U.S. v. Johnson

Decision Date01 June 2009
Docket NumberDocket No. 07-4587-cr.
Citation567 F.3d 40
PartiesUNITED STATES of America, Appellee, v. Stephen Anthony Marc JOHNSON, Patrick Bowler, Defendants, Gregory Paul Timewell, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Burton T. Ryan Jr., Assistant United States Attorney (Benton J. Campbell, United States Attorney for the Eastern District of New York, Peter A. Norling, Assistant United States Attorney, on the brief), Brooklyn, New York, for Appellee.

Ivan S. Fisher (Lucas E. Andino, on the brief), New York, New York, for Defendant-Appellant.

Before: MINER, RAGGI, and LIVINGSTON, Circuit Judges.

MINER, Circuit Judge:

Defendant-appellant Gregory Timewell appeals from a Memorandum and Order entered on October 4, 2007, in the United States District Court for the Eastern District of New York (Platt, J.) denying his application to be resentenced following a remand for further proceedings in conformity with United States v. Crosby, 397 F.3d 103 (2d Cir.2005). United States v. Timewell, 124 Fed.Appx. 55 (2d Cir.2005). Timewell was convicted, upon a guilty plea, of conspiracy to import 1,000 kilograms or more of hashish and marijuana, in violation of 21 U.S.C. §§ 960(a)(1), (b)(1)(G), 963, and of making false statements to federal agents in violation of 18 U.S.C. § 1001. On March 5, 2004, he was sentenced principally to a prison term of 275 months and a 5-year term of supervised release. In the Memorandum and Order determining that it would adhere to the sentence originally imposed, the District Court took into account, inter alia, the government's customary practice of rescinding cooperation agreements breached by defendants. For the reasons that follow, we vacate the sentence and once more remand for further proceedings.

BACKGROUND
I. Of the Events Leading to the Guilty Plea

Timewell, a native of New Zealand, was engaged as an international distributor and smuggler of drugs over a period of many years. He began his career as a local distributor of marijuana in Australia and New Zealand and expanded his interests to become a financier and organizer of worldwide smuggling operations. His successful efforts in distributing tons of hashish and marijuana in the United States and elsewhere enabled him to accumulate millions of dollars in personal assets.

The specific enterprise giving rise to the prosecution leading to this appeal was an undertaking by Timewell, along with co-defendants Patrick Bowler and Stephen Johnson, to smuggle 25 tons of hashish through New York for distribution in Upstate New York and Canada. Efforts to accomplish this goal occurred between 1993 and 1995, but the goal never was realized. The enterprise was infiltrated by undercover agents of the Drug Enforcement Administration ("DEA"). One undercover agent was recruited as a ship's captain to off-load the hashish from a "mother ship" in the Mid-Atlantic and to smuggle the drugs into Long Island, New York. The agent was to be paid $75,000 to cover his expenses for the trans-shipping, arrangements for payment having been made by Timewell through co-conspirator Johnson. Before the offloading could take place, the "mother ship," sailing from Pakistan under the direction of co-conspirator Bowler, sustained mechanical failure. The ship was rerouted, and its load of drugs ultimately was smuggled into Portugal and Ireland. Timewell and Johnson were arrested in Canada in 1995. Timewell subsequently waived extradition to the United States.

Timewell was indicted in the Eastern District of New York for operating a continuing criminal enterprise, conspiracy to import 1,000 kilograms or more of hashish and marijuana into the United States and conspiracy to distribute 1,000 kilograms or more of hashish and marijuana. The indictment included a demand for forfeiture of "[o]ne [h]undred [m]illion [d]ollars ($100,000,000) in United States currency and property constituting the proceeds of and derived from, directly and indirectly, the foregoing offenses." Timewell early on manifested a desire to cooperate with the government. Upon his arrival in the United States, he was extensively debriefed by agents of the DEA as well as officials of foreign governments. He provided information to them about his own criminal conduct and assets and shared with them his knowledge regarding the activities of the co-conspirators with whom he associated in the United States and throughout the world.

In a Cooperation Agreement dated February 5, 1998, Timewell agreed, inter alia, to plead guilty to conspiracy to import hashish into the United States and further agreed to provide truthful, complete, and accurate information to the Office of the United States Attorney for the Eastern District of New York. Timewell also agreed to testify at any proceedings, regardless of location, when requested to do so by the Office and to make full and complete financial disclosure. The Agreement identified numerous assets belonging to Timewell, consisting of bank accounts as well as real estate and currency in various countries throughout the world, all of which he agreed to forfeit to the government. For its part, the government agreed, inter alia, to "file a motion pursuant to Guidelines Manual § 5K1.1 and 18 U.S.C. § 3553(e) with the sentencing [c]ourt setting forth the nature and extent of [Timewell's] cooperation," thereby enabling the court to impose a sentence below the Guidelines range and below any applicable mandatory sentence, and "not [to] oppose a downward adjustment of three levels for acceptance of responsibility under Guidelines Manual § 3E1.1." The Agreement provided that, as determined by the United States Attorney's Office, if Timewell "intentionally violated any provision of th[e] agreement, [he would] not be released from his plea of guilty but th[e] Office [would] be released from its obligation ... (a) not to oppose a downward adjustment of three levels for acceptance of responsibility ..., and (b) to file the motion described" relating to the nature and extent of Timewell's cooperation. Timewell pleaded guilty to the conspiracy charge on February 5, 1998.

Timewell entered into a Supplemental Plea Agreement with the United States Attorney dated March 1, 2001, in which he agreed to waive indictment and plead guilty to a superseding information charging him with making a false statement to federal officers in violation of 18 U.S.C. § 1001. This charge was occasioned by the discovery that Timewell had misled agents regarding more than $4.8 million in Swiss francs that he had concealed in Switzerland. The discovery came about through continuing investigations relating to the arrests of Timewell's co-conspirators, including Bowler, who was arrested in Switzerland. Confronted with his failure to reveal these drug proceeds, Timewell arranged through his counsel to surrender to the government $2,089,000 in Swiss francs, that amount being the remainder of the proceeds. Timewell's story was that he originally believed that the funds in question had been removed by Bowler or those acting for Bowler. He later learned that Jim Wilson, a Canadian friend, had obtained the money and was sending monthly payments to Timewell's family. Timewell failed to notify the government of these developments and thereby violated the terms of his Cooperation Agreement. It is not contested by the government that Timewell otherwise provided extensive and substantial assistance to the government in identifying and describing the international narcotics operation of numerous individuals, including Bowler, Thomas Sherrett, and Michael Vondette, Timewell having testified as a witness at the trial of Vondette. See United States v. Vondette, 248 F.Supp.2d 149, 164 (E.D.N.Y.2001).

II. Of the Sentencing

The pre-sentence report recommended a total offense level of 41. Starting with the base level of 38, predicated upon 120,975 kilograms of marijuana, see U.S.S.G. § 2D1.1(a)(3), four levels were added for leadership role, see U.S.S.G. § 3B1.1(a), and two levels were added for obstruction of justice in the concealment of assets, see U.S.S.G. § 3C1.1. From the 44 levels thus arrived at was subtracted 3 levels for acceptance of responsibility, see U.S.S.G. § 3E1.1, with level 41 as the final result. Applying Criminal History Category I as recommended, the Guidelines Sentencing range was 324-405 months of incarceration. Prior to sentencing, the government submitted pursuant to U.S.S.G. § 5K1.1 a letter dated March 4, 2004, setting forth the basis for its recommendation that "the Court grant a significant downward departure in formulating Timewell's sentence." The letter, signed by an Assistant United States Attorney for the Eastern District of New York, described in detail Timewell's extensive cooperation with the authorities and noted that the information provided "was detailed, corroborated and consistently aided the agents in developing their investigation." According to the letter, Timewell's substantial assistance "resulted in the arrest and conviction of major drug violators and the seizure of millions of dollars in drug proceeds."

Timewell was sentenced on March 5, 2004. During the sentencing proceeding, Timewell's counsel, urging a substantial Guidelines reduction, recounted at length Timewell's extensive cooperation, assistance to various law enforcement authorities, and testimony provided at the trial of Vondette. Before imposing sentence, the court noted that Timewell had not fully cooperated and therefore was in violation of the Cooperation Agreement. Counsel for Timewell pointed out that the pre-sentence calculation accounted for that by including a two-level upward adjustment for obstruction of justice. The court responded:

I saw that. But it doesn't affect the [G]uidelines as such, the [G]uideline computation.

As I said in 99 percent of the cases where this happens the government says you don't get any cooperation letter by breaching...

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