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Booher v. United States

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NOT FOR PUBLICATION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

Dear Litigants:

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.

BACKGROUND

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 ...


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