U.S. v. Vargas

• Decision Date: 07 February 1991
• Docket Number: No. 89-1267,89-1267
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Juanita VARGAS, aka Juanita Regalo Gasperotto, aka Juanita Regalo Gasperotto de Vargas, and Sixto Nunez, Defendant/Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1260

925 F.2d 1260

UNITED STATES of America, Plaintiff/Appellee, v. Juanita VARGAS, aka Juanita Regalo Gasperotto, aka Juanita Regalo Gasperotto de Vargas, and Sixto Nunez Defendant/Appellant.

No. 89-1267.

United States Court of Appeals Tenth Circuit.

Feb. 7, 1991.

Michael J. Norton, U.S. Atty. for the Dist. of Colo., Denver, Colo., for plaintiff/appellee.

Susan L. Foreman, Asst. Federal Public Defender, Denver, Colo. (Michael Katz Before LOGAN and EBEL, Circuit Judges, and RUSSELL ^*, District Judge.

Federal Public Defender, Denver, Colo., with her on the brief), for defendant/appellant.

EBEL, Circuit Judge.

This case involves the district court's denial of a motion filed jointly by the government and defendant to permit defendant to take part in an undercover drug operation. By cooperating with the government, defendant hoped to earn a reduction in her sentence pursuant to Sec. 5K1.1 of the sentencing guidelines. The district court concluded that it had no authority to grant such a motion, reasoning that to do so would impermissibly implicate the court and defendant in the commission of a crime, violate Article III and the separation of powers, and run counter to the goals of public policy.

FACTS

On April 6, 1989, Juanita Vargas was arrested for selling approximately one pound of marijuana to an undercover police detective. A search incident to the arrest produced, among other things, a .38 caliber handgun which had been placed under the seat of a Jeep in which she was riding. In addition, the police uncovered almost 75 pounds of marijuana from Vargas' residence pursuant to a search warrant. Vargas was subsequently charged with one count of distributing marijuana (21 U.S.C. Sec. 841(a)(1) and (b)(1)(D)); one count of possession with intent to distribute marijuana (21 U.S.C. Sec. 841(a)(1) and (b)(1)(D)); one count of carrying a firearm during the commission of a drug trafficking crime (18 U.S.C. Sec. 924(c)); and one count of the forfeiture of her Jeep (21 U.S.C. Sec. 853(a)(2)).

After an initial plea of not guilty, the parties eventually worked out a plea agreement whereby Ms. Vargas pled guilty to counts one and three of the indictment and forfeited all interest in the Jeep. The government agreed to move to dismiss count two of the indictment (possession with intent to distribute marijuana) in exchange for defendant's cooperation in divulging her source of marijuana and information about her marijuana dealings. The government also reserved the right to file a substantial assistance motion for departure pursuant to guidelines section 5K1.1. ¹

Two days before the sentencing hearing, the government and defendant jointly filed a "Motion to Permit the Defendant to Provide Substantial Assistance and to Continue Sentencing." Specifically, the parties requested that custody of defendant be transferred to a special agent of the Federal Bureau of Investigation so that the defendant could arrange a controlled drug buy. The district court denied the Joint Motion, concluding that it did not have authority to allow defendants to participate in new criminal activity and that the motion would improperly involve the judiciary in the prosecutorial function. In its ruling the district court stated:

... There is nothing that I'm aware of, however, that gives the government the authority to require this Court to permit the release of a defendant from custody to the custody of an investigative agent for the purpose of participating in a crime, and that, indeed, is my view of what this Court is being asked to do and it is my view that it is inappropriate for the Court to come out from under Article 3 in its limited authority and energize activities that seek to prosecute others and, indeed, to generate an offense.... [M]y objection to this kind of thing is that the Court's being asked to step out of its role and become an active participant in seeking out others to prosecute, and that's not consistent with my notion of what a Court should do.

R. Vol. II at 3-4.

At sentencing, the district court dismissed count two of the indictment and Both the government and defendant appeal the district court's denial of the Joint Motion. We agree with the parties that the district court based its denial on improper grounds.

sentenced defendant to 21 months imprisonment on count one and five years imprisonment on count three, to run consecutively. The court refused to depart downward from the sentencing guidelines, holding that it was without authority to depart for substantial assistance absent a government motion requesting such a departure. ²

DISCUSSION

The Sentencing Guidelines clearly contemplate situations in which a defendant will cooperate with the government and thereby earn a recommendation for a reduction in sentencing. United States Sentencing Commission, Guidelines Manual, Sec. 5K1.1; see also 18 U.S.C. Sec. 3553(e); Fed.R.Crim.P. 35(b). While none of these provisions gives a defendant an absolute right to cooperate and earn a downward sentence, see United States v. Kuntz, 908 F.2d 655, 657 (10th Cir.1990), United States v. LaGuardia, 902 F.2d 1010, 1014-15 (1st Cir.1990), criminal defendants are entitled to a fair and impartial consideration by the district court in those instances in which the government and defendant both agree that cooperation would be beneficial. In our view, the sentencing guidelines ultimately call upon district courts to exercise fair discretion in this area. That discretion should be based on consideration of the individualized facts of the case and sound legal principles.

It is by now well-recognized that an exercise of discretion that is significantly premised on an incorrect understanding of law is itself an abuse of discretion. As the Supreme Court noted in Franks v. Bowman Trans. Co., 424 U.S. 747, 770-71, 96 S.Ct. 1251, 1266-67, 47 L.Ed.2d 444 (1976), "discretion imports not the court's inclination, but its judgment; and its judgment is to be guided by sound legal principles." (quotations and citations omitted). See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975); E.E.O.C. v. General Lines, Inc., 865 F.2d 1555, 1565 (10th Cir.1989). Keeping these principles in mind, we turn now to a consideration of the bases for the district court's ruling.

A. The Criminal Nature of a Controlled Buy.

At the hearing, the district court asserted that a buy like that contemplated by the government would "generate an offense" and would result in the defendant's "participat[ion] in a crime." R. Vol. II at 3-4. The Eighth Circuit addressed a similar question in United States v. French, 900 F.2d 1300 (8th Cir.1990). In French, the district court refused to allow the defendant to cooperate with the government by engaging in a controlled buy while released on bail pending his sentencing. The district court had concluded that such a buy was tantamount to the federal crime of drug trafficking and therefore violated the defendant's conditions of release. The appellate court reversed, noting,

[t]he [district] court [mistakenly] characterizes cooperation with the police in this manner as "drug trafficking," which is a crime. The purpose of controlled drug purchases, however, is to identify and prosecute drug dealers, not to resell or consume the drugs. Such undercover operations therefore do not contain the criminal intent, or mens rea, necessary to convert the action into a crime.

Id. at 1302.

We agree with the Eighth Circuit's logic. The kind of supervised activity proposed for defendant here would not implicate her in the commission of the crime of drug trafficking, and in any event, she would be protected from prosecution by the pretransactional agreement with the prosecutor. ³

                Under the reasoning of the district court, undercover police officers and informants would be guilty of crimes every time they purchased drugs in the course of their investigations.  Such a reading would fly directly in the face of judicial precedent, for as the Supreme Court noted in United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973), the use of government informants and undercover agents is a "recognized and permissible means of investigation."    See also United States v. Bouck, 877 F.2d 828, 830 (10th Cir.1989);  United States v. Warren, 747 F.2d 1339, 1341 (10th Cir.1984).  As a general proposition, there is nothing inherently improper about the government seeking the assistance of a convicted defendant in a controlled buy to expose ongoing criminal conduct.  Thus, the court's refusal to grant the joint motion on the grounds that it may involve defendant's participation in a crime was based on a "fundamental error of law."    French, 900 F.2d at 1302
                

B. Constitutional Prohibitions.

In addition, the district court suggested that it was prohibited from granting the joint motion by the constitutional strictures of Article III and separation of powers. We hold that neither of these constitutional doctrines barred the district court from granting such a motion. As the Supreme Court noted in Mistretta v. United States, 488 U.S. 361, 381, 109 S.Ct. 647, 659, 102 L.Ed.2d 714 (1989) (upholding the constitutionality of the sentencing guidelines), "our constitutional system imposes upon the Branches a degree of overlapping responsibility, a duty of interdependence as well as independence the absence of which would preclude the establishment of a Nation capable of governing itself effectively." (quotations and citations omitted). Nowhere has this interdependence and overlapping responsibility been more apparent than in the area of prosecutorial investigations. Today courts are empowered to authorize government wiretaps (Katz v. United States, 389 U.S. 347, 355, 88 S.Ct. 507, 513, 19 L.Ed.2d 576 (1967); Osborn v. United States, 385 U.S. 323, 329-31, 87 S.Ct. 429, 432-33, 17 L.Ed.2d 394 (1966); 18 U.S.C. Sec. 2518), undercover...