Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

8-27-2004

USA v. Jones Precedential or Non-Precedential: Precedential

Docket No. 03-1411

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Recommended Citation "USA v. Jones" (2004). 2004 Decisions. Paper 347. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/347

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. PRECEDENTIAL David L. McColgin (Argued) Assistant Federal Defender UNITED STATES COURT OF Supervising Appellate Attorney APPEALS FOR THE THIRD CIRCUIT Maureen Kearney Rowley Chief Federal Defender Robert Epstein Federal Court Division No. 03-1411 Defender Association of Philadelphia Philadelphia, PA 19106

Attorneys for Appellant UNITED STATES OF AMERICA Patrick L. Meehan v. United States Attorney Laurie Magid GARY W. JONES, Deputy United States Attorney Appellant for Policy and Appeals Robert A. Zauzmer Assistant United States Attorney Senior Appellate Counsel On Appeal from the United States Peter D. Hardy(Argued) District Court Catherine Votaw for the Eastern District of Pennsylvania Assistant United States Attorneys (D.C. Criminal No. 02-cr-00575) Philadelphia, PA 19106 District Judge: Hon. Eduardo C. Robreno Attorneys for Appellee

Argued March 11, 2004 OPINION OF THE COURT

Before: SLOVITER and NYGAARD, Circuit Judges, and SHADUR, District SLOVITER, Circuit Judge. Judge* Appellant states that the issue (Filed: August 27, 2004) before us is “[w]hether the district court had the authority under U.S.S.G. § 5K2.0 to grant a downward departure, in the absence of a government motion, on the * H o n . M i l t o n I. Shad ur, U nite d basis of Mr. Jones’s substantial assistance States District Court Judge for the in two civil matters.” We see the issue Northern District of Illinois, sitting by differently, albeit related. The answer to designation. the issue posed by appellant is clear – a district court may depart under U.S.S.G. The Braids hired a new financial Section 5K2.0 without a Government adviser who discovered the theft in motion, and to the extent that the District October 1999 and they informed the FBI Court in this case said otherwise, it and the SEC, which began investigating misspoke. The more difficult question Jones. Jones eventually admitted his raised by this appeal is whether appellant’s embezzlement and began cooperating with assistance was a factor that falls within the the authorities in investigating IRL. Jones scope of Section 5K2.0. states that in the course of assisting the authorities, he made 60-70 phone calls, I. two of which were monitored; attended 15-20 meetings; and wore a body wire for From October 1998 to April 1999, the FBI during a meeting. After the FBI Jones embezzled $236,626 in retirement decided not to pursue a criminal funds from Arthur and Selma Braid, an investigation of IRL in August 2000, Jones elderly couple for whom Jones worked as remained in contact with the SEC an accountant and financial advisor. Jones regarding IRL until November 2000. accomplished this crime by forging Mr. Jones alleges that he provided substantial Braid’s signature on checks from Fidelity assistance, even purchasing a copy Investments, where the Braids maintained machine from his own funds to copy their retirement funds, and depositing the thousands of pages of relevant documents checks into his own account. Also, during to present to the SEC, traveled to the this period Jones advised the couple to Philippines to investigate IRL abroad, and invest $10,000 and Jones himself invested provided three to four hours of testimony his own funds and M r. Braid’s stolen under oath “as part of the investigation of retirement funds in International Recovery, this company,” which he believed had Limited (IRL) for what turned out to be a “broken some laws and would be subject fruitless venture. Mr. Braid later sued to some kind of p[ro]secution for that.” Fidelity, but recouped less than half of the App. at 31a-32a, 45a-46a. Jones concedes, embezzled funds. 1 however, that he undertook many of these efforts without having been instructed to do so by the Government. Jones contends 1 that IRL stopped soliciting investors and Fidelity paid Mr. Braid $125,000, went out of business, in part, because of and was reimbursed by its insurance his actions. An SEC representative company. The Braids’ losses exceeded the informed the Government that it “never amount of the embezzled funds as they acted on the defendant’s statements incurred legal expenses in seeking to because they could not be corroborated.” recoup the loss and were required to pay Supp. App. at 3. back taxes, penalties and interest, because Jones failed to file their Pennsylvania tax The Government indicted Jones for returns for six or seven years.

2 bank fraud pursuant to

Section 5K2.0 motion for a downward and he pled guilty on October 24, 2002. departure, stating: Jones moved for a downward departure based on, inter alia,2 his cooperation with [D]istrict courts have no the SEC and FBI in reporting IRL’s authority to grant substantial activities, unco vering its financial departures under 5K2.0 in “inaccuracies and misappropriations,” and the absence of a exposing “undercover embezzling” by Government motion under officers of the corporation. App. at 102a- 5K1.1. And in this case, 04a. Jones also argued that Mr. Braid there has been no motion received a settlement from Fidelity, based under 5K1.1. in part on his assistance and willingness to testify, which provided additional grounds Additionally, there is no for a downward departure. claim of unconstitutional motive or discrimination or Critically, Jones moved for this bad faith on the part of the downward departure pursuant to U.S. Government. Sentencing Guideline Section 5K2.0. Section 5K2.0 permits departures for I think to the extent “mitigating circumstance[s] . . . not that the defendant has adequately taken into consideration by the cooperated, that should be Sentencing Commission”; it does not taken care of and the require a supporting motion from the defendant should be credited Government, as is required for a motion with in the senten cin g for substantial assistance under Section guid elines for his 5K1.1. The Government opposed Jones’ cooperation with the SEC motion, arguing that he was not eligible and all the other efforts that for a Section 5K2.0 departure because he have been outlined here. had not alleged unconstitutional motive or bad faith acts by the Government. And finally, I find that the combination of all The District Court denied Jones’ of those factors do not warrant a departure under Koon versus the United 2 States. And, again, I Jones also argued that a departure recognize that I have the was warranted because of his post-offense power to depart as a result rehabilitation (alcoholism recovery) and of a combination of these his ability to make restitution to his victims factors, but I find that this is if he were not jailed. These grounds are a case which does not not at issue on appeal.

3 warrant or justify it States v. Dominguez,

, 195 and it’s not an (3d Cir. 2002) (holding that district court appropriate case for had authority to grant Section 5K2.0 the exercise of that downward departure despite Government’s discretion. opposition); see also United States v. Vitale,

(3d Cir. 1998) App. at 74a-75a. (noting that district court granted defendant’s § 5K2.0 departure, without The District Court sentenced Jones mention of Government support or to imprisonment for 18 months and opposition thereto). required him to make restitution to the Braids. Jones timely appealed.3 The more difficult question raised by this case is whether a defendant’s II. assistance in connection with a civil investigation or case falls within the scope Jones’ primary contention on appeal of Section 5K2.0, as Jones contends, rather is that the District Court improperly held than within the scope of Section 5K1.1. that it did not have authority to grant a Jones contends that his assistance to the downward departure under Section 5K2.0 SEC took him outside the ambit of Section without an accompanying motion by the 5K1.1. Jones argues that we should Government in support. Inasmuch as this confine the supporting motion requirement presents a legal issue, we review the of Section 5K1.1 to substantial assistance District Court’s conclusions of law de on criminal matters and that we should novo. United States v. Abuhouran, 161 hold that the district courts have the F.3d 206, 209 (3d Cir. 1998). discretion to grant departures for assistance in civil matters under Section Departures pursuant to Section 5K2.0, which does not require a 5K2.0 do not hinge upon a Government’s supporting Government motion. motion in support thereof. U.S. Sentencing Guideline Section Sentencing Guidelines Manual § 5K2.0. 5K2.0, as it applied to Jones, provided in There is no such requirement in the part: Guideline, and courts that have granted § 5K2.0 Grounds for Departure such departures have done so without any (Policy Statement) Government motion. See, e.g., Koon v. United States,

(1996); United Under

(b) the sentencing court may impose a sentence outside 3 the range established by the W e h a v e j u r i sd i c t io n o v e r this applicable guideline, if the matter pursuant to

and court finds “that there exists

(a).

4 an aggravating or range may be relevant to m i t i g a t i n g this determination if such circumstance of a characteristic or kind, or to a degree, circumstance is present to not adequately taken an unusual degree and into consideration by distinguishes the case from the Sentencing t h e “ he a r tla nd” c as e s Com m i s s io n in covered by the guidelines. f o r m u l a t in g t h e g u i d e l in e s t h a t should result in a sentence different U.S. Sentencing Guidelines Manual § from that described.” 5K2.0.4 . . . [T]he court may depart from the In Koon, the Supreme Court, in a g u i d e l i n e, e v e n thorough discussion of Section 5K2.0, though the reason for stated that although Section 5K2.0 does departure is taken not impose a “limit on the number of into consideration in potential factors that may warrant the guideline range departure,”

(quoting Burns (e.g., as a specific v. United States,

, 136-37 offense characteristic (1991)), downward departure factors may or other adjustment), be categorized as falling into four primary if the court groups: factors that are prohibited, determines that, in encouraged, discouraged, or unmentioned. light of unusual Koon,

. Consideration of circumstances, the weight attached to that factor under the 4 A l t h o u g h S e c t io n 5 K 2 . 0 w a s guidelines is amended in 2003 by the Prosecutorial inadequate or Remedies and Tools Against the excessive.... Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108- [A]n offender characteristic 21, § 401(m)(2)(A),

, 675 or other circumstance that is (Apr. 30, 2003), this amendment does not in the Commission’s view, apply to Jones, whose criminal conduct “not ordinarily relevant” in occurred and who was sentenced prior to determining wh ether a the amendment. The amendments do not sentence should be outside change the substance as applicable to the applicable guideline Jones.

5 substantial assistance in civil matters is not become overly-involved in executive and prohibited, encouraged, or discouraged. investigative functions.

. In both Substantial assistance in civil matters is an of those instances, the departure at issue unmentioned factor and thus this court was sought under Section 5K1.1. “must, after considering the ‘structure and theory of both relevant individual However, we acknowledged that guidelines and the Guidelines taken as a other courts have recognized a third whole,’ decide whether it is sufficient to category of cases in which a downward take the case out of the Guideline’s departure for substantial assistance is heartland.”

(quoting United States v. possible under Section 5K2.0 in the Rivera,

(1st Cir. 1993)). absence of a Government motion. We explained: This court has not yet addressed the issue whether assistance in civil matters Some cases have found that falls within Section 5K2.0. In United a departure is permitted States v. Abuhouran,

(3d Cir. under § 5K2.0 in the 1998), we considered a somewhat related absence of a government issue: whether Section 5K2.0 gave the mo tion for subs tantial district court the authority to depart assistance to branches of downward in a criminal case on the ground government other than those that defendant offered su bstan tial that engage in prosecutorial assistance to the Government even though a c t iv it i e s w h e n t h e the Government had not moved for the assistance does not involve departure under Section 5K1.1. In “ t h e i n v e st i g a ti o n o r rejecting the defendant’s claim, we noted prosecution of an other we had recognized only two “extraordinary person who has committed circumstances” in which a district court an offense.” See, e.g., may depart from the Guidelines without United States v. Sanchez, governmental acquiescence: where the

(9th Government refused to file a substantial Cir. 1991) (assistance in the a ssi st a n ce mo tio n based on an prosecution of a civil unconstitutional motive,

at 212 (citing forfeiture case); United Wade v. United States,

States v. Khan, 920 F.2d (1992)); and where the Government acted 1100, 1107 (2d Cir. 1990) in bad faith with regard to a plea (assistance in rescuing an agreement,

(United States v. Isaac, 141 informant kidnapped by F.3d 477, 484 (3d Cir. 1998)). We foreign drug dealers); reasoned that such a limited construction United States v. Stoffberg, was necessary to ensure that the judiciary

, 19 not be forced to police prosecutors or (E.D.N.Y. 1992) (assistance

6 to a congressional assistance in connection with a civil committee). matter, which he contends is cognizable only under Section 5K2.0. Abuhouran,

n.5. Although we acknowledged this line of cases, we Jones would have us limit Section declined to address the merits of the cases 5K1.1 to assistance in criminal because the defendant in the case before us investigations. Application Note 1 on appeal had provided assistance “to the provides that “substantial assistance in the executive branch in furtherance of its law investigation or prosecution of another enforcement responsibilities.”

(citation person who has committed an offense may omitted). Nonetheless, we declined to justify a sentence below a statutorily foreclose this third exception, stating that required minimum sentence,” while Section 5K2.0 departures are permissible Application Note 2 explains that where the Government has acted with an “[s]ubstantial assistance is directed to the unconstitutional motive, in bad faith with investigation and prosecution of criminal regard to a plea agreement, “and possibly activities by persons other than the those [cases] in which the assistance is not defendant.” U.S. Sentencing Guidelines of the sort covered by § 5K1.1.” Id. at Manual § 5K1.1, cmt. nn. 1, 2. Also, the 214. Because the defendant in Abuhouran Background note refers to assistance in did not qualify for any of the exceptions criminal investigations, stating that “[a] and he conceded that his assistance defendant’s assistance to authorities in the involved purely criminal investigations investigation of criminal activities has and prosecutions, we concluded that he been recognized in practice and by statute was not eligible for a departure under as a mitigating sentencing factor.” Id. at Section 5K2.0. cmt. background. None o f the commentary is preclusive of assistance Section 5K1.1 provides that, beyond that to the criminal investigators. “[u]pon motion of the government stating In fact, a portion of the Background note that the defendant has provided substantial suggests a broader scope, as it states that, assistance in the investigation or “[t]he nature, extent, and significance of prosecution of another person who has assistance can involve a broad spectrum of committed an offense, the court may conduct that must be evaluated by the depart from the guidelines.” U.S. court on an individual basis.” Id. Jones’ Sentencing Guidelines Manual § 5K1.1. argument that the only assistance that can The bare text of Section 5K1.1 is thus be considered under Section 5K1.1 is to silent as to what type or types of assistance investigation of a person’s criminal it includes. In the instant case, Jones activities is unpersuasive. After all, what posits a sharp demarcation between is at issue are Sentencing Guidelines, assistance in connection with a criminal applicable only to sentencing for “criminal matter, the realm of Section 5K1.1, and activities.”

7 Jones calls our attention to case law Khan, 920 F.2d at 1107. The court did not from the Courts of Appeals for the Second, actually decide the departure should have Ninth, and Sixth Circuits supporting the been granted because the defendant had c o n c l u s i o n t h a t S e ct i o n 5 K 2 .0 waived this argument by failing to alert the encompasses assistance that was not district court at sentencing of these provided in the in vestigation or activities. Shortly thereafter, the same prosecution of another person even though court clarified its discussion in Khan by it trenched on an underlying criminal stating that Khan limited this exception to matter. In United States v. Khan, 920 F.2d “assistance to the Government other than 1100 (2d Cir. 1990), cert. denied, 499 U.S. the supplying of information relevant to 969 (1991), the court stated that a the prosecution of other individuals, e.g., departure under Section 5K2.0, without a assistance by the defendant that allegedly Government motion, might be appropriate saved the life of a Government agent.” where the defendant saved the life of a United States v. Agu,

(2d kidnapped confidential informant because Cir. 1991). the Sentencing Guidelines did not readily provide a basis to account for such heroic In United States v. Sanchez, 927 efforts. Id. at 1107. The court stated that F.2d 1092 (9th Cir. 1991) (per curiam), the a Section 5K2.0 departure may be Court of Appeals for the Ninth Circuit available: held that assistance provided in a civil forfeiture proceeding was not “substantial where the defendant offers assistance” within the meaning of Section i n f o r m a ti o n r e g a r d i n g 5K1.1. Although the defendant argued actions [the defendant] took, that the district court had declined to grant which could not be used by a Section 5K2.0 motion based on its belief the government to prosecute that it lacked the authority to do so without other individuals (rendering a Government motion in support thereof, § 5K1.1 inapplicable), but the court found no indication in the record which could be construed as that the sentencing judge believed a a “mitigating circumstance” downward departure under Section 5K2.0 for purposes of § 5K2.0. was impermissible and thus affirmed the See Guidelines § 5K1.1, decision without clearly stating that Commentary, Application assistance in civil forfeitures actions could No te 2 (“Substa ntial be grounds for a Section 5K2.0 departure. assistance is directed to the Id. at 1093-94. We need not express our investigation and view of the holdings in these cases because prosecution of criminal they do not discuss the situation in Jones’ activities by persons other case, where the investigation in which he than the defendant”). provided assistance was both criminal and civil.

8 Jones relies heavily on United defendant substan tially assisted in States v. Truman,

(6th Cir. proceedings “other than [those] toward the 2002), which did not arise under the joint prosecution of another person,” Section or sequential investigation scenario. The 5K1.1 and its requirement of a defendant in Truman, who had been Government motion do not apply.

The caught attempting to sell drugs he stole Sixth Circuit also stated that a Section from the pharmaceutical laboratory where 5K2.0 departure may have been warranted, he worked, assisted the Government in apart from the acceptance of responsibility exposing security lapses at the laboratory. departure that he received, because the Drug Enforcement Agency (DEA) agents defendant’s cooperation in developing shared this info rmatio n with the “prophylactic measures” to prevent future laboratory, which then corrected and lab thefts had “extend[ed] beyond the upgraded its security procedures based on garden variety acceptance of responsibility the defendant’s identification of risk areas. and thus was either not taken into account The defendant highlighted his significant by the Guidelines or was accounted for in assistance to DEA investigators in their the Guidelines but was present in this case effort to upgrade the lab’s security to an exceptional degree.”

. The procedures as grounds for departure. court thus clarified that on remand, the Critically, he moved for a departure under district court was not bound by Section Section 5K2.0, rather than Section 5K1.1, 5K1.1 and could determine if a Section which would have required a Government 5K2.0 departure was, in fact, appropriate. motion.

The district court concluded that, Jones contends that his case is absent a motion from the Government to analogous to the Truman case where the depart, it lacked the discretion to grant defendant’s assistance did not lead to the defendant a downward departure for investigation or prosecution of any party “assistance offered by a defendant which for criminal matters. In fact, Jones’ case is did not result in the investigation or distinguishable from Truman because it prosecution of another individual.”

at does not appear that the laboratory in 587. The Court of Appeals for the Sixth Truman was the subject of a criminal Circuit vacated and reversed the district investigation. The DEA was interested in court decision, reasoning that Section preventing other potential wrongdoers 5K1.1 applies only to substantial from defeating the lab’s security systems assistance for “the investigation and in the future, and it was in that connection prosecution of another individual who has that Truman offered assistance. By committed a crime,” based on Section contrast, here Jones alleges that IRL had 5K1.1’s commentary and description of “broken some laws and would be subject assistance in “criminal” matters.

at to some kind of p[ro]secution for that.” 590. The court thus concluded that if a App. at 45a. It is in that connection,

9 clearly covered by Section 5K1.1, that the criminal prosecution does not Jones proffered his assistance. constitute the type of extraordinary factor contemplated by Section 5K2.0 or Koon. At sentencing, the Assistant United This is not a situation as presented in States Attorney conceded that Jones Truman where the assistance given by the provided some assistance but stated that it defendant was unrelated to any prospective could not be corroborated and therefore investigation into criminal actions by a did not lead to any action by the person other than the defendant. In this Government. App. at 80a. An FBI agent case, although the assistance which Jones testified at sentencing to the same effect. relies on was to the SEC it was, in fact, He stated that Jones wore a wire as related to a criminal investigation. requested, and that he did what he said he would do but the information provided As the Government emphasizes, was not helpful. Jones assisted both the SEC and the FBI in connection with a criminal investigation The District Court declined to into fraud and securities violations. The exercise its discretion to grant a downward Government points out that Jones’ own departure. The court stated: motion for a downward departure described his assistance to the SEC as [T]here is no claim of based on his belief that IRL had “broken unconstitutional motive or some laws” and committed “offenses” discrimination or bad faith based o n “ i n a c curacies and o n t h e pa r t o f t h e misappropriations” in financial statements Government. and that a corporate officer had been “embezzling” funds. App. at 45a, 103a. I think to the extent The Government contends that these that the defendant has allegations could only be construed as cooperated, that should be “allegations of crimes.” Gov’t Br. at 39. taken care of and the defendant should be credited Lastly, the Government contends wit hin the sentencing that we have previously interpreted guidelines for his Section 5K1.1 to encompass assistance to cooperation with the SEC all “authorities.” Gov’t Br. at 49. The and all the other efforts that Government relies upon United States v. have been outlined here. Love,

(3d Cir. 1993), in which we held that Section 5K1.1 applied App. at 74a. to both federal and state authorities because nothing in “§ 5K1.1 or in the On appeal, the Government argues accompanying commentary [suggests] that that cooperation in a civil suit related to the Commission meant to limit ‘assistance

10 to authorities’ to assistance to federal against this company [IRL].” App. at 31a. authorities.” Id. at 734. In the same vein, Again, he stated, the Government highlights a district court decision from Virginia in which that court And – and, in fact, rejected a defendant’s motion for a Judge, as you read through downward departure under Section 5K2.0 t h e l i n e s h e r e , h is based on his assistance to the SEC and cooperation with the FBI foreign authorities. The court found that and later with the Securities while those agencies were not involved in and Exchange Commission, prosecuting offenses, the Sentencing a g a i n , t h o u s a nd s a n d Commission likely assumed that Section thousands of boxes of 5K1.1 would encompass cooperation with documents, he copies for the “a variety of government organizations,” SEC in their investigations. including the SEC. United States v. Dowdell,

, 594 App. at 31a. Jones himself stated similarly (W.D.Va. 2003), reconsideration granted at sentencing: in part on other grounds,

(W.D.Va. Oct. 28, 2003). Following the work with Special Agent Cosgraf and Jones does not dispute that the SEC the FBI, it was immediately may qualify as an authority to which followed by the Securities substantial assistance can be provided in and Exchange Commission criminal investigations, nor that the list of with a subpoena from them, authorities may be expanded beyond the which required photocopies federal government; instead, he argues that of an extreme amount of he assisted the SEC in pursuing a civil documentation that was in – investigation, a circumstance not in my files. There was – contemplated by Love or Dowdell. there was probably well over – you know – two Jones can hardly argue that the transfer files full, that was – SEC’s investigation was unrelated to the that was photocopied. potential criminal action. At sentencing, Jones’ lawyer stated not once but twice App. at 46a. that Jones’ assistance to the two government investigations was sequential. In light of Jones’ position in the He stated that Jones bought the copy District Court, we need not remand for any machine “so that he could copy the factual findings as to the relatedness of the documents and get them to the FBI and FBI and SEC investigations because the later to the Securities and Exchange record of such relatedness is clear. The Commission as part of the investigation fact that the FBI discontinued its

11 investigation while Jones continued his within the heartland of a separate assistance to the SEC does not negate the Guideline provision cannot be the basis of interconnection between the investigations a departure under Section 5K2.0. by both Government authorities. For Although substantial assistance in civil example, had the SEC investigation matters may be recognized under Section ultimately uncovered criminal acts by IRL, 5K2.0, we need not decide that issue under there can be no doubt that those facts the facts of this case. Because Jones’ would have been transmitted to the FBI for cooperation fell within Section 5K1.1 (had its consideration for future prosecution. the assistance been sufficiently substantial to warrant the Government’s motion to The p r e s e n te n c e r e p o rt depart) and Section 3E1.1, it was not recommended that Jones’ cooperation be appropriate for consideration under taken into account under U.S. Sentencing Section 5K2.0. We reject Jones’ Guideline Section 3E1.1 providing that a contention that the District Court erred as district court may decrease a defendant’s a matter of law in denying his motion for offense level “[i]f the defendant clearly departure under Section 5K2.0. demonstrates acceptance of responsibility for his [or her] offense,” which may be III. demonstrated by, inter alia, “voluntary assistance to authorities in the recovery of For the reasons set forth above, we the fruits and instrumentalities of the will affirm the judgment of the District offense.” U.S. Sentencing Guidelines Court. Manual § 3E1.1 & cmt. n.1(e). The District Court stated that it was doing so. See App. at 74a (District Court stating, “I think to the extent that the defendant has cooperated, that should be taken care of and the defendant should be credited within the sentencing guidelines for his cooperation with the SEC and all the other efforts that have been outlined []”); App. at 89a (District Court stating that Jones “undertook efforts to cooperate with the Government and provided reliable and truthful information, however, it was not significant enough to earn a 5K1[.1] departure. Nevertheless, [] he should be credited with that – with that effort”).

Under Koon, a factor that fits

12