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United States v. Prokos

July 25, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALEXANDRA PROKOS, ALSO KNOWN AS ANDREA PROKOS, AND ANDREA COUTRETSIS DEFENDANT.



The opinion of the court was delivered by: James F. Holderman, Chief Judge

MEMORANDUM OPINION AND ORDER

On December 3, 2003, defendant Alexandra Prokos, who is also know as Andrea Coutretsis, (hereinafter "Coutretsis")*fn1 entered into a plea agreement with the United States (hereinafter "Government") which was filed with the court. (Dkt. No. 22). The Government and Coutretsis seek leave from the court to replace that 2003 plea agreement ("2003 Agreement") with a new proposed plea agreement. This court has reviewed the proposed plea agreement along with the briefs and supporting exhibits provided by the parties. (Dkt. Nos. 27, 28, 30, 32, 33). The court also conducted an in-court hearing on October 28, 2004. (Dkt. No. 31). The court, at the parties' request, agreed in December 2004 to postpone the consideration of proposed plea agreement until a related case progressed to the post-trial stage. (Dkt. No. 36). The court, with the parties' concurrence, now returns to its evaluation of the proposed plea agreement and this court has received further briefing from the parties. (Dkt. Nos. 38, 43, 44). For the reasons set forth below, this court tentatively accepts the proposed amended plea agreement pursuant to Rule 11(c)(4) and hereby informs the parties thereof.

BACKGROUND

On May 28, 2003, the Special April 2002 Grand Jury returned an eight-count indictment against Coutretsis alleging that she knowingly made false material declarations to the Special July 2000-2 Grand Jury in connection with Grand Jury Investigation No. 98 GJ 596 in violation of 18 U.S.C. § 1623. (Dkt. No. 1). Pursuant to the December 3, 2003 plea agreement, Coutretsis agreed to plead guilty to Count One and acknowledged that she knowingly made a false declaration in her testimony before the Grand Jury on December 4, 2001. She also agreed, for the purposes of considering her relevant conduct pursuant to the United States Sentencing Commission Guidelines Manual ("Guidelines"), § 1B1.3, that she knowingly made false declarations during her testimony before the Grand Jury on April 10, 2001, May 29, 2001, July 17, 2001, July 31, 2001, December 4, 2001 and January 8, 2002. (Id. at pgs. 6-10).

Under the proposed plea agreement, Coutretsis' fiancé, Scott Fawell ("Fawell") agreed to cooperate in the Government's investigation of misconduct that had occurred during George H. Ryan's ("Ryan") tenure as Secretary of State and Governor of Illinois. Fawell provided a detailed proffer to the Government and testified during the Ryan trial. (02 CR 506) (Pallmeyer, J.). Fawell and Coutretsis both agreed to plead guilty in an additional case involving misconduct at the Metropolitan Pier and Exposition Authority ("McPier"), (04 CR 147) (Manning, J). The Government agreed to drop the other charges against Fawell and Coutretsis in this case and the McPier case and seek reductions in their sentences. If approved by this court, and by Judges Manning and Pallmeyer,*fn2 the collective effect would be to limit Coutretsis to an imprisonment range of zero months to 12 months and a day. Coutretsis is free to argue for any sentence and the Government agrees to recommend a six-month sentence in this case. Fawell, who is already serving time in prison, now faces a maximum imprisonment of 78 months with a possible six-month reduction. It is the parties' position that the proposed plea agreement would not have been reached without the substantial efforts of Coutretsis to convince Fawell to cooperate with the Government. Fawell conditioned his cooperation on Coutretsis receiving a benefit. In doing so, Fawell bartered away other sentencing benefits that he could have received for himself from the Government in exchange for better sentencing benefits for Coutretsis.

ANALYSIS

A. Law of Vicarious / Third-Party Cooperation

The parties have not identified any Seventh Circuit case law directly addressing the appropriateness of the proposed agreement.*fn3 Two judges in the Northern District of Illinois have considered the issue to some extent. See, e.g., United States v. Ivy, 01 CR 121 (Hibbler, J.); United States v. McDowell, 94 CR 787-1 (Conlon, J.). The four reported cases considering the issue are: United States v. Doe, 870 F. Supp. 702 (E.D. Va. 1994) (Ellis, J.); United States v. Bush, 896 F. Supp. 424 (E.D. Pa. 1995) (Dalzell, J.); United States v. Abercrombie, 59 F. Supp. 2d 585 (S.D.W. Va. 1999) (Goodwin, J.); United States v. Scott, No. Crim. 98-1793 ADMAJB, 2005 WL 741910 (D. Minn. Mar. 31, 2005) (Montgomery, J.).

The Doe court, through a review of § 5K1.1 and Rule 35(b), developed a four-part test for determining whether a defendant should receive a benefit for the surrogate assistance provided by a third-party to the Government. The Doe test requires that "(1) the defendant plays some role in instigating, requesting, providing, or directing the assistance; (2) the Government would not have received the assistance but for the defendant's participation; (3) the assistance is rendered gratuitously; and (4) the court finds that no other circumstances weigh against rewarding the assistance." 870 F. Supp. at 708. The Doe court permitted the allocation of a benefit to a father from his son when the father facilitated the son's cooperation in the investigation of a drug dealer. The Bush court considered the Doe test but rejected the allocation of a benefit to the defendant from her paramour because the defendant took no actions to facilitate the paramour's assistance. 896 F. Supp. at 426. The Abercrombie court allowed the allocation of a benefit to the defendant from his girlfriend when the defendant facilitated the girlfriend's assistance in investigating two drug dealers. 59 F. Supp. 2d 585. However, the Abercrombie court rejected the Doe court's analysis, concluding that Guidelines' § 5K2.0, not § 5K1.1, controlled and developed its own somewhat similar four-part test. The Scott court rejected the entire concept of allocating a benefit from a third-party to the defendant on policy concerns. No. Crim. 98-1793 ADMAJB, 2005 WL 741910, at *2-*3. The Scott court concluded that allowing the allocation impermissibly created an incentive for the defendant to obtain cooperation from the third-party through bribery or coercion. Id.

B. The Effect of United States v. Booker on Vicarious Third-Party Cooperation Agreements

The parties presented the proposed plea agreement to the court in the fall of 2004 and argued that it should be approved pursuant to the four-part test set forth in Doe.*fn4 At the October 28, 2004 in-court hearing, this court recognized that Doe, although not binding, was the leading authority. However, in January 2005, the Supreme Court decided United States v. Booker altering the Guidelines from mandatory to advisory in application. 543 U.S. 220 (2005). The Seventh Circuit has instructed that Booker effectively eliminated the concept of a downward departure.

Before Booker, departures were the principle means of sentencing outside of the range specified by the Guidelines. Now that Booker has rendered the Guidelines advisory and district courts have much broader authority to sentence outside the recommended range, departures are beside the point. The district court's obligation in every instance is to consult the Guidelines and, taking into account the sentencing factors set forth in § 3553(a), to impose a reasonable sentence. Our obligation, in turn, is to determine whether the sentence imposed, be it within or without the Guidelines range, is reasonable.

United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006) (citing United States v. Johnson, 427 F.3d 423, 426-27 (7th Cir. 2005)); see e.g., United States v. Hewlett, -- F.3d --, Nos. 05-2532, 05-2571, 05-2853, 2006 WL 1881136, at *4 (7th Cir. July 10, 2006) (Easterbrook, J., concurring) ("Booker rendered the departure apparatus and terminology archaic.").

Vicarious third-party cooperation agreements are based on the concept of downward departure and so this court must determine the effect of Booker. The Supreme Court's directive is that the court must look "to legislative intent ... to determine what 'Congress would have intended' [under the Guidelines] in light of the [Supreme Court's] constitutional holding" in Booker. 543 U.S. 220, 246 (2005) (Breyer, J.) (citations omitted). Congress has explicitly endorsed the executive branch's ability to barter for substantial assistance in exchange for reductions in sentence. See 18 U.S.C. § 3553(e) (allowing, upon the motion of the Government, for the imposing of a sentence below the statutory mandatory minimum sentence to reflect a defendant's substantial assistance in the investigation or prosecution of another); 28 U.S.C. § 994(n) (instructing the Sentencing Commission to assure that the Guidelines reflect the appropriateness of imposing a lower sentence in account for a defendant's substantial assistance in the investigation or prosecution of another). Section 5K1.1 is the Guidelines' implementation of Congress' directive under § 3553(e) and § 994(n). See U.S.S.G. § 5K1.1 Application Note 1. A reduction in sentence in exchange for substantial assistance of the Government pursuant § 5K1.1 remains an important part of the Guidelines despite the fact that the Booker eliminated the need for a downward departure. See United States v. Blue, -- F.3d --, No. 05-3717, 2006 WL 1970379, at *4 (7th Cir. July 14, 2006) (quoting United States v. Zingsheim, 384 F.3d 867, 870 (7th ...


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