United States v. Barrett, Crim. No. 74-252.
Decision Date | 24 January 1975 |
Docket Number | Crim. No. 74-252. |
Citation | 390 F. Supp. 1022 |
Parties | UNITED STATES of America, v. Reginald Clark BARRETT, Jr. |
Court | U.S. District Court — District of South Carolina |
Lionel Lofton, Asst. U. S. Atty., Charleston, S. C., for the Government.
35.
This matter came to be heard before this court pursuant to a motion for reduction of sentence under Rule 35 of the Federal Rules of Criminal Procedure. The defendant herein pled guilty on August 5, 1974 to one count of violation of 21 U.S.C. § 841(a)(1) (1970). The following day he was sentenced to the custody of the Attorney General for a period of three (3) years under 18 U.S.C. § 4208(a)(2) (1970), to be followed by a three (3) year special parole term.
This court has construed a letter from the defendant to the court, dated November 3, 1974, as a motion under Rule 35 and has directed that the matter be given an evidentiary hearing. Such a hearing was held on January 2, 1975.
2 C. Wright, Federal Practice and Procedure (Criminal) § 586 (1969) (citations omitted). See also United States v. Kruegar, 454 F.2d 1154 (9th Cir. 1972); United States v. Berrigan, 437 F.2d 750 (4th Cir. 1971); United States v. Rosenberg, 109 F.Supp. 108 (S.D.N. Y.1952), aff'd 204 F.2d 688 (2d Cir. 1953).
United States v. Stumpf, 476 F.2d 945, 946 (4th Cir. 1973) (citations omitted). See also United States v. Brown, 428 F. 2d 1191, 1193 (7th Cir. 1970); Flores v. United States, 238 F.2d 758, 760 (9th Cir. 1956).
Jacobsen v. United States, 260 F.2d 122, 123 (8th Cir. 1958) (citations omitted). In order to give the defendant a "second round" before the sentencing judge, and at the same time afford this court "an opportunity to reconsider the sentence in the light of any further information about the defendant or the case," United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir. 1968), further testimony and argument was elicited.
The additional testimony of the defendant and witnesses called in his behalf alleged full cooperation with government agents prior to indictment and a reciprocal promise from those agents assuring special consideration and assistance for such cooperation. Further testimony alleged that the "special consideration" promised was not forthcoming because the investigating agent was relieved and another agent was placed in charge of the case.
Id. at 428. See also United States ex rel. Thurmond v. Mancusi, 275 F.Supp. 508 (E.D.N.Y.1967); United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244 (S.D.N.Y.1966).
The "evidentiary determination" required by Carter was held in this case. At such a hearing the "appellant has the burden of proof in this . . . Rule 35 attack on his sentence." Strickland v. United States, 325 F.2d 970, 972 (8th Cir. 1964). Cf. United States v. Carter, 454 F.2d at 428. This case therefore turns on whether the defendant has shown, by a preponderance of the evidence, that government agents promised him "special consideration," that the promise was relied on, and that the promise was subsequently disregarded. The defendant's responses at sentencing, taken together with the testimony elicited at the reduction hearing, indicate that the defendant has failed to meet the burden of proof imposed on him.
At the time of acceptance of his guilty plea, the defendant testified that no one had made any promises or representations to him in return for such a plea. The transcript of that proceeding shows the following exchange:
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