United States v. Doe ( 2021 )

19-3359-cr
United States v. Doe
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 17th day of September, two thousand twenty-one.
4
5 PRESENT: DENNIS JACOBS,
6 RAYMOND J. LOHIER, JR.,
7 RICHARD J. SULLIVAN,
8 Circuit Judges.
9 ------------------------------------------------------------------
10 UNITED STATES OF AMERICA,
11
12 Appellee,
13
14 v. 19-3359-cr
15
16 JOHN DOE,
17
18 Defendant-Appellant.
19 ------------------------------------------------------------------
1 FOR DEFENDANT-APPELLANT: WILLIAM J. DOBIE (Richard A.
2 Greenberg, Steven Y.
3 Yurowitz, on the brief),
4 Newman & Greenberg LLP,
5 New York, NY
6
7 FOR APPELLEE: MICHAEL J. BUSHWACK,
8 Assistant United States
9 Attorney (David C. James,
10 Assistant United States
11 Attorney, on the brief), for
12 Jacquelyn M. Kasulis, Acting
13 United States Attorney,
14 Eastern District of New York,
15 New York, NY
16 Appeal from an order of the United States District Court for the Eastern
17 District of New York (Joanna Seybert, Judge).
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
19 AND DECREED that the judgment of the District Court is AFFIRMED.
20 John Doe appeals from a July 1, 2019 order of the District Court (Seybert,
21 J.) denying his motion to compel the Government to move for a reduction of his
22 sentence pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. In
23 2013, the District Court sentenced Doe to 30 years in prison for racketeering and
24 conspiring to import cocaine into the United States. On February 6, 2018, Doe
2
1 moved for an order compelling the Government to file a Rule 35(b) motion,
2 arguing that he had provided substantial assistance to the Government after
3 sentencing. The District Court denied the motion, and Doe appealed. We
4 assume the parties’ familiarity with the underlying facts and prior record of
5 proceedings, to which we refer only as necessary to explain our decision to
6 affirm.
7 Upon a motion from the Government made more than one year after
8 sentencing, Rule 35(b) allows the district court to reduce a sentence if “the
9 defendant, after sentencing, provided substantial assistance in investigating or
10 prosecuting another person,” and if the assistance involved “information not
11 known to the defendant until one year or more after sentencing.” Fed. R. Crim.
12 P. 35(b)(1)–(2). The Government has “a power, not a duty, to file a motion when
13 a defendant has substantially assisted.” Wade v. United States, 504 U.S. 181, 185
14 (1992). Thus, “although a showing of assistance is a necessary condition for
15 relief, it is not a sufficient one.” Id. at 187.
16 “The extent of our review of the government’s decision not to file a
17 substantial assistance motion depends on whether the defendant acted pursuant
3
1 to a cooperation agreement.” United States v. Roe, 445 F.3d 202, 207 (2d Cir.
2 2006). Where there is no cooperation agreement, as was the case here, a
3 defendant is entitled to relief only if the Government’s motion is withheld for an
4 unconstitutional reason—if, for example, a prosecutor refused to file the motion
5 “because of the defendant’s race or religion” or for a reason “not rationally
6 related to any legitimate Government end.” 1 Id. (quoting Wade, 504 U.S. at
7 186). 2
8 Here, the Government offered several reasons for its decision not to file a
9 Rule 35(b) motion on Doe’s behalf, including Doe’s substantial criminal record,
10 the fact that he had already benefitted from pre-sentence cooperation, and the
11 Government’s determination that the information he provided was unreliable
1Doe asserts on appeal that he had an oral cooperation agreement with the
Government. But Doe forfeited that argument by failing to raise it before the District
Court, and in any event the alleged agreement—an “offer[] to writ [Doe] back to the
EDNY in furtherance of his agreed-upon efforts to secure a Rule 35 motion,” App’x
232—included no promise from the Government to move for a reduction in sentence in
exchange for substantial assistance.
2Generally, we review questions of law de novo and findings of fact for clear error. But
we have not made clear the specific standard of review that applies to an appeal of a
District Court’s denial of a motion to compel the Government to file a Rule 35(b)
motion. We need not decide this issue now, however, as we find no error in the District
Court’s decision even under de novo review.
4
1 and failed to uncover a prosecutable offense. These concerns were rationally
2 related to legitimate government ends, and they each provide independent
3 justification for the Government’s refusal to file a Rule 35(b) motion. Doe
4 responds that these stated reasons were pretextual and suggests that the
5 Government’s real aim in declining to file the motion was to protect its
6 cooperating witnesses—whom Doe had implicated in new crimes—and to avoid
7 having to make Brady or Giglio disclosures in cases where those cooperators had
8 testified. But Doe provides no evidence that even suggests that these were the
9 Government’s true motives. 3 We therefore agree with the District Court that
10 these “conclusory and unsubstantiated claims that the Government had
11 unconstitutional motives” did not provide it “with a basis to second-guess the
12 Government’s decision.” App’x 278.
3Doe insists that an Assistant United States Attorney informed Doe’s counsel, after
viewing certain evidence Doe provided to the Government, that Doe had uncovered
wrongdoing and that he expected the Government to file a Rule 35(b) motion on Doe’s
behalf. See App’x 238-39. Even if this is true, Doe does not explain why the
Government was not entitled to change its view of the value or reliability of his
evidence, nor do these alleged statements support Doe’s theory that the Government
chose not to file the motion as part of a scheme to protect its cooperators.
5
1 We likewise find no error in the District Court’s decision to deny Doe’s
2 request for an evidentiary hearing. To be entitled to such a hearing, a defendant
3 must make a “substantial threshold showing” that the government’s reasons for
4 refusing to submit a Rule 35(b) motion were “suspect.” Wade, 504 U.S. at 186
5 (quotation marks omitted). Doe failed to make such a showing here.
6 “[G]eneralized allegations of improper motive,” such as Doe’s speculation that
7 the Government declined to file a Rule 35(b) motion to protect its cooperators, do
8 not suffice. Id.9 We have considered Doe’s remaining arguments and conclude that they
10 are without merit. For the foregoing reasons, the judgment of the District Court
11 is AFFIRMED.
12 FOR THE COURT:
13 Catherine O=Hagan Wolfe, Clerk of Court
14
6