U.S. v. Ming He

• Decision Date: 03 September 1996
• Docket Number: D,No. 544,544
• Parties: UNITED STATES of America, Appellee, v. MING HE, also known as Tony Jai, Defendant-Appellant. ocket 95-1331.
• Court: U.S. Court of Appeals — Second Circuit

Page 782

94 F.3d 782

UNITED STATES of America, Appellee, v. MING HE, also known as Tony Jai, Defendant-Appellant.

No. 544, Docket 95-1331.

United States Court of Appeals Second Circuit.

Argued Dec. 1, 1995.

Decided Sept. 3, 1996.

Susan R. Necheles, New York City (Goldman & Hafetz, New York, New York, of counsel), for Defendant-Appellant.

Margaret Giordano, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney, David C. James, Leslie R. Caldwell, Assistant United States Attorneys, Eastern District of New York, Brooklyn, New York, of counsel), for Appellee.

Before CARDAMONE and CALABRESI, Circuit Judges and NICKERSON, ^* District Judge.

CARDAMONE, Circuit Judge:

Ming He (defendant or appellant) appeals from a June 8, 1995 judgment filed in the United States District Court for the Eastern District of New York (Raggi, J.) that imposed a five year prison sentence on him. Defendant, who had entered into a cooperation agreement with the government, asserts that, when fixing his sentence, the trial court relied on impermissible factors, derived from his debriefing by the prosecution. Because his counsel was not given advance notice of the debriefing sessions, she was not in attendance. On appeal, Ming He contends the Sixth Amendment entitles him to the assistance of counsel during debriefing and since he did not waive that right, the government was obliged to respect it.

In the Eastern District it is standard practice for a cooperating defendant to be interviewed by the prosecutor without his counsel being present. Since the conduct of a debriefing session ordinarily is neither standardized nor governed by set rules, a cooperating witness may in fact provide much useful assistance but may fail to "come clean" with every piece of information relevant to the investigation or prosecution of other offenders. Such a failure--real or perceived--may cause the prosecutor to decide against requesting a more lenient sentence for defendant or, as here, to disparage defendant's cooperation.

When the power to authorize the sentencing court to make a downward departure--in order to reward a cooperating witness who has rendered substantial assistance--was vested in the prosecutor, a change occurred in the dynamics of sentencing. Formerly, this power was lodged in a neutral judge, but now it resides initially in the hands of the prosecutor, an interested party in a criminal proceeding. Such a change in authority has the potential to tilt this aspect of a criminal prosecution unfairly in favor of the government. This potential for unfair treatment is troubling. Many view a cooperating witness as a betrayer or informer; unquestionably, such a person is not generally held in high regard. But the fairness of our system of criminal justice may best be seen in its treatment of those individuals held in low esteem. To create in the interest of fairness a more level playing field and for those other reasons we set forth in the discussion that follows, we think when a cooperating witness is debriefed he is entitled to the assistance of counsel.

Therefore, while we do not reach or decide appellant's constitutional argument, the government's standard practice in this district of conducting debriefing interviews outside the presence of counsel is inconsistent, in our view, with the fair administration of criminal justice. Consequently, we exercise our supervisory authority to bring it to an end, and vacate the judgment in the instant case and remand for resentencing.

BACKGROUND

Ming He, also known as "Tony Jai," is a 27-year old permanent United States resident who holds Chinese citizenship. On September 26, 1994 he pled guilty to one count of racketeering, in violation of 18 U.S.C. § 1962. According to the presentence report, the racketeering count was predicated on two racketeering acts, one a conspiracy to extort money from restaurants and other Prior to pleading guilty, Ming He had served briefly--after an arrest on gambling charges in December 1993--as an informant for the Bureau of Alcohol, Tobacco and Firearms. When it became evident to the government that his involvement in the Tung On Gang went well beyond the gambling activities he had originally acknowledged, defendant and his counsel entered into extensive negotiations with the government. These negotiations led to defendant's guilty plea.

businesses in violation of 18 U.S.C. § 1951, and the other a conspiracy to commit arson in violation of N.Y. Penal Law §§ 150.10 and 105.15. Defendant engaged in these criminal acts as a member of the "Tung On Gang," an illegal criminal enterprise operating primarily in New York City's Chinatown.

At the time of entering his plea, defendant also signed a seven page cooperation agreement with the United States Attorney for the Eastern District of New York. His counsel, Susan R. Necheles, Esq., represented him in the negotiations and she and defendant both signed the agreement. In it defendant promised to "provide truthful, complete and accurate information" and to "cooperate fully" with the Eastern District prosecutor. More specifically, he agreed to be debriefed concerning his criminal activities, to give the government any relevant materials in his possession, and to keep the fact of his cooperation confidential. Defendant also waived his right to object to having an indictment filed against him and agreed to have his sentencing adjourned until his cooperation was complete.

In return for these promises, the government promised to file a motion pursuant to U.S.S.G. § 5K1.1 in which it would acknowledge defendant's cooperation and recommend to the sentencing court that it downwardly depart from the range otherwise fixed by the Sentencing Guidelines. The agreement stated that the government's "determination of whether the defendant has cooperated fully and provided substantial assistance, and [its] assessment of the value, truthfulness, completeness and accuracy of the cooperation, shall be binding upon him." The instrument further noted that "[n]o promises, agreements or conditions have been entered into other than those set forth in this agreement, and none will be entered into unless memorialized in writing and signed by all of the parties."

In the end, the prosecution did not believe defendant had cooperated fully and, even though it made a § 5K1.1 motion, it disparaged Ming He's assistance. The prosecutor detailed defendant's initial reluctance to acknowledge his role in a murder conspiracy and his effort to minimize his criminal involvement. In light of these concerns regarding defendant's cooperation, the prosecution did not call him to be a witness at the multi-defendant restaurant extortion and racketeering trial.

Defense counsel took exception to the prosecutor's comments. Her chief complaint was that the prosecutor improperly failed to notify her that the government was debriefing the defendant. Defense counsel explained that her client's meetings with the prosecutor were held without her permission and outside her presence. She said that had she been present at the debriefings she could have reduced her client's anxiety and resultant confusion, ensured that he understood what was being asked of him, and counseled him to answer the questions more fully. Defense counsel further objected to the government's attempt to penalize Ming He for a supposed lack of candor when responding to the prosecutor's questioning outside the presence of his own counsel.

At the sentencing hearing the prosecutor stated that her failure to give notice to defendant's lawyer was routine, adding that every witness or potential witness in the case was debriefed without counsel being present because that was "standard practice" in the Eastern District prosecutor's office. The sentencing court found the practice unremarkable. Insisting that it is her practice to attend her clients' debriefings, defense counsel strongly objected to the trial court's reliance on the government's description of the sessions. The trial court characterized counsel's practice as "unusual," commenting that most lawyers are uninterested in attending their clients' debriefing sessions. The district judge did not think it necessary for counsel to be at her client's side after he Ming He's apparent lack of candor--reflected in the negative tone of the § 5K1.1 motion--obviously affected the district court's decision on the length of defendant's prison term. Defendant was given a term of 60 months, only marginally less than the Guidelines range of 63-78 months. In deciding not to downwardly depart further, the sentencing court relied explicitly on defendant's evasiveness at the debriefings. It described him as not very cooperative and said that his lies and minimizations obviously compromised his availability as a prosecution witness, even on those events where the government believed his information was valuable. From the sentence thus imposed, Ming He appeals.

entered into a cooperation agreement, because all that was expected of him at the debriefing was that he tell the truth.

DISCUSSION

I Appealability of Sentence

Congress limited a defendant's right to appellate review of his final sentence to a few specific instances: when a sentence is imposed in violation of law; resulted from an incorrect application of the Sentencing Guidelines; is heavier than the upper range of the applicable sentence specified in the Guidelines; or is for an offense not found in the Guidelines. 18 U.S.C. § 3742(a). We have read this statute to mean that when a sentence is based on a demonstrable error of law or some other impermissible consideration, it is reviewable. See United States v. Colon, 884 F.2d 1550, 1553 (2d Cir.) (interpreting § 3742(a)(1)), cert. denied sub nom. Papathanasion v. United States, 493 U.S. 998, 110 S.Ct. 553, 107 L.Ed.2d 550 (1989). A sentencing court's refusal to depart downwardly, see, e.g., United States v. Ekhator, 17...