U.S. v. Hartwell

Decision Date24 May 2006
Docket NumberNo. 04-6214.,04-6214.
Citation448 F.3d 707
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Erskine HARTWELL, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Craig Weston Sampson, Richmond, Virginia, for Appellant. David John Novak, Assistant United States Attorney, Office of The United States Attorney, Richmond, Virginia, for Appellee.


Marc L. Resnick, Washington, D.C., for Appellant. Paul J. McNulty, United States Attorney, Brian L. Whisler, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion for the court, in which Judge Williams joined as to Parts I, II, IV, and V, and Judge Shedd joined as to Parts I, III, and V. Judge Williams wrote an opinion concurring in part and concurring in the judgment. Judge Shedd wrote a concurring opinion.


NIEMEYER, Circuit Judge:

Erskine Hartwell pleaded guilty, pursuant to a plea agreement dated April 27, 2000, to a one-count criminal information charging him with murder-for-hire resulting in death, in violation of 18 U.S.C. § 1958(a), a crime punishable by life imprisonment or death. Under the plea agreement, the government agreed not to seek the death penalty and to consider, "in its sole discretion," filing a motion at a later time for a reduction in the sentence below the statutory minimum, and Hartwell agreed to cooperate fully, completely, and truthfully with the government in investigating criminal activity. If Hartwell did not ful-fill his obligations, the agreement provided that the government could "seek release from any or all of its obligations" under the agreement.

The district court sentenced Hartwell to life imprisonment, and a judgment on his conviction and sentence was entered August 18, 2000.

As Hartwell's efforts to assist the government were still ongoing a year later, the government filed a motion under Federal Rule of Criminal Procedure 35(b) for a reduction of sentence on August 14, 2001, to toll the one-year time limit imposed by that rule. A year-and-a-half later, the government filed a memorandum at the direction of the district court, recommending that Hartwell's sentence be reduced from life imprisonment to 38 years' imprisonment despite the government's concerns over Hartwell's cooperation. Several months later, however, because of Hartwell's ongoing and past lies and his lack of full disclosure, the government filed a motion to withdraw its motion for a reduction of sentence. Hartwell filed a motion for an evidentiary hearing to determine whether the government's motion constituted a breach of the plea agreement.

By order dated January 14, 2004, the district court granted the government's motion to withdraw its Rule 35(b) motion for reduction of sentence and denied Hartwell's motion for an evidentiary hearing.

On appeal from that order, Hartwell contends that the district court never had subject-matter jurisdiction in this case because the government proceeded on an information instead of an indictment for a crime punishable by death. He also contends that the plea agreement, both in its original form and as modified by the parties during the course of his cooperation, did not authorize the government to withdraw its motion for a reduction of sentence. Finally, he contends that the district court abused its discretion in denying him an evidentiary hearing on whether the government breached the plea agreement.

For the reasons that follow, we conclude that we have jurisdiction to hear Hartwell's appeal and affirm the district court's January 14, 2004 order.


For his participation in a conspiracy to kill a government witness in Westmoreland County, Virginia, which resulted in the death of Jaime Pereira, who was not the intended target, Hartwell pleaded guilty to a criminal information charging him with aiding and abetting murder for hire, in violation of 18 U.S.C. § 1958(a). That statute provides that when death results, the defendant is to be punished by either life imprisonment or death. To avoid the death penalty and to receive the possibility of an additional sentence reduction, Hartwell negotiated a plea agreement with the government, in which he agreed to provide "full, complete and truthful cooperation" with the government's investigation of criminal activity. More particularly, Hartwell agreed:

— to waive indictment and plead guilty to a one-count criminal information;

— that the court had jurisdiction and authority to impose any sentence within the statutory maximum;

— that he could not withdraw his guilty plea based upon the sentence imposed;

— to waive his right to appeal "any sentence within the maximum provided in the statute(s) of conviction (or the manner in which that sentence was determined) on the grounds set forth in Title 18, United States Code section 3742 or on any ground whatever";

— to cooperate fully, completely, and truthfully with the government and provide it all information that he knew regarding any criminal activity;-to testify truthfully and completely at any grand juries, trials, or other proceedings;

— to be reasonably available for debriefing and pre-trial conferences as the government might require;

— that if he failed "to fulfill completely all the obligations under this plea agreement, the United States may seek release from any or all its obligations under this plea agreement."

The government agreed:

— not to seek the death penalty;

— not to prosecute the defendant further in the Eastern District of Virginia for the "specific conduct described in the information or statement of facts";

— to recommend to the court that the sentence in this case run concurrently with any sentence that Hartwell received for crimes charged in the District of Maryland;

— that it reserved "its option to seek any departure from the applicable sentencing guidelines, pursuant to Section 5K of the Sentencing Guidelines and Policy Statements, or Rule 35(b) of the Federal Rules of Criminal Procedure, if in its sole discretion, the United States determines that such departure is appropriate."

Hartwell was sentenced to life imprisonment and ordered to pay $5,320 in restitution to the family of Jaime Pereira, and judgment was entered on August 18, 2000. Hartwell did not appeal the judgment.

Hartwell provided information and testimony in other criminal investigations and trials. The government, however, became concerned about the completeness and truthfulness of his cooperation following his testimony during the trial of James McGill, Jr., in the District of Maryland. Hartwell told two FBI agents that he had committed perjury at the urging of an Assistant United States Attorney. He then told the Assistant United States Attorney that he had lied to the FBI agents because he was angry at some of the law enforcement officers involved in the case and that he had not in fact perjured himself. The government also learned that Hartwell withheld information from DEA agents about homicides in which he was involved.

As a result of these concerns, the government sent a letter to Hartwell's counsel in January 2001, stating, "[W]e have concluded that Mr. Hartwell has violated his responsibilities under his plea agreement[]." The government stated, however, that because Hartwell accepted responsibility and because of the complexities of his cooperating in three different jurisdictions, it would "continue to allow Mr. Hartwell to cooperate in his efforts to merit a sentence reduction motion." If Hartwell agreed to and satisfied specified conditions, the government would "continue to consider him for a sentence reduction at the appropriate time" (emphasis added). These conditions included successfully completing a polygraph examination; paying his restitution obligation in full by May 31, 2001; stipulating to his false statements in the McGill prosecution; and cooperating fully and truthfully with the government. Both Hartwell and his counsel signed the letter on March 14, 2001, agreeing to the conditions.

On August 14, 2001, while Hartwell's assistance was ongoing, the government filed a motion for a reduction of Hartwell's sentence under Federal Rule of Criminal Procedure 35(b). The motion stated that since the defendant was "in the midst of cooperating," it was filed only to toll the one-year time limitation imposed by Rule 35(b). The government asked the court to delay ruling on the motion until the defendant had fulfilled his responsibilities. Hartwell consented to the delay and agreed that "if the defendant fails to fulfill his responsibilities to the Government, the Government may withdraw this motion without objection by the defendant."

Approximately a year-and-a-half later, the district court, sua sponte, ordered the government to file its memorandum in support of its Rule 35(b) motion, which the government did on March 10, 2003. In addition to detailing the nature and value of Hartwell's cooperation, the government also outlined problems with his cooperation, including the McGill incident. The government also stated that Hartwell had not paid restitution to Pereira's family. In a footnote to the motion, the government stated:

The Government considers defendant's anticipated truthful testimony against [B.N.] as the principal basis for the filing of this motion. If, for any reason, defendant fails to provide truthful testimony during the [B.N.] prosecution, the Government will take the position that defendant has engaged in a material breach of his plea agreement and his commitment to provide substantial assistance to the Government.

The government concluded its motion by recommending that Hartwell's sentence be reduced from life imprisonment to 38 years' imprisonment.

A few months later, in June 2003, Hartwell filed a motion for an evidentiary hearing, alleging that the...

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