a)(2), and, consequently, exceeds the district court's sentencing discretion."

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United States v. Rivera, 201 F.3d 99 (2nd Cir. 1999)

Section 5K1.2 of the Guidelines flatly states that "[a] defendant’s refusal to assist authorities in the investigation of other persons may not be considered as an aggravating sentencing factor." That provision didn’t seem to bother District Judge Lewis A. Kaplan of New York very much. In sentencing defendant Jerry Walden in this drug conspiracy case, he stated: "I . . . regard [Walden’s] failure to come forward and to assist the government in its investigations following his conviction in this case as affecting the point within the guideline range to which I am sentencing him. To be very specific about it, of the 480 months, I am attributing in my mind 60 months to his failure to assist the government postconviction."

The defendant appealed, arguing that a district court may not draw adverse inferences from a defendant's silence at sentencing and thus it is prohibited from imposing a sentence based on a defendant's failure to cooperate. The Second Circuit agreed and reversed the 60 month sentence enhancement, although it concluded that the issue was not whether the district court improperly drew an inference from defendant's silence, but rather whether it could consider Walden's refusal to cooperate, which was indicated by his silence, when it made its sentencing determination.

Citing U.S. v. Stratton, 820 F.2d 562 (2nd Cir. 1987), the Court stated "This is not the first time that we have examined the impact of a defendant's refusal to cooperate on his sentence. In [Stratton] the district court imposed a consecutive ten_year sentence on a defendant, instead of one concurrent to his prior fifteen_year sentence, in order to "convince [him] that cooperation with the government is in [his] best interest." (Stratton, id., at 563). . . . We stated then that although a sentencing court could consider the failure to cooperate, . . . there was an important ‘distinction between increasing the severity of a sentence for a defendant's failure to cooperate and refusing to grant leniency’ . . . [and] we held that the district court in that case had improperly enhanced the defendant's sentence."

The Court did acknowledge that some Circuits have held that district courts are "free to consider a defendant's lack of cooperation in assigning a sentence within the Guidelines range" (citing U.S. v. Price, 988 F.2d 712, 722 (7th Cir. 1993)). Nevertheless, it held that the imposition of an additional five year sentence on the defendant for his refusal to cooperate with the Government following his conviction was improper. It stated: "This sentence is impossible to reconcile with Stratton, as well as our earlier holdings in DiGiovanni v. U.S., 596 F.2d 74, 75 (2d Cir. 1979) (remanding case for resentencing because defendant had been ‘punished for exercising his right to remain silent,’ and noting that silence in narcotics cases often stems from ‘well-founded fears of reprisal to the witness or his family’), and U.S. v. Ramos, 572 F.2d 360, 362 (2d Cir. 1978) (remanding because defendant's ‘refusal to testify may have been an important factor in the sentence’)."

[Editor’s Note: For more on U.S.S.G. § 5K1.2 see U.S. v. Nuñez-Rodriguez, 92 F.3d 14 (1st Cir. 1996) under § 3E1.1 above.]

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United States v. Klotz, 943 F.2d 707 (7th Cir. 1991)

The defendant in this case pled guilty to a drug charge, and his Guideline sentencing range was 151-188 months' imprisonment. He was sentenced to 180 months in prison - but only after the sentencing judge indicated that he chose that level, in part, because of the defendant's failure to cooperate with the Government in the prosecution of a co-defendant. The defendant appealed, arguing that an enhancement based on his refusal to cooperate in the investigation of another violates both § 5K1.2 and the self-incrimination clause of the Fifth Amendment.

Section 5K1.2 provides that: "A defendant's refusal to assist authorities in the investigation of other persons may not be considered as an aggravating sentencing factor." In analyzing the defendant's appeal, the Court first asked "'What does it mean to consider failure to cooperate "as an aggravating sentencing factor'? The Sentencing Commission did not define the term 'aggravating sentencing factor', which is unique to § 5K1.2, appearing nowhere else in the guidelines' text or commentary. An 'aggravating sentencing factor' could be a reason to alter the base offense level or depart upward; it also could be a reason to select a higher spot in the sentencing range than the judge otherwise would choose. If the former, the prosecution prevails; if the latter, Klotz. Which meaning does the language have? Section 5K1.2 lacks a comment; the one it had when issued the Commission deleted as confusing. See Amendment No. 291, effective November 1, 1989. Even the original comment sheds no light on this question."

The Court then concluded: "The structure of the guidelines implies that an ‘aggravating sentencing factor' is a reason to give a sentence above the guideline range. Section 5K1.2 belongs to a series of policy statements under the heading ‘PART K - DEPARTURES'. Section 5K1.1 authorizes a court to depart downward, on motion of the prosecutor, when the defendant provides substantial assistance to authorities. Both its placement in Part K and its pairing with § 5K1.1 imply that 5K1.2 forbids upward departures in retaliation for failure to assist the authorities."

Based on that reasoning, the Court concluded that § 5K1.2 applies only to departures from the Guideline range - but that it is irrelevant to the imposition of a sentence within the proper Guideline range (as happened in this case.) Thus, the Court rejected the defendant's contention that the enhancement violated the provisions of U.S.S.G. § 5K1.2.

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