U.S. v. Yesil, s. 91-3443
| Decision Date | 13 August 1992 |
| Docket Number | 91-3567,Nos. 91-3443,s. 91-3443 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Engin Kamil YESIL and Yalie Golan, Defendants-Appellants, UNITED STATES of America, Plaintiff-Appellee, v. Glenn Gert DEPPE, a/k/a "Vern" LNU, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Donald I. Bierman, Pamela I. Perry, Bierman, Shohat & Loewy and Perry, PA., Miami, FL, for Yesil and Golan.
Thomas M. Dawson, Leavenworth, KS, for Deppe.
Rick L. Jancha, Karla R. Spaulding, and Cynthia R. Hawkins, Asst. U.S. Attys., Orlando, FL, for U.S.
Appeals from the United States District Court for the Middle District of Florida.
Before KRAVITCH and HATCHETT, Circuit Judges, and BROWN *, Senior Circuit Judge.
REVISED OPINION
I. STATEMENT OF THE CASE
This appeal consolidates two cases, involving three defendants. 1 Each case raises the same question: whether a district court may prevent the government from fulfilling its obligations under a plea agreement after that court has accepted the agreement and consequently not provided the defendants an opportunity to withdraw their guilty pleas. The pleas involved in these cases required each defendant to cooperate with the government and obligated the government, upon completion of such cooperation, to fully apprise the court of the nature and extent of defendants' actions. In both cases, the defendants and the government object to the district court's failure to grant an evidentiary hearing on the issue of defendants' cooperation.
In August 1990 appellants Engin Yesil ("Yesil") and Yalie Golan ("Golan") pleaded guilty to an indictment charging 1) conspiracy to possess cocaine with intent to distribute and 2) distribution of cocaine. Their illegal conduct took place prior to the effective date of the United States Sentencing Guidelines (U.S.S.G.). As part of their plea agreements, defendants agreed to "cooperate fully with the government." In return, the government agreed to "advise the Court as to the nature and extent of the Defendants' cooperation." The district court accepted the plea bargain.
The court set sentencing for November 21, 1990. On November 2, 1990, Yesil, Golan, and the government filed a joint motion to delay sentencing to enable Yesil and Golan to continue their cooperation. On November 7, 1990, the district court stamped the motion "Denied and So Ordered."
After procuring letters from both the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA), the government and defendants filed another joint motion, dated November 13, 1990, to reconsider the sentencing date. The motion stated that Yesil and Golan had infiltrated a "major heroin group" of "top priority," and that their continued cooperation was necessary. The motion stressed that neither appellant had any prior involvement with heroin but had been approached by traffickers and had used the contact with the traffickers to assist the United States. Again, the court denied the motion to continue the sentencing hearing. To accommodate the DEA, however, the court delayed Yesil and Golan's reporting date.
On November 21, 1990, the district court conducted the sentencing hearing as scheduled. The agent, Greg Lees, with whom Yesil and Golan had been cooperating was present. The following discourse took place, during which the judge indicated that a future Rule 35 motion to adjust sentencing based on cooperation would be appropriate:
Agent: I don't know if your Honor wants to look at this. It's just some facts and figures of what we have done so far. Mr. Golan and Yesil to date have been responsible for locking up four people and taking about seven pounds of coke off the streets and a couple of vehicles.
Now, we're currently at this time trying to get into a very significant drug trafficking group down in South Florida and who are importing both cocaine and heroin, so of course we're quite interested in getting these people.
They've been very cooperative with me and have done everything that they should have.
Court: Do you need them in an ongoing investigation.
Agent: Yes, sir.
Court: For how long?
Agent: Well, that's going to be kind of up to your Honor. I would say give an approximate date of six months.
[End of Bench Conference]
Following the agent's testimony, the judge heard allocution by the appellants, statements by their family members, and a brief statement by the prosecutor that:
[defendants] have given good information and they've been fully cooperative with the FBI and the government does consider their assistance was of major import.
The court then sentenced the Defendants to six years in prison, three years special parole, and a $150,000 fine. The court set a voluntary surrender date of June 1, 1991.
Subsequent to the sentencing, and pursuant to their plea agreements, Yesil and Golan continued to assist the government with drug investigations. On March 20, 1991, Yesil and Golan filed a motion, in which the government joined, for reduction of sentence pursuant to Rule 35(b). In the motion, the parties urged the court to grant an evidentiary hearing so that testimony could be presented detailing the nature and extent of cooperation by Yesil and Golan. The motion included some of the facts concerning their cooperation, but in no way detailed the full extent of their infiltration. The motion stressed the need for an in camera hearing due to the sensitive nature of the ongoing investigation:
Attached to this motion as Exhibit 1 and Exhibit 2 are letters from Detective Lees and Agent Bolan, setting forth the Defendants' cooperation and the fact that the Defendants are actively involved in several ongoing investigations. In view of the sensitive nature of the Defendants continuing cooperation, the letters are by necessity mere abbreviation of the Defendants' extensive activity. As such, the Defendants would request an opportunity to present in detail to the Court the nature and extent of their cooperation. Assistant United States Attorney Cynthia Hawkins has authorized us to represent to this Honorable Court that the Government joins in the Defendants request for a hearing on this motion in order to present evidence in support of the Defendants Motion for Mitigation of Sentence.
While security considerations prevent the Defendants from going into detail, the Defendants would point out to the Court that since their sentencing date, they have initiated at least eleven (11) drug trafficking cases involving in excess of approximately 22 kilo grams [sic] of cocaine and one heroine [sic] case. The Defendants have also actively engaged in continuing negotiations with drug traffickers and there may be additional information to supply to the court at the time of a hearing on this motion. Again, the various details of these cases will be provided for the Court at an in-camera hearing.
(emphasis in original). The court denied this motion, stamping it "Denied and So Ordered." Yesil, Golan and the government then filed a joint motion for reconsideration of the court's order. That motion was also stamped "Denied and So Ordered."
On April 17, 1991, the government moved to extend the defendants' reporting date, citing the continued need for the appellants' cooperation. Four days later the district court stamped that motion "Denied and So Ordered." Yesil and Golan surrendered as originally ordered on June 1, 1991.
Similar facts underlie the appeal of Glenn Gert Deppe ("Deppe"). Defendant Deppe pleaded guilty to conspiracy to import 10,445 pounds of marijuana. The plea agreement provided in part that:
At the time of sentencing, the government will make known to the Court and other relevant authorities the nature and extent of defendant's cooperation, and any other mitigating circumstances indicative of the defendant's intent to rehabilitate himself and to assume the fundamental civic duty of reporting crime.
The trial court scheduled Deppe's sentencing for June 20, 1990.
On June 8, 1990, the government filed a motion to continue sentencing stating that the defendant was actively engaged in assisting law enforcement and requesting an additional 45 days to complete this assistance. The motion was stamped "Denied and So Ordered" on June 12, 1990. On June 18, Deppe also filed a motion to continue sentencing based on the fact that although he was cooperating with the government, he had been unable to complete his government assignment due to personnel changes at the U.S. Attorney's Office. This motion was stamped "Denied and So Ordered" on June 18, 1990.
The government filed a response to Deppe's motion to continue on June 19, and reiterated its requests orally at the sentencing hearing on June 20, 1990. The court again denied the motion. At sentencing, defense counsel and the prosecutor alluded to defendant's cooperation. The AUSA stated, however, that he was not in a position to file a U.S.S.G. § 5K1.1 3 motion to depart downward from the Guidelines because Deppe had not yet completed his cooperation with the...
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