US v. Williams
| Citation | 746 F. Supp. 1076 |
| Decision Date | 15 August 1990 |
| Docket Number | No. 89-NCR-89G.,89-NCR-89G. |
| Parties | UNITED STATES of America, Plaintiff, v. John Manuel WILLIAMS and Eric Demitries Patt, Defendants. |
| Court | U.S. District Court — District of Utah |
Richard D. Parry, U.S. Atty's. Office, Salt Lake City, Utah, for plaintiff.
Harry Caston, Salt Lake City, Utah, for Williams.
Donald C. Hughes, Ogden, Utah, for Patt.
Following a jury trial, on January 25, 1990, the defendants in the above entitled case were found guilty of the offense of distributing "crack" cocaine and of two counts of possession with the intent to distribute "crack" cocaine. Defendant Williams was represented by Harry Caston and defendant Patt was represented by Donald C. Hughes, Jr. Counsel for the government was Assistant United States Attorney Richard D. Parry.
The initial pre-sentence reports filed by the U.S. Probation Office established a sentencing guideline range of 188 to 235 months for defendant Williams and a range of 151 to 188 months for defendant Patt. Both defendants moved the court for departure from their recommended sentences on the ground that their Constitutional rights to due process of law were violated by the manner in which they were singled out for federal prosecution as opposed to state prosecution, thereby becoming subject to minimum mandatory sentences and the federal sentencing guidelines.1 The court has heard substantial oral argument on two different occasions regarding the due process issue, and the parties have submitted supplemental memoranda on this issue pursuant to a request from the court for further briefing. Being now fully advised, the court sets forth this Memorandum Decision and Order.
Defendants' due process challenge to their proposed sentences is primarily based on the way in which their cases came to be presented to the United States Attorney's office for federal prosecution.2
Defendants were arrested in Ogden, Utah on December 9, 1989, through the efforts of local law enforcement officials who were part of the Weber/Morgan Narcotics Strike Force ("Strike Force"). The Strike Force is an intergovernmental law enforcement group involving funds and personnel from Morgan and Weber counties, municipalities within Weber and Morgan counties, and various agencies of the State of Utah and of the United States government, including the federal Drug Enforcement Administration ("DEA").
An "Interlocal Agreement" has been entered into by participating entities of the Weber/Morgan Narcotics Strike Force, which contains certain policies and procedures of the Strike Force. This agreement states that the Strike Force was created "for the purpose of investigating and prosecuting the illegal importation, manufacture, use, and sale of controlled substances under state, federal, and local laws." Strike Force Interlocal Agreement, p. 2. The Interlocal Agreement establishes the Strike Force with two governing boards: an Administrative Board, which acts "in an advisory capacity;" and an Executive Board, which is "vested with voting authority to govern and regulate the Strike Force." Id. No attorneys from the U.S. Attorney's office are members of either of the two Strike Force governing boards. Id. at 2-4.
The Strike Force Interlocal Agreement is silent on the subject of how and on what basis cases are chosen to be referred to the U.S. Attorney's office for federal prosecution, and who is responsible for making this determination. The Interlocal Agreement requires that Id. at 6. The Interlocal Agreement also provides that Id. at 9 (emphasis added). However, the agreement does not set forth any applicable policy or procedure or articulate on what basis cases are to be referred by the Strike Force to either state or federal prosecutors after an individual has been arrested.
The decision by the Strike Force to refer the defendants to the United States Attorney's office for federal prosecution had far reaching consequences inasmuch as these young defendants3 thereby became subject to mandatory sentences in excess of ten years under the federal sentencing scheme. If the Strike Force had instead chose to refer the defendants to the Weber County Attorney's office for prosecution in state court, and if they had been convicted of these same crimes in state court, the defendants would only face an indeterminate sentence of 1 to 15 years under Utah law,4 but more likely would serve a sentence in accordance with the non-binding sentencing matrix promulgated by the Utah Board of Pardons and used by Utah district courts. The matrix used in state courts and applicable to these defendants was presented to the court. The matrix shows that if defendant Patt had been convicted in state court his recommended prison sentence likely would be eighteen months. Defendant Williams' recommended state sentence likely would be either eighteen or twenty one months, depending on his criminal history calculation.
Although federal law authorizes cooperation among federal, state and local agencies concerning traffic in controlled substances,5 in the case of the Strike Force in question no federal prosecutor was a member of the governing board or had any part in the determination to refer the cases away from state prosecution over to federal prosecution. Law enforcement officials made the decision and exercised the discretion concerning referral for federal prosecution in this case. As previously discussed, the Strike Force Interlocal Agreement does not set forth any stated policy on the subject of how the Strike Force law enforcement officers are to select cases for referral to federal prosecutors.
In this particular case, the defendants could have been referred to the U.S. Attorney's office for any number of reasons, some of which would have been clearly impermissible and others which would have been entirely appropriate. Counsel for defendants suggested that these defendants could have been singled out for federal prosecution and the attending penalties because they are black, or because they are from California, or even because somebody needed the statistics for a promotion.6 On the other hand, the government argued that this was one of the largest crack cocaine arrests in Ogden and that the case could have been referred for federal prosecution to make an example of these defendants and hopefully to stop any trend of crack cocaine distribution in that area.
Defendants contend that their procedural due process rights were violated in that the decision to refer their cases for federal prosecution as opposed to state prosecution directly impacted their potential sentences in a dramatic way; that the decision was not subject to public scrutiny and easily could have been made in an arbitrary and capricious manner inasmuch as such decisions are not governed by any written policy statement of the Strike Force; and that the decision was made by police officers, rather than by prosecutors in the exercise of prosecutorial discretion.
The Supreme Court stated the following in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), regarding when procedural due process applies:
Whether any procedural protections are due depends on the extent to which an individual will be "condemned to suffer grievous loss." The question is not merely the "weight" of the individual's interest, but whether the nature of the interest is one within the contemplation of the "liberty or property" language of the Fourteenth Amendment.
Id. at 481, 92 S.Ct. at 2600 (citations omitted).
It is not an exaggeration that the decision by the Strike Force police officers to refer a defendant for federal or state prosecution is a substantial and indeed crucial factor in the ultimate sentence that the defendant will receive if convicted. The significance of this decision is magnified by the wide disparity between the mandatory drug crime sentences under federal law as opposed to less severe indeterminate sentences under state law for the same underlying conduct. As noted earlier, if these defendants had been convicted in state court they likely would have received a sentence of less than two years. However, because their cases were referred to the U.S. Attorney's office for federal prosecution, and the prosecutions were successful, defendants face a minimum mandatory sentence of ten years adjusted upwards to between 188 to 235 months for defendant Williams and between 151 to 188 months for defendant Patt due to the sentencing guidelines. Because of the significant impact of the Strike Force's decision to refer the defendants to federal prosecutors on the defendants' potential prison sentences, which involves liberty interests of the highest kind, the court finds that procedural due process protections are required.
Having determined that due process applies to the Strike Force referral decision, it remains to be decided what process is due. In this regard, the Supreme Court in Morrissey stated:
Once it is determined that due process applies, the question remains what process is due. It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. "Consideration...
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