ANTHONY CHOTAS, PETITIONER V. UNITED STATES OF AMERICA No. 90-6727 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A13) is reported at 913 F.2d 897. JURISDICTION The judgment of the court of appeals was entered on October 2, 1990. A petition for rehearing was denied on December 19, 1990. Pet. App. B1. The petition for a writ of certiorari was filed on January 4, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court has authority to sentence a defendant who has cooperated with the government below the recommended Sentencing Guidelines range in the absence of a "motion of the Government" requesting a downward departure under Sentencing Guideline Section 5K1.1. STATEMENT After a jury trial in the United States District Court for the Northern District of Georgia, petitioner was convicted on one count of conspiracy to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846, and one count of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). Departing below the applicable Sentencing Guidelines range, the district court sentenced petitioner to a total term of 28 months' imprisonment, to be followed by a five-year term of supervised release. The court of appeals affirmed petitioner's conviction, but remanded for resentencing within the appropriate Guidelines range. Pet. App. A1-A13. 1. The evidence at trial showed that on November 16, 1988, a Federal Express courier in Marietta, Georgia, received a package addressed to "Julian Eaves" from Four-Star Productions of Miami, Florida. The courier suspected that the package might contain drugs based on his delivery of six or seven similar packages from Four-Star Productions. Although each of those packages had been addressed to "Julian Eaves," the packages had been sent to two different addresses and were accepted by three different persons, each of whom signed the name "Julian Eaves" on the receipts. Based on this information, the courier's supervisor opened the package and found a bag containing a white powder. The supervisor immediately contacted DEA agents, who determined that the package contained 474 grams of cocaine. Gov't C.A. Br. 7-8. Meanwhile, petitioner arrived at the Federal Express office to claim the package. An offic clerk told petitioner that the package had not yet arrived and that he would have to come back later. In response to the clerk's request for his name and telephone number, petitioner wrote down the name "Tim" and his home telephone number on a slip of paper. Petitioner returned to the Federal Express office approximately two hours later, gave the airbill number, and received the package containing the cocaine. DEA agents arrested petitioner and co-defendant John Flicking as they tried to drive away. Gov't C.A. Br. 8-9. Following his arrest, petitioner told a DEA agent that Flicking had paid him $30 to pick up the package that he thought contained video tapes. Petitioner later told another DEA agent that he had picked up the package at the behest of an unidentified stranger whom he had recently met. After further investigation, the government learned that the address on the package (as well as the addresses on two previous deliveries) was petitioner's home address and that the call-back number on the package corresponded to that on a paging device seized from Flicking at the time of his arrest. Gov't C.A. Br. 9-10. /1/ 2. Under the Sentencing Guidelines, petitioner's adjusted offense level was 22. As a category I offender, the resulting Guidelines range called for a term of 41-51 months' imprisonment. Gov't C.A. Br. 2. Petitioner requested, however, that the court depart below the recommended sentencing range because he "has provided substantial assistance to authorities in this case," by testifying as a government witness at Flicking's trial. May 2, 1989, Tr. 10 (citing Sentencing Guideline Section 5K1.1). /2/ The government opposed petitioner's request and explained the reasons for not filing a "substantial assistance" motion. The prosecutor acknowledged that there was "no doubt" that petitioner's testimony at Flicking's trial "contributed to our successful prosecution." May 2, 1989, Tr. 14. Nonetheless, the prosecutor stated that petitioner's testimony was not the kind of "substantial assistance" warranting a downward departure. As the prosecutor explained, the facts of the case were fully known at the time of petitioner's arrest, with only the element of knowledge in dispute. In denying any knowledge of the criminal venture, petitioner did not provide any information that was not previously known to the government. Indeed, the prosecutor pointed out that petitioner's testimony at Flicking's trial amounted to a recitation of the exculpatory testimony that he gave at his own earlier trial. Id. at 12, 14, 16-17. Petitioner, for example, did not provide any information regarding the Miami supplier of the cocaine. May 2, 1989, Tr. 13. Moreover, in light of petitioner's denial that he conspired with Flicking, the prosecutor stated that petitioner's testimony placed the government in a "tenuous position" since, although it supported the government's prosecution of Flicking on the substantive possession count, it undercut the government's case on the conspiracy count. Id. at 13, 15. Finally, the prosecutor noted that it was "very difficult to say that (petitioner's) testimony was truthful and reliable" in light of his persistent denials of his own participation in the crime. Id. at 15. /3/ Despite the government's refusal to file a "substantial assistance" motion, the district court granted petitioner's request and sentenced him below the recommended Guidelines range. The court found that petitioner "was a substantial contributing factor to the jury's conviction of the codefendant," May 2, 1989, Tr. 25, and therefore sentenced petitioner to a total term of 28 months' imprisonment -- 13 months below the minimum point of the Guidelines range. The court nonetheless recognized that petitioner "ha(d) not been totally truthful" and that "he could have been of much more assistance to the government." Ibid. 3. The court of appeals affirmed petitioner's conviction, but remanded for resentencing under the Guidelines. Pet. App. A1-A13. /4/ As the court of appeals explained, the Sentencing Commission fully considered the extent to which a defendant's cooperation could afford a basis for a downward departure, and provided that a court had authority to depart for this reason only upon motion of the government. Id. at A4-A5; see Sentencing Guideline Section 5K1.1. Since the government had not filed a "substantial assistance" motion here, the court of appeals concluded, the district court "erred as a matter of law in departing downward under Section 5K1.1." Pet. App. A4; see United States v. Alamin, 895 F.2d 1335, 1337 (11th Cir. 1990). /5/ Judge Clark filed a separate concurring and dissenting opinion. Pet. App. A6-A13. He noted that prior circuit precedent compelled the court's holding that "a motion by the government is a prerequisite to a district court's reduction of a defendant's sentence because of his substantial assistance to the government." Id. at A6. Judge Clark stated, however, that if he "were writing on a clean slate, (he) would hold that a motion by the government is not a prerequisite to a departure under (Sentencing Guideline Section 5K1.1)." Pet. App. A7. In his view, the Sentencing Commission had exceeded its statutory mandate in drafting Sentencing Guideline Section 5K1.1. Id. at A7-A10. Moreover, Judge Clark determined that there was "significant evidence of bad faith in the record" that would justify a downward departure even if a motion by the government were ordinarily required. Id. at A12. ARGUMENT 1. Petitioner contends (Pet. 13-14, 18-21) that the district court has authority to sentence a defendant who has cooperated with the government below the recommended Sentencing Guidelines range in the absence of a "motion of the Government" requesting a downward departure under Sentencing Guideline Section 5K1.1. To date, the courts of appeals have uniformly rejected that contention. E.g., United States v. LaGuardia, 902 F.2d 1010, 1013-1017 (1st Cir. 1990); United States v. Alamin, 895 F.2d 1335, 1337 (11th Cir. 1990); United States v. Coleman, 895 F.2d 501, 504-505 (8th Cir. 1990); United States v. Francois, 889 F.2d 1341, 1345 (4th Cir. 1989), cert. denied, 110 S. Ct. 1822 (1990). And this Court has recently declined to review that issue. E.g., Rexach v. United States, cert. denied, 111 S. Ct. 433 (1990); Sutton v. United States, cert. denied, No. 90-5952 (Jan. 14, 1991). Petitioner offers no persuasive reason for the Court to adopt a different approach in this case. In any event, petitioner's contention is meritless. Section 3553(e) of Title 18 provides that "(u)pon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense." Sentencing Guideline Section 5K1.1, which the Commission patterned after Section 3553(e), similarly provides that a court may depart from the Guidelines sentencing range "(u)pon motion of the Government stating that the defendant has provided substantial assistance" to the government. As the courts of appeals have consistently held, these provisions preclude courts from imposing sentences below the statutory minimums or the Guidelines ranges in the absence of a motion by the government. See, e.g., United States v. LaGuardia, 902 F.2d at 1013-1017; United States v. Alamin, 895 F.2d at 1337; United States v. Coleman, 895 F.2d at 504-505; United States v. Francois, 889 F.2d at 1345. The prerogative accorded to the government by Congress and the Sentencing Commission in promulgating the "substantial assistance" provisions is akin to the "exclusive authority and absolute discretion" the government exercises in determining whether to prosecute, United States v. Nixon, 418 U.S. 683, 693 (1974), or what charges to bring, United States v. Batchelder, 442 U.S. 114, 124-125 (1979); see United States v. Huerta, 878 F.2d 89, 92 (2d Cir. 1989), cert. denied, 110 S. Ct. 845 (1990). Like the decisions as to whether and how to prosecute, the government's decision not to file a "substantial assistance" motion is not subject to judicial review. United States v. Huerta, 878 F.2d at 94; see also United States v. Kuntz, 908 F.2d 655, 657 (10th Cir. 1990). Petitioner seeks to avoid this straightforward analysis by citing the fact that this case involves a departure from the penalty mandated by the Sentencing Guidelines as opposed to a departure from the penalty prescribed by the statute. Pet. 17-20. Petitioner recognizes that Congress conditioned the authority of district courts to sentence below required statutory minimums upon the filing of a "motion of the Government." 18 U.S.C. 3553(e). Petitioner argues, however, that Congress did not intend that a comparable restriction apply with respect to departures from the Guidelines, since the authorizing statute, 28 U.S.C. 994(n), provides only that "(t)he Commission shall assure that the guidelines reflect the appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense." The terms of Section 994(n) do not carry the weight petitioner would have them carry. The absence of "upon motion of the government" language in Section 994(n) does not suggest that Congress meant to allow district courts to depart below Guidelines ranges to reward a "cooperating" defendant in the absence of a motion by the government. As the language of Section 994(n) shows, Congress broadly empowered the Sentencing Commission to formulate a provision governing "substantial assistance" departures, including the imposition of sentences that might be below statutory minimums -- i.e., the subject matter Congress addressed in Section 3553(e). In exercising this authority, the Sentencing Commission drafted the Guidelines "substantial assistance" provision precisely to track Section 3553(e), the statutory "substantial assistance" provision, which Congress enacted at the same time as Section 994(n). In light of the general directive in Section 994(n) that the Guidelines contain a "substantial assistance" provision, Congress undoubtedly envisioned that the Sentencing Commission would adopt a provision that replicated in its requirements those of the model "substantial assistance" provision enacted by Congress itself. /6/ For these reasons, it is understandable that no court of appeals has ever held that the Sentencing Commission exceeded its statutory authority in promulgating Sentencing Guideline Section 5K1.1 or that the language contained in Sentencing Guideline Section 5K1.1 should be construed differently than the identical language used by Congress in enacting Section 3553(e) and Rule 35(b). 2. Petitioner also contends (Pet. 14-17) that the district court here had the authority to depart because the prosecutor's refusal to file a "substantial assistance" motion was in bad faith. Several courts of appeals have left open the question whether the bad faith refusal by the government to file a "substantial assistance" motion is subject to judicial scrutiny. See United States v. LaGuardia, 902 F.2d at 1017 & n.6; United States v. Poston, 902 F.2d 90, 100 n.11 (D.C. Cir. 1990); United States v. Justice, 877 F.2d 664, 668-669 (8th Cir. 1989); United States v. White, 869 F.2d 822, 829 (5th Cir. 1989). That issue, however, is not presented here. First, as the court of appeals pointed out, petitioner did not allege that the prosecutor's action was taken in bad faith. Pet. App. A6; see note 5, supra. Second, the district court did not base its decision to depart on any perceived bad faith on the part of the government. See May 2, 1989, Tr. 23-26. Indeed, we are not aware of any court of appeals decision holding that a prosecutor's refusal to file a "substantial assistance" motion was taken in bad faith. Compare United States v. Brown, 912 F.2d 453 (10th Cir. 1990); United States v. Spees, 911 F.2d 126 (8th Cir. 1990); United States v. Smitherson, 889 F.2d 189 (8th Cir. 1989). In any event, in light of the district court's explicit findings that petitioner "ha(d) not been totally truthful" and "could have been of much more assistance to the government," May 2, 1989, Tr. 25, petitioner failed even to establish the existence of "substantial assistance," much less that the government acted in bad faith in refusing to file a motion. See United States v. Ortez, 902 F.2d 61, 64-65 n.** (D.C. Cir. 1990) (although the defendant provided some cooperation, no "substantial assistance" where the defendant refused to wear a wire transmitter or to set up an undercover drug buy for an agent); United States v. Francois, 889 F.2d at 1343 (no "substantial assistance" where the defendant provided unreliable information). CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General ROBERT J. ERICKSON Attorney MARCH 1991 /1/ At trial, petitioner took the stand and denied knowing that the package contained cocaine. Petitioner testified that Flicking had "tricked" him into picking up the package. Gov't C.A. Br. 10. After his conviction, petitioner stuck to that testimony when he appeared as a government witness at Flicking's separate trial. Gov't C.A. Br. 13-14. /2/ Sentencing Guideline Section 5K1.1 provides that a court may depart from the Guidelines sentencing range "(u)pon motion of the Government that the defendant has provided substantial assistance" to the government. /3/ Even at the time of sentencing, petitioner continued to deny his guilt on the drug charges. May 2, 1989, Tr. 19. /4/ The court of appeals rejected petitioner's contention that the government had presented insufficient evidence to support his conviction. Pet. App. A2. Petitioner has not sought further review of that aspect of the court of appeals' judgment. /5/ For that reason, the court of appeals did not "consider whether the district court's factual finding that (petitioner) provided substantial assistance in his co-defendant's prosecution is clearly erroneous." Pet. App. A4. Moreover, since petitioner did not raise the issue, the court did not reach the question whether there is "an exception to (Sentencing Guideline) Section 5K1.1 in the rare situations in which the government in bad faith refuses to file a motion to depart." Pet. App. A6. /6/ Indeed, Congress's later adoption of Fed. R. Crim. P. 35(b) confirms this point. Rule 35(b) authorizes district courts to reduce previously imposed sentences below statutory mandatory minimums and Guidelines ranges "on motion of the Government" to reward cooperating defendants. As Rule 35(b) states, reductions under its provisions are to be made "in accordance with the guidelines and policy statements issued by the Sentencing Commission," including the policy statement with respect to "substantial assistance" departures contained in Sentencing Guideline Section 5K1.1.