U.S. v. Kelley

Citation956 F.2d 748
Decision Date05 February 1992
Docket Number90-1081,Nos. 90-1027,s. 90-1027
PartiesUNITED STATES of America, Appellee, v. Ronald Leland KELLEY, Appellant. UNITED STATES of America, Appellee, v. Rodney Ray JIRUSKA, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Chip J. Lowe, Des Moines, Iowa, argued (Paul A. Zoss, on brief), for appellant Rodney Ray Jiruska.

William G. Nicholson, Cedar Rapids, Iowa, argued, for appellant Ronald Leland Kelley.

Richard Louis Murphy, Asst. U.S. Atty., Cedar Rapids, Iowa, argued (Daniel C. Tvedt, on brief), for appellee.

Before LAY, * Chief Judge, HEANEY, Senior Circuit Judge, McMILLIAN, ARNOLD, ** JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM and LOKEN, Circuit Judges, En Banc.

JOHN R. GIBSON, Circuit Judge, joined by FAGG, BOWMAN, WOLLMAN, MAGILL and LOKEN, Circuit Judges.

We again visit the question of whether a district court can grant a downward departure from the Sentencing Guidelines for the defendant's substantial assistance to the government in the absence of either: (1) a government motion for a departure; or (2) a claim that the government's refusal to make such a motion is arbitrary, in bad faith, or in breach of a plea agreement. We have touched on this question in a series of cases, 1 including United States v. Gutierrez, 908 F.2d 349 (8th Cir.1990), which we vacated for rehearing en banc. In Gutierrez, the en banc court affirmed the district court by an equally divided vote, thereby leaving the question for another day. 917 F.2d 379 (8th Cir.1990). The cases we decide today present the question in an unusually narrow form, since the appellants forego constitutional arguments and simply urge that we are not bound to follow United States Sentencing Commission, Guidelines Manual § 5K1.1 (Nov. 1991) because it is a policy statement rather than a guideline. We affirm the district court's 2 judgment holding that it did not have the power to depart from the guidelines sentencing range in these cases.

Ronald Kelley and Rodney Jiruska pleaded guilty to involvement in a drug conspiracy, 21 U.S.C. § 846 (1988). Both entered plea agreements in which they agreed to assist the government in convicting co-defendants, but the government retained sole discretion concerning whether to move the court under U.S.S.G. section 5K1.1 to grant a downward departure for substantial assistance. Kelley and Jiruska made themselves available for interviews with investigators and testified at the trials of other defendants. The government attorneys stated that Jiruska was a truthful witness, but declined to move the court to depart from the guidelines, explaining that the government did not perceive Jiruska's testimony to be particularly valuable. The government attorneys were not satisfied with the candor of Kelley's testimony, since they claimed he understated the extent of the conspirators' criminal activity at his co-defendants' trials in comparison with his earlier statements. Moreover, while on pretrial release, Kelley attended a party at which a Mr. Melsha gave him cocaine, which Kelley said he flushed down a toilet. When he reported this to the government, the prosecutors asked him to wear a wire and engage Melsha in a conversation regarding the incident. Though Kelley did as requested, that investigation led the government to believe Kelley had paid for the cocaine and perhaps had used it. Due to his lack of candor and the fact that the prosecutors did not view Kelley's cooperation as particularly helpful, the government refused to make a departure motion. Since the government refused to make the motion, Kelley and Jiruska each moved the court for a downward departure. They each conceded that there was no bad faith issue. The court held that it was powerless to grant a departure for substantial assistance in absence of a government motion. The court did take the defendants' cooperation into account in choosing a sentence within the guidelines range.

Kelley and Jiruska appeal, arguing that the district court erred in holding that without a government motion it could not depart from the guidelines range on the grounds of assistance to the government. Because the issues they raise were the subject of a stalemate in Gutierrez, we granted original hearing en banc to address their arguments.

I.

Since our first look at the issue in United States v. Justice, 877 F.2d 664 (8th Cir.), cert. denied, 493 U.S. 958, 110 S.Ct. 375, 107 L.Ed.2d 360 (1989), this circuit has been troubled by the issue of whether U.S.S.G. § 5K1.1 permits a court to depart downward from the guidelines range on the grounds of substantial assistance to the government if the government refuses to move for a departure. Our standard of review is de novo, because the district court's decision that it had no power to depart is a pure question of law. 18 U.S.C. § 3742(a)(1) (1988); United States v. Doe, 934 F.2d 353, 356 (D.C.Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 268, 116 L.Ed.2d 221 (1991). Though the government argues that this case presents an unreviewable refusal to depart, the real question is whether the district court was correct in its opinion that it had no power to depart, not whether it would have chosen to depart if it had the power.

Section 5K1.1 provides: "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...." (emphasis added). The section is labeled as a "policy statement," rather than a guideline. 3

Kelley and Jiruska argue that because section 5K1.1 is a policy statement, rather than a guideline, it is not binding on the courts and therefore the courts can reject it on policy grounds.

We have considered U.S.S.G. § 5K1.1 in depth in earlier decisions and resolved certain preliminary questions about the section which Kelley and Jiruska do not re-argue. In Justice, 877 F.2d at 667, we held that the language permitting departure "upon motion of the government" makes the prosecutor's motion a prerequisite to departure. Most of the other circuits have also held that under section 5K1.1, the prosecutor's motion is a necessary step for a substantial assistance departure. United States v. La Guardia, 902 F.2d 1010, 1013-18 (1st Cir.1990); United States v. Huerta, 878 F.2d 89, 91 (2d Cir.1989), cert. denied, 493 U.S. 1046, 107 L.Ed.2d 839 (1990); United States v. Bruno, 897 F.2d 691, 696 (3d Cir.1990); United States v. Francois, 889 F.2d 1341, 1345 (4th Cir.1989), cert. denied, 494 U.S. 1085, 110 S.Ct. 1822, 108 L.Ed.2d 951 (1990); United States v. Levy, 904 F.2d 1026, 1035-36 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 974, 112 L.Ed.2d 1060 (1991); United States v. Donatiu, 922 F.2d 1331, 1334-35 (7th Cir.1991); United States v. Vargas, 925 F.2d 1260, 1267 (10th Cir.1991); United States v. Chotas, 913 F.2d 897, 900 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1421, 113 L.Ed.2d 473 (1991); United States v. Doe, 934 F.2d at 361. However, the Fifth Circuit does not view the section as requiring a prosecutor's motion. United States v. White, 869 F.2d 822, 829 (5th Cir.) (per curiam), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989). Cf. United States v. Keene, 933 F.2d 711, 715 n. 5 (9th Cir.1991) (characterizing issue of whether sua sponte departure could ever be appropriate as undecided in Ninth Circuit); Chotas, 913 F.2d at 903 (dissent arguing that government motion not intended as "absolute prerequisite" to departure). 4

In Justice, we also stated that the court cannot avoid the prerequisite of the prosecutor's motion by simply departing under another guideline section to reward the assistance. 877 F.2d at 666. 18 U.S.S.G. § 3553(b) (1988) and U.S.S.G. § 5K2.0 (Policy Statement) permit the court to depart if the case involves a relevant factor that the Sentencing Commission did not adequately take into account in formulating the guidelines. In Justice, we held that the Commission took substantial assistance into account by adopting section 5K1.1 and that therefore 18 U.S.S.G. § 3553(b) would not authorize departure on this ground. 877 F.2d at 666. Accord United States v. Khan, 920 F.2d 1100, 1107 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1606, 113 L.Ed.2d 669 (1991); United States v. Agu, 949 F.2d 63, 65-66 (2d Cir.1991); Chotas, 913 F.2d at 900. 5

We have also approved generally the constitutionality of the prosecutor's motion requirement, while noting that situations could arise in which the motion requirement together with other facts could be part of a constitutional violation. We have held that the motion requirement is not an unconstitutional infringement on the separation of powers. Grant, 886 F.2d at 1514. Accord United States v. Spillman, 924 F.2d 721, 724-25 (7th Cir.1991); Huerta, 878 F.2d at 91-93 (section 3553(e)); United States v. Musser, 856 F.2d 1484, 1487 & n. 3 (11th Cir.1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989); United States v. Kuntz, 908 F.2d 655, 657 (10th Cir.1990). We have also rejected the substantive due process argument that defendants have a right to have a court consider evidence of their cooperation in deciding whether to depart. Grant, 886 F.2d at 1514. Accord La Guardia, 902 F.2d at 1015-16; Doe, 934 F.2d at 357; Levy, 904 F.2d at 1035-36. Other circuits have similarly rejected procedural due process challenges. E.g., Doe, 934 F.2d at 360-61; Donatiu, 922 F.2d at 1333-34. However, we and other circuits have suggested constitutional limits to the prosecutor's discretion under section 5K1.1. Courts have pointed out that if the prosecutor acted from invidious motives or to punish the exercise of constitutional rights, there could be a constitutional violation, United States v. Bayles, 923 F.2d 70, 72 (7th Cir.1991); Doe, 934 F.2d at 361, and our own cases have suggested that prosecutorial...

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