US v. Duncan, PLAINTIFF-APPELLANT

• Decision Date: 09 March 2001
• Docket Number: DEFENDANT-APPELLEE,Nos. 00-2013,CROSS-APPELLANT,CROSS-APPELLEE,PLAINTIFF-APPELLANT
• Citation: 242 F.3d 940
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA,AND, v. DONALD DALE DUNCAN, JR.,AND& 00-2014
• Court: U.S. Court of Appeals — Tenth Circuit

Page 940

242 F.3d 940 (10th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT AND CROSS-APPELLEE, v. DONALD DALE DUNCAN, JR., DEFENDANT-APPELLEE AND CROSS-APPELLANT.

Nos. 00-2013 & 00-2014

U.S. Court of Appeals, Tenth Circuit

March 09, 2001

Appeal from the United States District Court for the District of New Mexico (D.C. No. CR-96-550-MV) J. Miles Hanisee (Norman C. Bay, United States Attorney with him on the briefs), Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellant and Cross-Appellee.

Douglas E. Couleur, Santa Fe, New Mexico, for Defendant-Appellee and Cross-Appellant.

Before Brorby, Ebel and Kelly, Circuit Judges.

Brorby, Circuit Judge.

Section 3553(e) of Title 18 of the United States Code and § 5K1.1 of the United States Sentencing Guidelines ("Guidelines") empower district courts, upon a government motion, to impose a sentence below the statutory mandatory minimum and Guidelines minimum sentences, respectively, to reflect a defendant's "substantial assistance in the investigation or prosecution of another person who has committed an offense." 18 U.S.C. § 3553(e); United States Sentencing Guidelines ("U.S.S.G."), § 5K1.1, p.s. (Nov. 1998). ¹ In this case, the government refused to file a substantial assistance motion. However, on defendant Donald Dale Duncan's motion, ² to which the government objected, the district court departed downward from the statutory mandatory minimum sentences applicable to the drug and firearm counts to which Mr. Duncan pled guilty. The grounds for its decision were § 5K1.1 and the egregious-case exception identified in United States v. Kuntz, 908 F.2d 655, 657 (10th Cir. 1990), overruled in part on other grounds by Melendez v. United States, 518 U.S. 120, 123-26 (1996). Further, the district court held it was without authority to grant a substantial assistance departure under U.S.S.G. § 5K2.0. See U.S.S.G. § 5K2.0, p.s. (Nov. 1998).

On appeal, the government raises the issue whether the district court was without authority to grant a substantial assistance departure in the absence of a government motion.³ Specifically, it claims the Supreme Court's decision in Wade v. United States, 504 U.S. 181 (1992) eliminated the egregious case exception or otherwise limited the circumstances under which a district court may review a prosecutor's refusal to file a substantial assistance motion and grant the defendant a remedy. Anticipating our potential agreement with the government's argument on appeal, Mr. Duncan cross-appeals the district court's conclusion it was without authority to grant a substantial assistance departure under § 5K2.0.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), (b)(1). We reverse and remand for re-sentencing on the government's appeal, and affirm on Mr. Duncan's appeal.

I. Background

Mr. Duncan's substantial assistance motion focused on his cooperation with state authorities in an unrelated state murder case, and explicitly invoked the egregious case exception. The district court granted Mr. Duncan's request for an evidentiary hearing, at which three defense witnesses testified: (1) Warren Harris, a New Mexico prosecutor; (2) Joanna Aguilar, a former New Mexico prosecutor; and (3) Mr. Duncan. The government did not present any witnesses or other evidence at the hearing, but continued its opposition to the motion. The following chronology of events is taken from the undisputed testimony of the defense witnesses and the record.

In 1993, Lisa Duncan, Mr. Duncan's ex-wife, was murdered in New Mexico. The investigating authorities eliminated Mr. Duncan as a suspect after he passed a polygraph test. Mr. Duncan then began actively assisting the investigation, which eventually led to the prosecution of Rudy Gonzales, Sr., a former deputy sheriff in Sandoval County, New Mexico, and his son, Rudy Gonzales, Jr., for the murder.

In 1996, Mr. Duncan was charged in this case by indictment with: one count of possession with intent to distribute at least five grams of cocaine and aiding and abetting, 21 U.S.C. § 841(a)(1), (b)(1)(b) and 18 U.S.C. § 2; one count of possession with intent to distribute at least 100 grams of methamphetamine and aiding and abetting, 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2; and two counts of carrying and use of a firearm during and in relation to a drug trafficking crime and aiding and abetting, 21 U.S.C. § 924(c)(1) and 18 U.S.C. § 2. Pursuant to a 1998 plea agreement, Mr. Duncan pled guilty to the methamphetamine and one firearm count in return for the government's dismissal of the remaining two counts and its agreement not to bring future charges against Mr. Duncan regarding activity currently known to federal law enforcement officials. The plea agreement did not contain a cooperation agreement between Mr. Duncan and the government, nor any commitment by the government to file a substantial assistance motion if it determined Mr. Duncan had provided substantial assistance in the investigation or prosecution of another person who has committed an offense.

During the period between his federal arrest and guilty plea, Mr. Duncan continued to assist state prosecutors by participating in interviews and testifying in the Rudy Gonzales, Jr. murder trial, which resulted in a first degree murder conviction. Around the time he entered the plea agreement in this case, Mr. Duncan testified in the Rudy Gonzales, Sr. murder trial, which ended in a hung jury. In 1999, Mr. Duncan testified for the prosecution in a second trial against Rudy Gonzales, Sr., which again ended in a hung jury.

According to Mr. Harris and Ms. Aguilar, Mr. Duncan was the only prosecution witness who could explain the relationships of the parties in the murder cases and provide the motive for Messrs. Gonzales to kill Lisa Duncan. Both Mr. Harris and Ms. Aguilar testified Mr. Duncan was very cooperative and they found him to be truthful. Mr. Harris stated "this was a very difficult case, and without [Mr. Duncan's] help I know we probably wouldn't have convicted Sr. and we wouldn't have gotten as far as we did against Jr." ⁴ On the basis of his twenty-nine years as a prosecutor, Mr. Harris characterized Mr. Duncan's cooperation and the usefulness of his testimony as being "in the top 10 percent" of all cooperating witnesses. Finally, Mr. Harris noted his testimony on behalf of Mr. Duncan was only the second time in his career he had spoken on behalf of a defendant at sentencing.

During oral argument on the motion, defense counsel argued the district court could grant Mr. Duncan a substantial assistance departure under either the egregious case exception identified in Kuntz or under § 5K2.0. In opposition, the government presented four arguments: (1) the district court was without authority to grant Mr. Duncan a substantial assistance departure absent a government motion; (2) the government has the authority to file a § 3553(e) and/or § 5K1.1 motion when a defendant has substantially assisted, but no duty to do so; (3) the government's conduct in refusing to file a substantial assistance motion in this case was not egregious, because the plea agreement substantially reduced Mr. Duncan's exposure to further statutory mandatory minimum sentences; and (4) § 5K2.0 was inapplicable because it does not provide the district court with authority to depart below statutory mandatory minimum sentences.

The district court stated "the issue here is whether the defendant's assistance to state authorities ... is egregious enough ... as to cry out for meaningful relief" under the egregious case exception, and held it was. The court concluded Mr. Duncan's assistance to state authorities was "extraordinary," and "that the evidence and information that he provided was of substantial assistance to [Mr. Harris and Ms. Aguilar] in their best estimation." The government objected and asked the district court to clarify whether it was holding the government's refusal to file a substantial assistance motion was egregious conduct. The district court reiterated that its holding focused on the nature and extent of Mr. Duncan's assistance to state authorities, and was not an evaluation of the government's decision not to file a substantial assistance motion:

It's not - I'm not viewing it - it's not egregious conduct. It's an egregious case in which - egregiousness as I review the Tenth Circuit case law, it is a case in which the defendant's level of cooperation is so great that, without a filing of a motion for substantial assistance, it cries out for relief. I mean, that's the language of the cases. It's not labeling the government's conduct as egregious. It is one of the three factors in which the courts can look at whether a substantial assistance motion should have been filed. It's just one of the three factors, and it's called the egregious case factor. It's not the egregious government conduct.

....

... I have seen no other case in which egregious is referring to the government's conduct. We don't even look at the government's conduct because this isn't an unconstitutional motive case. We are only looking at the government's conduct here because the language of the cases in the Tenth Circuit say that you can look at an egregious case, an egregious case being a case in which a defendant cooperates so much and a motion for substantial assistance is not provided ....

By no means is this a situation in which the government's motives are being impugned in any way. The case law I think is clear, as I read it, that I'm supposed to look at what did this defendant do. I mean, how helpful was it, how much effort was involved in it, and is this - in looking at it, is this a case that cries out for meaningful relief. That's all.

(Emphasis added.) Indeed, the only finding the district court made as to the government's conduct was the government had not "offered any kind of evidence indicating that they in fact considered...