US v. Giannetta, Crim. No. 86-00035-P-C.

• Decision Date: 04 March 1992
• Docket Number: Crim. No. 86-00035-P-C.
• Citation: 785 F. Supp. 13
• Parties: UNITED STATES of America v. James William GIANNETTA.
• Court: U.S. District Court — District of Maine

785 F. Supp. 13

UNITED STATES of America v. James William GIANNETTA.

Crim. No. 86-00035-P-C.

United States District Court, D. Maine.

March 4, 1992.

William H. Browder, Jr., Asst. U.S. Atty., U.S. Dept. of Justice, Portland, Me., for plaintiff.

Judy Potter, Cape Elizabeth, Me., for defendant.

MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION FOR REDUCTION OF SENTENCE

GENE CARTER, Chief Judge.

The matter is now before the Court on Defendant's Motion for Reduction of Sentence (Docket No. 63), filed in November of 1990, and on which decision has been delayed to this time at Defendant's request. This Defendant and his case have occupied the Court's attention off and on for the past several years. The entire history of the case, in which Defendant was admitted to probation and subsequently proved to be one of the worst violators of probationary terms and conditions in the history of the district, can best be captured by a review of the following opinions: United States v. Giannetta, 695 F.Supp. 1254 (D.Me.1988); United States v. Giannetta, 711 F.Supp. 1144 (D.Me.1989); United States v. Giannetta, 717 F.Supp. 926 (D.Me.1989); United States v. Giannetta, 909 F.2d 571 (1st Cir.1990).

The Court's prior decision to admit Defendant to probation was based upon what was represented to the Court at that time to be a long record of significant cooperation with law enforcement authorities in connection with illicit drug transactions which had yielded, according to the Government's representations, significant benefits to the Government in its enforcement effort. Since being sentenced to a fifteen-year sentence upon violation of the terms and conditions of his original probation, Defendant now comes back to the Court displaying a record of additional cooperational activities with the Government which has occurred since the time of the imposition of the fifteen-year sentence. He now seeks, pursuant to Rule 35(b), to have this Court reduce his sentence in consideration of his cooperation.

The Court approaches such a motion on a predicate of solidly articulated learning from the Court of Appeals for the First Circuit. The Court has said that such a motion is "essentially a plea for leniency ... addressed to the sound discretion of the district court." United States v. Ames, 743 F.2d 46, 48 (1st Cir.1984) (per curiam), cert. denied, 469 U.S. 1165, 105 S.Ct. 927, 83 L.Ed.2d 938 (1985), cited with approval in United States v. DeCologero, 821 F.2d 39, 41 (1st Cir.1987). In DeCologero the Court further observed:

The chief function of such an initiative is `to allow the district court to decide if, on further reflection, the sentence seems unduly harsh.' ... Rule 35(b), in a sense, operates as a final glance backward before the sentencing judge takes leave of the case. It affords him one last chance to reappraise the sentence in the albedo of any new or further information about the crime or the criminal which may have arisen in the interim ... Put another way, the device `offers the sentencing court an opportunity to temper its original sentence' ...

The rule is not meant to guarantee the defendant an instant replay of the sentencing process ... In the usual case, the Court — if unmoved by the plea to reconsider — need not even explain the reasons underlying its denial of the motion.

United States v. DeCologero, 821 F.2d at 41 (citations omitted). The Court, since DeCologero, has endorsed its proposition "that the chief function of a Rule 35(b) motion is merely `to allow the district court to decide if, on further reflection, the sentence seems unduly harsh.'" United States v. Twomey, 845 F.2d 1132, 1134 (1st Cir.1988).

This Court has had as intensive a learning experience with this Defendant as it would wish that this Defendant might have had with the processes and rigors of the federal criminal justice system. The Court, over a long period of time, has expressed its conclusions, learned from hard, direct experience with the Defendant, about the state of his rehabilitation, his capacity for social living on a responsible basis, and his willingness to abide by the rules of law which govern his conduct in an organized society. The Court stated in 1988, in considering whether the Defendant should be admitted to bail pending resolution of his probation violations, the following:

The evidence taken out at the preliminary hearing and at the bail hearing displays a course of conduct over many months of the period that Probationer has been at large on probation since February of 1988, constituting, to a high degree of likelihood, numerous individual illegal acts conducted by Probationer for profit, as well as the implementation of various aspects of ongoing and continuous schemes to defraud members of the public of their property. The evidence at the preliminary hearing resulted in a finding of probable cause that such offenses had been committed by Probationer. The evidence taken at the bail hearing, far from dispelling in any way the validity of those conclusions, enhances their probative force and indicates some instances of additional conduct of a criminal nature. Since the initial Petition for Probation Action was filed on August 24, 1988, there has been a supplement thereto ... alleging in considerable detail various additional instances of violation of conditions (1), (2), and (10) of the Probationer's probation period.

... The record demonstrates that during most of the period he has been admitted to probation, there is good reason to believe that he has been continuously involved not only in violation of the terms and conditions of his probation, but in conduct constituting a continuing and ever-expanding pattern of criminal violations. Such a person, in the view of this Court, is, within the meaning of the statute, one who poses a danger to the safety of other persons and of the community if released on bail ... The Court has maintained this Probationer under the closest kind of supervision while he has been admitted to probation and is well aware that he has been aware of the closeness of that scrutiny by Officer

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