U.S. v. Leonard
| Decision Date | 28 March 1995 |
| Docket Number | D,No. 428,428 |
| Citation | 50 F.3d 1152 |
| Parties | UNITED STATES of America, Appellee, v. James LEONARD, Defendant-Appellant, Robert Seyfert, John Papajohn and Donald M. Brown, Defendants. ocket 94-1175. |
| Court | U.S. Court of Appeals — Second Circuit |
Ralph Drury Martin, Washington, DC (Storch & Brenner, Washington, DC, Joseph Garneau, West Hempstead, NY, of counsel), for defendant-appellant.
Robert A. Feinberg, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., E.D.N.Y., David C. James, Eric O. Corngold, Asst. U.S. Attys., of counsel), for appellee.
Before: VAN GRAAFEILAND, MINER, and LEVAL, Circuit Judges.
Defendant-appellant James Leonard appeals from a judgment of conviction and sentence entered on March 22, 1994 in the United
States District Court for the Eastern District of New York (Hurley, J.), the defendant having pleaded guilty to conspiring to distribute hashish, in violation of 21 U.S.C. Sec. 841(a)(1). The district court sentenced Leonard to a prison term of seventy months, a five-year term of supervised release and a $50 special assessment. Leonard challenges his sentence on two grounds. He contends that the district court erred in failing to conduct an evidentiary hearing to determine whether the government acted in bad faith in refusing to honor a plea agreement. Leonard also contends that the district court improperly granted him a two-level, rather than a three-level, reduction in his offense level for "acceptance of responsibility" under U.S.S.G. Sec. 3E1.1. For the following reasons, we conclude that the district court should have conducted an evidentiary hearing on the issue of the government's compliance with the plea agreement and that the district court erred in failing to grant Leonard a three-level reduction for "acceptance of responsibility."
In the fall of 1990, an agent of the Drug Enforcement Administration ("DEA") obtained the name of defendant James Leonard from a heroin trafficker. The heroin trafficker informed the agent that Leonard owed money to him as a result of a prior drug deal. Armed with this information, a confidential informant ("CI") using the name "Ellie" contacted Leonard in October of 1990, and, over the course of the next several months, the two discussed potential narcotics transactions. In August of 1991, the CI informed Leonard that he had arranged for the shipment of two tons of hashish into the United States and that he had 500 kilograms of the hashish available for sale. Leonard told the CI that he would locate buyers for the hashish.
On September 12, 1991, the CI arranged to give Leonard a sample of the hashish. The two met in Brooklyn, where the CI gave Leonard two "bricks" of hashish, each weighing approximately 1/2 kilogram, as samples. On September 15, 1991, the CI and Leonard met again and discussed the transaction, including a price of $1,300 per pound, of which $300 per pound would be split between the CI and Leonard. According to the government, Leonard spoke by telephone during this meeting with an individual who subsequently was identified as Donald Brown. Leonard told the CI that Brown was attempting to meet "the Canadians," who were going to buy the bulk of the 500 kilograms of hashish.
On September 19, 1991, Leonard was arrested after delivering approximately $300,000 in cash as payment for the first purchase of hashish. Two other men, Robert Seyfert and John Papajohn, also were arrested on that day, having supplied Leonard with $200,000 in cash for the purchase. After Leonard was arrested and given his Miranda warnings, he made oral statements regarding the transaction. Leonard then was transferred to DEA headquarters, where he answered additional questions and signed a written statement. The following is a verbatim reproduction of that statement:
On 19 Sept 91, I was suppossed to buy 300 pounds of hashish, of which 200 lbs was going to Robert Siyfert. Siyfert provided all of the funds which I had given to Ellie during the morning and afternon of 19 Sept.
One hundred pounds was suppossed to go to Paul LNU at 114 Bay 49th St. in Brooklyn, the lower apartment. I was suppossed to bring the 100 lbs to show to Paul who was going to arrange a buyer for it.
I also spoke with Donald Brown who said they could buy the whole load of 3 tons. After I got the sample on 12 Sept. I contacted Brown and told Brown I had a sample and wants to sell it for about $1,200.00 a pound. Brown said that was a good price and that he could make some money on it. Brown said he would ask around and that he (Brown) knew some Canadiens who would be willing to come into N.Y.
I gave a sample of hashish to Siyfert on 12 Sept who later told me it was good. Additionally the prior week, I picked up I was suppossed to get 100 dollars per pound as a broker fee for each pound sold.
Donald Brown at J.F.K. When I received the sample I also gave Brown one of the two brick packages that I had removed from the boxes. There were also several other people I had provided samples to.
Having received Leonard's statement, the government sought to prosecute Donald Brown for his participation in the conspiracy. There is a dispute, however, as to the method that the government used. According to Leonard, government agents instructed him to contact Brown and to convince Brown to turn himself in. In contrast, the government contends that it wanted Leonard to hide his arrest and cooperation from Brown, so that Leonard could aid in an attempt to arrest Brown. It is undisputed that Leonard was in contact with Brown soon after his arrest, and that he kept in contact with Brown thereafter.
Shortly after his arrest, Leonard entered into an oral plea agreement with the government, pursuant to which Leonard would assist the government in its investigation of his co-conspirators. For approximately two months thereafter, Leonard provided his cooperation, which included taping conversations with Paul Witiw, who was identified as the "Paul LNU" referred to in Leonard's statement. These conversations led to the arrest of Witiw and two other drug traffickers. On October 10, 1991, during the period of cooperation, Assistant United States Attorney Eric Corngold sent Leonard a proposed written plea agreement. The agreement provided that Leonard would plead to the charge of conspiracy to distribute and to possess with intent to distribute hashish, and stated:
If the Office determines that [Leonard] has cooperated fully, provided substantial assistance to law enforcement authorities and otherwise complied with the terms of this agreement, the Office will file a motion with the sentencing court ... [that] will permit the court, in its discretion, to impose a sentence below the applicable sentencing guideline range.
The quoted provision essentially restates section 5K1.1 of the sentencing guidelines, which authorizes the sentencing court to make a downward departure upon the government's motion indicating that a defendant has provided "substantial assistance." Leonard and his attorney signed the agreement and returned it to the government for signature.
Shortly thereafter, a proffer session was conducted with the government in which Leonard and defense counsel discussed Leonard's cooperation with the government in its investigation of Brown. Representing the government at the meeting were Assistant United States Attorney Corngold, DEA Special Agent Kaladi, and another unidentified DEA agent. According to Corngold, Leonard made statements at the meeting about his dealings with Brown that were inconsistent with his prior oral and written statements. For example, Leonard claimed he had given Brown only a small sample of hashish rather than the "brick" that he originally stated that he had given to Brown. Moreover, according to the government, it was determined at the proffer session that Leonard had breached his cooperation agreement by informing Brown that he had been arrested and was cooperating with the government. As a result, in December of 1991, Corngold informed defense counsel that Leonard was not being truthful and, therefore, that the government would not execute the draft plea agreement.
As a result of the agreement's breakdown, Leonard did not enter a guilty plea, and, on March 9, 1992, moved to enforce the plea agreement and to force the government to make a motion under section 5K1.1 of the guidelines. As part of this motion, Leonard submitted an affidavit ("the March 9, 1992 affidavit") in which he averred that Brown had never finally agreed to participate in the drug transactions. Instead, Leonard claimed in his affidavit that, although Brown initially showed interest in the transaction, he later became wary and expressed the belief that On October 21, 1993, Leonard pleaded guilty to conspiring to distribute hashish but reserved the right to move to enforce the prior cooperation agreement. Prior to sentencing, he again moved to compel the government to make a motion pursuant to U.S.S.G. Sec. 5K1.1. Leonard also objected to the recommendation in his presentence report that he receive a two-level, rather than a three-level, reduction in his offense level for acceptance of responsibility. See U.S.S.G. Sec. 3E1.1. Section 3E1.1(b)(1) permits a defendant to receive a three-level reduction where, inter alia, he "timely provid[es] complete information to the government concerning his own involvement in the offense," and Leonard contended that he had done so.
the government was setting Leonard up. In fact, according to the affidavit, Brown eventually refused to take part in the transaction, and "was leaving the New York area." The district court denied Leonard's motion on the ground that it was premature because Leonard had not yet pleaded guilty. See United...To continue reading
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