U.S. v. Khoury, 94-50394

• Decision Date: 03 August 1995
• Docket Number: No. 94-50394,94-50394
• Citation: 62 F.3d 1138
• Parties: , 95 Cal. Daily Op. Serv. 6115, 95 Daily Journal D.A.R. 10,470 UNITED STATES of America, Plaintiff-Appellee, v. George KHOURY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1138

62 F.3d 1138

64 USLW 2147, 95 Cal. Daily Op. Serv. 6115,

95 Daily Journal D.A.R. 10,470

UNITED STATES of America, Plaintiff-Appellee, v. George KHOURY, Defendant-Appellant.

No. 94-50394.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 4, 1995.

Decided Aug. 3, 1995.

Michael J. McCabe, San Diego, CA, for defendant-appellant.

Amalia L. Meza, Asst. U.S. Atty., and Marietta I. Geckos, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: McKAY, ^* REINHARDT, and FERNANDEZ, Circuit Judges.

Opinion by Judge McKAY; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

McKAY, Circuit Judge:

Appellant, George Khoury, after revoking an earlier plea agreement, was convicted in a jury trial of manufacturing methamphetamine and sentenced to 188 months. He raises two issues on appeal.

On October 31, 1990, Mr. Khoury, along with several co-conspirators, was indicted on drug charges. On January 14, 1992, Mr. Khoury entered into a plea agreement in which he agreed to cooperate with the authorities. Paragraph 10 of the plea agreement acknowledged, "Defendant has already provided information to the Government that has led to the arrest of a fugitive." In its presentence report, the probation department calculated Mr. Khoury's guideline range of 235 to 293 months and recommended a sentence at the high end of the range. At sentencing, the government made a U.S.S.G. Sec. 5K1.1 substantial assistance motion. The sentencing judge exercised his discretion, granted the motion, and departed downward, sentencing Mr. Khoury to 144 months.

A few weeks before being sentenced, Mr. Khoury moved to withdraw his guilty plea. This motion was denied. After sentencing, he appealed this denial. Before the appeal was heard, the government, by stipulation, agreed to allow Mr. Khoury to withdraw his plea and remand to the district court. Although the government offered to sweeten the deal by recommending a one-year sentence reduction if Mr. Khoury would again plead guilty, Mr. Khoury insisted on going to trial. The trial proceeded smoothly except for one incident.

On the morning of the third day of trial, at 8:15 a.m., the trial judge received a phone call from one of the jurors. The juror stated that his daughter was ill with chicken pox and requested to be excused. As neither party was present, the judge had to respond on his own. Since the emergency appeared to be legitimate, the judge excused the juror. When the trial resumed later that morning, the judge explained to the parties what had happened and stated that he was replacing the juror with the alternate. The government then concluded its case, calling its final two witnesses.

At this point, defense counsel raised an objection to the judge's decision to excuse the juror without consulting counsel beforehand. The judge noted the objection, but allowed the jury to go forward with its deliberations. The jury returned a guilty verdict.

At the sentencing hearing, defense counsel requested that the government again make a Sec. 5K1.1 motion for downward departure. The government refused. Defense counsel then argued that the court should depart downward on its own motion because the government's refusal to make the motion was improper. The court declined this request and sentenced Mr. Khoury to 188 months.

Mr. Khoury raises two issues on appeal. First, did the district court err by excusing the juror, seating the alternate, and resuming the trial without consulting the defendant and his counsel? Second, did the district court err in failing to depart downward when the government refused to renew its Sec. 5K1.1 substantial assistance motion?

In answer to the first question, the government has suggested that the defendant has waived any possible objection by not objecting in a timely fashion. This argument is not without merit. Although the defendant claims to have objected at the first available opportunity, the facts belie this contention. Counsel did not object when the judge first informed the parties of his actions, but rather waited until after the government had closed its case. However, we need not resolve this quarrel because the objection, whether timely or not, is not well-taken.

United States v. Patterson, 819 F.2d 1495 (9th Cir.1987), plainly controls this case. In Patterson, the same argument was raised and rejected after a juror was excused for a death in the family. Id. at 1506-07. Also directly on point is United States v. Lustig, 555 F.2d 737, 745-46 (9th Cir.), cert. denied, 434 U.S. 926, 98 S.Ct. 408, 54 L.Ed.2d 285 (1977), which establishes that a judge's dismissal of a juror without consulting defense counsel is within the judge's discretion and is not grounds for reversal unless prejudice is demonstrated. See id. Mr. Khoury has failed to address how he possibly could have been prejudiced by having the alternate juror, whom he had approved, seated. Instead, he claims prejudice should be presumed, contrary to Ninth Circuit precedent. See id. at 746. This claim is rejected.

The second issue is much more substantial. Mr. Khoury argues that the government refused to make a Sec. 5K1.1 motion in retaliation for his choice to exercise his constitutional right to a jury trial. The record supports this contention. In the "Government's Sentencing Memorandum" the government states, "After the remand, the Government sent a letter to defense counsel ... offering to resolve the case ... whereby the Government agreed to recommend a 1-year reduction of Khoury's sentence if Khoury agreed to plead guilty again.... The Government advised that if the offer was [sic] not accepted, and Khoury withdrew his plea, the Government intended to present additional charges to the Grand Jury and would not recommend any reduction." Excerpts of Record at 78-79 (emphasis added). At the hearing on appeal, the government conceded that they were referring specifically to the Sec. 5K1.1 motion in this letter.

While it is undoubtedly true both that the government does not have to make a substantial assistance motion every time a defendant is cooperative and that the government may use the motion as a carrot to induce a defendant to make a plea, that is not what transpired in this case. Here, the government initially took the position at sentencing that the defendant had offered substantial assistance and made the appropriate motion, and then threatened to change its position to discourage the defendant from going to trial. The question is whether this action was proper.

The government contends that the district court's decision not to depart downward is not subject to review on appeal. While it is certainly the rule in this Circuit that a district court's discretionary refusal to depart downward when a Sec. 5K1.1 motion is made is not reviewable, it must be clear from the sentencing hearing transcript that the district court knew it had the legal authority to depart downward under Sec. 5K1.1. United States v. Hanna, 49 F.3d 572, 576 (9th Cir.1995). If it appears that the district court may have believed that it did not have such discretion, the appropriate remedy is a remand to exercise its discretion. United States v. Morales, 972 F.2d 1007, 1011 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1665, 123 L.Ed.2d 283 (1993).

In this case, we believe that the cases support the proposition that the sentencing court did have discretion to depart downward on its own motion. In Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992), the Supreme Court held:

[F]ederal district courts have authority to review a prosecutor's refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive.

Thus, a defendant would be entitled to relief if a prosecutor refused to file a substantial assistance motion, say, because of the defendant's race or religion.

Id. at 185-86, 112 S.Ct. at 1843-44. Mr. Khoury argues that penalizing him for exercising his right to a jury trial is just such an unconstitutional motive. Indeed, the Third Circuit has held exactly that.

In United States v. Paramo, 998 F.2d 1212 (3rd Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1076, 127 L.Ed.2d 393 (1994), the defendant Paramo and two co-conspirators were indicted on mail fraud and money laundering charges. The government offered all three an opportunity to enter into plea agreements. "In return for cooperating with the government and pleading guilty to the charges against them, the government offered to file a motion for downward departure at sentencing pursuant to section 5K1.1." Id. at 1215. Although all three had agreed to cooperate and had already offered statements, only Mr. Paramo's two co-conspirators took the deal. Mr. Paramo refused to plead guilty because he believed the statute did not apply to his conduct. Id. The government made the motion on behalf of the co-conspirators, and they received eighteen and twenty-four months, respectively. Mr. Paramo was found guilty, no Sec. 5K1.1 motion was made, and Mr. Paramo received forty-six months. Mr. Paramo argued that the refusal to file a Sec. 5K1.1 motion was prosecutorial vindictiveness in retaliation for going to trial. The government countered this claim, stating:

Paramo's assistance was not substantial compared with the assistance given by the [co-conspirators], because Paramo agreed to proffer a statement only after the others had given complete statements admitting their roles in the crimes.... Paramo also gave a conflicting account of the division of proceeds and failed to give significant aid in locating another alleged co-conspirator.

Id. at 1220-21. Despite this strong evidence, the court held that Mr. Paramo should be given an opportunity to show that such claims were pretextual and that the real reason no motion was filed was...