Tag Archives: substantial assistance

No Right to Hearing on Rule 35(b) Motion, 5th Circuit Says – Update for October 11, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


retro_vintage_kitsch_cop_police_are_your_friends_card-r61c98e4f7d4f40a6b764aedbdb6dfd4c_xvuat_8byvr_324When we were kids, we quickly learned from well-meaning parents that the policeman was our friend. That was quite true, at least up until we hit puberty or so. Then we learned, some of us later than others, that at some point the policeman has ceased being our friend, but rather was just another guy on the public dole who had been trained to believe that all “civilians” – that’s what they call us, like their Boy-Scouts-with-guns organization has anything to do with military service – are suspects and all cases have to be cleared by arrest. Arrest of the guilty party is preferred, but by no means mandatory.

In adulthood, we also came to realize that the prosecutor is as much our friend as is the cop, which is to say ‘not at all’? Cynical, you say? Ask the suddenly-disgraced Harvey Weinstein. Harv is clearly a guy who gives lechery a bad name, someone who used power and money to abuse women. Sure, his hormone-driven nihilism makes Bill Clinton and Donald Trump look like eunichs, and his depravity ought to earn him a one-way ticket to infamy. But that’s not enough. Word today is that the feds are investigating Harvey, a criminal-justice piling on that is as puzzling as it is troubling.

Free Harvey!
You’re not likely to be seeing many of these posters around… but if the Feds can target Harvey for merely being a scumbag, they can target anyone else suddenly not in favor, too.

To be sure, Harvey could be convicted of multiple federal crimes. We know that for a fact, because with well over 4,000 federal criminal statutes and untold additional regulations that have been criminalized as well, anyone – from Mother Teresa to Anthony Weiner – has probably committed multiple federal crimes, often just be getting up in the morning.

Our point to all of this is one that Aaron McMahan would appreciate. Aaron was convicted of drug trafficking in federal court, and then – like other federal inmates who come to the party late – he assisted the government in nailing a former associate. Six months after Aaron’s sentencing, his cooperation resulted in the other guy getting federal time. After that, the Government filed a post-sentence Rule 35(b) motion asking for a reduction in Aaron’s sentence as a reward for his assistance in nailing the other dude.

When defendants help the feds before sentencing, the Government rewards them by filing a motion at sentencing pursuant to 18 USC 3553(e) and Sec. 5K1.1 of the Sentencing Guidelines. This 5K1.1 motion is like a magic sentencing elixir, letting the sentencing judge ignore any advisory sentencing range, and even statutory mandatory minimums, and sentence the cooperating defendant to as little as probation.

Sometimes, however, the cooperation comes after sentencing, or – as in Aaron’s case – cooperation before sentencing has not yet brought the desired results. Then, the Government may file a motion pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. The Rule 35 motion is made of the same fairy dust as the 5K1.1 motion, letting the sentencing court pretty much do what it wants regardless of other statutes or guidelines.

wink171012When a defendant cooperates, no one from the U.S. Attorney’s Office promises him any reward whatsoever. Wink. Wink. This is because the defendant may be called on to testify, and the defense attorney will invariably ask him or her what has been promised. In the cross-examination pas de deux, the cooperating witness is expected to be able to respond, with rather precise honesty, that no one has promised him a thing. Of course not. Wink. Wink. Everyone knows what is really going on except for the jurors, who no doubt retire to the jury room impressed at the civic-mindedness of the felon on the stand who is willing to stand up for justice because it’s the right thing to do.

Of course, after the cooperating defendant delivers, the government does not have to reward him with a 5K1.1 or Rule 35 motion, and in all but very limited cases, there is not a thing a defendant can do about it. Likewise, the court may decide not to grant a 5K1.1/Rule 35 motion, or may decide to reward the defendant with a lousy orange in his stocking instead of that pony the government recommended. In that case, a defendant’s options are pretty limited.

Practically speaking, however, the system grinds out rewards for cooperating defendants, because if it did not, word would quickly get around the jails and prisons, and cooperation would dry up.

nothing170125Aaron no doubt figured that because he had delivered for the government, the U.S. Attorney was now his friend. Indeed, his “friend” delivered, filing the not-promised but reasonably-expected Rule 35 motion. Unfortunately, it seems the court was not his friend, because two days after the Rule 35 motion hit his desk, Aaron’s district judge denied the motion — before Aaron had received notice or had an opportunity to respond — explaining “even if the court were to accept as accurate all allegations of fact alleged in such motion, the court would not be persuaded that the sentence imposed on McMahan… should be reduced.”

Shocked, Aaron appealed, arguing that the district court should not have denied the Rule 35 motion without first providing him with notice and an opportunity to be heard.

Aaron was shocked again when his former friends at the U.S. Attorney’s Office argued against him in the Court of Appeals, contending that “adopting a notice and hearing requirement in Rule 35(b) motions would “create tension with the authority recognizing that a defendant possesses many more rights during the sentencing phase of criminal proceedings than during post-sentencing proceedings.”

noright171012Aaron’s dismay was complete last week, when the 5th Circuit agreed with the government. “A defendant does possess fewer rights during post-sentencing proceedings,” the Circuit held. “Indeed, Federal Rule of Criminal Procedure 43(b) provides, ‘a defendant need not be present…[where t]he proceeding involves the correction or reduction of sentence under Rule 35…” Further, a defendant does not have a right to counsel during Rule 35(b) sentence reduction proceedings… Thus, a notice and hearing requirement for Rule 35(b) motions would be in conflict with Rule 43 and this Court’s previous decisions that the attendant rights of presence and counsel do not exist at that post-sentencing stage.”

English statesman Henry Temple, 3rd Viscount Palmerston, once observed that “nations have no permanent friends or allies, they only have permanent interests.” Writ small, that is something every defendant – even someone as powerful as former Obama and Clinton buddy Harvey Weinstein – should remember about his relationship with the government.

United States v. McMahan, Case No. 16-10255 (5th Cir., October 5, 2017)

– Thomas L. Root


District Judge Won’t Go Along With the Government’s Program, Gets Slapped – Update for June 28 ,2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


mario170628Mario Crancho, a trucker from Mexico, got busted in Arkansas with 43 kilos of coke hidden in his trailer. He wisely agreed to cooperate, and proceeded to make controlled deliveries, identified stash houses and debriefed extensively on the trans-border coke trade.

Of course, the government freely used its considerable powers to assist Mario, too. First, the government somehow failed to pass on to the Presentence Report writer the actual drug quantity Mario had shipped, instead mentioning only two of over 20 trips Mario had made from south of the border. This conveniently omitted probably 95% of the quantity he had actually shipped, leaving him with a very favorable advisory sentencing range of 168-210 months. The district judge wondered why, but lacking any cooperation from the parties in providing the right number, he ultimately adopted the PSR “without change.”

Then, at the sentencing hearing, the prosecution waxed rhapsodic about Mario’s assistance, calling it very substantial and asking for a 50% sentence cut from the low end of his guidelines pursuant to a USSG § 5K1.1 downward departure.

So how many pallets of Mario’s cocaine did the court not hear about? Inquiring minds – including the judge’s – want to know…

The district court reluctantly granted the government’s 5K1.1 motion, concluding that Mario had provided substantial assistance. But the judge was troubled, and pretty clearly had had a bellyful of these kinds of deals. The court said he was “really struggling with this because, while he has provided substantial assistance, what it does is shows me the breadth of… his involvement in these drug crimes, and it’s huge.” The district court had “seen people with not nearly this culpability go to jail for extended periods of time” and was “struggling with the 50 percent reduction and with the low end of the guidelines.”

And isn’t that the problem? The government has so much power to shower love on people who assist it, no matter their prior culpability. And the poor shmuck who peddled nickel bags on the corner. He didn’t know nuthin’, and so he’s got no information to trade. Watch the U.S. Attorney’s young guns hammer that kid at sentencing.

hammer160509However, when Mario’s judge expressed his misgivings, the government doubled down, becoming even more effusive. It argued Mario was super, having placed himself in great personal danger by making the controlled deliveries, that he began cooperating with the government at his first opportunity (forgetting his previous 21 coke runs from Sinoloa to North Carolina), and that had provided other valuable information as well. Defense counsel chimed in that Mario was a great guy and had a successful trucking business (that success helped no doubt by payments received for shipping hundreds of kilos of coke to the Tarheel State).

The government’s happy talk did not allay the district court’s concerns:

The problem I have with this is he’s given the opportunity to cooperate because he was so high up and because he was driving so much drugs and he was dumping that crap here in Winston-Salem, and we send people to jail every day for .6 grams of drugs, and it is massive amounts of drugs, and… in terms of the equity in sentencing… I can tell you I am not going to the low end, and I am still struggling with whether or not I am going to do the actual total 50 percent.

The judge sentenced Mario to 210 months, the top of the guidelines, and then cut it by 40% for substantial assistance. So instead of walking out of the courtroom with 84 months, Mario ended up with 126 months. That’s 44 months more than Mario expected, for the math-challenged among us.

Mario appealed, and on Monday, the 4th Circuit slapped the district judge’s hand.

Fourth Circuit case law requires a district court determining the extent of a 5K1.1 departure to consider assistance-related factors only. The district court clearly found Mario’s assistance to be substantial, but then judged the 50% reduction not on the extent or quality of Mario’s assistance but instead to the scope of the charged conspiracy and the level of Mario’s culpability in that conspiracy, questioned the equity of giving Mario a lower sentence than is often imposed on less culpable defendants, and condemned the destructive effect of the “junk” that Mario was “dumping” on the community.

The 4th Circuit's subtle advice to the district judge...
The 4th Circuit’s subtle advice to the district judge…

The Circuit admitted there was no problem relying on those other factors in setting the 210-month end of the guidelines, but the district court used it again in selecting a 40% instead of 50% reduction. The Court of Appeals said, “these concerns, which focus on facts related to the charged conspiracy, simply bear no relation to the nature, extent, and significance of the defendant’s assistance.”

Bottom line: The district judge was substituting his judgment for the prosecutor’s. There’s little room for that kind of judicial independence under the current sentencing regime.

The case was remanded for resentencing.

United States v. Crancho, Case No. 15-4760 (4th Cir. June 26, 2017)

– Thomas L. Root


The Boy Who Cried ‘Wolf’ Is Denied a Sentence Reduction – Update for June 26, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Defendants rat out other defendants. It’s the way of the world, especially because the federal sentencing structure places so much power in the hands of the United States Attorney to control a defendant’s destiny.

snitch161004The government can control application of mandatory minimum sentences by what counts it brings and which counts, as part of a plea deal, it dismisses. It controls which facts it brings to the court’s attention at sentencing (such as deciding to mention the hunting rifle agents found in a drug defendant’s closet – which will get a 2-level enhancement and make him ineligible for a “safety valve” reduction under 18 USC 3553(f) – or deciding the gun had nothing to do with the crime, and so omitting its mention. It even controls the timing of the criminal case by deciding when within the 5-year period of limitations to bring an indictment.

It’s no wonder that smart defendants figure out very quickly that if they want a break, they had better give the government something on someone. In FY 2016, 11.1% of defendants did so before sentencing, winning downward departures for providing substantial assistance to the government. Another 8.2% had sentences set below the guidelines range because of government sponsorship, many of which were because of some assistance given to law enforcement.

Finally, for about 1.8% of inmates who miss the boat at sentencing, F.R.Crim.P. 35(b) provides post-sentence relief for people who provide assistance to he government after sentencing.

Anyone who provides assistance to the government knows that only the government controls whether any sentence credit will be awarded. To get credit at sentencing, a defendant has to hope the government files a USSG § 5K1.1 motion. If the assistance comes after sentencing, a sentence reduction can only be granted under F.R.Crim.P. 35(b), and again, only the government is allowed to file that motion.

scarpa170626Greg Scarpa, a self-described “made” member of the Colombo crime family, got locked up in 1988 for something like 482 months on a RICO beef. While in MCC New York, Greg had a cell next to 1993 World Trade Center bomber Ramzi Yousef. Greg colluded with Ramzi, and told government agents a whopper that led them on a wild-goose chase. At a 1999 sentencing, Greg’s judge hammered him for lying to the government, and excused the U.S. Attorney from filing a 5K1.1 motion.

yousef170626After Greg went back to prison, he testified on several occasions against mobsters who were attacking their sentences. But his testimony was found to be “problematic,” which is to say more than one judge found him to be unhelpful and a liar.

Finally, in 2005 Greg found himself celled next to Terry Nichols, one of the two Oklahoma City bombers. Greg approached law enforcement again, telling that that Terry had admitted that a batch of explosives was hidden in Terry’s former residence. By this point, no one believed him, and after he failed an FBI polygraph test, the agents told him never to call them again.

nichols170626Greg told his own investigators about the hidden bomb-making materials, and they told a congressman, who in turn pressured the FBI. Agents finally searched the old residence, and lo and behold, they found the bomb-making parts.

Greg had his lawyer write to the U.S. Attorney to ask for his Rule 35(b) motion. The U.S. Attorney refused, saying that “Scarpa’s info is suspect, his sources are suspect, and even if he did provide the info, the Eastern District is not interested in giving him Rule 35 relief. I asked if they would proffer him for his additional info, and they say they do not want to spend the money or the effort. All this is based upon his past track record.”

Greg had a 2255 motion pending, so he supplemented it demanding that he get his Rule 35(b) motion. The government responded with a history of Greg’s prevarications. Meanwhile, Greg had outlasted his previous judge, who retired, and got a new district judge who decided that the U.S. Attorney’s discretion “is not entirely immune from judicial review.” Citing Wade v. United States, the district court held that Greg would be entitled to relief if the U.S. Attorney’s refusal to move for the 35(b) “was not rationally related to any legitimate Government end.” Believing the U.S. Attorney had no legitimate basis to withhold a sentence reduction, the district court cut Greg’s sentence by 120 months.

Last week, the 2nd Circuit reversed the sentence cut. It is true that a defendant is entitled to a Rule 35(b) reduction if the U.S. Attorney’s refusal to move for sentence cut was for an unconstitutional reason or “is not rationally related to any legitimate Government end.” But here, the 2nd said, the government had legitimate reasons to spare. The “legitimate governmental concerns included, inter alia, findings of judges in three federal cases that Scarpa has given sworn testimony or statements that cannot be credited, along with the government’s 1999 (sealed) submissions describing the prior “variety of wild-goose chases,” induced by Scarpa in the guise of proffering substantial assistance.”

wolf170626The Circuit was clearly offended that Greg had tried to game the U.S. Attorney with phony information on several prior occasions. “Willfully making materially false statements to the government is in itself a crime, and Scarpa’s history of false statements was of special concern to the government in the circumstances at issue here. Such concerns cannot be deemed irrational… Such fraudulent cries of “Wolf” not only cause the misallocation of government resources, but they also make less likely an appropriate government response if the man who cried “Wolf” subsequently sounds an alarm that is genuine. Plainly, it is a legitimate government objective to deter such fraudulent proffers, rather than to encourage them by indicating that, so long as a genuine alarm is sounded eventually, the former parade of frauds is forgiven.”

United States v. Scarpa, Case No. 16-303 (2nd Cir., June 22, 2017)

– Thomas L. Root