Opinion
Criminal No. 93-45-P-C.
February 16, 2000.
MEMORANDUM OF DECISION AND ORDER ON GOVERNMENT'S MOTION FOR REDUCTION OF SENTENCE UNDER RULE 35
Before the Court for action on the papers at this time is the Government's Motion for [a Further] Reduction of Sentence under Rule 35 (Docket No. 25). The Court has reviewed the written submissions thereon and the entire file as it bears on this Defendant's sentencing, including the original Presentence Investigation Report. Defendant is presently under a sentence of incarceration of one hundred twenty (120) months, representing the result of a prior § 5K1.1 and a Rule 35 downward departure for assistance to the Government. These departures have already accomplished a reduction in the Defendant's incarceration term of sixty-eight (68) months from the minimum applicable Guideline range of one hundred eighty-eight (188) months.
The Government now seeks a further reduction of twelve (12) months, to an incarceration term of one hundred eight (108) months. Defendant seeks an additional reduction of twenty-four (24) months.
The Court has carefully evaluated the significance and timeliness of the Defendant's cooperation with and assistance to the Government. It has considered the seriousness of the underlying offense conduct and the extent to which the Defendant has already benefitted from two extensive sentence reductions. The Court FINDS that (1) the Government's motion for a further reduction is well-founded; (2) the Government's request for an additional departure of twelve (12) months is a reasonable recognition, taken in the context of prior reductions and the seriousness of the offense conduct, of the Defendant's most recent further assistance to the Government, even taking into consideration the Government's regrettably inept and bumbling management of the security aspects (or lack thereof) of Defendant's detention while he was held in readiness to perform some aspects of his cooperation.
The Court must express its concern about the callous disregard of the United States Attorney's Office and the United States Marshals Service for the needless hazards to Defendant's security arising from the circumstances of his detention in close proximity to other persons against whom he was providing evidence, he even being held as a cell mate to one such person. Such conduct is inexcusable in the view of the Court.
It cannot be an inducement to other defendants to agree to cooperate with or assist the Government in its law enforcement duties that this Defendant has been housed, while engaged in that very activity, with such a callous disregard, on the Government's own stated facts, of his safety. If others are now being treated in anything like the same manner, those agencies are very much at risk of having to accept liability — moral, legal, and otherwise — for the occurrence of harm to a cooperating defendant as a result of the wreaking of prisoner vengeance.
The Court ADMONISHES the United States Attorney's Office to exercise more oversight in the circumstances in which its cooperating defendants are housed and the United States Marshals Service to be more aggressive in its attention to the management of these risks.
The Court CONCLUDES that a further reduction in Defendant's incarceration term of twelve (12) months, to a one hundred eight (108) month term, is reasonable and warranted. Accordingly, it is hereby ORDERED that Defendant's term of incarceration be, and it is hereby, REDUCED, on the Government's motion, to one hundred eight (108) months; that Defendant's request for a further reduction is hereby DENIED; and that the Clerk shall prepare and present an Amended Sentencing Judgment so reflecting.
The Government has until February 25, 2000, to file a reply to Defendant's Response. It has advised the Court today that it intends to file no such reply. Accordingly, the Court acts forthwith.