United States v. John Doe

America, UNITED STATES

Plaintiff-Appellee, DOE, John Defendant-Appellant.

No. 89-3071. United States Court of Appeals,

Seventh Circuit. Argued Feb.

Decided Aug. Levine, Atty., Crimi- Asst. D.

Scott Ill., plaintiff-appellee. for Div., Chicago, nal Fla., Miami, defen- Denaro, for Jack M. dant-appellant. RIPPLE, Circuit CUDAHY and

Before ESCHBACH, Circuit Senior Judges, and Judge. Judge.

ESCHBACH, Senior decide appeal, we must criminal In this circumstances, any, the Unit- if under what to file a motion required ed States under Fed.R.Crim.P. of sentence correction “Rule”). May 35(b)” In (“Rule (“Doe”)1 was convicted John two Illinois of the Northern distrib- intent to possession with counts conspiracy count of and one ute cocaine 21 U.S.C. cocаine, distribute his appeal not 841(a)(1) He did and 846. §§ sentencing, year of one Within conviction. District Court however, he moved the on his sub- based order the United investigation of in the stantial assistance crimes, to file a Correction other alternative, to Motion, or in the of Sentence pursuant sentence correct his of Govern- notwithstanding the absence denied The District Court ment’s motion. We affirm. request.

BACKGROUND FACTUAL and be- conviction

Subsequent case, entered his fore sentence (Defen- agreements of into 2) 1 and Nos. dant’s Exhibits (“U.S. Attor- Attorney’s United States districts outside in two ney’s”) Offices agreements, In both of these Illinois. provide assistance substantial promised of nar- prosecution investigation in the 1,No. Exhibit cotics offenses. Defendant’s 111; Order, absolutely only the facts spirit

1. To our safety protect of Doe help opinion understanding or full our necessary to a Doe remain family, ordered that this Coart has keeping will be disclosed. appeal. with the anonymous in this return, promised that Doe’s ‍​‌​‌‌​​‌​​​‌​‌‌‌‌​‌​​​​​‌​​​​​​‌​​‌​​​​​‌​‌​​‌‌‌‍crimes were too sеrious to war- any provided by information pursuant rant leniency regardless of his substan- would used tial assistance elsewhere. Consequently, against him. Defendant’s Exhibit No. the Government filed no Rule ¶ 3; 2, Defendant’s ¶14(a). No. present in the proceedings. addition, assuming complete cooperation by September 1988, the District Court Doe, agreements bound U.S. Attor- sentenced Doe.4 Both agree sides that his ney’s Offices in the two districts make conviction carried a statutory year ten persuade effort еvery Attorney U.S. mandatory minimum prison term, see for the Northern District of Illinois file a 841(b)(1)(A).5 U.S.C. § The District Court for motion correction of sentence under sentenced him to years fifteen concurrently 35(b). Rule 1, II8; Defendant’s Exhibit No. on the two substantive counts and suspend- ¶2, 4(e)(i).2 Exhibit No. Final- ed sentence on the conspiracy count. ly, agreements required informa- Based on his assistance, substantial tion learned from Doe would not be dis- asked the District Court to reduce his sen- closed anyone not ratifying the agree- tence to ten years pursuant prede- ments the benefit of Doe. Defendant’s cessor6 of the 35(b). current Rule The 1, 1110; Exhibit No. Defendant’s Exhibit District agreed Court 2, reduced sentence to the statutory minimum ten indications, all From years. pursuant these unequiv- ocal exemplary.3 Authorities Doe then sought each to have his sentence of the two districts were thoroughly satis- reduced to less than years. ten Because fied and each writing recommended in earlier version of Rule does not a Rule motion be filed in the case authorize a reduction below a statutory before us. But the U.S. for the term, minimum a sentence correction under Northern District of persuaded Illinois was the current 35(b) (which version of Rule 2. Rule states: 1002, 3207, Pub.L. § 99-570 100 Stat. 3207-2 court, Government, The (1986), on may of day enacted, became effective the it was year within one imposition after of a October Duprey, United States v. sentence, lower a sentence to reflect a defen- — Cir.1989), den., cert. subsequent, dant's the substantial assistancе in -, 110 S.Ct. 109 L.Ed.2d 291 investigation prosecution or of another (1990); — see Gozlon-Peretz United person offense, who has committed an in ac- U.S. -, -, 840, 847, 112 L.Ed.2d guidelines cordance with the ments issued policy state- (1991). the Sentencing Commission pursuant to section of title 6.The earlier version of Rule was an- States Code. The authority court’s to lower a Supreme nounced April Court on sentence under this subdivision includes the 1985: authority to lower such to a sentence level below that established statute as a mini- A made, motion to may reduce a sentence mum sentence. may or the court reduce a sentence without motion, days within 120 The U.S. after the sentence is the Northern District of this, disputes imposed probation revoked, or contending or within that Doe has days hidden some drug-derived of his receipt by after assets of a court man- purposes authorities. For opinion, this date issued judgment how- affirmance of the ever, we will assume Doe has told all that he or appeal, dismissal of the or days within 120 knows. entry after judgment order or of the Supreme of, denying Court having review 4. Doe was convicted for crimes he committed upholding, judgment effect of a conviction before November 1987. The Federal Sentenc- probation The revocation. court shall de- ing Guidelines thus do not dictate his sentence. termine the motion within a reasonable time. Comprehensive Act, Crime Control Pub.L. Changing a sentence from a sentence incar- 235(a)(1), 98-473 § Stat. grant ceration to probation shall consti- Sentencing Act, Reform Amendments Pub.L. permissible tute a reduction of sentence un- (1985). § 99 Stat. 1728 der subdivision. year 5. The ten minimum imposed Rules, sentence Amendments to 105 F.R.D. through Anti-Drug Abuse Act of Rule, 100- Pub.L. reduction, supra November 1987. See such does authorize 182 22. aBut Government 2) necessary. § note was current trigger the required to

motion is were Because Doe’s crimes committed Attorney for the 35(b), and the U.S. Rule 1, 1987, he fits into November before continually Illinois has Northern Rule both window where versions file the motion. refused to it is apply. аpplies new because applies old because in this retroactive. at issue filed the motion Doe then ef- committed before the to his crimes were the District Court appeal. He asked Therefore, Rule. date of new fective to file the order the to reduce District Court was authorized alternative, grant 35(b) motion, or in the years Doe's to ten based on his sentence a correction without him a sentence if obligated, be earlier motion would that motion. Government appeal, de- in this Doe were successful by one of the office is bound the Illinois re- whether his sentence should be motion cide agreements to file the cooperation duced further. and, not, refusal that the Government’s if his constitutional the motion violated file the North- Was the U.S. 2. rights. The District Court denied contractually ern Illinois District finding request, the Illinois that obligated to a motion? obligation file the owed no contractual file rejecting Doe’s constitutional motion and argues сoopera one of that arguments. agree We with the District agreements Attor obligates tion U.S. affirm. Court and ney for the Northern District 35(b) cooperation The

file a Rule motion. If agreements are the United contracts. ANALYSIS express implied in terms States breaches 35(b) applies? 1. Rule Which agreements, pro these then it violates due delve into the com Before we can York, New 404 cess. See v. Santobello plexities surrounding breach of contract 257, 495, 427 30 L.Ed.2d U.S. 92 S.Ct. process, are сonfronted with a due we Lewis, (1971); v. 896 United States disturbing Why question. rather should 246, (7th Cir.1990); ‍​‌​‌‌​​‌​​​‌​‌‌‌‌​‌​​​​​‌​​​​​​‌​​‌​​​​​‌​‌​​‌‌‌‍249 of both the old and receive benefit (2d Cir.1990), Rexach, 710, 713-14 35(b)? The is Rule answer that new — 433, den., U.S. -, 112 cert. Congress says so. (1990). the content of L.Ed.2d 417 only that 35(b) promises question is a of fact will new Rule was enacted Con- The if gress part Comprehensive clearly reversed erroneous. United as a Daniels, Crime Control Act of See Pub.L. States — -, (1984). Cir.1990), den., cert. 98-473 98 Stat. § 112 L.Ed.2d 522 United effective date of amendment was S.Ct. Strawser, 1226, 1229 November 1987. See Pub.L. States 1038, 105 (7th Cir.1984), den., 235(a)(1); 469 U.S. Pub.L. 99-217 4. Notwith- cert. § § (1984). date, Cоngress pro- L.Ed.2d 407 The Dis standing this effective S.Ct. finding Sentencing Act that trict Court under review is that vided in the of 1987 apply retroac- U.S. for the Northern District new would obligation “an tively accept crimes Novem- Illinois did not committed before 24(3), persuade himself that a should ber Pub.L. § Denying filed.” Motion. Order Stat. agreements prevent But this does not the old Rule Neither of Sentencing provisions to mo- applying. express Act contains file the agreeing have also version tion. The two districts prior dictates merely prоmised every Supreme as announced Court on “make effort Illi- April 29, persuade Northern applies to all crimes commit- the ... nois, complete ted a full and corree- before effective date of the new file ... 35(b).” 35(b)] tion of sentence motion under and the clear dictate that [Rule see Defen- 1, 118; Defendant’s Exhibit No. government must first a file motion 2, 4(e)(i). If in dant’s Nowhere may depart, before court no defen- expressly stating either document is a term reasonably dant read plea agree- a definitely that the motion would be filed. government ment to bind the to file a One of the even counters such 35(b)] explicit motion absent an [Rule stating reading by that “understands there can promise Therefore, to do so. Attorney’s Of- ... the United States ambiguity be no in the absence anof in is fice the Northern District of Illinois express government promise plea De- not bound that recommendation.” agreements to mo- [Rule ] file 114(d). And fur- fendant’s Exhibit No. tion. promise An express to file mo- ther, languagе both contracts contain unambiguously govern- tion binds the those promises no other outside contained ment. The promise lack such a were made. De- the written documents clear evidence that such a 11; fendant’s Exhibit No. 1f not made. express promises Exhibit No. 1f No Coleman, States v. can be found these documents. (8th Cir.1990) (emphasis original).7 many reasons, For of the same Doe The Second Circuit also skeptical takes a implied cannot an establish contractual implying view towards such a term. right motion. to the Our Circuit has taken Rexach, the prosecutor specifically agreed a implying restrictive view towards sen to consider the whether defendant had of- See tencing promises agreements. into fered substantial assistance that would Israel, ex United States rel. Robinson v. 3553(e) filing warrant the aof Section mo- (7th (en Cir.1979) supra tion, prosecu- note 7. When the banc) (holding promise that a to recom motion, tor failed file the the defendant forty mend a sentence between ten and agreement implied the a term re- years prevent did not the Government from quiring the motion filed. The Court recommending parole the board that cooperation agree- held that because the petitioner the possible), serve maximum time specific objective ment did not define stan- den., rt. U.S. ce evaluating degree dards for the the de- of L.Ed.2d assistance, agreement the fendant’s did no Mooney, Cir. prosecutorial more than “create dis- broad 1981) (holding that promise a Government cretion, by only subjective good limited the year prison a ten recommend term did Rexach, the prosecutor.” faith of imply promise not a not to resist the defen at 714. dant’s Rule 35 motion to reduce the sen tence years to ten after the District Court advocating than rather rejected had the Government’s earlier ten- express implied right to the motion aris recommendation). year ing agreements originally the as ne squarely

Other Circuits have gotiated, argues more faced the Illi instead that argument implied the for an term a adopted nois office has and one ratified of Eighth motion. The flat- the its is two own. It undis ly rejects the notion: puted Attorney the that U.S. for the North Furthermore, because the ern permission extraordi- District of Illinois received nary provided by nature of the relief from the U.S. in one the two actually opinion construing language 7. Coleman an is the We this all three do because the Moreover, authority by 3553(e) provisions parallel. conferred 18 U.S.C. § both Rule impose 3553(e) statutory authority a sentence below a § minimum and limit the to im- pose based a defendant’s substantial a "in assistance. reduce to lower sentence ac- Throughout opinion, precedent guidelines policy our we cite con- cordance with the state- struing 3553(e), by Sentencing § and Federal Sen- ments issued the Commission.” so, 3553(e) tencing (permitting Guidelines dis- § § 5K1.1 And be read must depart Sentencing consistently Sentencing trict court to from the Guide- with their Guidelinеs assistance) interchangeably. counterpart, lines for substantial § 5K1.1. purport to ratified, promise not the does interrogate Doe under districts agreeing Further, anything the require that district. agreement his it is bound Illinois. concedes District of Illinois office the Northern the any infor- use of the preventing clause the effect misunderstands Doe also agreement under provided mation office. Doe interrogation finally, the Illinois Doe. And against Illinois office that not assert does provided information certainly learned agreeing dis- questions him that asked trigger- thus agreement, by Doe under him under the have asked could not trict ratify obligation ing Illinois office’s agree- contrary, the Quite the agreement. under the Doe’s benefit agreement to all he Doe to tell specifically requires ment Exhib- Defendant's ratification clause. committed criminal offenses about knows through ¶ argues that No. it including in the anywhere has ratification, Illinois office Illinois. See ef- requiring all the term itself bound Instead, the U.S. argues the U.S. persuade expended forts to be Illi- District of Attorney for the Northern Illi- Northern Attorney for the agree- under the nois, by interrogating him Doe con- motion. nois to file Rule ment, agreement is the as its adopted in this implicit tinues obligations in this case. accepted thereby promise to file own essence, agreeing district. of the ratified True, office has the Illinois interrogate him right to contends operates to bind ratification agreement, but assigned agreement under the promises to the unauthorized principal accepting its Illinois office without princi- of the on behalf agent an made agreeing obligations which the the to all of v. Security Ins. Co. pal. See Old Life argument Doe’s is bound. But district Trust Nat’l Bank & Continental plainly gives agreement (7th the fails because F.2d Chicago, 740 Co. of right designate to Here, agreeing at issue district the Cir.1984). only promises the the More- principal interrogate are those See id. agents of a to him. made on behalf contemplates terms are immunity. over, implicitly These respecting agreement use the the States jur- of entered on behalf from other prosecuting authorities that has rati- The Illinois office Government. question him. See Defen- would isdictions through its conces- both Indeed, fied these terms No. from Exhibit dant’s rat- through operation of the sion and scant record glean the can what we respect to Rule But with ification clause.8 us, appears first it that before himself Rat- application. no ratification has interrogate him the Illinois office invited unautho- binding previously ification makes Attorney the U.S. to convince in an effort principal. promises rized on of behalf Illinois that his Northern District of for the agent clearly in its by an Promises made complete. genuine assistance was both by the capacity cannot be ratified individual 35(b) at Hearing on Transcript of See v. through its actions. See Stone principal 56, 66. N.A., Lusk, 625 F.2d Bank Wyoming First parties unless the have general, Cir.1980). ‍​‌​‌‌​​‌​​​‌​‌‌‌‌​‌​​​​​‌​​​​​​‌​​‌​​​​​‌​‌​​‌‌‌‍already (10th As dem- freely otherwise, rights are agreed contract onstrated, to Rule promises relating the would mate- assignment unless assignable 35(b) solely of the on behalf were made obligor, in- the change the of rially duties attempted way in no agreeing district and risk, impair the obli- obligor’s the crease makes no office. It the Illinois bind obtaining perform- return gor’s chance ratify- speak of the Illinois office sense to Co., v. Beauty Inc. Nexx- because, Sally even if it were ance. ing this general agreement For a extending or nоt. agreement the use ratified clause the authority apparent by of the inherent immunity the U.S. discussion is entered into gov- governmental to bind another office Govern- of “the United States one on behalf gener- agreement, plea in a It ernmental ally ¶ ment.” Defendant's Neal, (7th 965-66 obligated Staten v. likely quite the Illinois office was Cir.1989). regardless whether it term to abide Inc., Co., us Products 35(b) 801 F.2d to file a Hule motion. The Illinois Overseas Dev. Disc Cir.1986); n. 6 not required office was even to consider Inc., Co., Corp. Sangamo v. Constr. the recommendations of the other districts (7th Cir.1982); Charles 504 n. 10 making in its decision because it ex- Erwin, L. Bowman & Co. pressly not bound the provi- Co., Ltd. Collins (5th Cir.1972); 1297-98 agreements. sions Co., Carboline Ill.2d Ill.Dec. Illinois office all received of the benefits 5, 10-11, 839-40 532 N.E.2d J. cooperation agreements without incur- Perillo, Calamari &J. Contracts §§ ring obligations any because that is what 1987). (3d through Assignment ed. allow.9 change duty all here did at knowledge of activity disclose his criminal 3. Did a Rule refusal file persons designated by agree those process motion violate applied due as district, ing any did not increase of Doe’s to this case? risks, impact did not at all argues the refusal obtaining performance chances return the Rule the Government cooperation agreement. under There process. attacking violated due He is not fore, right interrogate under Rather, on its alleges face.10 he agreement lawfully assigned the U.S. violated due substantive Moreover, assign the Illinois office. process aрplied as to the facts of this delegate not operate ment did con case.11 tractual duties to the Illinois office. recently, Twice we have say We cannot District Court was addressed clearly finding agreement process applied erroneous no due attack that Doe estoppel right 9. Doe also contends that and novation stitutional to have the District Court indi- should work to bind Illinois office. vidually consider or her substantial assist- prevail theory, order to under either Doe must sentencing, Congress ance in does not violate argue do than more that the Illinois office inter by conferring process right due conditioned rogated agreement. already him under the As prosecutor’s discretion. United States established, interrogate the Illinois office could Donatiu, (7th Cir.1991); agreement incurring any him under the without Valencia, (7th United States v. 913 F.2d 386 35(b). so, obligation respecting Rule And for Lewis, Cir.1990); United v. States 896 F.2d 246 prevail estoppel theory, Doe to on his must he (7th Cir.1990). representation show the Illinois office made regarding reasonably which he procedural process 11.Doe has also raised a due Security, relied to his Old 740 detriment. See argument, argument but this must fail. In or- Moreover, estop F.2d at 1392. to the United trigger requirements process pro- der to cedures, of due Doe must show Government’s actions he are Doe must establish that has been tantamount to affirmative misconduct. See Co., liberty legit- States v. property United Monroe Serv. 901 F.2d denied a or interest—a (7th Cir.1990). interpreted Even if Doe imate Re- claim entitlement. See Board of interrogation by saying the Illinois office as Roth, gents v. 408 U.S. 92 S.Ct. something surely about Rule fact L.Ed.2d v. 33 548 Thornton interrogation only rep an be innocent Barnes, (7th Cir.1989). F.2d 1386 As amounting resentation not mis affirmative indicated, already pro- we have the Constitution novation, conduct. And for Doe to he establish right sentencing vides no to the individualized point must to actions of the Illinois evi supra Doe See note 10. And seeks. dencing agree an intent to substituted in the provides legitimate with Doe no claim of entitle- Central, See ment. CH2MHill Inc. v. Madison- gener- ment absent Government’s motion. See International, Inc., Madison 895 F.2d Thornton, ally (Although 890 F.2d at (7th 1989). Therefore, Cir. to obtain relief under Constitution, rule, provides not the statute or theories, either point these Doe must do more than minimally procedures, due we must look interrogated fact that he was under procedures provided by or rule statute agreement. hope because the record is legitimate determine whether a claim of entitle- this, lessly incomplete about we have choice no established.). ment been has Because reject argument. but to If Doe’s facts exist that liberty denied no Government’s refusal helped prevail, could have duty it was interests, property re- the Fifth Amendment’s appeal. to include them in the record on quirement implicated. process of due is not at See id. 288 n. 2. id. soundly rejected 10. We have attack. facial possesses Because criminаl defendant no con- the defen- offenses for which en and the rejected it. See cases we makes. both United, 1334-36; Denying Rule Order convicted.” Donatiu, F.2d at dant was (7th facts, Cir. 35(b) the Govern- Bayles, 923 Motion.14 On these v. States yet However, 1991). this Circuit the motion was not to file ment’s decision precise test definitively the articulate impermissible clearly not based on ques process due answering the used in grounds. ap indicated we Bayles, tion. reviewing for the deci standard propriate CONCLUSION might be the same file a sion not to finding that no The District Court’s we review Govern by which standard Attorney’s by the made prosecute not to whether ment’s decision clearly file the motion was rejects that office to case we But neither a case. reject the contention prosecutorial bad erroneous. We also review might also Donatiu, at 1335.12 Id.; to file violated substan- that the choice not faith. no evidence has offered applied. Govern- process But because due tive faith, it we bеlieve tending to show bad obligation to seek a cor- ment thus had no imagine today a unnecessary and unwise on substan- sentence based rection of Doe’s showing prosecu- facts hypothetical set of the District The decision of tial assistance. judicial might warrant faith that torial bad Court review. AFFIRMED. analysis our accordingly restrict We claim, we protection which equal CUDAHY, concurring. Judge, Regardless of whether reject.13 must Judge agree wholly I almost all that similarly situated others has shown I panel. for the has written Eschbach differently, Doe has failed to were treated only my separately to indicate belief write treatment was the differential establish measuring any proper test for purpose. Doe con- by an invalid motivated a Rule prosecutor’s refusal the motion based he was not denied cedes arbitrary refusal is motion is whether the being suspect of a class. on his a member or in bad faith. See United States look at the Govern- We must therefore Cir.1989), (8th Smitherman, rational basis under ment’s motivation — U.S. -, denied, rt. of three seri- ce 1493, scrutiny. Doe was convicted L.Ed.2d 629 Attorney has ous crimes. The U.S. Bayles, States were reduced that if Doe’s sentence Cir.1991), against finding leans somewhat further, from the the deterrence value exception, and such an gutted. prosecution would be Donatiu, n. 3 1334-35 & stating in its agreed, Or- apparently Court (7th Cir.1991), agnostic on the mat remains reduction recent sentence der that “the [un- ter; definitively. the issue neither resolved 35(b)] proper reflects a der оld Rule circuits, Judge points giv- Eschbach the assistance Other accommodation between Rexach, struggled Appeals have ence.” United States Courts of 12.Other (2d Cir.1990). carefully question to review the of how prosecutor’s file the motion. decision not Amendment, ques- Eighth “Although unlike the Circuit indicated the Fifth 13. Fourteenth, equal protec- might prosecutorial bad faith or does not contain an tion be whether clause, equal protection accompanies decision. it does cоntain an tion arbitrariness Smitherman, Wayte ‍​‌​‌‌​​‌​​​‌​‌‌‌‌​‌​​​​​‌​​​​​​‌​​‌​​​​​‌​‌​​‌‌‌‍component.” v. United 470 U.S. United States v. (8th Cir.1989). S.Ct. 1531 n. 608 n. First Circuit has hinted the arbitrary might capricious. L.Ed.2d 547 and standard Guardia, United States v. La finding, (1st Cir.1990). upon this the Government has But the Second Circuit has lik- 14. Based required that even if it were not to file the motion "to ened the decision decisions, motion, failing any prosecutorial error in to do so was harm- such as whether other press charges charges press,” the District Court has indicated that and which less because sentencing departurе requests be denied. We motion would and ruled that argument. given high need reach this the same level of defer- “must out, question, are not consistent on process

at this time I re- believe that due quires exception govern- such an ment’s discretion.

RIPPLE, Judge, concurring. join

I judgment court. COOK, Jr., Cook,

Osie and Lisa

Plaintiffs-Appellants, NAVISTAR INTERNATIONAL TRANS- CORP., Mid-Century

PORTATION Co., Defendants-Appellees. Insurance COOK, Jr., Osie and Lisa Cook, Plaintiffs, NAVISTAR INTERNATIONAL CORP.,

TRANSPORTATION Defendant-Appellee, Mid-Century Co., Insurance

Defendant-Appellant. 90-3093, Nos. 90-3433 ‍​‌​‌‌​​‌​​​‌​‌‌‌‌​‌​​​​​‌​​​​​​‌​​‌​​​​​‌​‌​​‌‌‌‍and 90-3556. Appeals, States Court of

Seventh Circuit. Argued 9,May 1991. Aug. Decided Aug. As Amended Rehearing Denied Oct.

Case Details

Case Name: United States v. John Doe

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 2, 1991

Citation: 940 F.2d 199

Docket Number: 89-3071

Court Abbreviation: 7th Cir.