United States v. William T. Smith, Jr.

BECKER, Circuit Judge,

concurring and dissenting.

I join in Parts I, III A, and IV of the majority’s opinion. I would also join in Parts II and III B if I believed that the majority had properly assessed the essential predicates of the district court’s ruling. In my view, however, it did not, rendering the majority’s opinion fatally flawed. As I will explain, the majority has ignored both the district court’s stated unwillingness to give some weight to Smith’s cooperation and its reliance on Smith’s immunized admission of penury.

I.

The linchpin of the majority’s conclusion that the district court did not abuse its discretion in failing to reduce Smith’s sentence pursuant to his Rule 35 motion is its statement that:

The crimes of which Smith was convicted were substantial and violative of the public trust. The district court did not ignore Smith’s cooperation. It instead chose to give more weight to the policy of deterring criminal conduct like Smith’s than to that of encouraging persons who engage in such conduct to cooperate with the government after they are convicted.

*183Maj. op. at 181. I simply cannot agree that the majority has accurately characterized the district court’s action.

No language in the district court’s opinion suggests that it balanced cooperation and deterrence. Rather, that is the gloss the majority has put on the district court’s decision. I demonstrate this by rescribing the district court’s central statement:

The U.S. Attorney asserts that Smith’s testimony in the second trial was of great value to the government and that without it neither the State Treasurer nor the Republican State Chairman would have been found guilty. That may be correct but does not mean that we should reward Smith for his testimony. He should have testified truthfully in the first place or not at all.
To reduce Smith’s sentence to Torqua-to’s would enable Smith to take his chances at trial, be convicted, recant his testimony, testify against others, and then be treated just like Torquato who admitted his guilt initially. We decline to be a party to such a device.

App. at 152, 153 (emphasis added). If the able and experienced district judge was engaging in a balancing exercise he would have said so. In my view (and in the government’s, see infra dissent at 184) it is clear that the district court did not engage in a balancing, but rather refused to consider cooperation at all. By announcing (or at least applying) an inflexible “it’s too late” rule, the district court demonstrated hostility to cooperation that is not only wooden and unprecedented, but also contravenes the policies enunciated in the Supreme Court’s jurisprudence and the statutory law. The outright rejection of cooperation as a consideration constituted legal error, hence I would reverse and direct the court to reconsider the Rule 35 motion, taking Smith’s cooperation into account.

In the average white collar crime case, and in virtually every political corruption case, the defendant will take the witness stand. In many cases, as in this one, he will also be convicted. There will be times when the cooperation of such a defendant/witness is critical to continuation of the investigation and the government will seek it, notwithstanding his putative perjury at trial. By saying that when cooperation comes at the time Smith’s cooperation came, it is too late, the district court has neutered the government’s ability to promise a defendant who has been convicted after testifying on his own behalf that it will go to the court and seek leniency in exchange for future truthful testimony. As a result, the affirmance of the district court’s order will make it difficult for the government to secure cooperation of defendants in Smith’s position in the future.

The cooperation in this case was not ordinary cooperation. It was not just “substantial.” Rather it was most extraordinary, and it “made” the government’s case in one of the most important and highly publicized political corruption cases in Pennsylvania history. In my view, the sentencing court cannot arbitrarily refuse to at least consider such cooperation, as it did here. The policy of the law favoring the grant of sentencing concessions for cooperation is undoubted. It is derived from the decades of common experience and understanding of the “key players” in the criminal justice system — prosecutors, defense lawyers and judges. The policy has at least inferentially been recognized by the Supreme Court. See Roberts v. United States, 445 U.S. 552, 557-58, 100 S.Ct. 1358, 1362, 63 L.Ed.2d 622 (1980) (holding that failure to cooperate with a criminal investigation is relevant to the sentencing decision); United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 2615, 57 L.Ed.2d 582 (1978) (reviewing the need for the broadest possible consideration of the defendant’s characteristics and actions in the sentencing decision).

Equally important, the policy favoring cooperation has now been enshrined by the Congress in the Sentencing Reform Act:

The [Sentencing] Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be im*184posed, including a sentence that is lower than that established by statute as minimum sentence, to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.

28 U.S.C. § 994(n) (West Supp.1987) (emphasis added). The United States Sentencing Commission, faithful to the statutory command, has provided in the Sentencing Guidelines that substantial assistance to authorities may be a ground for departing from the otherwise applicable guideline range.1 Cooperation thus becomes one of the very few bases under the Sentencing Guidelines for which a defendant may receive probation regardless of the seriousness of the offense.

The position of the government in this case strongly supports my view. The government first notes that the district court’s announced standard may deter future cooperation:

the continued success of this approach [to prosecute the bribe givers and takers rather than offer immunity early on] depends on judicial recognition that truthful and complete cooperation is entitled to some type of consideration at the time of sentencing. Government counsel is extremely concerned that Appellant Smith’s cooperation was not given some weight when his motion to reduce came under judicial consideration.
To fail to give recognition to subsequent cooperation creates the impression that the prosecution is not dealing in good faith and in relation to the involved citizen/defendant attempting to “have its cake and eat it,” i.e., obtain cooperation but not give any recognition of its value.
The ultimate refusal by the District Court to give any recognition whatsoever to the Appellant Smith’s substantial cooperation will have a future adverse effect on the Government’s ability to investigate similar matters in the future.

Appellee’s Br. at 26-28.

Second, the government questions whether the district court’s announced standard as to Smith is a “farsighted exercise of discretion.” Appellee’s Br. at 29. The government notes that:

The prosecution has attempted to vindicate the public interest in this matter by refusing Smith’s persistent importuning for immunity, trying him, convicting him, and recommending a lengthy term of imprisonment, which we agree was fully justified at the time under the facts of this case. But numerous other considerations indicate that for this investigation to be fully successful vis a vis the public interest, it had to go to the upper levels of the public officials criminally involved with this corrupt endeavor through the truthful cooperation of Appellant Smith. These considerations included the seriousness of the possible offenses committed by high public officials then under investigation, the desirability of a prompt disposition of all cases arising out of this matter, the enhanced chances of developing all available evidence to aid the juries called upon to resolve these matters, and the fact that the appellant Smith’s coop*185eration would simplify the issues while fully vindicating the public’s right to have corrupt dealings by high public officials fully exposed at a public trial. All of which would raise the level of deterrence derived from the case. Smith’s cooperation vindicated these policy considerations in an exceptional way because of his unique position as a long standing Republican Chairman of Dauphin County and his personal knowledge of the influence-selling scheme then under investigation. To refuse to reduce his sentence when he ultimately cooperates, while enhancing it based on his perjured testimony at trial, creates the impression of a one-way street which will make it extremely difficult to attempt to vindicate the above-described public interests in future similar cases.

Appellee’s Br. at 29-30.

I do not disagree with the majority that the trial court always retains the discretion whether to reduce a defendant’s sentence for cooperation. Had the district court actually engaged in balancing, and in effect said that Smith’s cooperation was not sufficient to outweigh his serious misdeeds, I would have joined the majority because I could not then find an abuse of discretion. The district court did not engage in such balancing, however, and in light of the important considerations discussed above, I cannot join in affirming the district court’s decision.

II.

The majority’s conclusion that the district court did not improperly consider Smith’s immunized testimony rests on the statement that the jury verdict against Smith demonstrated conclusively that his protestations of innocence from the witness stand were false. Maj. op. Typescript at 6. Again, with all respect, that is not what the district court said that it did. Rather the district court stated:

After losing his appeals, Smith changed his tune. He offered to testify truthfully against others if the government would refrain from prosecuting his wife and would join in Smith’s motion to reduce his sentence to that served by Torquato. The government accepted the offer. There has been no prosecution of the wife. Smith, acknowledging in the second trial that his testimony in his own trial was false, testified against the State Treasurer and the State Chairman of the Republican party, both of whom were found guilty.
There is yet another important distinction between Torquato and Smith. By the time of the first trial, Torquato had withdrawn from the conspiracy. In contradistinction, Smith’s perjury in the first trial was an additional illegal act which appears to us to have been designed to further either the old conspiracy or a new conspiracy to obstruct justice. Smith’s sentence was substantially greater than Torquato’s and properly so.

App. at 150-52 (emphasis added).

Although the district court’s statement of reasons may be less than pellucid, the court neither stated nor implied that the jury’s verdict, rather than Smith’s immunized admission of perjury, persuaded it that he had perjured himself at the first trial. Only the testimony at the second trial is mentioned and it is clear to me that that formed the basis of the district court’s decision. If so, assuming that immunized testimony may not be considered in connection with sentencing,2 the district court’s reliance on the immunized testimony constitutes an additional ground for reversal, compounding the ground I have discussed in Part I. In effect, the district court used Smith’s immunized admission of perjury to “cut off at the pass” any consideration of his cooperation. On remand and resentenc-ing, I would also direct the district court not to take Smith’s admission of perjury at the first trial into account.

I respectfully dissent.

. § 5K1.1 Substantial Assistance to Authorities (Policy Statement) states in pertinent part:

Upon motion of the government stating that the defendant has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following conduct:
(1)the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.

. The majority declines to address this question, see maj. op. supra at 179 n. 2, but notes that the Court of Appeals for the Fifth Circuit held in United States v. Fulbright, 804 F.2d 847, 852-53 (5th Cir.1986), that immunized testimony may be used in connection with sentencing.