We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
NO HONOR AMONG THIEVES… OR COOPERATORS
Horse puckey. Informants are everywhere in the system. In 2015, one out of eight federal defendants was rewarded for ratting out other defendants with a sentence reduction. Another 1.5% received a sentence reduction after the fact for cooperation after being locked up.
As one inmate (who was informed on, but had no information himself that the government wanted to swap for): “Man, you do what you gotta do.”
The number of defendants getting sentence reduction motions doesn’t reflect how many try to swap what they know for a lower sentence without success. Some solicit the government without success. Others provide information but get nothing. The problem is that the government’s offer is simple and rather one-sided: tell us everything you know, and we’ll then decide whether we feel like rewarding you with a motion to reduce sentence.
The structure of the cooperation motion provides an inmate with a powerful incentive. Under the Sentencing Guidelines, the government (and only the government) may file a motion to reduce a defendant’s sentence for cooperation. If the motion is made – under U.S.S.G. § 5K1.1 – the sentencing judge may depart downward from the Guidelines sentencing range, regardless of any mandatory minimum sentences required by statute. If the inmate waits until after sentencing to cooperate, the government (and only the government) may file a motion under Rule 35(b) of the Federal Rules of Criminal Procedure to resentence the inmate to a reduced term, again without regard to what statutes say the minimum must be.
Obviously, if the defendant faces a staggering mandatory minimum because of drug quantity or packing a gun or any of dozens of other statutory provisions, the only way to wrestle the sentence into the range of sanity is to sing like a canary, and then to depend on the kindness of a particular stranger who happens to be the Assistant U.S. Attorney. Could Blanche Dubois have been a federal defendant?
More often than we care to recall, defendants have spilled their guts, only to be denied any sentencing benefit by government lawyers who expected more. In one case we know of, a defendant was instrumental in convicting a murderer, but he helped a U.S. Attorney in one jurisdiction, and that U.S. Attorney could not convince the U.S. Attorney whose office was prosecuting the defendant a thousand miles away – and who displayed a real animus toward the defendant – to make the motion.
Unsurprisingly, we get asked regularly how to force the government to file a § 5K1.1 or a Rule 35(b) motion. Our answer is almost always the same: You can’t. The only factor limiting AUSAs in reaping the benefit of cooperation and then arbitrarily denying a sentence reduction motion is the fear that word will get around, and then no defendants will cooperate. Fat chance of that: when a defendant is facing a mandatory minimum sentence of 20+ years, there’s no straw too small to grasp.
That’s not to say that some defendants can’t be their own worst enemies. Defendants like Tyran Patton. Tyran was a major cocaine and heroin dealer in the Chicago area. In April 2010, law enforcement arrested one of Tyran’s people with 8 kilograms of cocaine and 3 kilograms of heroin, amounts that carried a substantial mandatory minimum sentence. Later, in an unrelated case, ATF agents arrested Tyran in a firearms investigation. Government agents explained the facts of life to Tyran, chiefly how they had him dead to rights on the gun, and how another train – this one a heavy-duty drug conspiracy indictment – was coming down the tracks at him. Tyran wisely agreed to confess to all and to cooperate with the ATF.
He did all right for awhile. Over a year, he made controlled purchases of guns for his ATF case agent, and ultimately helped get about 60 weapons off the street. But Tyran had his own agenda, and the ATF agent supervising him was a greenhorn. Tyran was allowed to pick his own targets, and so he did, delivering only street-level dealers while protecting higher-level gun traffickers, family members and friends.
What a tangled web Tyran spun! When the ATF told him in 2012 that he was need to testify before a grand jury, and that his grace period was running out – meaning he would be indicted on the drug charge soon – Tyran disappeared for about six months. He surfaced only after the government had finished several trials, and word was out on the street that he was a snitch. The government suspected he came forward because he needed government protection.
Tyran tried to make a plea deal with the government, but prosecutors were pretty steamed at him and refused to do so. So he pled guilty without benefit of a deal, and was sentenced to 20 years and change.
Tyran complained that he should have gotten the benefit of a sentence reduction motion from the Feds. Last week, the 7th Circuit turned him down.
The Court started by observing that district courts have limited authority to review a prosecutor’s refusal to file a substantial‐assistance motion, and may grant a remedy only if the refusal is based on an unconstitutional motive, or if it is “not rationally related to any legitimate Government end.” The burden is on the defendant to make a “substantial threshold showing” that the government improperly withheld a substantial‐assistance motion before he can receive a remedy.
Tyran argued that the government withheld his sentence reduction for reasons “not rationally related to any legitimate Government end.” The Circuit, however, found two very good reasons not to reward Tyran. First, he gamed the tyro ATF supervising agent by manipulating who he targeted to avoid ensnaring family members, friends and some of the higher-level gun movers the ATF really wanted to catch. Second, Tyran “disappeared for over six months, right after being told he was going to be indicted and needed to testify at a grand jury hearing. While Tyran claims he had to have an operation during that time and that his wife turned off his cell‐phone, even his own attorney acknowledged that Patton could have acted more promptly in getting in touch with the government following his surgery. Both rationales support the government’s decision not to move for a reduced sentence.”
Tyran argued he should have been granted a hearing in which he could develop his claim that the government’s withholding of the sentence reduction motion was illegitimate. The Court said he had it backwards: “A defendant has no right to discovery or an evidentiary hearing unless he makes a substantial threshold showing of an improper motive. Tyran failed to make such a showing. In fact, he did not even argue to the district court that the government’s rationale for refusing to move for a substantial-assistance reduction was unrelated to a legitimate government end. Instead, Tyran merely argued that he deserved the reduction because he provided the government with substantial assistance which led to the prosecution of seven individuals and taking 60 guns off the street.”
United States v. Patton, Case No. 13-1319 (Feb. 9, 2017)
– Thomas L. Root