The Defendant's base offense level was 26 under the Sentencing Guidelines. In addition, the Court granted the Defendant a two-level reduction in his sentence level for Acceptance of Responsibility. Pursuant to the Sentencing Guidelines which specify the sentencing range for an adjusted offense level of 24, the Court was authorized to sentence the Defendant to from between 57 and 71 months. At the sentencing hearing, the Court sentenced the Defendant to 70 months imprisonment, a supervised release term of four years, and payment of a $ 50 Special Assessment. The Court then found that the Defendant was unable to pay the costs of incarceration and did not impose an alternative sanction.
In addition to other lesser factors, the Court sentenced the Defendant to the high end of the sentencing range because of his previous conviction for a similar offense, his use of his common law wife and children in his drug-dealing activity, and his abuse of the public trust in his official capacity as a Corrections Officer.
A. THE GOVERNMENT MADE NO REPRESENTATIONS TO THE DEFENDANT OR HIS ATTORNEY THAT HE WOULD BE GIVEN ANYTHING MORE THAN AN OPPORTUNITY TO COOPERATE WITH ONGOING INVESTIGATIONS SO THAT HE MAY, AT THE DISCRETION OF THE DEPARTURE COMMITTEE, EARN A DEPARTURE MOTION FOR SUBSTANTIAL ASSISTANCE.
The Defendant contends that the government acted arbitrarily or in bad faith when it allegedly reneged on its promise to give the Defendant the opportunity to cooperate with the Government's investigation and to thereby qualify for a substantial assistance departure from the statutory minimum sentence pursuant to § 5K.1 of the Sentencing Guidelines. As a remedy for the alleged breach of the plea agreement, the Defendant asks the Court to order the Government to specifically perform the plea agreement by filing a § 5K.1 departure motion.
When a prosecutor makes some agreement or promise to illicit a plea, that promise or agreement must be fulfilled. Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). However, Courts are ill-equipped to review "the Government's enforcement priorities," and "the case's relationship to the Government's overall enforcement plan." Wayte v. United States, 470 U.S. 598, 607, 105 S. Ct. 1524, 1530, 84 L. Ed. 2d 547 (1985).
The facts in this case surrounding the Defendant's plea agreement were substantially addressed by this Court's opinion in United States v. Larry S. Jordan, 759 F. Supp. 902 (D.D.C. 1991). That opinion addressed the Defendant's Rule 32(d) Motion to Set Aside his guilty plea on the basis of either an alleged Government breach of a promise to allow the Defendant to cooperate in return for a departure motion or the existence of a valid entrapment defense.
The Defendant in that Motion asked the Court to require the government to negotiate with him so that he may render the 'substantial assistance' which would qualify him for receiving a departure motion. In rejecting the Defendant's Motion on the basis of an alleged Government breach, the Court held, in pertinent part, that "no promises regarding cooperation were made and . . . the defendant did not plead guilty in reliance on a promise of a departure for substantial assistance." U.S. v. Larry S. Jordan, 759 F. Supp. 902, 906 (D.D.C. 1991). In its discussion of this holding, this Court recognized that "the government has broad discretion in determining whether its resources are wisely spent by continuing discussions with any particular informant." Id., at 905. Further, where the continuance of a relationship between the Defendant and the Government was a matter clearly committed to the prosecutor's discretion, this Court refused to second-guess the prosecutor's exercise of that discretion "absent any evidence that the prosecutor's decision to discontinue discussions was 'deliberately based upon an unjustifiable standard such as race, religion, or arbitrary classification.'" Id., at 905; citing Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 663, 668, 54 L. Ed. 2d 604 (1978).
Considering the Court's previous findings of fact and the lack of any substantial new factual evidence related to the Defendant's motion now before the Court, it is clear that the Government did not enter into any quid pro quo with the Defendant which would obligate it at any point outside the exercise of its own discretion to file a departure motion on the Defendant's behalf. When informing the Court of the possibility of a plea agreement, the Assistant United States Attorney took pains to make it clear for the record that it had made "no representations whatsoever as to whether any request might be made to our Departure Committee regarding substantial assistance." BC at 2. In addition, no evidence submitted by either party at the February 17th hearing changes the Court's previous finding that the Government offered the Defendant nothing more than an opportunity to cooperate.
B. THE GOVERNMENT ACTED WELL WITHIN ITS PROSECUTORIAL DISCRETION AND DID NOT ACT ARBITRARILY, INVIDIOUSLY, OR IN BAD FAITH WHEN IT DECIDED TO TERMINATE THE DEFENDANT'S ROLE IN ITS INVESTIGATION WITHOUT FILING A DEPARTURE MOTION FOR SUBSTANTIAL ASSISTANCE.
The Defendant's instant motion revisits the facts brought before the Court in his 32(d) motion. The Defendant again seeks to compel the Government to file a departure motion, however, this motion is based on allegations of bad faith or arbitrariness rather than a simple breach of the plea agreement.
In the Defendant's pleadings for this motion, he agrees that the Government's only obligation pursuant to the plea agreement was "to give [the] defendant the opportunity to cooperate in order to earn a § 5K.1 motion." Defendant's In Camera Offer Of Proof In Support Of Motion, p. 1. As this Court noted in Jordan, 759 F. Supp. 902 (D.D.C. 1991), the parties' plea agreement gave the prosecutor broad discretion to terminate the Government's relationship with the Defendant. It is apparent from the record that this broad discretion was fashioned to protect the Government in a situation such as this one where the Defendant's efforts might compromise the investigation. The Defendant admitted at the February 17th hearing that he had suffered from drug addiction. In addition, the Defendant either lied about or grossly misrepresented his college record in open court.
The testimony received at the February 17th hearing also indicates that the Defendant displayed a volatile temper in his briefings with the Government, threatening several times to end his cooperation in the investigation. Finally, the Defendant's good friend and former attorney, Mr. Rudasill, testified that the Defendant zealously protected his self-interest in any given situation. The record supports Mr. Rudasill's characterization where it relates that the Defendant was accompanied by his common law wife and their children in an effort to shield his drug dealing when he was caught on videotape performing the acts which led to his arrest. Transcript of Defendant's Plea, p. 7.
It is clear from the record that the Government was well within its prosecutorial discretion, and not acting arbitrarily or in bad faith, when it decided to terminate its relationship with the Defendant without filing a departure motion on his behalf. The Defendant admitted that contacting his common-law wife was a mistake under the plea agreement. Considering this breach of the agreement and in light of the Defendant's past conduct, the Government could reasonably conclude that termination of the agreement with the Defendant was necessary to protect its overall investigation. Finally, no other independent evidence of bad faith on the part of the Government exists on the record.
After carefully considering the applicable law, the parties pleadings, and the entire record herein, the Court concludes that the Defendant has not offered any evidence that the Government acted arbitrarily, invidiously, or in bad faith when it decided to end its relationship with the Defendant without filing a departure motion on his behalf. Accordingly, the Defendant's Notion to Vacate, Set Aside, or Correct his Sentence is denied. The Court will issue an order of even date herewith in accordance with this Opinion.
February 28, 1994
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
In accordance with the Court's Opinion filed on this date, and for the reasons stated therein, it is, by the Court, this 28 day of February, 1994,
ORDERED that the Defendant's Motion to Vacate, Set Aside, or Correct Sentence shall be and hereby is denied.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE