US v. Roberts
| Citation | 726 F. Supp. 1359 |
| Decision Date | 16 November 1989 |
| Docket Number | 89-0074(HHG),89-0319(HHG) and 89-0342(HHG).,Crim. No. 89-0033(HHG) |
| Parties | UNITED STATES of America v. Stephaney ROBERTS. UNITED STATES of America v. Jane DOE. UNITED STATES of America v. Kenneth B. WONSON. UNITED STATES of America v. Vernon L. HOLLAND and Albert E. Mills. |
| Court | U.S. District Court — District of Columbia |
Patrice I. Kopistansky, Asst. U.S. Atty., Washington, D.C., for U.S. in Crim. No. 89-0033(HHG).
Jensen Barber, Washington, D.C., for Stephaney Roberts.
Jeffrey R. Ragsdale, Asst. U.S. Atty., Washington, D.C., for U.S. in Crim. No. 89-0074(HHG).
Billy L. Ponds, Washington, D.C., for Jane Doe.
Teresa McHenry, Asst. U.S. Atty., Washington, D.C., for U.S. in Crim. No. 89-0319(HHG).
David Carey Woll, Kensington, Md., for Kenneth B. Wonson.
Patrice I. Kopistansky, Asst. U.S. Atty., Washington, D.C., for U.S. in Crim. No. 89-0342(HHG).
Thomas Abbenante, Washington, D.C., for Vernon Holland.
Alan P. Bayles, Washington, D.C., for Albert E. Mills.
The issue before the Court is the constitutionality of the newly-enacted sentencing statute, the guidelines issued by the Sentencing Commission pursuant thereto, and certain prosecutorial practices related to these measures.
On August 29, 1988, this Court suggested in United States v. Bethancurt, 692 F.Supp. 1427 (D.D.C.1988), that the statute and the guidelines might be flawed because of due process deficiencies and a lack of fundamental fairness. Thereafter, the Supreme Court upheld the constitutionality of the sentencing law against challenges based on separation of powers and delegation of authority grounds. Mistretta v. United States, ___ U.S. ___, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). However, the Supreme Court was not called upon in that case to consider due process issues.
More recently, fact patterns indicating due process problems in sentencing have continued to emerge in criminal cases before this Court and elsewhere. This fall, the Court of Appeals for this Circuit, in the remand of a criminal case, "directed the district court to address" the due process challenge that had been asserted there. United States v. Baskin, 886 F.2d 383 (1989). It thus appears that, notwithstanding Mistretta, it is open to the lower courts to consider due process issues arising in the context of the sentencing law and the sentencing guidelines.
The five cases before the Court raise such issues. As will be seen below, all of them highlight substantial due process problems inherent in the statute and the guidelines—problems that are exacerbated by policies and practices adopted by the United States Attorney in this District in their implementation. For the reasons stated infra, the Court is of the view that the statute and the guidelines are unconstitutional as so applied.
On February 7, 1989, the defendant was indicted for distribution of cocaine base (crack) and use of a firearm. A Magistrate ordered her held without bond.2 The parties thereafter engaged in extended plea negotiations.3 Counsel for defendant related at a motions hearing held on September 7, 1989, that his client had several times waived her speedy trial rights in order that, in the interim, she might have the opportunity to provide assistance to the law enforcement authorities. In the course of that cooperation with law enforcement, defendant met with and gave information to two agents of the Federal Bureau of Investigation, an agent of the Drug Enforcement Administration, and several Assistant U.S. Attorneys. According to counsel, notwithstanding her significant assistance and the fact that an understanding had been reached that substantial leniency would be accorded to her on account of that assistance, the prosecution ultimately agreed only to permit defendant to plead guilty to the drug distribution charge which carries a mandatory minimum sentence of ten years, the theory being that her cooperation was insubstantial. Defendant filed a motion requesting judicial assistance.
Upon inquiry by the Court, the prosecutor assigned to the case corroborated the defense contention that defendant had provided substantial assistance to law enforcement authorities, such that a motion pursuant to 18 U.S.C. § 3553(e) for a departure from the mandatory minimum sentence provisions of the Code as well as a motion for a departure pursuant to section 5K1.1 of the Sentencing Commission guidelines were warranted, stating that "if it were up to me ... I would file a departure request."4 However, the United States Attorney for this District has established a so-called Departure Committee which passes on all such requests, and this committee has declined to authorize a departure. Accordingly, no prosecution motion under either section 3553(e) or section 5K1.1 has been filed.
On February 25, 1989, defendant was arrested at the District of Columbia railroad station; a search of bags located in the coach in her vicinity revealed 22 kilograms of marijuana which was ascribed by the police to this defendant and her companion (who is a fugitive). On March 23, 1989, defendant was indicted for possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(b)(1)(D) and 18 U.S.C. § 2. Defendant pleaded guilty to these charges, with the understanding that the U.S. Attorney's Office would move for a departure from the sentence prescribed by the guidelines upon her cooperation.6
Defendant and her counsel claim that she has, in fact, provided substantial cooperation to law enforcement authorities, but the U.S. Attorney's Office Departure Committee, for reasons which have remained secret to all, including the Court, has decided that her cooperation was insufficient for a departure from the guidelines sentence or a reduction pursuant to 18 U.S.C. § 3553(e). The government accordingly demands that the Court sentence the defendant in accordance with the guidelines without any departure.
Albert Mills and Vernon Holland were presented in the Superior Court of the District of Columbia on February 18, 1989, on a complaint of possession with intent to distribute cocaine, in violation of D.C.Code § 33-541; a Superior Court indictment was returned on April 19, 1989, for the same offense; and trial was set for October 5, 1989. The prosecution extended to defendants a plea offer for the offense of attempted possession with intent to distribute cocaine, which carries a one-year penalty. Defendants did not accept the offer, or at least not in what the government considered sufficient time,7 and on the very day of the trial, the matter was continued at the government's request to October 17, 1989. However, even before the request for a continuance was made, that is, on September 21, 1989, the U.S. Attorney's Office secured indictments in this Court against these defendants,8 charging them with violations of 21 U.S.C. § 841(b)(1)(B)(iii)—an offense carrying a penalty of imprisonment for five to forty years. Pending before the Court at this time are defense motions by Mills to dismiss for violations of the Speedy Trial Act and of the constitutional prohibition against double jeopardy, and a government response. In addition, Mills has moved for a dismissal on account of prosecutorial misconduct.
Kenneth Wonson was arrested on September 5, 1988; a complaint was filed in D.C. Superior Court the same day; and an indictment was thereafter returned in that court charging the defendant with possession with intent to distribute cocaine in violation of D.C.Code § 33-541(a)(1) and assault on a police officer in violation of D.C.Code § 22-505(a). The case was pending in Superior Court from that time on until October 11, 1989. A full year after his Superior Court appearance, on September 12, 1989, the defendant was indicted in this Court for offenses that were substantively identical with those with which he had previously been charged in Superior Court.9 His federal court indictment, like those of Mills and Holland, resulted from his failure to accept a government plea offer.10 The defendant has moved for a dismissal of the indictment on various grounds.
While the Court is considering the specific issues raised by the motions filed in these five cases, it will also discuss the broader due process issues presented thereby and by the interplay between the sentencing statute, the sentencing guidelines, and the prosecutorial practices.
In 1984, upon concluding that the sentencing decisions of the various federal judges, particularly judges in different districts, differed widely, Congress adopted the current sentencing law11 which has as its dominant purpose the elimination of judicially-created disparities.12 Such disparities clearly were a problem needing attention and remedying.13 But while the remedy adopted by the Congress has reduced the opportunity for sentencing disparities caused by judges, it has not solved the overall disparity problem but has merely shifted resposibility therefor to other officials.
The sentencing statute has largely replaced the traditional role of judges in the critical sentencing phase of the criminal process by vesting most sentencing decisions in prosecutors, and that law and the guidelines issued pursuant thereto have thus effected what may be the most fundamental change in the criminal justice system to have occurred within the past generation.14 Indeed, the de facto transfer of much of the responsibility for sentencing from impartial judges to prosecutors has had the effect of disturbing the due process balance essential to the fairness of criminal litigation.
As explained below, these developments have been brought about by a combination of two factors: first, the prosecution almost invariably has a choice among a considerable number of statutes and guideline provisions for proceeding...
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