A Reminder Of The Power Of Cooperation

United States v. Kidd, No. 07-CR-798 (JBW), 2009 WL 2226486 (E.D.N.Y. June 5, 2009)

Kidd pled guilty to a heroin offense, for which she faced an advisory Guidelines range of imprisonment of between 41 and 51 months.  But she cooperated with the Government "at some risk to herself," and therefore earned a non-Guidelines sentence of five years probation.  A reminder of the power of cooperation.

Rejection Of Non-5K Cooperation As A Basis For Non-Guidelines Sentence Affirmed On Appeal

United States v. Martin, No. 08-2622-cr., 2009 WL 2524003 (2d Cir. Aug. 19, 2009)

Martin appealed his 180 months sentence for a cocaine offense, which sentence was substantially below the sentencing range of 262 to 362 months recommended by the Guidelines.  The sole issue on appeal was whether the district court erred in declining to further reduce Martin's sentence to reflect his attempts to cooperate witht the Government.  Although acknowledging that the district court had the authority to depart downward based on non-5K cooperation, the Second Circuit ultimately rejected Martin's appeal because the district court's "reasons were thoroughly explained and manifestly reasonable."  Thus, the Second Circuit found no error in Martin's sentence -- in other words, a high level of deference to the district courts.

Non-5K Cooperation Leads (In Part) To A Non-Guidelines Sentence

United States v. Baldev, No. 08-CR-868 (JBW), 2009 WL 2878445 (E.D.N.Y. Sept. 2, 2009)

A quick note:

Baldev pled guilty to count two of a five-count indictment, which charged that he, together with others, conspired to distribute and possess with intent to distribute marijuana.  For that offense, Baldev faced an advisory Guidelines range of 18 to 24 months imprisonment.  The court, however, sentenced him to time served, which amounted to more than six and a half months imprisonment.  Why?  Because: (1) Baldev's "involvement in the conspiracy was limited and brief in duration"; (2) it was his first offense; (3) he has serious medical conditions that require treatment; and (4) perhaps most importantly, he provided information to the Government, although that information did not result in a 5K letter.

Post-Offense Rehabilitation (And Cooperation) Result In Wide Variance

United States v. Cadle, No. 04-CR-750 (JBW), 2009 WL 1764980 (E.D.N.Y. June 11, 2009)

Short Note:

Cadle pled guilty to conspiring to import cocaine into the United States, an offense for which she faced an advisory Guidelines range of 37 to 46 months imprisonment.  She cooperated with the Government, and received a 5K1.1 Letter.  And she was sentenced to three years probation.

Why?  "The offense took place almost five years prior to this sentencing.  The defendant's actions since that time demonstrate significant rehabilitation.  Cadle has pursued an education and devoted herself to her family responsibilities.  Her cooperation with the government was robust and helped lead to the conviction of a major cocaine trafficker."

Attempted Cooperation As A Basis For A Non-Guidelines Sentence

United States v. Diaz-Tejada, No. 07-4594-cr (2d Cir. Feb. 25, 2009) (found here)

I haven't seen much about attempted cooperation as a basis for a non-Guidelines sentence since the Second Circuit recognized that ground in United States v. Fernandez, 443 F.3d 19, 30 (2006) (described here).  But, in Diaz-Tejada, the Second Circuit came right out and said it: "Diaz-Tejada is correct that attempted cooperation is a factor to be considered under [Section] 3553(a)." 

In his case, though, the Second Circuit found that the district court had, in fact, properly considered his attempted cooperation in determining and imposing sentence.

Second Circuit Criticizes A Somewhat Unsympathetic Sentencing Decision

United States v. Marino, No. 08-0615-cr (2d Cir. Feb. 17, 2009) (found here)

Dan Marino worked for hedge fund swindler Samuel Israel.  He pled guilty for his involvement in that massive fraud, and entered into a cooperation agreement with the Government.  The Guidelines recommended a 50 year term of imprisonment.  The district court sentenced him to 20 years.  Marino appealed, arguing that his sentence was both procedurally and substantively unreasonable.  While the Second Circuit affirmed the sentence, it issued some pretty strong language concerning the district court's sentencing decision.  Here's what it had to say:

We pause to note that we might ourselves have given greater weight than apparently did the district court to Marino's plight -- his almost complete deafness and accompanying sense of loneliness, his lack of self-esteem, his bouts with cancer, his apparent fear of and deference to Israel -- and his assistance to the government detailed in its "5K1 Letter" (noting his aid to the government in understanding the fraud, his immediate contrition and taking of responsibility upon discovery, and his contribution to the guilty pleas of his co-conspirators).  But it is not for us to substitute our judgment for that of the district court, whose sentence was procedurally and substantively proper.

I fear that the fact that the Second Circuit came close to, but ultimately did not, reverse the sentence for substantive unreasonableness will only further weaken the opportunities for and possibility of any reversal based on substantive unreasonableness.  And that begs the questions: What is substantive unreasonableness?  What circumstances qualify for a finding of substantive unreasonableness?

The High Cost Of Violating A Cooperation Agreement

United States v. Herrera, No. 04-CR-1093 (JBW), 2009 WL 230654 (E.D.N.Y. Jan. 30, 2009)

Herrera pled guilty to a single-count indictment, charging a conspiracy to distribute and possess with intent to distribte heroin.  He also entered into a cooperation agreement with the Government.  But he blew it. 

Herrera faced an advisory Guidelines range of 135 to 168 months imprisonment.  According to the Court, if he had fulfilled the terms of his cooperation agreement with the Government and a Section 5K1.1 motion had been filed, the Court "would have been inclined to order a sentence of time served."  (The Court didn't indicate how much time that would have been.)  He didn't.  Specifically, he was not truthful with the Government, and violated the terms of the cooperation agreement by communicating the content of his discussions with the Government to a co-defendant.  Accordingly, no 5K1.1 motion was filed.

There is a high cost to entering into and then breaching a cooperation agreement with the Government.  Herrrera should be a lesson to all defendants who chose to fly to close to the flame -- sometimes you get burned.

Why Should Criminal History Impact Sentence Reduction For Cooperation?

United States v. Tchiapchis, No. 07-5161-cr (2d Cir. Jan. 9, 2009)

Tchiapchis pled guilty one count of conspiracy to distribute MDMA, and entered into a cooperation agreement with the Government.  Although we don't know what sentence was imposed, we do know that it was lower than the advisory Guidelines range of 121 to 151 months.  Still, Tchiapchis was unhappy -- primarily because he thought he'd get a greater benefit from his cooperation.

Not so fast, says the Second Circuit.  The district court had "acknowledged that Tchiapchis was entitled to a downward departure -- because of the cooperation agreement -- but concluded upon consideration of Tchiapchis's criminal history that a smaller departure than requested was warranted."  And the Second Circuit approved.

Criminal history can't change -- you can't unring the bell.  Moreover, as I've always understood it, the benefit one receives from cooperation is linked directly to the value of the cooperation provided.  Seems like a bum deal to me.  Can't blame Tchiapchis for being upset.

The Ethical Entrepreneur

United States v. Alatsas, No. 06-CR-473 (JBW), 2008 WL 238559 (E.D.N.Y. Jan. 16, 2008)

Notwithstanding a loss figure of $450,000 and an advisory Guidelines range of 24 to 30 months imprisonment, the Court imposed a probationary sentence based on: (1) Alatsas' substantial cooperation with the Government; (2) the good relationship he had with his wife and three children; and (3) most significantly from a defense perspective, his status as "an ethical entrepreneur except for this one aberrant offense."

A solid argument for counsel representing defendants convicted of financial frauds.

The Power Of Cooperation

United States v. Baum, No. 04-CR-508 (JBW), 2007 WL 3274894 (E.D.N.Y. Oct. 30, 2007)

Baum was convicted of very serious weapons and narcotics offenses, and had a long criminal history.  According to the district court, the minimum statutory sentence Baum could receive was 10 years for one offense and a consecutive term of 7 years for another offense, for a total of 17 years or 204 months.  But the court sentenced him to a mere one day of incarceration.

Wow.  Now, granted, Baum had already been incarcerated for 4 years.  But his cooperation was truly extraordinary.  He provided information concerning six murders, including those of his two brothers.  He freely admitted to the facts concerning one of his offenses of conviction, even though the Government had no prior knowledge or information concerning those activities.  And he was incarcerated for those 4 years in the same correctional facility as his brothers' killers, where he himself was under constant threat.

Defense attorneys likely will not often face such unique circumstances.  But Baum is important to the extent it can be relied on as a basis for a quite significant departure for quite significant cooperation.  In other words, defendants can have at least some hope that cooperation will result in a significantly reduced sentence, even if the Guidelines starting point is quite high.