b) Invalidity of § 5K1.1 on Statutory Grounds
In 28 U.S.C. § 994, Congress set forth the duties of the Sentencing Commission. Paragraph(n) of that section provides, in pertinent part: "The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, 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). Donatiu argues that the Commission failed to implement this statutory directive by drafting a policy statement, § 5K1.1, which imposes the additional requirement that a substantial assistance motion be brought by the government. Donatiu argues that by imposing this additional requirement, the Commission substituted a policy that substantial assistance departures will be "rarely appropriate" in place of the Congressional directive that such departures be "generally appropriate."
The two courts of appeal that have addressed this issue have rejected Donatiu's argument. United States v. Ayarza, 874 F.2d 647, 653 n. 2 (9th Cir. 1989), United States v. White, 869 F.2d 822, 829 (5th Cir. 1989). In Ayarza, the Ninth Circuit held that "the Sentencing Commission did not exceed its authority in drafting such a requirement in view of the fact that Congress itself drafted section 3553 the same way." 874 F.2d at 653 n. 2. In addition to § 3553(e), which allows substantial assistance departures from mandatory minimum sentences only upon government motion, the Commission could have looked to Fed. R. Crim. P. 35(b), which also requires a government motion in order for a defendant to be afforded a reduction in sentence based on substantial assistance. By including the requirement of a government motion in § 5K1.1, the Commission merely made § 5K1.1 consistent with a statutory scheme already in place.
Accordingly, the Court holds that there is no inconsistency between 28 U.S.C. § 994(n) and § 5K1.1.
B. Constitutional Attacks on § 5K1.1 on Due Process Grounds
1. Facial Challenge to § 5K1.1
Donatiu argues that § 5K1.1 violates due process, on its face, for two reasons: (1) it shifts sentencing authority to the prosecution by allowing prosecutors to decide his sentence by simply refusing to make a motion; and (2) it deprives a defendant of the meaningful opportunity to be heard by preventing a judge from considering all relevant evidence in determining an appropriate sentence. The Court finds neither argument persuasive.
Initially, the Court notes that Donatiu has greatly overstated his case. In rejecting similar constitutional attacks on § 3553(e)'s requirement of a government motion, two courts of appeals have correctly held that the requirement does not shift sentencing authority to prosecutors. United States v. Huerta, 878 F.2d 89 (2d Cir. 1989); United States v. Musser, 856 F.2d 1484, 1487 (11th Cir. 1988), cert. denied, 489 U.S. 1022, 103 L. Ed. 2d 205, 109 S. Ct. 1145 (1989). The only authority delegated to the prosecutor by § 5K1.1 is the authority to move the district court for a downward reduction based on a defendant's substantial assistance. See Musser, 856 F.2d at 1487 (emphasis in original). Although the decision whether to file a § 5K1.1 motion affects a defendant's eligibility to be considered for a sentence below the guidelines range, "the power to decide the motion and to pronounce however, remains with the court." Huerta, slip op. at 6 (emphasis added).
More fundamentally, both of Donatiu's due process challenges rest on the erroneous premise that the judicial function of sentencing and judicial discretion cannot be circumscribed. Most recently, in Mistretta v. U.S., 488 U.S. 361, 102 L. Ed. 2d 714, 109 S. Ct. 647, 650 (1989), the Supreme Court commented that Congress has the power to confine the scope of judicial discretion. Moreover, mandatory sentencing acts which clearly curb judicial discretion at sentencing have been consistently upheld by courts as long as they are rationally-based. See, e.g., McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 2420, 91 L. Ed. 2d 67 (1986) (upholding Pennsylvania's Mandatory Minimum Sentencing Act); United States v. Pineda, 847 F.2d 64, 65 (2d Cir. 1985) (upholding mandatory minimum sentence provisions of 21 U.S.C. § 841(b)(1)); United States v. Goodface, 835 F.2d 1233 (8th Cir. 1987) (upholding mandatory sentencing provision of 18 U.S.C. § 924(c)). Section 5K1.1's requirement of a government motion is based on the reasonable and rational assumption that the government is in the best position to assess and report to the court the nature, extent, and effectiveness of a defendant's substantial assistance. United States v. White, 869 F.2d 822, 829 (5th Cir. 1989). See also Huerta, 878 F.2d at 93, ("we believe that whether a defendant's cooperation has risen to the level of substantial assistance to the government is self-evidently a question that the prosecution is uniquely fit to resolve"); Ayarza, 874 F.2d at 653 ("it is rational for Congress to lodge some sentencing discretion in the prosecutor, the only individual who knows whether a defendant's cooperation has been helpful").
Finally, the Court views Donatiu's argument that § 5K1.1 denies him a meaningful opportunity to be heard to be merely a variant of the due process claim for "individualized sentencing" which this circuit and other circuits have soundly rejected. See, e.g., United States v. Pinto, 875 F.2d 143 (7th Cir. 1989); United States v. Brittman, 872 F.2d 827 (8th Cir. 1989); United States v. Vizcaino, 870 F.2d 52 (2d Cir. 1989); United States v. Frank, 864 F.2d 992, 1010 (3d Cir. 1988), cert. denied, 490 U.S. 1095, 104 L. Ed. 2d 998, 109 S. Ct. 2442 (1989). Under the Sentencing Guidelines, "the defendant, as always, has the right to appear, to offer evidence, and to challenge the Government's evidence." Vizcaino, 870 F.2d at 57. The only difference under the guidelines is that the trial court's discretion to consider certain information relating to a defendant's substantial assistance and to use such information as a basis for departure has been somewhat curtailed. The Court has already held that § 5K1.1's limitation on the judge's discretion is rationally-based and survives Donatiu's due process challenge.
2. Due Process Challenge to Government's Application of § 5K1.1
Donatiu also contends that the government's conduct in refusing to move for a substantial assistance departure in his case violates "due process." To prevail on his claim, Donatiu must demonstrate that the government's conduct in this case "shocks the conscience," Rochin v. California, 342 U.S. 165, 172, 72 S. Ct. 205, 209, 96 L. Ed. 183 (1952), or is so outrageous that it violates "fundamental fairness [and is] shocking to the universal sense of justice." Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 236, 4 L. Ed. 2d 268, 80 S. Ct. 297 (1960). See also United States v. Severich, 676 F. Supp. 1209, 1213 (S.D.Fla. 1988), aff'd, 872 F.2d 434 (11 Cir. 1989).
Donatiu argues that the government's conduct in refusing to certify his substantial assistance to the Court was outrageous and in "bad faith." In order to bring this "bad faith" to the Court's attention, Donatiu asks the Court for permission to allow him to disclose specifics about the plea negotiations with the government. Donatiu recognizes that there is a long-standing tradition in this district against such disclosures, but argues that breach of this tradition is necessary in order to show how the government has violated his due process rights. In support of his request to file an affidavit describing the outrageous conduct in plea negotiations, Donatiu cites to United States v. Coleman, supra, and United States v. Galan, supra, two cases discussed at length earlier in this opinion.
Coleman and Galan are both distinguishable from the instant case. In Galan, the question of "bad faith" was a necessary inquiry to determine whether the government had breached a specific condition of its plea agreement, wherein the government had agreed to move for a downward departure if the defendant provided "substantial assistance." If the court determined that the government had acted in "bad faith," the defendant would have been entitled to specific enforcement of the condition. Similarly, the disclosure of plea negotiations in Coleman was critical to explore statements made by the prosecutor to defense counsel that letters sent by her office to the court advising the court of the defendant's assistance and cooperation were the legal equivalent of a § 3553(e) departure motion. 707 F. Supp. at 1103. Disclosure of plea negotiations through affidavits was necessary for the reason that the circumstances of the negotiations "related directly to the question of whether the plea agreements must be held to be ambiguous." Id. at 1108. In the instant case, unlike Coleman and Galan, there is no plea agreement to specifically enforce and Donatiu does not contend that any promises regarding the defendant's substantial assistance were made or even that any such oral promises, absent a written plea agreement, would be enforceable. Under these circumstances, the Court does not believe that a "battle of the affidavits" on the question of the government's bad faith is necessary.
Moreover, unlike Coleman, the Court here is not faced with a situation where the defendant's substantial assistance is beyond dispute. In Coleman, the prosecutor sent letters to the court outlining the nature, extent, and importance of the defendants' assistance and describing such assistance in "glowing" terms. 707 F. Supp. at 1108. The defendants in the Coleman case met on several occasions with various federal, state and local authorities and "provided a wealth of information regarding the illegal drug activities of Haynes [the drug kingpin] spanning the course of many years. Id. at 1106. Moreover, each of the defendants testified for the government against Haynes at trial and their testimony was significant in leading to Haynes' conviction on six of nine charges, including conspiracy and distribution counts which involved all of the defendants. Id. Donatiu's efforts to provide substantial assistance simply do not measure up to the defendants' efforts in Coleman. Disclosure of the plea negotiations in the instant case will not alter the nature and extent of Donatiu's efforts to provide substantial assistance. In denying Donatiu's request to file an affidavit, the Court does not hold that a defense counsel affidavit disclosing plea negotiations would never be appropriate; the Court only holds that the circumstances in this case do not warrant the breach of this District's longstanding policy against such disclosures.
For all the reasons discussed above, Donatiu's motion for a downward departure from the applicable sentencing guideline range is denied.
DATED: August 3, 1989