relief -- the court would be justified in taking some corrective action.").
Defendant argues that this case is among the rare circumstances where a departure is warranted in the absence of a government motion because the government's refusal to make a § 5K1.1 motion is "arbitrary" in light of the facts surrounding his cooperation with the government. The government appears to concede that the Court may inquire into this issue and consider the nature of the assistance provided by defendant for the purpose of determining whether the government's failure to move is arbitrary.
The Court thus turns to the nature of the assistance provided by defendant. In April, 1981, defendant was arrested for his participation in a contract murder committed on February 17, 1981, with Harold Bean and Robert Byron. On the date of his arrest, defendant confessed to his involvement in the crime and detailed the activities of Bean and Byron. Defendant testified in the joint trial of Bean and Byron on September 29 and 30, 1981. Bean and Byron were both convicted of murder. Defendant pled guilty on February 19, 1982 to armed violence, and on the same day he was sentenced to seven years incarceration.
In October, 1985, Bean's conviction was overturned by the Illinois Supreme Court. People v. Bean, 109 Ill. 2d 80, 485 N.E.2d 349, 92 Ill. Dec. 538 (1985). Pursuant to the state's request, defendant voluntarily testified during the re-trial of Bean, which took place in February, 1987. Bean was again convicted. In February, 1987, Byron's conviction was overturned by the Illinois Supreme Court. People v. Byron, 116 Ill. 2d 81, 506 N.E.2d 1247, 107 Ill. Dec. 192 (1987). Again, pursuant to the state's request, defendant testified during the January, 1990 retrial of Byron. Byron was convicted for the second time. During the re-trial of Byron, defendant was in custody on the bank robbery charge which underlies the current sentencing.
The government maintains that its refusal to make a § 5K1.1 motion is not arbitrary because defendant already received the benefit of his assistance in the prosecutions of Bean and Byron when he was sentenced to only seven years for his participation in that offense. Defendant argues that the re-trials occurred after he had already received the benefit of his assistance in the first trials, and that his testimony in the re-trials was not a contemplated element of the cooperation for which he received a reduced sentence from the state court. The government replies that defendant's testimony in the re-trials could have been obtained by subpoena if it had not been given voluntarily.
Resolution of this issue turns on the factual question of what, if anything, defendant agreed to do when he pled guilty in state court. If he agreed to cooperate in the future with respect to the prosecutions of Bean and Byron, then he has already received, in the form of the state sentence, the benefit of his cooperation. However, if he made no such agreement -- if the plea proceeding merely reflected his past cooperation but did not contemplate future cooperation, then a strong argument could be made that he has not yet received any benefit for the cooperation he provided subsequent to his guilty plea in state court.
In an attempt to resolve this factual issue, this Court held an evidentiary hearing on August 7, 1990, concerning the nature of the plea agreement in state court. Although the evidence at that hearing shed further light on the state court proceedings and the nature of defendant's cooperation, it did not elucidate the nature of the plea agreement itself.
Assuming for the purposes of this case that the government's refusal to make a § 5K1.1 motion would be arbitrary if defendant has not already received the benefit of his cooperation with the government, the Court must nonetheless deny defendant's request for a downward departure. Generally, under the Sentencing Guidelines, the government bears the burden of proof in disputes which would result in sentence enhancement, while the defendant bears the burden of proof in disputes which would result in sentence reduction. See United States v. Kirk, 894 F.2d 1162, 1164 (10th Cir. 1990); United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989); United States v. McDowell, 888 F.2d 285, 291 (3d Cir. 1989); United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir. 1989). In light of this general principle, as well as the language of § 5K1.1 and the rarity of the circumstances under which a downward departure for substantial assistance may be granted without a government motion, the Court finds that the burden must lie with the defendant in this case to show that a departure under § 5K1.1 is justified in the absence of a government motion. Defendant has not shown that his testimony in the re-trials was not part of a promise of ongoing cooperation that he made as part of his state court plea agreement. This is particularly true in light of the extraordinary benefit defendant received pursuant to that plea agreement -- even though he was the driver of the car used in the crime and shared in the proceeds, he received a sentence of only seven years rather than a possible term of life imprisonment. Defendant's motion for a downward departure for substantial assistance is therefore denied because he has failed to satisfy his burden of showing that the government's failure to make a § 5K1.1 motion is arbitrary.