U.S. v. Goroza

Citation941 F.2d 905
Decision Date08 August 1991
Docket NumberNo. 90-10142,90-10142
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Robert GOROZA, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

R. Michael Burke, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellant.

Samuel P. King, Jr., King & King, Honolulu, Hawaii, for defendant-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before CHOY, TANG and FLETCHER, Circuit Judges.

PER CURIAM:

The United States appeals the district court's downward departure from the range prescribed by the United States Sentencing Guidelines in sentencing Robert Goroza. We reverse and remand for resentencing.

FACTS

In August, 1988, Goroza was informed by Jaime Sapla that he knew of a potential cocaine buyer to whom they could sell cocaine. In order to secure a source for the cocaine, Goroza contacted his niece, Sherry Joseph, who arranged to obtain cocaine from her roommate, Paul Valov. One ounce of cocaine was eventually delivered by Joseph to Goroza and then to the buyer, a Drug Enforcement Administration agent working undercover.

Shortly thereafter, plans for a second sale of cocaine were made with the DEA agent. On September 2, 1988, Goroza drove to Joseph and Valov's apartment to obtain cocaine to deliver to the DEA agent. After obtaining the cocaine, Goroza drove to meet the undercover officer, where he was arrested.

Goroza agreed to cooperate with federal agents after his arrest. He provided the authorities detailed information that implicated Joseph, Valov, and Sapla. In the course of doing so, Goroza told federal agents that Valov had physically delivered the cocaine that Goroza had picked up at the apartment building earlier that evening. Goroza repeated this statement in his description of the drug transactions before a federal grand jury, which subsequently indicted Sapla, Goroza, Joseph, and Valov on drug distribution charges.

In exchange for his assistance, Goroza and the government entered into a written plea agreement that allowed Goroza to plead guilty to a conspiracy charge and provided for dismissal of the cocaine distribution charge. Incident to his plea agreement, Goroza stated that defendant Valov had physically delivered the cocaine to him on the night of his arrest. Under the terms of the agreement, the prosecution retained discretion to move for a downward departure at sentencing.

Shortly before trial, Joseph decided to cooperate with the government in exchange for a plea agreement. At the change-of-plea hearing that followed, Joseph stated that she, not Valov, had physically delivered the cocaine to Goroza. In an interview following the plea hearing, Joseph's attorney told the government that Joseph had told him long before her decision to cooperate that she, not Valov, had turned over the cocaine. Based on the statements by Joseph, her attorney, and the subsequent interview of a DEA witness who had observed a female figure meet with Goroza at the time the cocaine was exchanged, the government concluded that Goroza's version of events was not truthful. Accordingly, because Valov's and Sapla's indictments were based on Goroza's testimony, the government moved for their dismissal. The district court granted the motion.

Subsequently, the government sought to proceed against Goroza on the initial drug distribution count. Goroza therefore withdrew Within several weeks, Goroza moved to reinstate his plea agreement and to dismiss the superseding indictment against him on the basis of his contention that he had not violated the plea agreement. The district court agreed to reinstate the plea agreement, but denied without prejudice the motion to dismiss the remaining counts of the superseding indictment. The court also granted a motion for severance of trial on the perjury count. Goroza was ultimately acquitted on the perjury charge. On that basis, the judge thereafter dismissed the remaining counts of the superseding indictment while leaving the plea agreement intact.

                his guilty plea to the conspiracy count.   A federal grand jury thereafter reindicted Goroza on the original distribution charge, a new drug charge concerning the first one ounce sale of cocaine to the DEA agent, a conspiracy charge, and a perjury charge.   Valov was also reindicted on the basis of Joseph's testimony.   No reindictment was sought against Sapla
                

At sentencing on Goroza's and Joseph's pleas of guilty, the government moved for a downward departure for Joseph pursuant to Guideline section 5K1.1 based on her cooperation with the government in prosecuting Goroza and Valov. The government made no such motion for Goroza due to its belief that Goroza had lied about the cocaine delivery. In sentencing the defendants, the district court granted the government's motion for downward departure in Joseph's case and sentenced her to 24 months imprisonment. It then sentenced Goroza to 30 months imprisonment, a sentence below the Guideline range of between 51 and 63 months. According to the district court, although Guideline section 5K1.1 authorizes downward departure only on the government's motion, departure was authorized in Goroza's case pursuant to Guideline section 5K2.0, the Guideline's general departure provision.

In the district court's words,

I ... find that [the prosecutors] have not given the proper credit and due accord to Mr. Goroza's responsibility to this case that is obvious and on the record, only because the Government can persist in sticking by its assessment that Mr. Goroza continued to lie even after an acquittal.

And that to me flies in the face of all the constitutional guarantees of a man's innocence until proven guilty. Flies in the face of a verdict, when even tested against 12 persons....

I will, therefore, exercise my authority, ... [in this] rare, rare instance where this Court finds that Mr. Goroza has cooperated fully with the United States, has offered himself fully at all times to cooperate with the United States, has acted in a responsible way throughout and has been found not guilty by a jury that he is equally deserving of a downward departure.

And under 5K2.0 and 18 U.S.C. § 3553, this sentencing Court will impose a sentence outside the range established by the applicable guideline, because the Court finds that there exists considerable mitigating circumstances of a kind or of a degree not adequately taken into consideration by the sentencing commission in formulating the guidelines. It is clear to my mind that the sentencing commission never contemplated that a man who has proven himself innocent by going to trial and found [not] guilty is not otherwise given the kind of a credit that he deserves in this case here. And so I do depart downwards.

DISCUSSION

The government contests the authority of the district court to depart downward from the Guideline range on the basis of the defendant's cooperation with the government in the absence of a government motion for such a downward departure. The parties raise three different sources of authority that could arguably justify a downward departure: Guideline section 5K1.1, Guideline section 5K2.0, and the plea agreement. We consider each in turn.

I. Guideline Section 5K1.1

Section 5K1.1 allows departure from the Guideline range when a defendant Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

                substantially cooperates with the government.   That section provides
                

The district court stated that it had no authority to depart on the basis of this section, noting that section 5K1.1 explicitly conditions such a downward adjustment "[u]pon motion of the government." We have jurisdiction to review a district court's refusal to depart downward based on its interpretation of law as barring such departure. See United States v. Morales, 898 F.2d 99, 102 & n. 2 (9th Cir.1990).

Since the time of Goroza's sentencing, this circuit has recognized that section 5K1.1's requirement that departure be premised on a government motion "might not apply if the prosecution has acted with 'bad faith or arbitrariness that might conceivably present a due process issue.' " United States v. Mena, 925 F.2d 354, 355 (9th Cir.1991) (quoting United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1493, 108 L.Ed.2d 629 (1990)). We find that departure pursuant to section 5K1.1 is inappropriate in this case, however, because the record provides no indication of any bad faith or arbitrariness that would authorize such a departure absent a government motion. The government rested its decision that Goroza did not substantially cooperate on the statements of Joseph, Joseph's attorney, and a DEA witness, all of which indicated that Goroza had perjured himself. These pieces of evidence provide sufficient grounds on which to rest the decision so as not to make it either arbitrary or in bad faith.

Simply because the government determined Goroza had not been truthful in his dealings with it, despite Goroza's acquittal on the perjury charge, does not, without more, render the government's decision arbitrary or demonstrate that it was made in bad faith. The Guidelines set out no standard of proof under which a circumstance relevant to the government's determination of substantial cooperation must be...

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