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In United States v. Scott, No. 98-179(3) ADM/AJB, 2005 U.S. Dist. LEXIS 5287 (D. Minn. Mar. 31, 2005), the court held that Rule 35(b) motions should not be granted on the basis of third party substantial assistance because that rule "clearly contemplates information provided by the Defendant."
Summary of this case from U.S. v. McMillionOpinion
Criminal No. 98-179(3) ADM/AJB.
March 31, 2005
Joseph P. Tamburino, Esq., Allan Caplan Assoc., Minneapolis, MN, on behalf of Defendant Michael Joseph Scott.
Andrew S. Dunne, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Plaintiff United States.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on the United States of America's ("Government") Motion Pursuant to Rule 35(b). The Motion was filed under seal on October 4, 2004 and requests this Court grant Michael Joseph Scott ("Scott" or "Defendant") a downward departure under Rule 35(b) based on third-party assistance rendered on his behalf. For the reasons set forth below, the motion is denied.
II. BACKGROUND
On June 17, 1998, Scott and seven other defendants were charged in a multi-count Indictment [Docket No. 11] alleging drug trafficking and conspiracy. A Superseding Indictment [Docket No. 81] was subsequently filed on July 22, 1998. On January 19, 1999, Defendant pled guilty to Count 1 of the Superseding Indictment, Conspiracy to Possess with Intent to Distribute and to Distribute Cocaine and Crack Cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A), with the understanding that the remaining Counts would be dismissed at sentencing [Docket No. 347]. In his plea agreement, Scott agreed to a base offense level of 36 "based upon the quantities of cocaine and cocaine base (`crack')." [Docket No. 348]. After an evidentiary hearing, the Court found Defendant was a manager or supervisor of the conspiracy and warranted the three-level upward enhancement specified by United States Sentencing Guidelines ("USSG") § 3B1.1(b) and reflected in Defendant's plea agreement. Under the USSG, Offense Level 36/Criminal History Category II carries a sentence of 210-262 months of imprisonment. On August 3, 1999, this Court sentenced Defendant to 225 months of custody, 5 years supervised release and a $100 special assessment for Count 1 and dismissed the remaining Counts. The Eighth Circuit affirmed Defendant's sentence on appeal, specifically holding this Court did not err in its "Drug Quantity" calculations or in finding Defendant was a manager or leader of the conspiracy. See United States v. Scott, 243 F.3d 1103, 1108-09 (8th Cir. 2001).
In 2001, apparently at Defendant's urging, an acquaintance of Defendant approached Minneapolis police officers and offered to act as a confidential informant ("CI"). The CI inquired as to whether Defendant could receive some sentence reduction based on the CI's cooperation. Although the Government asserts no promises were made, the Assistant United States Attorney agreed to evaluate the propriety of filing a Rule 35(b) motion depending on the extent of the assistance rendered by the CI. Having determined the cooperation provided by the CI over a three year period was "extremely significant," the Government filed the instant Rule 35(b) Motion. The Federal Bureau of Investigation ("FBI"), the agency responsible for the Defendant's case, opposes any reduction in the Defendant's sentence based on third-party cooperation.
Because of the sensitive nature of the CI's involvement, there will be no further discussion in this Order of the CI's relationship to Defendant or the nature, extent or significance of the CI's assistance to law enforcement. Further, because the Motion is denied on legal and policy grounds, the Court does not reach the issue of evaluating the benefit of the cooperation. The CI did receive what the Federal Bureau of Investigations characterized as a "substantial sum of money" for his efforts. May 19, 2004 letter from Deborah Strebel Pierce.
III. DISCUSSION
Rule 35(b)(2) of the Federal Rules of Criminal Procedure provides:
Upon the government's motion made more than one year after sentencing, the court may reduce a sentence if the defendant's substantial assistance involved:
(a) information not known to the defendant until one year or more after sentencing;
(b) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than a year after sentencing; or
(c) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.
Whether to grant a Rule 35 Motion and determining the appropriate amount of any sentence reduction are matters committed to the discretion of the district court. United States v. Gruenberg, 53 F.3d 214, 215 (8th Cir. 1995).
As an initial matter, it is doubtful the Government's Rule 35(b) motion is timely under the plain language of the statute. The statute contemplates motions brought as a result of information provided to the Government by the Defendant within one year of sentencing or information which became known or became useful to the Defendant after one year of sentencing. Rule 35(c) defines "sentencing" as "the oral announcement of the sentence," rather than the time when appeals of a sentence have been exhausted. This Court orally announced Defendant's sentence on August 3, 1999. The CI did not approach Minneapolis police officers until 2001 and the Government did not bring this motion until October 4, 2004, more than four years after Defendant was orally sentenced.
Furthermore, the language of the rule clearly contemplates information provided by the Defendant. As a result, the language of Rule 35(b) does not easily lend itself to construction of motions based on third-party assistance.
After careful consideration, this Court believes it is inappropriate to grant the Government's Rule 35(b) Motion in this case for substantial assistance rendered by a third party. As a threshold matter, the Government is unable to detail any instance, never mind any written authority, where a court in the Eighth Circuit granted a Rule 35(b) motion as a result of third-party assistance. Without exploring all of the policy implications of granting the Government's Motion, some come immediately to mind. First among them is the concern that such motions will encourage defendants to coerce other, uninvolved parties to render third-party assistance. Although the court in United States v. Doe granted a motion for a downward departure based on third-party assistance, it cautioned against establishing a system whereby the wealthy could purchase information that would assist the government. 807 F.Supp. at 707-08 ("It would be fundamentally unjust and would controvert basic notions of equal protection to establish a sentencing scheme that permitted, in essence, a wealthy person to purchase a lighter sentence than that of an indigent"). These fears were realized when it was discovered that, for a price, attorneys were brokering deals between wealthy defendants/inmates and informants to facilitate third-party assistance motions. See United States v. Baum, 32 F. Supp. 2d 642 (S.D.N.Y. 1999); see also, United States v. Fierer, Crim. No. 96-294 (N.D. Ga. 1997) (Defendants pled guilty to charging inmate-clients to pair them with unrelated informants possessing information that might provide the basis for a Rule 35(b) motion).
Only three published cases have considered whether a court should grant a Rule 35(b) motion as the result of substantial assistance provided by a third party. See United States v. Doe, 870 F. Supp. 702 (E.D. Va. 1994); United States v. Bush, 896 F. Supp. 424 (E.D. Pa. 1995); United States v. Abercrombie, 59 F. Supp. 2d 585 (S.D. Va, 1999). In only one case did the court grant the Rule 35(b) motion. See Doe, 870 F. Supp. 702.
Although the Doe court only cautioned about the dangers of creating a system in which the wealthy could purchase lighter sentences, the argument applies at least as forcefully to defendants who exert influence or control over others. Granting sentence reductions based on the assistance of third parties establishes a system that encourages defendants to coerce others to aid them. In the instant case, for example, the "FBI" opposes the Government's Rule 35 Motion in part because it believes the Defendant or others may have ordered the CI to provide third-party assistance. The FBI claims "in many gang cases, higher level gang members instruct third-party members or associates to assist a ranking member of the gang that they would like to see released or assisted in the sentencing phase of a prosecution." May 19, 2004 letter from Deborah Strebel Pierce. The sentencing scheme should not create an incentive for defendants to coerce and intimidate others. Even in cases where intimidation is absent, allowing third-party cooperation would encourage friends and family members to investigate or engage in unlawful activity to assist defendants. Although the public may benefit greatly from assistance provided by individuals involved in criminal enterprises, the appropriate balance between preventing other criminal activity and reducing the defendants' sentences is disturbed when defendants mitigate the consequences of their acts through the aid of third parties.
For the aforementioned reasons, the Government's Rule 35(b) Motion is denied.