Order limiting departures held unlawful

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“One branch of government cannot compel another to reveal intra-branch deliberations just to slake its curiosity.” Hon. Frank H. Easterbrook 7th Circuit Court of Appeals

The Seventh Circuit on Sept. 29 invalidated an order that the government reveal its internal decision-making processes before a substantial assistance departure can be granted pursuant to U.S.S.G. 5K1.1.

After defendant Darvin Moore entered a plea of guilty in a federal criminal prosecution, U.S. District Judge J.P. Stadtmueller startled both sides by announcing that from that day on, the prosecutor must reveal extra details as part of any request that a defendant receive a lower sentence to reward substantial assistance in the apprehension or prosecution of other offenders.

The directive, labeled a “standing order,” reads as follows: “Court notes the new procedure to be followed when the government wishes to file any downward departure motion for substantial assistance: 1) the court will no longer take up U.S.S.G. 5K1.1 downward departure motions as part of the initial sentencing hearing; instead, all 5K1.1 motions need be filed formally, in writing, and will be considered in an entirely separate proceeding; 2) all motions for downward departure will be heard within 60-days from the day of filing; and 3) all motions for downward departure must be accompanied by the following (which may be filed under seal as appropriate and consistent with Local Rule 79.4): a) copies of all statements given by the defendant to any component of law enforcement, b) copies of transcripts of testimony given by the defendant whether before a grand jury, trial or other relevant proceeding in state or federal court, c) a copy of a recommendation approved and signed by an individual holding a supervisory position in the law enforcement agency with whom the defendant cooperated (multiple agencies require multiple submissions), d) a written recommendation of a supervisor in the office of the prosecutor (e.g. United States Attorney, local district attorney or state attorney general), and e) a written report from the downward departure committee which shall include the names and signatures of the committee members who considered the matter, the date(s) the matter was considered, and the recommendation(s) of the committee together with any dissenting view(s). Failure to adhere to this policy will result in the motion being summarily denied without prejudice.”

Later, Philip J. Zingsheim was convicted in the same court, and the government moved the court to sentence him below the guideline range, but refused to comply with the standing order. The court ignored the motion, and gave Zingsheim the highest sentence within the range.

Zingsheim and the government both appealed. The government also sought a writ of mandamus that the standing order was invalid. In an opinion by Judge Frank H. Easterbrook, the court reversed on the appeals, but held that, because direct appeal is an adequate remedy, issuance of the requested writ would be inappropriate.

Addressing the propriety of the writ, the court wrote, “Mandamus is doubly inappropriate because the United States does not want us to direct the district judge to carry out any judicial duty in Moore’s prosecution; instead it wants us to blot the standing order from the books. A Writ of Erasure is not among those remedies that are ‘agreeable to the usages and principles of law’ and authorized by 28 U.S.C. 1651(a), the All-Writs Act. Mandamus may issue in connection with judicial acts even if the writ depends on a view that a district court’s standing order is invalid, see Miner v. Atlas, 363 U.S. 641 (1960), but the United States does not protest any step the district court has taken with respect to Moore; its petition deals with the order in the abstract, and not with its consequences.”

The court stated that standing orders could be challenged via an application by the Executive Branch to the Judicial Council, which has authority to review local rules for conformity with national law. In litigation, however, the court stated, the focus must be on application of the order, not its existence as an abstract matter.

Because the order did not affect Moore, the court found no basis for relief. However, because the order was applied to the detriment of Zingsheim, the court addressed the appeals in his case, and held the standing order invalid.

The court concluded, “Zingsheim’s sentence is unlawful for a simple reason: the district court failed to exercise the discretion created by U.S.S.G. 5K1.1. District judges must resolve motions that may affect sentences; they cannot be ignored, as the prosecutor’s was.”

The court noted that Fed.R.Crim.P. 35 permits adjustment of sentence in only a few circumstances, one of them being on a prosecutor’s motion to reward assistance provided after sentencing, pursuant to 5K1.1. However, the Rule does not permit a judge to reserve decision on a motion made before sentencing, designed to reward assistance the defendant had already provided before sentence. Thus, subpart (1) of the order is invalid.

The court added, “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&#1
46;s subparts (3)(c), (d), and (e).” The court found that enforcement of the order would require the government to surrender a host of evidentiary privileges as a condition of adjudication.

The court noted that the attorney-client privilege covers conversations between the prosecutors (as attorneys) and client agencies within the government. In addition, the work product privilege applies to many other discussions between prosecutors and investigating agents. Also, the deliberative-process privilege covers memoranda and discussions within the Executive Branch leading up to the formulation of an official position. Finally, the executive privilege shields recommendations to high-ranking officials.

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The court acknowledged that these privileges have exceptions, but stated that whether an exception applies is an issue that must be addressed and resolved one document at a time.

The court reasoned, “The district judge had no more basis for demanding that the Executive Branch open its internal deliberations than Congress would have for demanding that every Presidential veto message include all background papers circulated inside the government, a description of any debate within the Cabinet, and a disclosure of all dissenting voices (together with the reasons those officials gave for their views).”

The court acknowledged that more information might inform the judge’s decision in principle, but concluded, “one branch of government cannot compel another to reveal intra-branch deliberations just to slake its curiosity.” The court also found that subpart (3) of the standing order could inhibit agents, witnesses, and defendants from cooperating.

Accordingly, the court vacated the sentence and remanded for resentencing.

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David Ziemer can be reached by email.