In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-1671 & 04-1695
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
PHILIP J. ZINGSHEIM,
Defendant-Appellant.
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Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 03-CR-192—J.P. Stadtmueller, Judge.
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No. 04-2029
In the Matter of:
UNITED STATES OF AMERICA,
Petitioner.
____________
Petition for a Writ of Mandamus to the United States
District Court for the Eastern District of Wisconsin.
No. 03-CR-258—J.P. Stadtmueller, Judge.
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ARGUED SEPTEMBER 14, 2004—DECIDED SEPTEMBER 29, 2004
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2 Nos. 04-1671, 04-1695 & 04-2029
Before EASTERBROOK, MANION, and WOOD, Circuit
Judges.
EASTERBROOK, Circuit Judge. After Darvin Moore en-
tered a plea of guilty in a federal criminal prosecution, the
district judge startled both sides by announcing that from
that day on the prosecutor must reveal extra details as part
of any request under U.S.S.G. §5K1.1 that the defendant
receive a lower sentence to reward substantial assistance in
the apprehension or prosecution of other offenders. The
directive, which no one had requested and the district judge
labeled a “standing order,” reads:
Court notes the new procedure to be followed when
the government wishes to file any downward depar-
ture motion for substantial assistance: 1) the court
will no longer take up U.S.S.G. 5K1.1 downward
departure motions as part of the initial sentencing
hearing; instead, all 5K1.1 motions need be filed
formally, in writing, and will be considered in an en-
tirely separate proceeding; 2) all motions for down-
ward departure will be heard within 60-days from
the day of filing; and 3) all motions for downward
departure must be accompanied by the following
(which may be filed under seal as appropriate and
consistent with Local Rule 79.4): a) copies of all
statements given by the defendant to any component
of law enforcement, b) copies of transcripts of testi-
mony given by the defendant whether before a grand
jury, trial or other relevant proceeding in state or
federal court, c) a copy of a recommendation approved
and signed by an individual holding a supervisory
position in the law enforcement agency with whom
the defendant cooperated (multiple agencies require
multiple submissions), d) a written recommenda-
tion of a supervisor in the office of the prosecutor
(e.g. United States Attorney, local district attorney
or state attorney general), and e) a written report
Nos. 04-1671, 04-1695 & 04-2029 3
from the downward departure committee which shall
include the names and signatures of the committee
members who considered the matter, the date(s) the
matter was considered, and the recommendation(s)
of the committee together with any dissenting
view(s). Failure to adhere to this policy will result in
the motion being summarily denied without preju-
dice.
The United States has informed the judge that it will not
provide the information about its deliberative process re-
quired by subparts (3)(c), (d), and (e); the district judge in
turn has failed to act on any motion to reduce a sentence
under §5K1.1. Although the record does not suggest that
Moore would have been the beneficiary of such a motion in
the absence of the order, the United States has filed a peti-
tion for mandamus, asking us to expunge the standing order.
In a second prosecution, however, the effect is demonstrable:
the United States filed a motion asking the judge to sentence
Philip Zingsheim below the guideline range. The district
court ignored that motion and gave Zingsheim the highest
sentence within the guideline range. Zingsheim and the
United States have appealed.
Both appeals are authorized by statute—Zingsheim’s by
18 U.S.C. § 3742(a)(1) and (2), the prosecutor's by § 3742(b)(1)
and (2). One might question whether the United States is
injured by a sentence that is in its view unduly high, but a
district judge’s refusal to apply §5K1.1 deprives the Execu-
tive Branch of an inducement that can be used to solve old
crimes and deter new ones. Although a similar incentive
could be offered through the commutation process, the cost
and delay of submitting criminal prosecutions to the
President for retail evaluation of proposed sentence reduc-
tions is one that the Department of Justice understandably
wants to avoid. So both the defendant and the United
States are aggrieved. Moreover, because the source of the
complaint is the district judge’s refusal to exercise discre-
4 Nos. 04-1671, 04-1695 & 04-2029
tion, rather than a conclusion that the accused failed to
provide the prosecutor with assistance, these appeals are
not affected by the principle that discretionary decisions not
to depart from the Guidelines are unreviewable. Compare
United States v. Franz, 886 F.2d 973 (7th Cir. 1989), with
United States v. Poff, 926 F.2d 588, 590-91 (7th Cir. 1991)
(en banc). See United States v. Campo, 140 F.3d 415, 418-19
(2d Cir. 1998).
Because appeal provides an adequate legal remedy for
both the defendant and the United States, it is inappropri-
ate to issue an extraordinary writ such as mandamus. See
Kerr v. District Court, 426 U.S. 394, 403 (1976); Ex parte
Fahey, 332 U.S. 258, 260 (1947). Mandamus is doubly
inappropriate because the United States does not want us
to direct the district judge to carry out any judicial duty in
Moore’s prosecution; instead it wants us to blot the stand-
ing order from the books. A Writ of Erasure is not among
those remedies that are “agreeable to the usages and prin-
ciples of law” and authorized by 28 U.S.C. §1651(a), the
All-Writs Act. Mandamus may issue in connection with
judicial acts even if the writ depends on a view that a district
court’s standing order is invalid, see Miner v. Atlas, 363
U.S. 641 (1960), but the United States does not protest any
step the district court has taken with respect to Moore; its
petition deals with the order in the abstract, and not with
its consequences.
Standing orders have much the status of local rules, and
the body entitled to decide whether a given rule of procedure
(no matter its label) is inappropriate under the Rules Enabling
Act, 28 U.S.C. §2071–77, and Fed. R. Crim. P. 57, is the
Judicial Council of the circuit. This standing order is prob-
lematic, not only for the procedural reasons given by In re
Dorner, 343 F.3d 910 (7th Cir. 2003), but also because it
treats a decision by the United States to protect the con-
fidentiality of internal deliberations as a reason to increase
the defendant’s punishment. The Judicial Council, which is
Nos. 04-1671, 04-1695 & 04-2029 5
the judiciary’s administrative body, see 28 U.S.C. §332(d)(1),
and holds the authority to review local rules for conformity
with national law, 28 U.S.C. §§ 332(d)(4), 2071(c), could
evaluate these concerns on application by the Executive
Branch. In litigation, however, the focus must be on appli-
cation of the standing order, and not its existence as an
abstract matter. The order has not affected Moore, so there
is no basis for relief in his prosecution. But the order has been
applied to Zingsheim’s detriment, and we may address the
legal status of the order in the course of assessing its
application to him, so we turn to the appeals.
Zingsheim’s sentence is unlawful for a simple reason: the
district court failed to exercise the discretion created by
U.S.S.G. §5K1.1. See also 18 U.S.C. §3553(e), 28 U.S.C.
§944(n). District judges must resolve motions that may affect
sentences; they cannot be ignored, as the prosecutor’s was.
Deferral is not an option. Once sentence has been imposed,
the district court loses authority to modify the terms other
than to the extent that Fed. R. Crim. P. 35 permits. See
Romandine v. United States, 206 F.3d 731 (7th Cir. 2000);
United States v. Mittelstadt, 960 F.2d 335, 337 (7th Cir. 1992).
And Rule 35 allows adjustment in three circumstances only:
the judge may fix errors within seven days; the judge may
correct a sentence on remand following an appeal; and the
judge may reduce a sentence on a prosecutor’s motion to
reward substantial assistance that occurs after the date of
sentencing. None of these permits a judge to reserve
decision on a §5K1.1 motion made before sentencing and
designed to reward assistance that the accused already has
provided. See United States v. Mitchell, 964 F.2d 454, 461-
62 (5th Cir. 1992); United States v. Howard, 902 F.2d 894,
896-91 (11th Cir. 1990).
By ignoring rather than denying the prosecutor’s motion,
the district judge withheld from the parties and this court
the reasons for his decision. The standing order says that
motions will be denied, not that they will be swept under the
6 Nos. 04-1671, 04-1695 & 04-2029
rug. The difference raises the question whether something
else underlies the inaction, though the lack of explanation
precludes a confident answer. Was there perhaps some other
defect in the motion? Did it fail to show that Zingsheim
actually furnished substantial assistance meeting the cri-
teria in §5K1.1? Did the judge think that he needed “all”
statements Zingsheim ever had given to “any” law-en-
forcement agency, as subsection (3)(a) demands? (A subset
of all possible information normally should suffice for reli-
able decision, and it is hard to see why the district judge
should receive information on which the prosecutor does not
rely as the “substantial assistance” to be rewarded.) Did the
motion fail because not supported by a supervisor in each
law-enforcement agency, as subsection (3)(c) requires? Or is
the problem, from the district court’s perspective, the
prosecutor’s failure to hand over deliberative and pre-deci-
sional materials? We cannot tell what information the
district judge thought he needed to apply §5K1.1 correctly,
or why the judge wanted it, so we cannot say conclusively
whether the district judge was entitled to demand that in-
formation from the Executive Branch. For that matter, we
cannot be sure why the judge thought the standing order
itself appropriate. He did not attempt to justify any of its
details, though he did state generally that more information
could reduce the risk of error, and that a full record is
especially appropriate in times when the political branches
of government have questioned the frequency of departures
from the Sentencing Guidelines.
Zingsheim must be resentenced. When deciding whether
a sentencing discount is appropriate, the judge must not
hold against Zingsheim the prosecutor’s decision not to pro-
vide information that meets the description of the standing
order’s subparts (3)(c), (d), and (e). Judges may not demand
that litigants surrender evidentiary privileges as a condition
of adjudication: what a “privilege” means is an entitlement
to withhold information even if it would bear on the merits
Nos. 04-1671, 04-1695 & 04-2029 7
of a disputed issue. Multiple privileges apply to most if not
all of the matters described in subparts (3)(c), (d), and (e).
The attorney-client privilege covers conversations between
the prosecutors (as attorneys) and client agencies within the
government. See, e.g., Swidler & Berlin v. United States,
524 U.S. 399 (1998); In re Grand Jury Witness, 288 F.3d
289 (7th Cir. 2002) (when legal advice is given to or for the
benefit of a governmental body, it rather than an individual
officeholder enjoys the benefit of this privilege). The work-
product privilege applies to many other discussions between
prosecutors and investigating agents, both state and federal.
See, e.g., FTC v. Grolier Inc., 462 U.S. 19 (1983). The delibera-
tive-process privilege covers memoranda and discussions
within the Executive Branch leading up to the formulation
of an official position. See, e.g., NLRB v. Sears, Roebuck &
Co., 421 U.S. 132 (1975). And the executive privilege shields
recommendations to high-ranking officials. See Cheney v.
District Court, 124 S. Ct. 2576 (2004); United States v.
Nixon, 418 U.S. 683 (1974).
These privileges have exceptions, as Nixon demonstrates
and Cheney reiterates, but whether an exception applies
must be addressed and resolved one lawsuit—indeed, one
document—at a time. Nothing in the record of this case hints
at a reason for overriding any of the four privileges, such as
a belief that a particular substantial-assistance motion had
been procured by bribery. The district judge had no more
basis for demanding that the Executive Branch open its
internal deliberations than Congress would have for
demanding that every Presidential veto message include all
background papers circulated inside the government, a
description of any debate within the Cabinet, and a disclo-
sure of all dissenting voices (together with the reasons those
officials gave for their views). More information might in
principle inform the judge’s decision, as it could inform a
decision whether to override a veto, but one branch of
government cannot compel another to reveal intra-branch
8 Nos. 04-1671, 04-1695 & 04-2029
deliberations just to slake its curiosity: the improvement of
the demanding branch’s decision-making comes at the ex-
pense of complicating and perhaps undermining the
accuracy of the other’s decision-making.
Law-enforcement agencies may be less likely to cooperate
with U.S. Attorneys if they know that everything they say
will be spread on the public record (or can be so exposed at
the discretion of a judge). For that matter, witnesses and
defendants also may be less willing to cooperate, for more
disclosure increases the risk of retaliation by their former
confederates in crime. This is a potential problem with
subparts (3)(a) and (b), as well as subparts (3)(c), (d), and
(e). (And subpart (3)(b), to the extent that it requires
disclosure of state as well as federal grand-jury material,
has potential problems under other legal rules that grant
confidentiality to these proceedings.)
A district judge may require the prosecutor to show how
the defendant provided “substantial assistance in the in-
vestigation or prosecution of another person who has com-
mitted an offense” (to quote from §5K1.1). Otherwise the
judge could not decide whether to depart and, if so, by how
much. But except with extraordinary justification a judge
may not inquire why or how the United States Attorney
decided to file a §5K1.1 motion and may not insist that “all”
statements of any provenance be revealed, even if not
material to the §5K1.1 decision. And we cannot imagine,
nor did the district judge suggest, a reason to insist that
any person other than the U.S. Attorney take responsibility.
The Executive Branch is entitled to decide which tasks will
be carried out by supervisors and which by line employees;
the judge’s demand in subsection (3)(c) that substan-
tial-assistance motions receive the approval of each law-en-
forcement agency, that supervisors indicate that assent, and
that a committee of some kind rather than the U.S. Attor-
ney make the ultimate decision, is an effort to regulate the
internal organization of another branch of government.
Nos. 04-1671, 04-1695 & 04-2029 9
Section 5K1.1 gives the power to make substan-
tial-assistance motions to “the government” as an entity,
which is to say, to the Executive Branch, represented in
most criminal litigation by the United States Attorney. A
district judge may not limit the U.S. Attorney’s authority to
decisions that garner the support of each law-enforcement
agency, or the majority of some committee. Just as judges
may not routinely review decisions to withhold §5K1.1
motions, see Wade v. United States, 504 U.S. 181 (1992), so
they may not give a blocking power to subordinate state or
federal officials. Cf. Melendez v. United States, 518 U.S. 120
(1996).
Zingsheim’s sentence is vacated, and the case is re-
manded with instructions to resentence him as appropriate
under §5K1.1 and this opinion. The petition for a writ of
mandamus is denied.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-29-04