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UNITED STATES v. JORDAN

February 28, 1994

UNITED STATES OF AMERICA
v.
LARRY S. JORDAN, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 Before the Court is the Defendant, an admitted drug addict, *fn1" convicted drug dealer, *fn2" and former officer of the District of Columbia Department of Corrections who has made a Motion to Modify, Vacate or Set Aside his sentence pursuant to 28 U.S.C. § 2255. The Defendant was video and audiotaped possessing with the intent to distribute a significant quantity of cocaine base outside of the D.C. Jail while he was a D.C. corrections officer.

 Defense counsel argues that the Government acted either in an arbitrary fashion or in bad faith towards the Defendant when it refused to file a § 5K.1 departure letter as a result of a plea agreement. The Assistant United States Attorney argues that the Government did not make any specific promise to file a 28 U.S.C. § 3553(e) Motion or Chapter 5K.1 letter under the Sentencing Guidelines at the time of the Defendant's sentencing. It also asserts that it had only offered the Defendant and "opportunity to cooperate" and provide any substantial assistance to the Government which the Defendant did not provide.

 The Plea Agreement was outlined by the parties at a hearing on the Defendant's Plea as follows:

 
MR.RUDASILL: . . . My client is seeking to enter into cooperation with the government under 3553(e). There may be some necessity to extend the sentencing date because of his cooperation.
 
THE COURT: That's perfectly all right. All you have to do is notify my clerk, Mr. Burgess.
 
MR. KRUGER: Your honor, I need to state for the record to be perfectly clear to the Court that while the Government is listening to Mr. Jordan, We've made no representations whatsoever as to whether any request might be made to our Departure Committee regarding substantial assistance, but we are listening to that at this time(emphasis added)." Bench Conference ("BC") at the Defendant's Plea, p. 2 ; unsealed by Order of the Court dated February 15, 1991.

 Nothing in 28 U.S.C. § 3553(e) or Chapter 5K.1 of the Sentencing Guidelines authorizes a Defendant to bring a Departure Notion. This discretion and authority rest solely with the Government, the Departure Committee, and the Court. However, the Court agreed to hear the Defendant's motion on the basis of the Defendant's assertions that the Government was acting arbitrarily, invidiously, or in bad faith when it refused to bring a departure motion on his behalf. At a four (4) hour hearing on February 17, 1994, the Court gave the Defendant a full and complete opportunity to be heard. At that hearing, however, the Defendant offered not one scintilla of evidence that the Government acted arbitrarily, invidiously or in bad faith in refusing to file a departure motion. Therefore, the Court finds that the Defendant has not proved that the prosecutor's decision not to file a departure Notion was an arbitrary, invidious, or bad faith decision and will deny the Defendant's Motion.

 I. BACKGROUND

 The facts which give rise to the Defendant's Motion center around a plea agreement entered into between the Government and the Defendant after the Defendant was charged with possessing with the intent to distribute 5 or more grams of a mixture or substance containing detectable amounts of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). The Defendant is a former employee of the D.C. Department of Corrections (DOC) who was caught in a federal sting operation to rid the DOC of employees who dealt in drugs. On July 20, 1990, the Defendant entered a plea of not guilty to the charges brought against him, and a trial date was set. On September 14, 1990, however, after defense counsel had notified the Court of the possibility of a disposition, the Defendant withdrew his plea of not guilty and formally entered a guilty plea.

 After the Court conducted an extensive Rule 11 inquiry, the prosecutor advised the Court that, in exchange for the Defendant's guilty plea, the Government agreed not to oppose a two-level "acceptance of personal responsibility" reduction under the Sentencing Guidelines and not to oppose a sentence at the low end of the guideline range. The Court accepted the Defendant's plea.

 At the conclusion of the proceedings, defense counsel and the Prosecutor approached the bench and thence informed the Court of the possibility that sentencing may need to be postponed if the Defendant cooperates with the Government. However, the government "made no representations whatsoever as to whether any request might be made to our Departure Committee regarding substantial assistance." BC at 2.

 The sentencing date was originally set for December 3, 1990, but the Court granted the Defendant's unopposed Motion to postpone it until January 3, 1991, because factors not related to sentencing could not be determined by December 3. On or about December 19, 1990, the Defendant was informed that the Government would not recommend a departure.

 The Defendant moved this Court under Federal Rule of Criminal Procedure 32(d) to set aside his guilty plea on the basis of a government breach of a plea agreement. In a published opinion, the Court denied the Defendant's motion. United States v. Larry S. Jordan, 759 F. Supp. 902 (D.D.C. 1991). The Defendant then made the ...


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