Filed: Aug. 27, 2004
Latest Update: Apr. 11, 2017
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-27-2004 USA v. Jones Precedential or Non-Precedential: Precedential Docket No. 03-1411 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "USA v. Jones" (2004). 2004 Decisions. Paper 347. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/347 This decision is brought to you for free and open access by the Opinions of the United States Court
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-27-2004 USA v. Jones Precedential or Non-Precedential: Precedential Docket No. 03-1411 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "USA v. Jones" (2004). 2004 Decisions. Paper 347. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/347 This decision is brought to you for free and open access by the Opinions of the United States Court ..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-27-2004
USA v. Jones
Precedential or Non-Precedential: Precedential
Docket No. 03-1411
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"USA v. Jones" (2004). 2004 Decisions. Paper 347.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/347
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PRECEDENTIAL David L. McColgin (Argued)
Assistant Federal Defender
UNITED STATES COURT OF Supervising Appellate Attorney
APPEALS FOR THE THIRD CIRCUIT Maureen Kearney Rowley
Chief Federal Defender
Robert Epstein
Federal Court Division
No. 03-1411 Defender Association of Philadelphia
Philadelphia, PA 19106
Attorneys for Appellant
UNITED STATES OF AMERICA
Patrick L. Meehan
v. United States Attorney
Laurie Magid
GARY W. JONES, Deputy United States Attorney
Appellant for Policy and Appeals
Robert A. Zauzmer
Assistant United States Attorney
Senior Appellate Counsel
On Appeal from the United States Peter D. Hardy(Argued)
District Court Catherine Votaw
for the Eastern District of Pennsylvania Assistant United States Attorneys
(D.C. Criminal No. 02-cr-00575) Philadelphia, PA 19106
District Judge: Hon. Eduardo C.
Robreno Attorneys for Appellee
Argued March 11, 2004 OPINION OF THE COURT
Before: SLOVITER and NYGAARD,
Circuit Judges, and SHADUR, District SLOVITER, Circuit Judge.
Judge*
Appellant states that the issue
(Filed: August 27, 2004) before us is “[w]hether the district court
had the authority under U.S.S.G. § 5K2.0
to grant a downward departure, in the
absence of a government motion, on the
*
H o n . M i l t o n I. Shad ur, U nite d basis of Mr. Jones’s substantial assistance
States District Court Judge for the in two civil matters.” We see the issue
Northern District of Illinois, sitting by differently, albeit related. The answer to
designation. the issue posed by appellant is clear – a
district court may depart under U.S.S.G. The Braids hired a new financial
Section 5K2.0 without a Government adviser who discovered the theft in
motion, and to the extent that the District October 1999 and they informed the FBI
Court in this case said otherwise, it and the SEC, which began investigating
misspoke. The more difficult question Jones. Jones eventually admitted his
raised by this appeal is whether appellant’s embezzlement and began cooperating with
assistance was a factor that falls within the the authorities in investigating IRL. Jones
scope of Section 5K2.0. states that in the course of assisting the
authorities, he made 60-70 phone calls,
I. two of which were monitored; attended
15-20 meetings; and wore a body wire for
From October 1998 to April 1999, the FBI during a meeting. After the FBI
Jones embezzled $236,626 in retirement decided not to pursue a criminal
funds from Arthur and Selma Braid, an investigation of IRL in August 2000, Jones
elderly couple for whom Jones worked as remained in contact with the SEC
an accountant and financial advisor. Jones regarding IRL until November 2000.
accomplished this crime by forging Mr. Jones alleges that he provided substantial
Braid’s signature on checks from Fidelity assistance, even purchasing a copy
Investments, where the Braids maintained machine from his own funds to copy
their retirement funds, and depositing the thousands of pages of relevant documents
checks into his own account. Also, during to present to the SEC, traveled to the
this period Jones advised the couple to Philippines to investigate IRL abroad, and
invest $10,000 and Jones himself invested provided three to four hours of testimony
his own funds and M r. Braid’s stolen under oath “as part of the investigation of
retirement funds in International Recovery, this company,” which he believed had
Limited (IRL) for what turned out to be a “broken some laws and would be subject
fruitless venture. Mr. Braid later sued to some kind of p[ro]secution for that.”
Fidelity, but recouped less than half of the App. at 31a-32a, 45a-46a. Jones concedes,
embezzled funds. 1 however, that he undertook many of these
efforts without having been instructed to
do so by the Government. Jones contends
1 that IRL stopped soliciting investors and
Fidelity paid Mr. Braid $125,000,
went out of business, in part, because of
and was reimbursed by its insurance
his actions. An SEC representative
company. The Braids’ losses exceeded the
informed the Government that it “never
amount of the embezzled funds as they
acted on the defendant’s statements
incurred legal expenses in seeking to
because they could not be corroborated.”
recoup the loss and were required to pay
Supp. App. at 3.
back taxes, penalties and interest, because
Jones failed to file their Pennsylvania tax
The Government indicted Jones for
returns for six or seven years.
2
bank fraud pursuant to 18 U.S.C. § 1344 Section 5K2.0 motion for a downward
and he pled guilty on October 24, 2002. departure, stating:
Jones moved for a downward departure
based on, inter alia,2 his cooperation with [D]istrict courts have no
the SEC and FBI in reporting IRL’s authority to grant substantial
activities, unco vering its financial departures under 5K2.0 in
“inaccuracies and misappropriations,” and the absence of a
exposing “undercover embezzling” by Government motion under
officers of the corporation. App. at 102a- 5K1.1. And in this case,
04a. Jones also argued that Mr. Braid there has been no motion
received a settlement from Fidelity, based under 5K1.1.
in part on his assistance and willingness to
testify, which provided additional grounds Additionally, there is no
for a downward departure. claim of unconstitutional
motive or discrimination or
Critically, Jones moved for this bad faith on the part of the
downward departure pursuant to U.S. Government.
Sentencing Guideline Section 5K2.0.
Section 5K2.0 permits departures for I think to the extent
“mitigating circumstance[s] . . . not that the defendant has
adequately taken into consideration by the cooperated, that should be
Sentencing Commission”; it does not taken care of and the
require a supporting motion from the defendant should be credited
Government, as is required for a motion with in the senten cin g
for substantial assistance under Section guid elines for his
5K1.1. The Government opposed Jones’ cooperation with the SEC
motion, arguing that he was not eligible and all the other efforts that
for a Section 5K2.0 departure because he have been outlined here.
had not alleged unconstitutional motive or
bad faith acts by the Government. And finally, I find
that the combination of all
The District Court denied Jones’ of those factors do not
warrant a departure under
Koon versus the United
2 States. And, again, I
Jones also argued that a departure
recognize that I have the
was warranted because of his post-offense
power to depart as a result
rehabilitation (alcoholism recovery) and
of a combination of these
his ability to make restitution to his victims
factors, but I find that this is
if he were not jailed. These grounds are
a case which does not
not at issue on appeal.
3
warrant or justify it States v. Dominguez, 296 F.3d 192, 195
and it’s not an (3d Cir. 2002) (holding that district court
appropriate case for had authority to grant Section 5K2.0
the exercise of that downward departure despite Government’s
discretion. opposition); see also United States v.
Vitale, 159 F.3d 810, 813 (3d Cir. 1998)
App. at 74a-75a. (noting that district court granted
defendant’s § 5K2.0 departure, without
The District Court sentenced Jones mention of Government support or
to imprisonment for 18 months and opposition thereto).
required him to make restitution to the
Braids. Jones timely appealed.3 The more difficult question raised
by this case is whether a defendant’s
II. assistance in connection with a civil
investigation or case falls within the scope
Jones’ primary contention on appeal of Section 5K2.0, as Jones contends, rather
is that the District Court improperly held than within the scope of Section 5K1.1.
that it did not have authority to grant a Jones contends that his assistance to the
downward departure under Section 5K2.0 SEC took him outside the ambit of Section
without an accompanying motion by the 5K1.1. Jones argues that we should
Government in support. Inasmuch as this confine the supporting motion requirement
presents a legal issue, we review the of Section 5K1.1 to substantial assistance
District Court’s conclusions of law de on criminal matters and that we should
novo. United States v. Abuhouran, 161 hold that the district courts have the
F.3d 206, 209 (3d Cir. 1998). discretion to grant departures for
assistance in civil matters under Section
Departures pursuant to Section 5K2.0, which does not require a
5K2.0 do not hinge upon a Government’s supporting Government motion.
motion in support thereof. U.S. Sentencing Guideline Section
Sentencing Guidelines Manual § 5K2.0. 5K2.0, as it applied to Jones, provided in
There is no such requirement in the part:
Guideline, and courts that have granted § 5K2.0 Grounds for Departure
such departures have done so without any (Policy Statement)
Government motion. See, e.g., Koon v.
United States, 518 U.S. 81 (1996); United Under 18 U.S.C. § 3553(b)
the sentencing court may
impose a sentence outside
3 the range established by the
W e h a v e j u r i sd i c t io n o v e r this
applicable guideline, if the
matter pursuant to 28 U.S.C. § 1291 and
court finds “that there exists
18 U.S.C. § 3742(a).
4
an aggravating or range may be relevant to
m i t i g a t i n g this determination if such
circumstance of a characteristic or
kind, or to a degree, circumstance is present to
not adequately taken an unusual degree and
into consideration by distinguishes the case from
the Sentencing t h e “ he a r tla nd” c as e s
Com m i s s io n in covered by the guidelines.
f o r m u l a t in g t h e
g u i d e l in e s t h a t
should result in a
sentence different U.S. Sentencing Guidelines Manual §
from that described.” 5K2.0.4
. . . [T]he court may
depart from the In Koon, the Supreme Court, in a
g u i d e l i n e, e v e n thorough discussion of Section 5K2.0,
though the reason for stated that although Section 5K2.0 does
departure is taken not impose a “limit on the number of
into consideration in potential factors that may warrant
the guideline range departure,” 518 U.S. at 106 (quoting Burns
(e.g., as a specific v. United States, 501 U.S. 129, 136-37
offense characteristic (1991)), downward departure factors may
or other adjustment), be categorized as falling into four primary
if the court groups: factors that are prohibited,
determines that, in encouraged, discouraged, or unmentioned.
light of unusual Koon, 518 U.S. at 94-95. Consideration of
circumstances, the
weight attached to
that factor under the 4
A l t h o u g h S e c t io n 5 K 2 . 0 w a s
guidelines is
amended in 2003 by the Prosecutorial
inadequate or
Remedies and Tools Against the
excessive....
Exploitation of Children Today Act of
2003 (PROTECT Act), Pub. L. No. 108-
[A]n offender characteristic
21, § 401(m)(2)(A), 117 Stat. 650, 675
or other circumstance that is
(Apr. 30, 2003), this amendment does not
in the Commission’s view,
apply to Jones, whose criminal conduct
“not ordinarily relevant” in
occurred and who was sentenced prior to
determining wh ether a
the amendment. The amendments do not
sentence should be outside
change the substance as applicable to
the applicable guideline
Jones.
5
substantial assistance in civil matters is not become overly-involved in executive and
prohibited, encouraged, or discouraged. investigative functions. Id. at 216. In both
Substantial assistance in civil matters is an of those instances, the departure at issue
unmentioned factor and thus this court was sought under Section 5K1.1.
“must, after considering the ‘structure and
theory of both relevant individual However, we acknowledged that
guidelines and the Guidelines taken as a other courts have recognized a third
whole,’ decide whether it is sufficient to category of cases in which a downward
take the case out of the Guideline’s departure for substantial assistance is
heartland.” Id. (quoting United States v. possible under Section 5K2.0 in the
Rivera, 994 F.2d 942, 949 (1st Cir. 1993)). absence of a Government motion. We
explained:
This court has not yet addressed the
issue whether assistance in civil matters Some cases have found that
falls within Section 5K2.0. In United a departure is permitted
States v. Abuhouran, 161 F.3d 206 (3d Cir. under § 5K2.0 in the
1998), we considered a somewhat related absence of a government
issue: whether Section 5K2.0 gave the mo tion for subs tantial
district court the authority to depart assistance to branches of
downward in a criminal case on the ground government other than those
that defendant offered su bstan tial that engage in prosecutorial
assistance to the Government even though a c t iv it i e s w h e n t h e
the Government had not moved for the assistance does not involve
departure under Section 5K1.1. In “ t h e i n v e st i g a ti o n o r
rejecting the defendant’s claim, we noted prosecution of an other
we had recognized only two “extraordinary person who has committed
circumstances” in which a district court an offense.” See, e.g.,
may depart from the Guidelines without United States v. Sanchez,
governmental acquiescence: where the
927 F.2d 1092, 1093-94 (9th
Government refused to file a substantial Cir. 1991) (assistance in the
a ssi st a n ce mo tio n based on an prosecution of a civil
unconstitutional motive, id. at 212 (citing forfeiture case); United
Wade v. United States,
504 U.S. 181 States v. Khan, 920 F.2d
(1992)); and where the Government acted 1100, 1107 (2d Cir. 1990)
in bad faith with regard to a plea (assistance in rescuing an
agreement, id. (United States v. Isaac, 141 informant kidnapped by
F.3d 477, 484 (3d Cir. 1998)). We foreign drug dealers);
reasoned that such a limited construction United States v. Stoffberg,
was necessary to ensure that the judiciary
782 F. Supp. 17, 19
not be forced to police prosecutors or (E.D.N.Y. 1992) (assistance
6
to a congressional assistance in connection with a civil
committee). matter, which he contends is cognizable
only under Section 5K2.0.
Abuhouran, 161 F.3d at 212 n.5. Although
we acknowledged this line of cases, we Jones would have us limit Section
declined to address the merits of the cases 5K1.1 to assistance in criminal
because the defendant in the case before us investigations. Application Note 1
on appeal had provided assistance “to the provides that “substantial assistance in the
executive branch in furtherance of its law investigation or prosecution of another
enforcement responsibilities.” Id. (citation person who has committed an offense may
omitted). Nonetheless, we declined to justify a sentence below a statutorily
foreclose this third exception, stating that required minimum sentence,” while
Section 5K2.0 departures are permissible Application Note 2 explains that
where the Government has acted with an “[s]ubstantial assistance is directed to the
unconstitutional motive, in bad faith with investigation and prosecution of criminal
regard to a plea agreement, “and possibly activities by persons other than the
those [cases] in which the assistance is not defendant.” U.S. Sentencing Guidelines
of the sort covered by § 5K1.1.” Id. at Manual § 5K1.1, cmt. nn. 1, 2. Also, the
214. Because the defendant in Abuhouran Background note refers to assistance in
did not qualify for any of the exceptions criminal investigations, stating that “[a]
and he conceded that his assistance defendant’s assistance to authorities in the
involved purely criminal investigations investigation of criminal activities has
and prosecutions, we concluded that he been recognized in practice and by statute
was not eligible for a departure under as a mitigating sentencing factor.” Id. at
Section 5K2.0. cmt. background. None o f the
commentary is preclusive of assistance
Section 5K1.1 provides that, beyond that to the criminal investigators.
“[u]pon motion of the government stating In fact, a portion of the Background note
that the defendant has provided substantial suggests a broader scope, as it states that,
assistance in the investigation or “[t]he nature, extent, and significance of
prosecution of another person who has assistance can involve a broad spectrum of
committed an offense, the court may conduct that must be evaluated by the
depart from the guidelines.” U.S. court on an individual basis.” Id. Jones’
Sentencing Guidelines Manual § 5K1.1. argument that the only assistance that can
The bare text of Section 5K1.1 is thus be considered under Section 5K1.1 is to
silent as to what type or types of assistance investigation of a person’s criminal
it includes. In the instant case, Jones activities is unpersuasive. After all, what
posits a sharp demarcation between is at issue are Sentencing Guidelines,
assistance in connection with a criminal applicable only to sentencing for “criminal
matter, the realm of Section 5K1.1, and activities.”
7
Jones calls our attention to case law Khan, 920 F.2d at 1107. The court did not
from the Courts of Appeals for the Second, actually decide the departure should have
Ninth, and Sixth Circuits supporting the been granted because the defendant had
c o n c l u s i o n t h a t S e ct i o n 5 K 2 .0 waived this argument by failing to alert the
encompasses assistance that was not district court at sentencing of these
provided in the in vestigation or activities. Shortly thereafter, the same
prosecution of another person even though court clarified its discussion in Khan by
it trenched on an underlying criminal stating that Khan limited this exception to
matter. In United States v. Khan, 920 F.2d “assistance to the Government other than
1100 (2d Cir. 1990), cert. denied, 499 U.S. the supplying of information relevant to
969 (1991), the court stated that a the prosecution of other individuals, e.g.,
departure under Section 5K2.0, without a assistance by the defendant that allegedly
Government motion, might be appropriate saved the life of a Government agent.”
where the defendant saved the life of a United States v. Agu, 949 F.2d 63, 67 (2d
kidnapped confidential informant because Cir. 1991).
the Sentencing Guidelines did not readily
provide a basis to account for such heroic In United States v. Sanchez, 927
efforts. Id. at 1107. The court stated that F.2d 1092 (9th Cir. 1991) (per curiam), the
a Section 5K2.0 departure may be Court of Appeals for the Ninth Circuit
available: held that assistance provided in a civil
forfeiture proceeding was not “substantial
where the defendant offers assistance” within the meaning of Section
i n f o r m a ti o n r e g a r d i n g 5K1.1. Although the defendant argued
actions [the defendant] took, that the district court had declined to grant
which could not be used by a Section 5K2.0 motion based on its belief
the government to prosecute that it lacked the authority to do so without
other individuals (rendering a Government motion in support thereof,
§ 5K1.1 inapplicable), but the court found no indication in the record
which could be construed as that the sentencing judge believed a
a “mitigating circumstance” downward departure under Section 5K2.0
for purposes of § 5K2.0. was impermissible and thus affirmed the
See Guidelines § 5K1.1, decision without clearly stating that
Commentary, Application assistance in civil forfeitures actions could
No te 2 (“Substa ntial be grounds for a Section 5K2.0 departure.
assistance is directed to the Id. at 1093-94. We need not express our
investigation and view of the holdings in these cases because
prosecution of criminal they do not discuss the situation in Jones’
activities by persons other case, where the investigation in which he
than the defendant”). provided assistance was both criminal and
civil.
8
Jones relies heavily on United defendant substan tially assisted in
States v. Truman, 304 F.3d 586 (6th Cir. proceedings “other than [those] toward the
2002), which did not arise under the joint prosecution of another person,” Section
or sequential investigation scenario. The 5K1.1 and its requirement of a
defendant in Truman, who had been Government motion do not apply. Id. The
caught attempting to sell drugs he stole Sixth Circuit also stated that a Section
from the pharmaceutical laboratory where 5K2.0 departure may have been warranted,
he worked, assisted the Government in apart from the acceptance of responsibility
exposing security lapses at the laboratory. departure that he received, because the
Drug Enforcement Agency (DEA) agents defendant’s cooperation in developing
shared this info rmatio n with the “prophylactic measures” to prevent future
laboratory, which then corrected and lab thefts had “extend[ed] beyond the
upgraded its security procedures based on garden variety acceptance of responsibility
the defendant’s identification of risk areas. and thus was either not taken into account
The defendant highlighted his significant by the Guidelines or was accounted for in
assistance to DEA investigators in their the Guidelines but was present in this case
effort to upgrade the lab’s security to an exceptional degree.” Id. at 592. The
procedures as grounds for departure. court thus clarified that on remand, the
Critically, he moved for a departure under district court was not bound by Section
Section 5K2.0, rather than Section 5K1.1, 5K1.1 and could determine if a Section
which would have required a Government 5K2.0 departure was, in fact, appropriate.
motion. Id.
The district court concluded that, Jones contends that his case is
absent a motion from the Government to analogous to the Truman case where the
depart, it lacked the discretion to grant defendant’s assistance did not lead to the
defendant a downward departure for investigation or prosecution of any party
“assistance offered by a defendant which for criminal matters. In fact, Jones’ case is
did not result in the investigation or distinguishable from Truman because it
prosecution of another individual.” Id. at does not appear that the laboratory in
587. The Court of Appeals for the Sixth Truman was the subject of a criminal
Circuit vacated and reversed the district investigation. The DEA was interested in
court decision, reasoning that Section preventing other potential wrongdoers
5K1.1 applies only to substantial from defeating the lab’s security systems
assistance for “the investigation and in the future, and it was in that connection
prosecution of another individual who has that Truman offered assistance. By
committed a crime,” based on Section contrast, here Jones alleges that IRL had
5K1.1’s commentary and description of “broken some laws and would be subject
assistance in “criminal” matters. Id. at to some kind of p[ro]secution for that.”
590. The court thus concluded that if a App. at 45a. It is in that connection,
9
clearly covered by Section 5K1.1, that the criminal prosecution does not
Jones proffered his assistance. constitute the type of extraordinary factor
contemplated by Section 5K2.0 or Koon.
At sentencing, the Assistant United This is not a situation as presented in
States Attorney conceded that Jones Truman where the assistance given by the
provided some assistance but stated that it defendant was unrelated to any prospective
could not be corroborated and therefore investigation into criminal actions by a
did not lead to any action by the person other than the defendant. In this
Government. App. at 80a. An FBI agent case, although the assistance which Jones
testified at sentencing to the same effect. relies on was to the SEC it was, in fact,
He stated that Jones wore a wire as related to a criminal investigation.
requested, and that he did what he said he
would do but the information provided As the Government emphasizes,
was not helpful. Jones assisted both the SEC and the FBI in
connection with a criminal investigation
The District Court declined to into fraud and securities violations. The
exercise its discretion to grant a downward Government points out that Jones’ own
departure. The court stated: motion for a downward departure
described his assistance to the SEC as
[T]here is no claim of based on his belief that IRL had “broken
unconstitutional motive or some laws” and committed “offenses”
discrimination or bad faith based o n “ i n a c curacies and
o n t h e pa r t o f t h e misappropriations” in financial statements
Government. and that a corporate officer had been
“embezzling” funds. App. at 45a, 103a.
I think to the extent The Government contends that these
that the defendant has allegations could only be construed as
cooperated, that should be “allegations of crimes.” Gov’t Br. at 39.
taken care of and the
defendant should be credited Lastly, the Government contends
wit hin the sentencing that we have previously interpreted
guidelines for his Section 5K1.1 to encompass assistance to
cooperation with the SEC all “authorities.” Gov’t Br. at 49. The
and all the other efforts that Government relies upon United States v.
have been outlined here. Love, 985 F.2d 732 (3d Cir. 1993), in
which we held that Section 5K1.1 applied
App. at 74a. to both federal and state authorities
because nothing in Ҥ 5K1.1 or in the
On appeal, the Government argues accompanying commentary [suggests] that
that cooperation in a civil suit related to the Commission meant to limit ‘assistance
10
to authorities’ to assistance to federal against this company [IRL].” App. at 31a.
authorities.” Id. at 734. In the same vein, Again, he stated,
the Government highlights a district court
decision from Virginia in which that court And – and, in fact,
rejected a defendant’s motion for a Judge, as you read through
downward departure under Section 5K2.0 t h e l i n e s h e r e , h is
based on his assistance to the SEC and cooperation with the FBI
foreign authorities. The court found that and later with the Securities
while those agencies were not involved in and Exchange Commission,
prosecuting offenses, the Sentencing a g a i n , t h o u s a nd s a n d
Commission likely assumed that Section thousands of boxes of
5K1.1 would encompass cooperation with documents, he copies for the
“a variety of government organizations,” SEC in their investigations.
including the SEC. United States v.
Dowdell, 272 F. Supp. 2d 583, 594 App. at 31a. Jones himself stated similarly
(W.D.Va. 2003), reconsideration granted at sentencing:
in part on other grounds,
2003 WL
22439643 (W.D.Va. Oct. 28, 2003). Following the work with
Special Agent Cosgraf and
Jones does not dispute that the SEC the FBI, it was immediately
may qualify as an authority to which followed by the Securities
substantial assistance can be provided in and Exchange Commission
criminal investigations, nor that the list of with a subpoena from them,
authorities may be expanded beyond the which required photocopies
federal government; instead, he argues that of an extreme amount of
he assisted the SEC in pursuing a civil documentation that was in –
investigation, a circumstance not in my files. There was –
contemplated by Love or Dowdell. there was probably well
over – you know – two
Jones can hardly argue that the transfer files full, that was –
SEC’s investigation was unrelated to the that was photocopied.
potential criminal action. At sentencing,
Jones’ lawyer stated not once but twice App. at 46a.
that Jones’ assistance to the two
government investigations was sequential. In light of Jones’ position in the
He stated that Jones bought the copy District Court, we need not remand for any
machine “so that he could copy the factual findings as to the relatedness of the
documents and get them to the FBI and FBI and SEC investigations because the
later to the Securities and Exchange record of such relatedness is clear. The
Commission as part of the investigation fact that the FBI discontinued its
11
investigation while Jones continued his within the heartland of a separate
assistance to the SEC does not negate the Guideline provision cannot be the basis of
interconnection between the investigations a departure under Section 5K2.0.
by both Government authorities. For Although substantial assistance in civil
example, had the SEC investigation matters may be recognized under Section
ultimately uncovered criminal acts by IRL, 5K2.0, we need not decide that issue under
there can be no doubt that those facts the facts of this case. Because Jones’
would have been transmitted to the FBI for cooperation fell within Section 5K1.1 (had
its consideration for future prosecution. the assistance been sufficiently substantial
to warrant the Government’s motion to
The p r e s e n te n c e r e p o rt depart) and Section 3E1.1, it was not
recommended that Jones’ cooperation be appropriate for consideration under
taken into account under U.S. Sentencing Section 5K2.0. We reject Jones’
Guideline Section 3E1.1 providing that a contention that the District Court erred as
district court may decrease a defendant’s a matter of law in denying his motion for
offense level “[i]f the defendant clearly departure under Section 5K2.0.
demonstrates acceptance of responsibility
for his [or her] offense,” which may be III.
demonstrated by, inter alia, “voluntary
assistance to authorities in the recovery of For the reasons set forth above, we
the fruits and instrumentalities of the will affirm the judgment of the District
offense.” U.S. Sentencing Guidelines Court.
Manual § 3E1.1 & cmt. n.1(e). The
District Court stated that it was doing so.
See App. at 74a (District Court stating, “I
think to the extent that the defendant has
cooperated, that should be taken care of
and the defendant should be credited
within the sentencing guidelines for his
cooperation with the SEC and all the other
efforts that have been outlined []”); App.
at 89a (District Court stating that Jones
“undertook efforts to cooperate with the
Government and provided reliable and
truthful information, however, it was not
significant enough to earn a 5K1[.1]
departure. Nevertheless, [] he should be
credited with that – with that effort”).
Under Koon, a factor that fits
12
