U.S. v. Doe

• Decision Date: 02 August 1991
• Docket Number: No. 89-3071,89-3071
• Citation: 940 F.2d 199
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 199

940 F.2d 199

UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.

No. 89-3071.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 12, 1991.

Decided Aug. 2, 1991.

Scott D. Levine, Asst. U.S. Atty., Criminal Div., Chicago, Ill., for plaintiff-appellee.

Jack M. Denaro, Miami, Fla., for defendant-appellant.

Before CUDAHY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

In this criminal appeal, we must decide under what circumstances, if any, the United States is required to file a motion for correction of sentence under FED.R.CRIM.P. 35(b) ("Rule 35(b)" and "Rule"). In May 1988, John Doe ("Doe") ¹ was convicted in the Northern District of Illinois of two counts of possession with intent to distribute cocaine and one count of conspiracy to distribute cocaine, see 21 U.S.C. Secs. 841(a)(1) and 846. He did not appeal his conviction. Within one year of sentencing, however, he moved the District Court to order the United States, based on his substantial assistance in the investigation of other crimes, to file a Rule 35(b) Correction of Sentence Motion, or in the alternative, to correct his sentence pursuant to Rule 35(b) notwithstanding the absence of a Government's motion. The District Court denied Doe's request. We affirm.

FACTUAL BACKGROUND

Subsequent to Doe's conviction and before his sentence in this case, Doe entered into agreements of cooperation (Defendant's Exhibits Nos. 1 and 2) with the United States Attorney's ("U.S. Attorney's") Offices in two districts outside of Illinois. In both of these agreements, Doe promised to provide substantial assistance in the investigation and prosecution of narcotics offenses. Defendant's Exhibit No. 1, p 1; Defendant's Exhibit No. 2, p 1. In From all indications, Doe's cooperation pursuant to these agreements was unequivocal and exemplary. ³ Authorities in each of the two districts were thoroughly satisfied and each recommended in writing that a Rule 35(b) motion be filed in the case before us. But the U.S. Attorney for the Northern District of Illinois was persuaded that Doe's crimes were too serious to warrant any leniency regardless of his substantial assistance elsewhere. Consequently, the Government filed no Rule 35(b) motion in the present proceedings.

                return, the United States promised that any information provided by Doe pursuant to the agreements would not be used against him.  Defendant's Exhibit No. 1, p 3;  Defendant's Exhibit No. 2, p 4(a).  In addition, assuming complete cooperation by Doe, the agreements bound the U.S. Attorney's Offices in the two districts to make every effort to persuade the U.S. Attorney for the Northern District of Illinois to file a motion for correction of sentence under Rule 35(b).  Defendant's Exhibit No. 1, p 8;  Defendant's Exhibit No. 2, p 4(e)(i). 2   Finally, the agreements required that information learned from Doe would not be disclosed to anyone not ratifying the agreements to the benefit of Doe.  Defendant's Exhibit No. 1, p 10;  Defendant's Exhibit No. 2, p 5
                

In September 1988, the District Court sentenced Doe. ⁴ Both sides agree that his conviction carried a statutory ten year mandatory minimum prison term, see 21 U.S.C. Sec. 841(b)(1)(A). ⁵ The District Court sentenced him to fifteen years concurrently on the two substantive counts and suspended sentence on the conspiracy count. Based on his substantial assistance, Doe asked the District Court to reduce his sentence to ten years pursuant to the predecessor ⁶ of the current Rule 35(b). The District Court agreed and reduced Doe's sentence to the statutory minimum ten years.

Doe then sought to have his sentence reduced to less than ten years. Because the earlier version of Rule 35(b) does not authorize a reduction below a statutory minimum term, a sentence correction under the current version of Rule 35(b) (which Doe then filed the motion at issue in this appeal. He asked the District Court to order the United States to file the Rule 35(b) motion, or in the alternative, to grant him a sentence correction without a Government motion. Doe has argued that the Illinois office is bound by one of the cooperation agreements to file the motion and, if not, that the Government's refusal to file the motion violated his constitutional rights. The District Court denied Doe's request, finding that the Illinois office owed no contractual obligation to file the motion and rejecting Doe's constitutional arguments. We agree with the District Court and affirm.

does authorize such a reduction, see supra note 2) was necessary. But a Government motion is required to trigger the current Rule 35(b), and the U.S. Attorney for the Northern District of Illinois has continually refused to file the motion.

ANALYSIS

1. Which Rule 35(b) applies?

Before we can delve into the complexities surrounding breach of contract and due process, we are confronted with a rather disturbing question. Why should Doe receive the benefit of both the old and the new Rule 35(b)? The answer is that Congress says so.

The new Rule 35(b) was enacted by Congress as a part of the Comprehensive Crime Control Act of 1984. See Pub.L. 98-473 Sec. 215(b), 98 Stat. 1837, 2016 (1984). The effective date of the amendment was November 1, 1987. See Pub.L. 98-473 Sec. 235(a)(1); Pub.L. 99-217 Sec. 4. Notwithstanding this effective date, Congress provided in the Sentencing Act of 1987 that the new Rule 35(b) would apply retroactively to crimes committed before November 1, 1987. See Pub.L. 100-182 Sec. 24(3), 101 Stat. 1266, 1271 (1987).

But this does not prevent the old Rule 35(b) from applying. The Sentencing Act of 1987 also dictates that the prior version as announced by the Supreme Court on April 29, 1985, applies to all crimes committed before the effective date of the new Rule, November 1, 1987. See Pub.L. 100-182 Sec. 22.

Because Doe's crimes were committed before November 1, 1987, he fits into a window where both versions of the Rule apply. The new Rule applies because it is retroactive. The old Rule applies because his crimes were committed before the effective date of the new Rule. Therefore, the District Court was authorized to reduce his sentence to ten years based on Doe's earlier motion and would be obligated, if Doe were successful in this appeal, to decide whether his sentence should be reduced any further.

2. Was the U.S. Attorney for the Northern District of Illinois contractually obligated to file a motion?

Doe argues that one of his cooperation agreements obligates the U.S. Attorney for the Northern District of Illinois to file a Rule 35(b) motion. The cooperation agreements are contracts. If the United States breaches express or implied terms in these agreements, then it violates due process. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Lewis, 896 F.2d 246, 249 (7th Cir.1990); United States v. Rexach, 896 F.2d 710, 713-14 (2d Cir.1990), cert. den., --- U.S. ----, 111 S.Ct. 433, 112 L.Ed.2d 417 (1990). But the content of the promises is a question of fact that will only be reversed if clearly erroneous. United States v. Daniels, 902 F.2d 1238, 1243 (7th Cir.1990), cert. den., --- U.S. ----, 111 S.Ct. 510, 112 L.Ed.2d 522 (1990); United States v. Strawser, 739 F.2d 1226, 1229 (7th Cir.1984), cert. den., 469 U.S. 1038, 105 S.Ct. 518, 83 L.Ed.2d 407 (1984). The District Court finding under review is that the U.S. Attorney for the Northern District of Illinois did not accept "an obligation to persuade himself that a motion should be filed." Order Denying Rule 35(b) Motion.

Neither of the cooperation agreements contains express provisions to file the motion. The two agreeing districts have merely promised to "make every effort to persuade the ... Northern District of Illinois, to file ... a full and complete correction For many of the same reasons, Doe cannot establish an implied contractual right to the motion. Our Circuit has taken a restrictive view towards implying sentencing promises into agreements. See United States ex rel. Robinson v. Israel, 603 F.2d 635, 637-38 (7th Cir.1979) (en banc) (holding that a promise to recommend a sentence between ten and forty years did not prevent the Government from recommending to the parole board that the petitioner serve the maximum time possible), cert. den., 444 U.S. 1019, 100 S.Ct. 675, 62 L.Ed.2d 650 (1980); United States v. Mooney, 654 F.2d 482, 485-87 (7th Cir.1981) (holding that a Government promise to recommend a ten year prison term did not imply a promise not to resist the defendant's Rule 35 motion to reduce the sentence to ten years after the District Court had rejected the Government's earlier ten-year recommendation).

                of sentence motion under Rule 35(b)."    Defendant's Exhibit No. 1, p 8;  see Defendant's Exhibit No. 2, p 4(e)(i).  Nowhere in either document is a term expressly stating that the motion would definitely be filed.  One of the agreements even counters such a reading by stating that Doe "understands ... that the United States Attorney's Office in the Northern District of Illinois is not bound by that recommendation."    Defendant's Exhibit No. 2, p 4(d).  And further, both contracts contain language that no other promises outside those contained in the written documents were made.  Defendant's Exhibit No. 1, p 11;  Defendant's Exhibit No. 2, p 7.  No express promises can be found in these documents
                

Other Circuits have more squarely faced the argument for an implied term to file a Rule 35(b) motion. The Eighth Circuit flatly rejects the notion:

Furthermore, because of the extraordinary nature of the relief provided by [Rule 35(b) ] and the clear dictate that the government must first file a motion before the court may depart, no defendant could reasonably read a plea agreement to bind the government to file a [Rule 35(b) ] motion absent an explicit promise to do so. Therefore, there can...