*2 BECKER, and Before SLOVITER COWEN, District Judges, and Circuit Judge.* THE OF COURT OPINION SLOVITER, Judge. Circuit grows bribery of a con- appeal This out that, in of the district spiracy the words many through the judge who sat hearings, and “struck at days of trials App. government.” at very heart of state Smith, Jr., pris- T. a federal 151. William oner, order of the district appeals from an his sen- denying his motion to reduce following his conviction for tence part in that scheme. I.
Facts
earlier
fully
more
set forth
our
As
conviction, the
opinion affirming Smith’s
charges arose out of a scheme which
Smith,
attorney
Republican
the then
an
and
Dauphin County, and
County Chairman of
Torquato,
of a former
R.
the son
John
County
Democratic
of Cambria
Chairman
political
County, agreed to
contribu-
make
Pennsylvania
tions to certain
state offi-
cials, including
Republican
State Chair-
Asher,
man,
the State Treasur-
Robert
er,
Dwyer,
R.
in order to obtain lucra-
Budd
CTA, Ltd.,
a small Cali-
tive contracts
company.
fornia
were
Smith
substantially
for their
remunerated
Indeed,
efforts.
had the scheme succeed-
ed,
gain
stood to
two million dollars.
Smith
Instead, Smith as well as four other individ-
charged in
corporations
uals and two
were
variety
thirty-nine
count
on a
indictment
of federal crimes.
States v.
United
See
Cowen,
Judge
this
Robert E.
United States District
Cowen has become a member of
*Hon.
Jersey, sitting by
Court for
District New
Court.
argument
appeal,
designation. Since
this
denied,
Cir.),
against
(3d
be used
witness
criminal
Smith,
cert.
F.2d 196
—
case,
except prosecution
perjury, giv-
U.S. —,
L.Ed.2d 720
statement,
ing
contempt,
false
or otherwise
(1986).
failing
comply
with this Order.”
engaged in
government
and the
Smith
ended
negotiations which
post-indictment
Thereafter,
give
provided
what
refused
when the
*3
government agreed
coop-
immunity
prosecution.
from
was “substantial
Smith total
App.
eration.”
at 81. That
co-conspirator Torquato did reach
Smith’s
testimony
culminated in Smith’s trial
government
where-
agreement with
an
Asher,
pled against Dwyer and
which contra-
cooperation,
his
he
by, in return for
testimony
dicted Smith’s earlier
at his
only
count of the indictment.
own
guilty to
one
testifying,
to four
trial. After
Smith suffered a
Torquato
thereafter sentenced
was
$10,000.
Dwyer
of
serious heart attack.
and Asher
imprisonment and a fine
years’
convicted;
government
were
believes
also
individual defendants
Two other
that Smith “was a crucial and outcome
guilty,
and co-defendant
pled
but Smith
prose-
as
determinative witness insofar
trial. Af-
proceeded
R.
Alan
Stoneman
Dwyer
cution
and Asher were con-
trial,
jury convicted
a three-month
a
ter
App.
cerned.”
at 85.
guilty
one count
was found
both. Smith
(1982), five
Smith filed a motion for reduction of
conspiracy, 18 U.S.C. 371
§
transportation
pursuant
in aid of
sentence
to Rule 35 of the Feder-
of interstate
counts
(1982),
Procedure,
and al Rules of Criminal
in
racketeering, 18 U.S.C. 1952
which
§
fraud,
government joined.
The district court
counts of mail
U.S.C.
three
(1982).
sen- denied the motion. The court stated that
The court thereafter
§
years
imprison-
truthfully
Smith “should have testified
in
tenced Smith to twelve
$63,000
all,”
place
not at
ment and
a
fine.1 This
the first
or
and further
conviction,
explained
and the
reduce Smith’s sen-
court affirmed the
Su-
“[t]o
Torquato’s
preme
denied certiorari.
tence to
would enable Smith to
Court
trial,
convicted,
his
at
re-
take
chances
be
sentencing,
After his conviction and
others,
testimony, testify against
cant his
agreement
entered into an
with the
Smith
just
and then be treated
like
who
whereby,
exchange
his
government
for
guilt initially.
admitted his
We decline to
cooperation in the future
party
be a
to such a device.”
scheme,
arising
bribery
cases
out of the
government
agreed
prosecute
join
appeal,
argues
that the district
Smith’s wife and to
a Rule 35
On
Smith
Any
improperly
motion for reduction of sentence.
evi- court
used immunized testimo-
him;
testimony provided by
ny against
that the court
its
dence or
Smith was
abused
subject
immunity
previ-
to an
order
discretion in
of Smith’s substantial
be
ously
post-conviction cooperation,
dispropor-
his
entered
the district court
ac-
compared
6003 tionate sentence
to that of his
cordance with 18 U.S.C.
§§
co-defendants,
(1982),
immunity
the federal witness
stat-
and the deterioration of his
order,
finances;
mirroring
language
ute. That
of health and his
and that the court
regarding
provided,
part,
section
in relevant
relied on misinformation
testimony
eligibility
parole
ruling
on the mo-
that “no
or other information
brief,
(or
compelled
reply
under this Order
infor-
tion.
In his
Smith contends
directly
indirectly
mation
derived from that the case should be remanded to the
information),
testimony
of the effect
such
or other
district court
consideration
component prison
five-year
1. The
terms were as follows:
sentences on two counts of interstate
count,
concurrent;
years
conspiracy
five
on the
transportation
to which
were
and a consecu-
five-year
sentence
five-year
one count of mail fraud
years
on the final count of
tive sentence
two
and two
sentences on two counts of
fraud,
two-year
on one
mail
to which a
sentence
concurrent;
transportation
interstate
were
transportation was concur-
count of interstate
years’ imprison-
consecutive sentence of five
rent.
fraud,
ment on one count of mail
to which
a firm
case discloses
fore,
record
this
in McNal
decision
Court’s
Supreme
of the
—
for the district court’s
independent basis
U.S. —,
ly v. United
perjury at his own
knowledge of Smith’s
(1987),
which
97 L.Ed.2d
trial,
cannot conclude
we
filed.
appeal was
this
after
announced
testimony at
immunized
used Smith’s
States, v. United
Kastigar
all. Cf.
II.
32 L.Ed.
Testimony
Immunized
Use of
brought
(1972) (prosecution
2d
contention
immunized testi
defendant’s
subsequent
first
consider
We
improperly relied on
used is derived from a
mony
evidence
when
that the district
testimony.
compelled testi
independent
immunized
source
post-conviction
agreement
mony).
with
entered im
previously
adopted the court’s
Second,
the court to
Smith himself asked
incorporated
order,
in turn
munity
which
testimony
bas
his immunized
consider
*4
of the federal witness
provisions
certain
for reduction on the
ing
Rule 35 motion
his
statute,
including 18 U.S.C.
immunity
urged
Smith
of his
Once
fact
6002.
§
grant
leniency
him
court to
the district
testimony
“no
provides that
Section
testifying,
in
of his
the basis
compelled under the
or other information
complain that the court
cannot now
Smith
directly or indi-
(or any information
order
testimony
that
into
it took
erred because
testimony or other
such
rectly derived from
situation,
analogous
In an
account.
information)
against
the wit-
used
be
Circuit
Appeals
for the Seventh
Court
case_”
18 U.S.C.
in
criminal
ness
could consider
that
the district court
held
testimony in the
Although
Smith’s
grand jury
§
testimo
immunized
defendant’s
compelled, we
was not
Asher/Dwyer
trial
the defend
ny
imposing
a sentence when
incorporating the
agreement
construe
transcript
had offered a
of that
ant himself
is enti-
that Smith
immunity order to mean
during
testimony
the trial.
into evidence
the order
protection under
tled to the same
Patrick,
381, 392
United States v.
542 F.2d
compelled.
testimony had been
as if his
denied,
931,
(7th Cir.1976), cert.
430 U.S.
1551,
(1977). The
152. We cannot
that the trial court’s
decision
to treat Smith and
III.
differ-
ently based on what
valid
were
differences
Abuse Discretion
in circumstances constituted an abuse of
recognizes
Smith
this court reviews
discretion.
Dansker,
See United States v.
the district court’s denial of a Rule 35
(3d Cir.1978)
(court
F.2d
74-75
only
motion
for a “clear
of discre-
abuse
appeals should “not disturb the sentencing
tion,”
Virgin
see Government
Islands v.
court’s exercise of its broad discretion” in
Gereau,
(3d Cir.1979),
603 F.2d
imposing longer
sentence on one defend-
jurisprudence
consistent
our
with
that sen-
another).
ant than on
tencing,
illegality
proce-
absent
or defective
equally unpersuasive
We find
Smith’s ar-
dure, is a matter
to the
committed
trial
guments based on
poor
health and fi-
Dorszynski
court. See
v. United
professional
nancial and
hardship. The dis-
440-42 & n.
trict court carefully considered these
(1974);
3051-52 & n.
not an abuse of discretion. On the other
A.
hand,
government,
“concerned that
cooperation
given
was not
some
[Smith’s]
A criminal defendant has no con
weight,” argues that the court’s refusal to
right
given
stitutional
a sentence
recognize Smith’s
substantial
equal in duration to that of his or her
“will have a future adverse effect on co-defendants.
generally
See
Dorszynski
ability
investigate
Government’s
to
similar
States,
424, 440-41,
v. United
418 U.S.
94
Appellee’s
in the
matters
future.”
Brief at
3042, 3051,
(1974).
S.Ct.
trict court
See
18
cooperation.4
a defendant’s
ward
post-conviction
return
(effec
3553(e) (West Supp.1987)
U.S.C.A. §
Unit
See
contrary.
authority is to
Our
1987) (court
have
1,
“shall
tive November
(3d
856,
Mariano,
859
646 F.2d
v.
ed States
impose sentence below
authority” to
to
for court
Cir.) (no
of discretion
abuse
de
reflect a
“so
statutory
as
minimum
on the basis
reduce sentence
refuse to
the in
assistance
substantial
fendant’s
participation
post-conviction
defendant’s
per
of another
vestigation or
Program), cert.
Witness
Secret
the Federal
offense”). Sim
has committed an
son who
304,
denied, 454 U.S.
102 S.Ct.
35(b),
ef
as amended
ilarly, Fed.R.Crim.P.
authority upon
(1981). The
L.Ed.2d
specifically re
November
fective
only that a sen
relies holds
which Smith
as a ba
post-conviction
fers
a defendant’s
consider
tencing
but
continues
reduction
sentence
sis for
government,
cooperation with
lack of
re
court to
in the trial
discretion
vest
States, v. United
see Roberts
coope
for that
a defendant’s sentence
duce
(1980),
63 L.Ed.2d
ration.5
v.
States
see United
perjury,
defendant’s
Thus,
lead to a
Grayson,
although
all roads
Scarbeck
(1978).
See also
government’s
need
recognition
L.Ed.2d
(D.C.Cir.) (co
them,
if
even
cooperation, none
United
elicit
*6
as basis
applicable
proceed
considered
to the instant
may
they
operation
were
denied,
sentence),
from
374
cert.
the
court
ing,
forecloses
district
of
reduction
1897,
That
is reflected ute, scope protection is “limited to the it most articulate those factors that found rights,” property renders invalid his mail significant. One such factor was the se- conspiracy fraud and convictions because crime, verity of the since the district court they intangible rights objec were based on that, carefully is our considered stated “[i]t objec tives. He also contends that those magnitude view that in a crime of this transporta tives so infected the interstate was fair when Smith’s sentence nullify them as well. tion counts as We proper one.” at 153. and remains a argu not do reach the merits of Smith’s fact, the crimes of which Smith was is ment because we find that Rule 35 substantial and violative of convicted were appropriate forum in which to raise it. public trust. Although language of Rule that the district court chose It is evident relies, 35(b), speci on which does not give weight policy of deter- more sentence,8 ring fy grounds than to for reduction of criminal conduct like Smith’s *7 litigation, Judge post-con- Rule 6. Becker believes that Smith’s 8.At the time relevant to this extraordinary.” 35(b) provided was "most viction Dissent dinary that: at 183. Was it not instead extraor- infra made, A motion reduce a sentence to attorney, for an who was after all an or the court motion, reduce a sentence without court, officer of the placed and a man who had been days is within 120 after the sentence position respect by political in a of revoked, probation is or within or party to have chosen to take the witness stand days by receipt 120 after the court of a man- perjure jury himself before the and the and judgment upon date issued affirmance of the court? days appeal, or dismissal of the or within 120 any judgment entry after of order or of Smith also contends that the district court 7. of, having Supreme denying Court review process rights denied him his due because the upholding, judgment a of convic- the effect impact was confused about the of a reduc- probation court shall eligibility parole. tion or revocation. The tion of sentence on his motion within a reasonable determine the Nothing pointed to in the record Smith dem- Changing a sentence Muir, time. a sentence from Judge years' that after ser- onstrates 16‘A grant probation a shall of incarceration to judge handling many vice as a federal of the permissible of sentence constitute a reduction arising large penal out of cases the two federal district, under this subdivision. any way institutions in his misunder- 1984, 35(b) No- pa- Rule was amended in effective stood the effect of his decision on Smith’s 1, 1987, Comprehensive eligibility. part role as of the vember 182 V. uniformly con have been provisions
its of the consideration limited to strued Conclusion Courts have itself.9 validity of a sentence reasons, foregoing the order of For the rule under the claims to consider refused court will be affirmed. the district of the defendant’s merits involve the Colvin, v. States See United conviction. United (8th Cir.1981); 703, 705 BECKER, concurring 644 F.2d Judge, Circuit Cumbie, 273, (5th 274 F.2d v. 569 States dissenting. and Fed Wright, generally C. 3 see Cir.1978); I, A, III and IV of the join I in Parts Procedure: Criminal Practice and eral opinion. join I also majority’s 1982) (a 35(b) (2d Rule motion 2d § ed. III B if I II and believed Parts “ leniency pre essentially plea ‘is properly assessed the essen- majority had ”) (quoting supposes a valid conviction’ ruling. the district court’s predicates tial States, 396, Poole v. United not, view, however, rendering it did my States, Hill United (D.C.Cir.1957)); cf. opinion fatally As I majority’s flawed. 468, 472, 368 U.S. ignored explain, majority has both will (1962) (“the function of narrow L.Ed.2d 417 unwillingness court’s stated to time permit correction Rule 35 is to give weight to Smith’s some sentence, illegal not to re-examine of an immunized ad- and its reliance on Smith’s pro occurring or other at the trial errors penury. mission imposition of sen ceedings prior to v. United tence”); Green I. 656 n. 306 n. (1961) (“Rule 35 does not en L.Ed.2d 670 linchpin majority’s of the conclusion could be made compass all claims that the district court did not its abuse conviction, attacking but appeal direct failing to reduce sen- discretion challenges that involve
rather is limited to pursuant to his Rule 35 motion is its tence itself”). legality sentence that: statement McNally argument The crimes of which Smith was convicted Because Smith’s pub- clearly goes validity of his convic- were substantial and violative sentence, tion, ig- not that of his it is not lic trust. did not nore It instead of Rule 35.10 Smith ad- within ambit give weight policy pursuant he filed motion chose to more vised us that raising McNally issue, deterring criminal conduct like U.S.C. § encouraging persons presumably the merits of his claim will than to that of who engage cooperate appeal us should Smith from the such conduct to with be before they on that motion.11 after are convicted. district court’s decision Act, 98-473, by counsel with the Crime Control Pub.L. No. 98 Stat. 11.We have been furnished opinion denying 2015-16. court’s Smith’s motion to va- cate, aside, pursuant set or correct the sentence reduce, Smith’s motion is a motion to alia, ground, U.S.C. 2255 on the inter § correct, suggestion no his sentence. There is intangible rights that this was not an case but illegal that Smith’s sentence was either posed or im- instead “the heart of the scheme or artifice to Therefore, illegal pro- in an manner. through bribery defraud was to influence (a) permitting visions of subsection of Rule 35 sentences, awarding illegal opposed of a no-bid contract at an inflated the correction of the reduction of as 35(b), legal *8 price monetary prejudice ones under Rule to the of the Common- inapplicable. Pennsylvania are wealth of and the school districts pay who would inflated commissions under the conclusion, 10. In of our we do not consid- by Pennsylvania.” contract let the Treasurer of 120-day er whether Smith failed to meet the requirement Smith, F.Supp. United States v. 981 35(b), "jurisdic- of Rule which is (M.D.Pa.1987). express opinion this We no cannot, circumstances, tional and under be issue. by extended v. curiam). order the court.” United States Robinson, (3d Cir.1972) (per F.2d agree Maj. op. simply I cannot that will also be convicted. There at 181. will be times accurately cooperation majority has characterized when the of such a defend- the district court’s action. ant/witness is critical to continuation of the investigation government and the will seek language opin- in district court’s No it, notwithstanding putative perjury at suggests cooperation ion that it balanced By saying trial. cooperation when Rather, gloss deterrence. that is the and comes cooperation at the time Smith’s majority put has on the district court’s came, late, it is too the district court has by rescribing I this decision. demonstrate government’s neutered the ability prom- the district court’s central statement: ise a defendant who has been convicted Attorney The asserts that U.S. testifying after on his own that it behalf in testimony the second trial was of gowill to the court and leniency seek great government value to the and that exchange for future truthful testimony. without it neither State Treasurer result, As a the affirmance of the district Republican nor State Chairman court’s order will make it difficult for the guilty. have been found That cooperation to secure of de- be correct but does not mean that we position fendants in the future. testimony. should reward Smith for his cooperation The in this case was not ordi- truthfully He should have testified nary cooperation. It just was not “sub- place or not at all. first stantial.” Rather it was most extraordi-
nary,
government’s
and it “made” the
case
in one of
important
the most
highly
and
Torqua-
To reduce Smith’s sentence to
publicized political corruption
cases
to’s would enable Smith to take his Pennsylvania history.
my view,
In
the sen-
trial,
convicted,
chances at
recant his
tencing court cannot arbitrarily refuse to
testimony,
testify against others, and
cooperation,
at
consider
least
such
as it did
just
then be treated
like
who
policy
here. The
favoring
of the law
guilt initially.
admitted his
We decline
grant
sentencing
cooper-
concessions for
party
to such a device.
ation is undoubted.
It is derived from the
experience
decades of common
and under-
added).
(emphasis
at
If the
standing
“key players”
in the crimi-
experienced
judge
able and
en-
justice system prosecutors,
nal
defense
gaging
balancing
in a
exercise he would
—
lawyers
judges.
policy
has at
(and
have
In my
said so.
view
inferentially
recognized
least
been
government’s,
184)
see
dissent at
it is
infra
Supreme Court. See Roberts v. United
clear that the district court
engage
did not
552, 557-58,
balancing,
in a
rather
but
refused to consid-
1358, 1362,
(1980) (holding
posed, i.e., it,” obtain as eat by statute cake and that established er than sentence, ac- recognition of its value. take give any to into not but minimum assist- substantial a count defendant’s prosecu- or investigation the ance in com- who has person another tion of District by the ultimate refusal The an mitted offense. recognition any whatsoever give Court to (em- (West Supp.1987) 994(n) 28 U.S.C. § co- substantial Appellant Smith’s added). Sentenc- States The United
phasis ef- adverse have a future operation will statutory Commission, the to ing faithful ability inves- Government’s fect on the Sentencing command, in the provided has future. in the tigate similar matters substantial assistance that Guidelines 26-28. Appellee’s Br. at departing ground for authorities be questions Second, government the guideline applicable the from otherwise announced the district court’s whether one of thus becomes range.1 Cooperation “farsighted exer- as to is a standard Sentencing the under very few bases the Appellee’s Br. at 29. cise of discretion.” may re- defendant for which a Guidelines government notes The that: the regardless of serious- probation ceive attempted to vindi- prosecution has the offense. The ness of by this matter public interest cate the in this government position of The importuning refusing persistent my strongly supports view. case him, him, convicting immunity, trying notes that first im- recommending lengthy term of and fu- standard deter court’s announced fully prisonment, agree which we cooperation: ture the facts of justified at the time under approach of this success the continued numerous other consider- this case. But givers takers prosecute the bribe [to investigation indicate that for this ations immunity early de- rather than offer on] public fully vis a vis successful recognition truth- pends judicial that interest, upper go to levels it had to complete cooperation is entitled ful and criminally involved public officials of the time type consideration to some of through the corrupt endeavor is with this sentencing. Government counsel Appellant Appellant cooperation of Smith. extremely that concerned truthful given some the seri- cooperation was not considerations included These came weight possible motion to reduce commit- when his of the offenses ousness consideration. judicial public under then under by high officials ted desirability prompt of a
investigation, arising out of this disposition of all cases develop- matter, the enhanced chances give recognition subsequent To fail to juries aid the ing available evidence impression all creates matters, upon good called to resolve these prosecution dealing not is coop- appellant Smith’s citi- that the faith and in relation to the involved fact government's taking into consideration the Assistance to Authorities §1. 5K1.1 Substantial rendered; Statement) (Policy pertinent part: states in of the evaluation assistance truthfulness, (2) completeness, government stating and reli- Upon motion of the good testimony pro- ability effort to the defendant provide made a faith has information or investiga- defendant; assistance in the substantial vided person who tion or of another (3) of the defendant’s nature and extent offense, may de- has committed an the court assistance; part guidelines. from the suffered, (4) any danger any injury or (a) appropriate shall deter- reduction family injury or his risk to the defendant mined may for reasons stated assistance; resulting from his include, to, are limited but considera- (5) assist- timeliness of the defendant’s following conduct: tion ance. (1)the significance evaluation court's assistance, and usefulness the defendant's *10 simplify truthfully against govern- the issues while others if would eration prosecuting ment would refrain from vindicating public’s right his fully join wife and Smith’s motion to corrupt dealings by high public offi- have reduce his sentence to that served All fully exposed public at a trial. cials Torquato. government accepted raise the level of deter- of which would offer. There has been no from rence derived the case. Smith’s Smith, the wife. acknowledging in the policy cooperation vindicated these con- second trial that his testimony in his exceptional way in an be- siderations false, against own trial was testified unique position long as a cause his State Treasurer and the State Chairman standing Republican of Dau- Chairman Republican party, both of whom personal knowledge phin County and his guilty. were found influence-selling scheme then un- yet There is important another distinc- investigation. To refuse to der reduce Torquato tion between By and Smith. ultimately cooper- his sentence when he trial, time of the first had ates, enhancing while it based on his conspiracy. withdrawn from the In trial, perjured testimony at creates the contradistinction, perjury in the impression one-way of a street which will illegal first trial was an additional act extremely attempt make it difficult to appears which to us to have been de- public vindicate the above-described in- signed to further either conspir- the old terests in future similar cases. acy conspiracy or a new jus- to obstruct Appellee’s Br. at 29-30. tice. Smith’s substantially sentence was disagree majority I do not with the greater Torquato’s than properly so. always the trial court the discretion retains (emphasis added). at 150-52 reduce a whether to defendant’s sentence Although the district court’s statement cooperation. Had the district court ac- of reasons pellucid, be less than tually engaged balancing, and in effect court neither stated implied nor that the said that Smith’s was not suffi- verdict, jury’s rather than Smith’s immun- misdeeds, outweigh cient to his serious I perjury, persuaded ized admission of it that joined majority would have I because perjured he had himself at the first trial. could not then find an abuse of discretion. Only testimony at the second trial is engage The district court did not in such mentioned and it is clear to me that that however, balancing, of the im- formed the basis of the district court’s deci- portant above, I considerations discussed so, assuming sion. If that immunized testi- join affirming cannot the district court’s mony may not be considered in connection decision. sentencing,2 with the district court’s re- testimony liance on the immunized consti-
II. reversal, ground tutes an additional compounding ground I have discussed majority’s conclusion that dis- effect, Part I. the district court used improperly trict court did not consider perjury immunized admission of testimony Smith’s immunized rests on the pass” any “cut off at the consideration of jury against statement verdict his On remand and resentenc- conclusively Smith demonstrated that his ing, I would also direct the district court protestations of innocence from the witness perjury not to take Smith’s admission of Maj. op. stand were false. Typescript at 6. the first trial into account. Again, respect, with all that is not what the respectfully I dissent. district court said that it did. Rather the district court stated: losing appeals,
After
changed testify his tune. He offered to majority question, Fulbright, 2. The declines to address this United States v. 852-53 (5th Cir.1986), maj. op. testimony may supra see that immunized at 179 n. but notes that the sentencing. Appeals be used in Court of connection with for the Fifth Circuit held in