The question for attorneys in subsequent cases is whether or not an end run can be made around this decision, merely by invoking appropriate language, and what to do when an apparently sufficient motion is denied.
Generally, a courts decision to not grant a downward departure for substantial assistance pursuant to U.S.S.G. 5K1.1 is not reviewable by the court of appeals.
However, the rule only applies if the court makes a discretionary decision not to depart, despite having legal authority to do so. U.S. v. Franz, 886 F.2d 973 (7th Cir. 1999). If the court mistakenly believes it lacks legal authority to grant a departure in a given situation, the court of appeals may review it. U.S. v. Poff, 926 F.2d 588 (7th Cir. 1991).
Suppose therefore, that a sentencing court were to conclude that the government failed to submit enough evidence to convince him that the defendant provided the prosecutor with assistance, couching the decision in discretionary terms, but does so in every case in which the very documents covered by the abolished standing order were lacking, suggesting the existence of a de facto legal rule.
As to subparts (3)(a) and (3)(b) of the order, a court could possibly succeed in doing just that. Those subparts encompass copies of all statements given by the defendant to law enforcement, and copies of transcripts of testimony given by the defendant, respectively.
With respect to both these types of documents, a court could plausibly claim that, absent such documents, the evidence is insufficient to establish substantial assistance.
Unlike the documents in (3)(a) and (b) of the standing order, the documents referenced in (3)(c), (d), and (e) were all specifically held by the court to be protected by a variety of privileges. As to each of these subparts of the standing order, the court held, one branch of government cannot compel another to reveal intra-branch deliberations just to slake its curiosity.
Even as to subparts (3)(a) and (b), however, a de facto requirement that they be provided in practice, if not in a standing order, may not past muster. The court found, witnesses and defendants also may be less willing to cooperate, for more disclosure increases the risk of retaliation by their former confederates in crime. This is a potential problem with subparts (3)(a) and (b), as well as subparts (3)(c), (d), and (e)(emphasis added).
The court also noted that subpart (3)(b), to the extent it includes grand-jury material, is problematic because of other legal rules that grant confidentiality to the proceedings.
The decision is thus a boon to defendants denied downward departures, by adding an additional possible avenue to obtain relief on appeal, where few exist.
Before, a defendant could only argue that the district court believed it lacked authority to grant a departure. Now, a defendant can argue that relief was denied, not because of a discretionary decision, but because the district judge exceeded his authority by establishing an impermissible criteria for granting a departure.
– David Ziemer
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David Ziemer can be reached by email.