*

Honorable Max Rosenn, Senior U.S. Circuit Judge for the Third Circuit, sitting by

designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 96-2642.

UNITED STATES of America, Petitioner-Appellant,

v.

Paul SJEKLOCHA, a.k.a. Paul Cutter, Respondent-Appellee.

May 30, 1997.

Appeal from the United States District Court for the Middle District of Florida. (No. 85-65-Cr-ORL18), G. Kendall Sharp, Judge.

Before ANDERSON and EDMONDSON, Circuit Judges, and ROSENN*

, Senior Circuit Judge.

ROSENN, Senior Circuit Judge:

This appeal raises a unique question relating to the sentencing of a criminal defendant: may

a judge, after imposing a sentence for unlawfully conspiring to export defense articles to Iran

without an export license or written approval by the Department of State and conspiring to commit

other related crimes, substantially reduce the sentence because of revelations by the President of the

United States that at or around the same time the Government was prosecuting the defendant, the

United States was covertly negotiating with Iran for the sale of military armaments, including the

same type weapons that were the subject of this prosecution. The sentencing judge was persuaded

to reduce the sentence. The Government timely appealed. We reverse.

I.

In 1985, a jury convicted Paul Sjeklocha, a.k.a. Paul Cutter (hereinafter referred to as "the

defendant"), of willfully conspiring in violation of 18 U.S.C. § 371: (1) to sell defense articles and

weapons to Iran without first obtaining an export license or written approval from the Department

of State as required by 22 U.S.C. §§ 2778(b)(2) and (c), and 22 C.F.R. 121.1, 123.1, 127.1(a), and

127.1(d); (2) to defraud the United States in the implementation of foreign policy; (3) to use wire,

radio, and telephone communications as part of this elaborate scheme to defraud the United States,
in violation of 18 U.S.C. § 1343; and (4) to transport in foreign commerce stolen or fraudulently

obtained goods. The jury also convicted the defendant of two counts of using wire, radio, and

telephone communications as part of this scheme and also devising a scheme to defraud the United

States and its agencies of the right to implement the foreign policy and conduct the affairs of the

United States of America, in violation of 18 U.S.C. § 1343. See United States v. Sjeklocha, 843 F.2d

485 (11th Cir.1988). The district court sentenced the defendant to sixty months in prison, the

maximum possible sentence, on the conspiracy charge, and five years probation, to run concurrently

but consecutive to the prison time, for the remaining two convictions. The defendant filed a timely

appeal of his convictions.

In 1986, while the defendant's direct appeal was pending, information concerning what

eventually became known as the Iran-Contra affair became public. President Ronald Reagan

revealed that the United States Government had secretly negotiated to sell military armaments to

Iran in an attempt to improve relations between the two nations, secure the release of American

hostages being held in the Middle East, and funnel the money to support the Contra rebels in

Nicaragua. Shortly after these startling revelations, a newspaper article quoted the foreman of the

jury that convicted the defendant in this case as saying that he would have voted for acquittal had

he known of the Government's covert operations in Iran.

Following this article, the defendant moved for a new trial, alleging newly discovered

evidence, specifically the Government's involvement in the Iran-Contra affair. The district court

certified his motion to the Eleventh Circuit Court of Appeals; pending resolution of this matter, the

court released the defendant on his own recognizance. This court remanded the matter to the district

court to consider whether the newly-discovered evidence would merit a new trial. United States v.

Sjeklocha, 813 F.2d 409 (11th Cir.1987) (unpublished table decision). The district court granted the

defendant's motion for a new trial, relying heavily on the jury foreman's statement that he would

have acquitted the defendant of all charges had he known of the Iran-Contra affair.

On appeal, this court vacated the district court's order granting a new trial. The court

concluded that the jury foreman's statement was improperly considered under Federal Rule of
Evidence 606(b), and therefore the trial court erred in granting the defendant a new trial based upon

that evidence. United States v. Sjeklocha, 843 F.2d 485, 488 (11th Cir.1988). The Government then

moved to reinstate the original Judgment and Commitment Order. The district court revoked the

defendant's bond in May, 1989; by this time, however, the defendant had fled the country, and he

remained a fugitive until his arrest in Arkansas in March, 1996. While the defendant was a fugitive,

the direct appeal from his original conviction was reinstated, and this court affirmed his conviction

on all counts. United States v. Sjeklocha, 891 F.2d 905 (11th Cir.1989) (unpublished table decision).

The defendant returned to the district court for a bench warrant hearing on his bond violation,

and the court stated at that time that it "would love to resentence Mr. Cutter to time served." The

district court believed it lacked the authority to resentence the defendant, however, and asked the

parties to brief the matter. The defendant filed a motion to vacate or correct his original sentence

pursuant to former Fed.R.Crim.P. 35(a) and 28 U.S.C. § 2255. He maintained that his sentence was

based on materially incorrect information, to wit, the covert Iran-Contra affair, and that his sentence

would certainly have been different had this information been known by the court at the time of

sentencing. The Government challenged this motion, asserting that the defendant was not sentenced

upon materially false information, but solely upon his own illegal conduct, not on anything related

to the Iran-Contra affair, and that the district court therefore lacked the authority to reduce his

sentence.

The district court granted the defendant's motion on April 9, 1996, and reduced his sentence

to forty months, concluding that, based upon the new evidence, the sixty month sentence was not

warranted. The district court did not hold a resentencing hearing and did not make an explicit

finding that the sentence was based on materially false or incorrect information.

II.

 The question whether the district court had the authority to resentence the defendant under

former Fed.R.Crim.P. 35(a) and 28 U.S.C. § 2255 is a legal question subject to plenary review.

United States v. Maduno, 40 F.3d 1212, 1215 (11th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct.

123, 133 L.Ed.2d 72 (1995). The district court's factual findings at sentencing are reviewed under
 1

The defendant was arrested in August, 1985 on charges relating to the weapons sales; the

Government-conducted weapon sales to Iran began in late 1985 and continued into early 1986. 

the clearly erroneous standard. United States v. Howard, 923 F.2d 1500, 1503 (11th Cir.1991). The

district court's application of law to the facts is reviewed de novo. United States v. Burton, 933 F.2d

916, 917 (11th Cir.1991).

 It is obvious that the district court lacked the authority to resentence the defendant under

former Rule 35(a) because that narrow rule only permits resentencing in the case of an illegal

sentence. See Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962)

(narrow function of Rule 35 is to correct illegal sentence). The five-year sentence imposed by the

district court is the statutory maximum, both now and in 1986, when the defendant was originally

sentenced. Therefore, the defendant's sentence is not illegal and the district court lacked the

authority to reduce it pursuant to former Rule 35(a).

 However, "it is well-established that sentences based on erroneous and material information

or assumptions violate due process and that a new sentencing hearing is required where the trial

court has relied on such information or assumptions." United States v. Darby, 744 F.2d 1508, 1532

(11th Cir.1984), cert. denied, 471 U.S. 1100, 1100, 105 S.Ct. 2322, 2323, 85 L.Ed.2d 841 (1985).

Therefore, the district court did have the authority to reduce the defendant's sentence pursuant to 28

U.S.C. § 2255 if he had been sentenced on materially false information. In the present matter,

however, the district court did not rely on materially false information in sentencing the defendant

and it thus erred in reducing the sentence pursuant to 28 U.S.C. § 2255.

The district court reduced the defendant's sentence based upon information subsequently

made available to the court (and the American public) concerning the Iran-Contra affair. The

defendant has not alleged here, nor has he ever alleged, that he was a participant in the

Government-conducted sale of arms and munitions to Iran. Moreover, his conspiratorial activity

to steal or fraudulently obtain arms and sell them to Iran was entirely separate from, and apparently

conducted almost entirely prior to, the Iran-Contra affair.1

 Therefore, this new information does not

directly contradict or falsify any of the facts the Government proved relating the defendant's illegal
conduct at trial. Quite simply, this new information in no way bears upon the defendant's conduct.

The Government's conduct in foreign policy and political affairs of state was wholly irrelevant and

had no bearing on the defendant's independent and wholly illegal attempts to sell arms and munitions

to Iran in violation of laws enacted by Congress.

Although many Americans may possibly have felt betrayed and disappointed by the

revelations concerning the Government's involvement in the sale of arms to Iran and the funneling

of the proceeds to Contra rebels in Nicaragua, such anguish, however great, is an insufficient basis

on which to ignore constitutional laws enacted by Congress. The defendant's participation in a

conspiracy to sell to Iran and his other related illegal activities do not become less illegal simply

because the Government for reasons of its own security engaged in the transfer of arms and

munitions to Iran. The Government's diplomatic conduct of international negotiations or its policies

in affairs of state do not excuse a person's violation of federal criminal laws. As the Government

aptly noted in its brief, "[h]ad Oliver North sold crack to the Contras, other drug dealers would not

get a break in their sentences." The defendant's conduct was illegal—a crime; the Government's

covert activities involving Iran in no way justify or excuse defendant's wrongful acts.

The defendant argues that information concerning the Iran-Contra affair was material to his

defense that the defendant was only engaged in the same conduct as the Government. The

defendant, however, has never argued that his attempt to illegally sell arms to Iran was connected

to, or even motivated by, America's foreign-policy efforts to covertly engage in the sale of arms to

Iran in the effort to recover American hostages. Moreover, the defendant's effort to sell arms

without an export license would be illegal regardless of the proposed buyer, whether it was a nation

with whom the United States openly dealt in arms and munitions or a nation with whom such

transactions were allegedly prohibited. Thus, this information of the Executive's gambit in

supplying a quantity of arms to Iran cannot now be deemed material to the defendant's sentence for

his own illegal conduct in violating the laws of the United States.

Moreover, the revelations pertaining to the Government's foreign policy activities do not

render any of the information the district court relied on at sentencing incorrect or materially false.
If the court sentenced the defendant relying on the assumption that the Government was not engaged

in arms negotiations with Iran, that assumption is not evident from any of the information contained

in the record on appeal. Although it is possible that the court would have imposed a less severe

sentence on the defendant had this information been known at the time of the sentencing hearing,

it did not give the defendant the maximum sentence solely because of a misperception about this

country's foreign policy towards Iran. The defendant did not know at the time of his illegal conduct

that covert government policy was to retrieve hostages from Iran by weapons sales. The existence

of that executive branch policy does not alter the district court's initial finding that the defendant was

"the most prominent force" in the conspiracy to sell arms to Iran in violation of federal law, that is,

the specific conspiracy which underlies the particular case before us now.

As Justice Rehnquist has noted, "[The Supreme Court has] required a convincing showing

that the introduction of specific constitutionally infirm evidence had an ascertainable and "dramatic'

impact on the sentencing authority" to prevail on such a claim. Zant v. Stephens, 462 U.S. 862, 903,

103 S.Ct. 2733, 2756, 77 L.Ed.2d 235 (Rehnquist, J., concurring). In the present matter, the

defendant has failed to show that this assumption that the United States of America was not selling

arms to Iran had an effective impact on the judge at the time of sentencing. Consequently, the

district court did not sentence the defendant based on materially false information and lacked the

authority under 28 U.S.C. § 2255 to reduce the defendant's sentence from the original sixty-month

sentence imposed.

III.

The order of the district court reducing the defendant's sentence to forty months is hereby

VACATED and the case is REMANDED to the district court with directions to reinstate the original

Judgment and sentence imposed on Paul Sjeklocha, a/k/a Paul Cutter.