UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
September 17, 1999
RE: HAL EUGENE BOOHER V. UNITED STATES OF AMERICA
The opinion of the court was delivered by: Nicholas H. Politan U.S.D.J.
CHAMBERS NICHOLAS H. POLITAN DISTRICT JUDGE
MARTIN LUTHER KING JR. FEDERAL BUILDING & U.S. COURTHOUSE 50 WALNUT ST, ROOM 5076 P.O. BOX 999 NEWARK, N.J. 07101-0999
NOT FOR PUBLICATION
THE ORIGINAL OF THIS LETTER OPINION IS ON FILE WITH THE CLERK OF THE COURT
This matter comes before the Court on remand from the Court of Appeals for the Third Circuit. The Court has reviewed the written submissions of the parties and, for the reasons explained below, the motion by defendant Hal Eugene Booher for a downward departure pursuant to section 5K1.1 of the Sentencing Guidelines is DENIED. This Letter Opinion supplements an Order dated March 19, 1999.
Defendant Hal Eugene Booher was arrested in December of 1993 and charged with one count of possession of 220 kilograms of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841. Defendant entered into a plea agreement with the United States Attorney's Office for the District of New Jersey, whereby he was to provide information against other individuals. On April 28, 1994, defendant pled guilty before this Court to a one count Information.
Under the terms of the plea agreement, the United States promised to move for a downward departure from the United States Sentencing Guidelines (hereinafter "the Guidelines") on the condition that defendant cooperate with the United States and provide "substantial assistance" in the investigation or conviction of other persons. An additional term provided that the plea agreement would be null and void if defendant intentionally provided materially false, misleading, or incomplete testimony or information.
Subsequently, defendant attempted to provide helpful information to the United States in the investigation and prosecution of the alleged leader of the drug conspiracy, Gerald Frank Plunk. Unable to supply the New Jersey Assistant United States Attorney (hereinafter "New Jersey AUSA") with useful information, defendant traveled to Alaska in order to cooperate with the Alaska United States Attorney's office (hereinafter "Alaska AUSA"). Defendant's efforts in Alaska proved helpful in securing an indictment against Plunk in Alaska.
Thereafter, the Alaska AUSA sent a letter to this Court detailing defendant's assistance in obtaining an indictment against Plunk. Simultaneously, however, the Alaska AUSA expressed concern over certain inconsistencies and omissions in defendant's various statements. The New Jersey AUSA then took the position that the defendant had deliberately offered false information in violation of the plea agreement, and, as a result, the government refused to move for a downward departure pursuant to the plea agreement and § 5K1.1 of the Guidelines.
Defendant then requested an evidentiary hearing concerning the government's refusal to file a § 5K1.1 motion, which this Court denied. On February 25, 1997, this Court held a sentencing hearing at which defendant requested this Court to grant a downward departure based on the letter from the AUSA in Alaska. In denying defendant's request, this Court concluded that, while a downward departure could be based on defendant's assistance to the Alaska AUSA, it did not have the authority to review the New Jersey AUSA's refusal to move for a downward departure, absent unconstitutional motives. On May 7, 1997, this Court sentenced defendant to a term of imprisonment of 135 months.
Defendant subsequently appealed this Court's decision. In an unpublished opinion dated March 12, 1998, the Court of Appeals for the Third Circuit reversed and remanded this Court's ruling. By Order dated March 19, 1999, this Court reinstated defendant's previously imposed sentence. This Letter Opinion supplements that Order.
Defendant's main contention is that he complied with the terms of the plea agreement and is therefore entitled to a significant downward departure pursuant to § 5K1.1 of the Guidelines. Defendant contends that the New Jersey AUSA breached the plea agreement by refusing to file a § 5K1.1 motion. The government conversely argues that it is not obligated to file a § 5K1.1 motion because defendant committed a material breach of the plea agreement.
It is established that § 5K1.1 severely limits the district court's authority to depart downward. See United States v. Abuhouran, 161 F.3d 206, 211 (3d Cir. 1998). Based on the language of § 5K1.1, a district court can downwardly depart only if the government first files a § 5K1.1 motion. See id.; U.S.S.G. § 5K1.1. Under certain circumstances, however, a court could depart downward in the absence of a motion by the government. For example, in Wade v. United States, 504 U.S. 181, 185-86 (1992), the United States Supreme Court held that a district court could only review the government's refusal to bring a § 5K1.1 motion based on assistance to other governmental authorities for unconstitutional motives or egregious instances of bad faith.
However, during the pendency of defendant's prior appeal, the Third Circuit decided United States v. Isaac, 141 F.3d 477 (3d Cir. 1998). In Isaac, the Third Circuit held that contract principles apply to all portions of a plea agreement, including a provision in which the government promises to file a § 5K1.1 motion. See Isaac, 141 F.3d at 481. In so holding, the Court of Appeals distinguished the facts of Wade because no plea agreement existed in Wade. See id. at 482. Therefore, because the plea agreement in this case is contractual in nature, the Court next analyzes the agreement under contract law principles.
I. The Plea Agreement
The pertinent provision of the plea agreement in this case provides the following:
Further, if Hal Eugene Booher fully complies with this agreement and, prior to his sentencing, provides substantial assistance in the investigation or prosecution of one or more persons who have committed offenses, the United States: (1) will move the sentencing court, pursuant to Section 5K1.1 of the Sentencing Guidelines, to depart from the otherwise applicable guideline range; (2) may move the sentencing court, pursuant to 18 U.S.C. § 3553(e), to impose a sentence lower than the statutory minimum term of imprisonment of 10 years; or, (3) in the event the sentencing court declines to depart from the applicable guideline range, will recommend that the sentencing court impose the minimum sentence required under the applicable guideline range.
In addition, a second provision stated that "should it be established that Hal Eugene Booher intentionally has given materially false, misleading, or incomplete testimony or information or otherwise has violated any provisions of this agreement, this agreement shall be null and void . . . ."
Under contract law, the agreement contains two conditions precedent, both of which defendant must have satisfied before triggering the government's obligation to file a § 5K1.1 motion: (1) defendant must have fully complied with the agreement, including the truthfulness provision; and (2) the defendant must have provided the government with substantial assistance in the prosecution or investigation of others. The burden remains on defendant to establish that the two conditions precedent were in fact satisfied. See United States v. Booher, No. 97- 5314, slip op. at 8 (3d Cir. July 29, 1998). If, however, the defendant committed a material breach of the agreement, then under the terms of the agreement the government had no obligation to file a § 5K1.1 motion.
II. Performance of the Plea Agreement
In this case, the Court finds that defendant committed a material breach of the plea agreement by intentionally giving materially false, misleading, or incomplete testimony or information to the New Jersey AUSA. In February of 1994, defendant provided the New Jersey AUSA with a detailed document identifying assets of Gerald Frank Plunk, the drug ring's leader. In the document, defendant maintained that Plunk's hunting and fishing lodge in Alaska, called "Big Mountain Lodge," was utilized by Plunk as a money laundering vehicle. Defendant unequivocally claimed that "Big Mountain Lodge is, for the most part, a vehicle for laundering drug profits." Defendant also described with great detail the intricate workings of Plunk's Big Mountain Lodge laundering scheme.
Subsequently, in June of 1995, defendant submitted to this Court a pro se brief in support of a "Motion for Order Barring Further Prosecution on Grounds of Double Jeopardy." In the supporting brief, defendant completely contradicted his prior statements regarding Plunk's Big Mountain Lodge money laundering scheme. Defendant adamantly disclaimed any knowledge of the previously described Big Mountain Lodge laundering machine. In arguing that property of his subject to forfeiture was not the proceeds of drug trafficking, defendant stated "[e]ven if the loan from Gerald Frank Plunk was of proceeds of narcotics trafficking . . . Mr. Booher had no way of knowing the source of any funds lent him . . . ." Moreover, defendant further contended that "Mr. Plunk owned and operated a hunting lodge in southwest Alaska (Big Mountain Lodge), proceeds from which could very well have been the source of the funds lent him. Mr. Booher cannot be tainted by what he didn't know and had no way of knowing . . . ."
Clearly, defendant has lied to either the New Jersey AUSA or this Court. Furthermore, although the Alaska AUSA found defendant's initial assistance to be fruitful, she also stated that several inconsistencies and omissions by defendant created a credibility issue and rendered his testimony useless. Specifically, the Alaska AUSA stated that defendant had recanted certain aspects of his knowledge about the drug conspiracy. The Alaska AUSA concluded that defendant omitted important facts and "authored documents which created such credibility issues and fertile impeachment grounds that his testimony was rendered useless."
Based upon the foregoing, this Court finds that defendant has failed to show that he has not committed a material breach of the plea agreement. This Court further finds that defendant provided the New Jersey AUSA with materially false and misleading information, thereby failing to satisfy the first condition precedent. Consequently, defendant has committed a material breach of the plea agreement and, as a result, the New Jersey AUSA had no obligation to file a motion for a downward departure pursuant to § 5K1.1 of the Sentencing Guidelines.
Lastly, the Court understands that it previously granted defendant's request for a two point downward departure pursuant to § 2D1.1 of the Sentencing Guidelines, also known as the safety valve provision. In order to qualify for the safety valve provision, one must satisfy the five conditions set forth in § 5C1.2. The fifth, and most litigated, condition requires the defendant to have "truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan . . . ." 18 U.S.C. § 3553(f)(5).
The fact that the Court has previously found defendant to have satisfied § 3553(f)(5) does not preclude the Court from finding that defendant has materially breached the plea agreement. The safety valve provision requires a lower threshold of cooperation and candidness than that required under § 5K1.1. For example, in United States v. Sabir, 117 F.3d 750, 752-753 (3d Cir. 1997), the Third Circuit held that the admission of responsibility necessary to obtain a reduction under § 3E1.1(a) is not necessarily sufficient to satisfy the safety valve provision under § 3553(f)(5). Likewise, although defendant in this case satisfied the safety valve provision by initially cooperating with the government, his cooperation did not rise to the level required by § 5K1.1 and the plea agreement.
Moreover, in United States v. Shrestha, 86 F.3d 935, 940 (9th Cir. 1996), the Court of Appeals for the Ninth Circuit held that a defendant was ineligible for the acceptance of responsibility downward departure of § 3E1.1 because he first confessed his guilt and later recanted at trial and sentencing. The Court, however, concluded that the defendant would nonetheless be eligible for the safety valve provision of § 2D1.1. See Shrestha, 86 F.3d at 940. In so holding, the Court discussed the differing purposes behind the safety valve provision and § 5K1.1, reasoning that "[t]he safety valve statute is not concerned . . . with providing the government a means to reward a defendant for supplying useful information, as is § 5K1.1." Id.
Inasmuch as the Court has found that defendant committed a material breach of the plea agreement, the Court finds it unnecessary to determine whether defendant substantially assisted the United States pursuant to the plea agreement.
For the foregoing reasons, defendant Hal Eugene Booher's motion for a downward departure pursuant to section 5K1.1 of the Sentencing Guidelines is DENIED, and defendant's previously imposed sentence is hereby reinstated.
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