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04-1671 & 04-1695 U.S. v. Zingsheim

By: dmc-admin//October 4, 2004//

04-1671 & 04-1695 U.S. v. Zingsheim

By: dmc-admin//October 4, 2004//

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“Zingsheim must be resentenced. When deciding whether a sentencing discount is appropriate, the judge must not hold against Zingsheim the prosecutor’s decision not to provide information that meets the description of the standing order’s subparts (3)(c), (d), and (e). Judges may not demand that litigants surrender evidentiary privileges as a condition of adjudication: what a ‘privilege’ means is an entitlement to withhold information even if it would bear on the merits of a disputed issue. Multiple privileges apply to most if not all of the matters described in subparts (3)(c), (d), and (e). The attorney-client privilege covers conversations between the prosecutors (as attorneys) and client agencies within the government. See, e.g., Swidler & Berlin v. United States, 524 U.S. 399 (1998); In re Grand Jury Witness, 288 F.3d 289 (7th Cir. 2002) (when legal advice is given to or for the benefit of a governmental body, it rather than an individual officeholder enjoys the benefit of this privilege). The workproduct privilege applies to many other discussions between prosecutors and investigating agents, both state and federal. See, e.g., FTC v. Grolier Inc., 462 U.S. 19 (1983). The deliberative- process privilege covers memoranda and discussions within the Executive Branch leading up to the formulation of an official position. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). And the executive privilege shields recommendations to high-ranking officials. See Cheney v. District Court, 124 S. Ct. 2576 (2004); United States v. Nixon, 418 U.S. 683 (1974).

“A district judge may require the prosecutor to show how the defendant provided “substantial assistance in the investigation or prosecution of another person who has committed an offense” (to quote from §5K1.1). Otherwise the judge could not decide whether to depart and, if so, by how much. But except with extraordinary justification a judge may not inquire why or how the United States Attorney decided to file a §5K1.1 motion and may not insist that ‘all’ statements of any provenance be revealed, even if not material to the §5K1.1 decision. And we cannot imagine, nor did the district judge suggest, a reason to insist that any person other than the U.S. Attorney take responsibility. The Executive Branch is entitled to decide which tasks will be carried out by supervisors and which by line employees; the judge’s demand in subsection (3)(c) that substantial — assistance motions receive the approval of each law —enforcement agency, that supervisors indicate that assent, and that a committee of some kind rather than the U.S. Attorney make the ultimate decision, is an effort to regulate the internal organization of another branch of government. Section 5K1.1 gives the power to make substantial — assistance motions to ‘the government’ as an entity, which is to say, to the Executive Branch, represented in most criminal litigation by the United States Attorney. A district judge may not limit the U.S. Attorney’s authority to decisions that garner the support of each law-enforcement agency, or the majority of some committee. Just as judges may not routinely review decisions to withhold §5K1.1 motions, see Wade v. United States, 504 U.S. 181 (1992), so they may not give a blocking power to subordinate state or federal officials. Cf. Melendez v. United States, 518 U.S. 120 (1996).”

Vacated and Remanded.

Appeals from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Easterbrook, J.

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