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November 29, 2004 - The Wall Street Journal (US)

Split Decisions: Federal Cases Show Big Gap In Reward For Cooperation

Rules on Reducing Sentences Vary Across U.S. - An Edge For Some Crime Bosses, A 'Little Fish' Gets 19 1/2 Years

By Laurie P. Cohen, WSJ Reporter

Return to Drug War News: Don't Miss Archive

On Jan. 28, 2004, federal agents stopped a fishing boat and a pleasure boat as they sped into a Florida inlet from the Bahamas carrying 380 kilograms of cocaine and 487 pounds of marijuana. Ringleader William "Billy" Stevens, 46 years old, was arrested along with Henry Rudnitskie and one other man.

Messrs. Stevens and Rudnitskie both sought to cooperate with authorities, lawyers in the case say. But Mr. Rudnitskie was turned down because "anything he knew came from Billy," says Mr. Stevens's lawyer, Alvin E. Entin. Only Mr. Stevens got credit for cooperation. He received an 11-year sentence while Mr. Rudnitskie, 57, was sentenced to 19 years and seven months.

Mr. Entin says he's seen it many times: "The big fish gets off and the little fish gets eaten."

Cooperating with federal prosecutors against friends, acquaintances and co-defendants is often the only hope for criminals to avoid being sentenced under strict federal guidelines and mandatory minimum prison terms. More than one in six defendants is awarded a letter from prosecutors saying he or she gave "substantial assistance" to an investigation. The letter means that the usual rules are thrown out and judges, many of whom believe current punishments are too severe, can give any sentence they like.

But the procedure for deciding who gets these valuable letters is often haphazard and tilted toward higher-ranking veteran criminals who can tell prosecutors what they want to know. U.S. attorneys in different parts of the country vary widely in how they reward cooperation, even though they're all part of the same federal justice system. Studies suggest blacks and Hispanics are less likely to get credit than whites, perhaps partly because they are more mistrustful of authorities. And once prosecutors decide that cooperation is insufficient for a letter, their word is usually final -- defendants can't appeal the decision to a judge.

All these issues raise concern because the federal sentencing guidelines were supposed to promote uniformity in sentencing. "How could any factor in a system which aims to normalize sentences be so widely disparate?" asks Marc Miller, a professor at Atlanta's Emory University Law School.

Disparities in one aspect of cooperation letters have attracted the attention of the Department of Justice. Robert McCampbell, the U.S. attorney in Oklahoma City and head of a sentencing subcommittee advising the attorney general, says the department is worried that while some prosecutors have strictly followed the requirements for giving the letters, others seem to hand them out more liberally. Following a September 2003 memo by Attorney General John Ashcroft to all federal prosecutors, Mr. McCampbell says the department's message is now: "Only use substantial assistance departures where cooperation is truly substantial."

And last week, a report by the U.S. Sentencing Commission reviewing the 15-year record of the guidelines warned that "unwarranted disparity" in cooperation letters may play a role in increasing sentence variation.

The system of cooperation letters could change if the Supreme Court, which is currently hearing a case on the sentencing guidelines, rules that they are unconstitutional. Under the guidelines, many sentences are "enhanced" based on factors that weren't considered by a jury or admitted by the defendant -- for example, the amount of money stolen by a fraud defendant. The high court in June struck down a similar system in the state of Washington by a 5-4 margin.

The Supreme Court could throw out only the parts of the guidelines that deal with sentence enhancements or strike down the entire system. Even in the latter case, lawyers expect some form of reward for cooperation to survive, perhaps with a greater role for defense lawyers and judges in determining the size of the reward. The justice system depends on getting people to cooperate in exchange for sentencing discounts, says Kevin O'Connor, the U.S. attorney in Connecticut.

"Without them," he says, "the system would break down because everyone would be going to trial."

In the legal world, a cooperation letter is known as a 5k1.1, after the provision in the guidelines that gives judges the go-ahead to depart downward from the usual sentence range. In Washington, D.C., in 2002, 31.1% of all defendants got 5k1.1s. Across the Potomac River in the Eastern District of Virginia, just 6.3% of all defendants got them. Judges and former prosecutors in that district say prosecutors there prefer to ask for sentencing reductions for cooperators after they are sentenced, a practice for which statistics aren't kept.

A 1998 Sentencing Commission study found that black defendants had a 16% chance of receiving a 5k1.1 and Hispanic defendants a 13% chance, compared with 20% for white defendants. The study also found that blacks and Hispanics who did get 5k1.1s had their sentences reduced less on average than white defendants.

Many details of how the system works differ from place to place. U.S. attorneys in Salt Lake City, Montgomery, Ala., and Boston, among other places, make specific recommendations as to how much a cooperating defendant's sentence should be cut. In Manhattan, Brooklyn and Washington, D.C., U.S. attorneys merely report the cooperation without recommending a sentence.

Elliot Enoki, the first assistant U.S. attorney in Hawaii, cites another discrepancy. "Some districts have a rule that unless your substantial assistance results in someone else being convicted of a crime, that isn't substantial assistance," he says. "We don't have that rule."

Sven Truman, a former machinist at Roxane Laboratories Inc. of Columbus, Ohio, found this out the hard way. In February 2000, Mr. Truman stole large quantities of morphine, methadone and other drugs made by Roxane, hiding them in his socks. He then tried to sell 8,000 tablets to an undercover agent. Mr. Truman confessed and promised to cooperate. His description of lax security procedures led to security upgrades at Roxane, a unit of Germany's Boehringer Ingelheim GmbH, according to an April 2002 Cincinnati appeals-court ruling in his case.

But prosecutors refused to award Mr. Truman a 5k1.1 because no one was prosecuted as a result of his information. They recommended a sentence of 10 years and one month, at the low end of the tight range prescribed in the guidelines. The judge at first adhered to the recommendation but after an appeal he departed from the guidelines, ultimately giving Mr. Truman a sentence of seven years and a month.

The decision on handing out cooperation letters is entirely in prosecutors' hands. Unless defendants can prove that a denial resulted from bad faith -- which is difficult to show -- there isn't anything a court can do about it.

In one Washington, D.C., case, the government conceded that a drug defendant's assistance helped secure indictments against several others. But after the defendant refused to testify in a case out of fear for his family's safety, the government refused him a 5k1.1. He sought a district court's help, but in 2001 the court rejected the request, saying it had no authority to undermine the prosecutors' discretion. The court's ruling concealed the defendant's name.

The Justice Department has grown concerned about the way some prosecutors exercise their discretion. In Mr. Ashcroft's September 2003 memo calling for fewer 5k1.1 motions, he wrote: "It is not appropriate to use substantial assistance motions as a case management tool to secure plea agreements and avoid trials."

In the government's $2.7 billion accounting fraud case against former HealthSouth Corp. executives including former Chief Executive Richard Scrushy, a total of 15 defendants received 5k1.1s. Judges were quick to reward many of them with lenient sentences. Of 10 HealthSouth defendants sentenced so far, just one drew prison time and then for only five months. Prosecutors had sought prison time for most of the defendants.

Federal judges generally like it when 5k1.1s are awarded since they can freely use their discretion in deciding sentences. "Most judges are so pleased to see people they don't have to sentence under the guidelines that they don't ask a lot of questions," says retired U.S. District Judge John S. Martin Jr. of Manhattan.

U.S. Attorney Alice Martin of Birmingham, Ala., says it was necessary to offer substantial assistance motions to the 15 "because of the complexity of the fraud" at HealthSouth. Using 5k1.1s, Ms. Martin says, "puts a lot more scores on the board a lot quicker."

While HealthSouth prosecutors used 5k1.1s for lower-ranking defendants as a way of going after the company's former chief, the reverse is often true, says Judge Martin. "Very often it is people higher up in the chain, not the people lower down, who get the 5k1.1s because they have more to offer up to prosecutors," he says.

Issa Jaber, now 29 years old, learned about the methamphetamine business from a veteran dealer, Khalid S. Abu-Lawi, who gave him money for drugs and introduced him to customers, according to the prosecutor in Mr. Jaber's case. The two men were distributing pseudoephedrine, the key ingredient in methamphetamine or "speed."

Mr. Abu-Lawi was arrested in Florida in 2000. He agreed to cooperate and informed on Mr. Jaber of Boston, one of his distributors. Police arrested Mr. Jaber in July 2002. He pleaded guilty and also offered to cooperate.

But because he was caught later, Mr. Jaber was in a weaker position. He implicated Mr. Abu-Lawi but that was useless to the prosecutors: They had already extracted a guilty plea from the senior dealer. Then Mr. Jaber fingered another pseudoephedrine distributor in Florida. This was more helpful, and investigators spent four sessions with Mr. Jaber quizzing him. But the investigation was aborted when the Fort Lauderdale prosecutor leading it left his job and another drug agent working on it was reassigned.

Prosecutors then rejected Mr. Jaber's bid for a 5k1.1. They asked that Mr. Jaber be sentenced to seven years and three months in prison, nearly double the sentence of four years and three months that Mr. Abu-Lawi received.

Mr. Abu-Lawi, now 39, was released in April of this year after getting time off for good behavior. In an interview from his home in Orlando, Fla., where he works as a video-store manager, he says federal drug agents warned him at the time of his arrest that he would get about 20 years in jail if he didn't start cooperating. "They said if you don't tell us everything, we won't give you nothing. We're going to hit you with the book," Mr. Abu-Lawi recalls. He says he and several of his co-defendants got credit for cooperating, and each knew what the others were saying.

Mr. Jaber's lawyer, Mark NeJame of Orlando, says his client had "bad luck." The case, he says, "shows how capricious the system is."

But Mr. Jaber had some good luck too: His case was heard by Judge Nancy Gertner, an outspoken critic of inequities in how 5k1.1s are meted out. At Mr. Jaber's sentencing three weeks ago, the judge noted that Mr. Abu-Lawi was "substantively involved in [drug] distribution from one end of the country to the other, while Mr. Jaber was simply the Massachusetts spoke in that wheel."

Judge Gertner called it "grotesque" that Mr. Jaber faced a much stiffer sentence than his onetime mentor simply because the would-be prosecutor of the distributor Mr. Jaber fingered in Florida happened to leave his job, dooming Mr. Jaber's chance of getting a 5k1.1. She sentenced Mr. Jaber to four years and three months, the same sentence as Mr. Abu-Lawi. Federal prosecutors have 30 days to notify the court whether they will appeal Judge Gertner's ruling.

Judge Gertner also departed from the guidelines in a case earlier this year involving two Guatemalan women caught at the Boston airport with heroin pellets stuffed in their bodies. Both offered to cooperate but only one had a piece of paper in her pocket with the name and phone number of a contact. That woman got a 5k1.1 and a recommendation from the prosecutors for a lighter sentence, while the one without the paper faced six to seven years in prison under the guidelines. Judge Gertner ended up sentencing both women to the time they had already served. They were then deported.

However, such departures from the guidelines are unusual because judges have to hold longer or additional hearings to justify them and submit their reasons for departing to the Justice Department. Even then, the lighter sentences may be overruled on appeal.

One judge has attempted to hold prosecutors accountable for their 5k1.1 decisions. In March, U.S. District Judge J.P. Stadtmueller of Milwaukee said he would start ordering prosecutors who filed 5k1.1 motions to produce details of the defendant's cooperation and explain how the decision to file the motion was made. Without that information, Judge Stadtmueller, a Ronald Reagan nominee, said he wouldn't accept such motions.

The U.S. attorney in Milwaukee challenged Judge Stadtmueller's order on behalf of the government, and in late September the Seventh Circuit Appeals Court struck it down. The appeals court said the order might make law-enforcement agencies less likely to tell prosecutors which defendants were being helpful since information about the cooperation could end up in the public record.

Judge Stadtmueller "just wanted transparency and accountability," says Franklin Gimbel, a lawyer representing the judge. "So much discretion is reposed in the nation's 4,900 assistant U.S. attorneys who make these decisions daily behind closed doors."

Such a decision led to unequal punishment for Marisol Perez, a waitress at a New York barbecue restaurant, and Jorge Tellez, whom Ms. Perez accompanied on a bus trip to Florida in February 2002. Mr. Tellez bought heroin and cocaine there and planned to bring it back to New York to sell. The two were arrested first. Mr. Tellez, now 53, pleaded guilty and quickly began cooperating with the government. He implicated Ms. Perez but said she was "a very small player" in the drug deal "because all she did was accompany me."

Normally Mr. Tellez would have faced at least five years and 10 months in prison under the federal sentencing guidelines. But thanks to the 5k1.1 he received for telling on Ms. Perez, he got a 31/2-year sentence instead.

Ms. Perez, 32, is a first-time offender and the single mother of a 10-year-old son. She denied knowing about the plans for a drug pickup in Florida, saying she thought she was accompanying Mr. Tellez on a vacation. Maintaining her innocence, she went to trial, where Mr. Tellez testified against her. A federal jury convicted her of conspiring to distribute controlled substances. Her sentence: six years.

Ms. Perez's lawyer, David Oscar Markus, says she was just beginning to turn her life around at the time of her arrest after breaking up with her son's father, a drug user. "Marisol's case still keeps me awake at night," says Mr. Markus. "She was the least culpable defendant in a drug case, yet she got the most time."

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