16-303

USA v. Scarpa

1 UNI TED STATES COURT OF A PPEAL S 2 FOR THE SECOND CI RCUI T 3 - - - - - - 4 August Term, 2016 5 (Arg

ued: J anuar

y 17, 2017 Dec ided: J une 22, 2017) 6 Docke t No. 16-303 7

_________________________________________________________ 8 UNI TED STATES OF AMERI CA, 9 Appellant , 10 - v. - 11 GREGORY SCARP A, J R., 12 Defendant- Appellee

. 1 13

_________________________________________________________ 14 Be fore : KATZ MANN, Chief Judge , KEARSE and L I VI NGSTON, Circuit Judges

. 15 The United States appea ls from an order and second amende d judgme nt of the United 16 States District Court for the Easter n District of New York, Edward R. Korman, Judg e , reduc ing by 17 120 months the 482-month term o f i m p ri s o n ment imposed on defe ndant Gre g ory Scarpa J r. in an 18 amende d judgme nt in 1999 following his conviction of rac ketee ring and other offe nses. The district 19 court order ed the reduc tion pursuant to Fe d. R. Crim. P. 35(b) on the basis that S carpa in 2005 20 provided substantial assistance to the g overnme nt leading to the discovery of explos ives components 21 stored 10 y ear s ear lier in the then-home of Terr y Ly nn Nichols, a convicted coconspira tor in the 1995

The Clerk of

Court is directed to ame nd the ca ption as shown above. 11 bombing of the Alfred P

. Murra h Fe dera l Building in Oklahoma Ci ty

. The court reduc ed S ca rpa' s 2 sentenc e without a motion by the g ov er n m en t

-- and over its opposition--ruling principally that a 3 g overnme nt motion was not require d beca use the court found (a) that Scarpa had rende red substantial 4 ass istance, (b) that a 2012 aff idavit filed by the g overnme nt at the reque st of the court err oneously 5 stated, inter alia , that the 20 0 5 sear ch of the t hen-unoc cupied former Nichols home was conducte d 6 pursuant to a sear ch war rant rathe r than on the consent of a rea l estate ag ent, (c) that the g overnme nt 7 declined to provide detailed evidenc e as to the neg ative fac tors in the cost-bene fit analy sis that led it 8 to ref

use Scarpa ' s reque st for a sentenc e-r eduction motion, and (d) that the g overnme nt's statement in 9 2010 that Scarpa had a prior history of sham cooper ation and attempts to perve rt the criminal justice 10 sy stem was mere ly a post-hoc rationalization of its 2005 ref usal to make a sentenc e-r eduction motion. 11 On appea l, the g overnme nt contends principally that its decision not to move for a sentenc e reduc tion 12 for Scarpa was justified by , inter alia , its consistent conce rns about his prior sham proff er of 13 cooper ation, his other p re -2005 attempts to obstruct justice, and his 2005 polyg raph examination 14 indicating untruthfulness with respe ct to the Nichols matter, and that the court misapplied applicable 15 leg al standards in concluding that the reque sted sentenc e reduc tion could be g rante d to Scarpa in the 16 absenc e of a

motion by

the g overnme nt. We ag ree with the g overnme nt's c ontentions. 17 Orde r and s ec ond amende d judgme nt reve rsed. The matter is rema nded for 18 reinstateme nt of the first ame nded judg ment. 19 AMY BU SA, A ssistant United States Attorney , Br ookly n, New York 20 (Robert L

. Capers, United S tates Attorney for the Easter n 21 District of New York, David C. J ames, Patricia E. Notopoulos, 22 Assistant United States Attorney s, Br ookly n, New York, on the 23 brief) , for Appellant

. 24 GEORGIA J

. HI NDE, New York, New York, for Defendant-

Appellee

.

21 KEARSE, Circuit Judge : 2 The United States appea ls from an order and second amende d judgme nt of the United 3 States District Court for the Easter n District of New York, Edw ar d R. Korman, Judge , reduc ing by 4 120 months th e 4 8 2

- mo nth term of imprisonment imposed on defe ndant Gre g ory Scarpa J r. (" Scarpa ") 5 in an amende d judgme nt in 1999 following his conviction o f racketee ring and other offe nses. The 6 district court order ed the reduc tion pursuant to Fe d. R. Crim. P. 35(b) on the basis that Scarpa in 2005 7 provided substantial assistance to the g overnme nt, le ading to the discovery of a cac he of e x plosives 8 components stored 10 y ear s ear lier in the then-home of Terr y Ly nn Nichols, a convicted coconspirator 9 in the 1995 bombing of the Alfre d P. Murra h Fe dera l Building in Oklahoma City

. The court reduc ed 10 Scarpa ' s sentenc e without a motion by the g overnme nt--and over its oppo s itio n - -ruling principally that 11 a g overnme nt motion was not require d b ec au s e t h e court found (a) that Scarpa had rende red 12 substantial assistance , (b) that a 2012 aff idavit prepa

red by the g overnme nt at the reque st of the court 13 err oneously stated, inter alia , that the 2005 sear ch of the then-unoc cupied former Nichols home was 14 conducte d pursuant to a search warr ant rather than on the consent of a rea l estate ag ent, (c) t hat the 15 g overnme nt declined to provide detailed evidenc e as to the neg ative fac tors in the cost-bene fit analy sis 16 that l ed i t to ref use Scarpa ' s reque st for a sentenc e-r eduction motion, and (d) that the g overnme nt's 17 statement in 2010 that Scarpa had a prior history o f s h am co operation and attempts to perve rt the 18 criminal justice sy stem was mere ly a post-hoc rationalization for its 2005 ref usal to make a sentenc e19 reduc tion motion. See United States v. Scarpa , 155 F.Supp.3d 234 (E.D.N.Y

. 2016) (" Scarpa ")

. On 20 appea l, the g overnme nt contends principal l y t h at its 2005 decision not to move for a sentenc e 21 reduc tion for Scarpa was consistently justified by , inter alia , its conce rns about his mid-1990s sham 22 proff

er o f co o peration and his other pre- 2005 attempts to obstruct justice, as well as his 2005 23 polyg raph response s indicating untruthfulness with respe ct to the Nichols matter, and that the district

31 court misapplied the applicable leg al standards in concluding that Scarpa could be g rante d a sentenc e 2 reduc tion in the absenc e of a motion by the g overnme nt. F or the rea sons tha t f ollow, w e ag ree with 3 the g overnme nt's contentions. We acc ording ly reve rse the district court' s order an d t h e second 4 amende d judgme nt, and re mand for r einstatement of the first amende d judgme nt.

5 I . BA CKGROUND

6 Gre g ory Scarpa , a self-pr ofesse d "ma de member" of the Colombo cr ime family , was 7 first arr ested on fede ral char g es in 1988 and has been in custody ever since. Following a trial befor e 8 J udg e I

. L eo Glasser, Scar pa wa s convicted on se ven counts of a superse ding indictment, including 9 rac ketee ring in violation of the Racke teer Influenc ed and Corrupt Org anizat i o n s Act (" RI CO") , 18 10 U.S.C. §§ 1961-1968, and narc otic s t ra fficking offe nses, i n violation of 21 U.S.C. §§ 841(b)( 1)(D) 11 and 846. In Fe bruar y 1989 he was sentenc ed to 240 months' imprisonment. Other convictions would 12 follow, leading

to the judgme nt that was super seded by the dec isions at issue on this appea l.

13 A. Scarpa's 1999 Convictions and His Fir st Attempt To Gain a 14 Substantial -Assistance Be nefit 15 In 1995, while serving the 240-month sentenc e for his first set of convictions, Scarpa 16 was char g ed with additional rac ketee rin g -re lated activity

. In late 1998, a jury returne d a verdic t 17 finding him g uilty on all six counts of a superse ding indictment, including extorti onate extensions of 18 cre dit, in violation of 18 U.S.C. § 893, and RI CO conspirac y , in violation of 1 8 U. S

. C. § 1962(d).

41 Among the rac ketee ring acts that the jury found proven wer e Scarpa ' s con spiracie s to murder four 2 individuals, including one murder attempt that Scarpa authorized while imprisoned and awa iting trial. 3 In the meantime, while he awa ited trial on the 1995 char g es, Scarpa had been held at 4 the Metropolitan Correc tional Center in Manhattan and had occupie d a cell adjac ent to that of Ramzi 5 Yousef, an av o we d terrorist who was then awa iting trial for- -and would later be convicted of-- 6 org anizing the 1993 bombing of the World Trade Center. In 1996, Scarpa contac ted the g overnme nt 7 and stated tha

t he had va luable ter

rorism-re lated information that he had obtained f rom Yousef

. 8 In 1999, Scarpa , in connec tion with his sentenc ing on the 1995 char g es, soug ht to have 9 the g overnme n t m ak e a motion to the district court pursuant to § 5K1.1 of the (then-ma ndatory ) 10 Sentencing Guidelines (" Guidelines" ) for a reduc ed sentenc e o n t h e gro u nd that he had provided 11 substantial assistance to the g overnme nt in co n n ec t i o n with terror ism plans of Yousef. The 12 g overnme nt opposed that reque st, d escribing in seale d aff irmations its expenditure of signific ant 13 resour ces in eff

orts over sever al months to follow up on Scarpa ' s information on Yousef, only to lear n 14 that Scarpa had actively misled the g overnme nt and aff irmatively co m p ro m ised its eff orts. The 15 g overnme nt conclude d that in his purported attempt at cooper ation, Scarpa , in collusion with Yousef, 16 had per

petrated a sc am. 17 At the sentenc ing hear ing in 1999, then-District J udg e Reena Rag g i, who had presided 18 over Scarpa ' s 1998 trial, imposed prison terms at or near the top of the Guidelines rang es applicable 19 to his various offe nses, and order ed that sever al of the prison terms be serve d co n secutively

. In 20 rea ching its sentenc ing conclusions, the court observe d that Scarpa had continued to e n g ag e in heinous 21 cr i m es even from his jail cell ( see Sentencing Transc ript, May 7, 1999, at 108), and th at h e h ad 22 repe atedly perjure d himself at trial in a delibera te attempt to obstruc t justice (see , e.g. , id

. at 109; id

. 51 at 90 (Scar pa "c hose to take the stand and tell a story that

. . . border ed on contempt of court" )). The 2 court imposed a total prison term of 482 months, to be serve d consec utively to the 240-month prison 3 term pre viously

imposed by

J udg e Glasse r. 4 The court declined S ca rp a's reque st that the g overnme nt be require d to move for a 5 § 5K1.1 reduc tion of his sentenc e, finding that there was no evidenc e that the g overnme nt had ref used 6 to do so "invidiously " ( id

. at 35). The court found that Scarpa ' s purported assistance with r espec t to 7 Yousef had yielded no positive results and had very littl e prac tical value ( see id

. at 12, 110); that the 8 submissi ons indicated that the investigation undertaken by t he g overnme nt "involved tremendous 9 expense and considera ble inconvenienc e, not only to g overnme nt ag encie s but also to various private 10 entities" ( id

. at 12), making "a lot of p eo p l e's l i v es . . . absolutely miserable" as a result of Scarpa ' s 11 purported assistance ( id

. at 90); and that the g overnme nt's ref usal to make a § 5K1.1 motion wa s "in 12 g ood faith" ( id . at 110).

13 B. Scarpa's Curr ent Quest for a Substantial-Assist ance B enefit 14 After being sentenc ed in 1999, Scarpa was transfe rre d to a maxi mum se curity prison 15 in Colorado. Fr om prison, he provided testimony to oth er d i s t ri ct court judge s in connec tion with 16 crime family members' motions to overturn their convictions. Howeve r, his testimony was found to 17 be problematic. In adjudicating a motion for reduc tion in sentenc e filed by another crime fa m i ly 18 m ember , J udg e Weinstein of the Easter n District of New York, afte r hear ing video tes t i m o n y b y 19 Scarpa , found Scarpa "to be not c redible." Orena v. United States , 299 F.Supp.2d 82, 84 (E.D.N.Y

. 20 2004). Judge Sifton of the same district came to a similar conclusion in another case . See Russo v. 21 United States , No. 03-c v-2059, slip op. at 56-57 (E.D .N.Y. Nov. 24, 2004)

. 61 Soon there afte r, Scarp a embar ked on his curr ent quest for a substantial-assistance 2 benef

it. At the prison in Col orado, he propitiated anothe r terr orist.

3 1. Eve nts in 2005 4 In ea rl y 2 0 0 5, Scarpa was housed near Nichols, who had been sentenc ed to 161 5 consec utive terms of life imprisonment for his role in the Oklahoma City bombing. In Fe bruar y 2005, 6 Scarpa soug ht, thr oug h prison officia ls, to speak with law enf orce ment ag ents about information he 7 h ad ac q u i red from Nichols. After rec eiving no response , he contac ted a team of private fore n s i c 8 investiga

tors, Stephen Dresch and Ang ela Cl emente, and t old them he had lear ned fr om Nichols of 9 the exis tence of a bomb that might be used for an act of terror ism in the n ea r fu t u re . On Marc h 1, 10 Dre sch, a Michig an resident, con t ac t ed the Detroit office of the Fe dera l Bur eau of Investig ation 11 (" FB I ") and summarized the information he had rec eived from Scarp a. See generally Scarpa , 155 12 F.Supp.3d at 237. 13 On Marc h 3, Scarpa was interviewe d by FB I Special Ag ent J

. Andre w Stearns. Shortly 14 there afte r, Stearns returne d with an FB I polyg raph expert who conducte d a polyg raph examination of 15 Scarpa

. There was no immediate follow-up by the FB I beca use neither S t ea rn s n o r the poly g raph 16 expert believed Scarpa

. Acc ording to Scarpa ' s fellow Colorado prisoner Emilio Br avo (a/k/a "T ito"), 17 "Sca

rpa met with the FB I in ea rl y Marc h 2005, but afte r he took a lie detec tor test, the FB I said he 18 failed and told him never to call the m aga i n . " (D ecla ration of Emilio Br avo dated Marc h 26, 2013 19 (" Br avo De cl

. ") , ¶ 3.) Scarpa ' s rec ollection was the same: In the polyg raph examination, "one 20 question was whether the notes I g ave to Ag ent Stearns about Nichols' explos ives wer e fabr icated, and 21 another question was whether I had ever lied to a corr ections office r to g et prison benef its. After I

71 answe red no to both questions, the [pol yg raph] ag ent acc used me of lying," and Stearns "told me that 2

. . . I should never contac t the g overnme nt with any information ag ain." (De clar ation of Gre g ory 3 Scarpa J r. dated April 2, 2013 (" Scarpa Dec l.") , ¶¶ 11, 13; see also id

. ¶ 9 (in Scarpa ' s initial interview 4 with Stearns, " [i ]t seeme d Ag ent Stearns simply did not believe what Itold him").) 5 On Marc h 10, Scarpa was interviewe d by Dre sch and Clemente. Dre sch attempted to 6 pass Scarpa ' s information to law enfor ceme nt aut h o ri t i es . When that failed, he contac ted a 7 congressman, who "pr essed the FB I to take action on this tip." Scarpa , 155 F.Supp.3d at 238 (interna l 8 qu o t at ion marks omitted). FB I ag ents eventua lly sear ched Nichols' s former home in Her ington , 9 Kansa s, on Marc h 31 and found a hidden ca che of

explos ives components. 10 In May , Scarpa ' s then-attorne y Neil Checkma

n wrote to the United States Attorney ' s 11 Offic e in the Easter n District of New York (" EDNY" ) to reque st that the g overnme nt move pursuant 12 to Rule 35(b) to reduc e Scar pa' s sentence based on his substantial assis tance in the discover y of the 13 Nichols explos ives compo n en t s . T he g overnme nt declined to make such a motion. Checkman 14 repor

ted to Clemente that 15 [i ]t is the position of the EDNY[ ]t hat Scarpa ' s info is suspe ct, its sourc es are 16 suspect, and even if he[ ]di d provide t h e i n fo, the Easter n District is not 17 interested in g iving him Rule[ ]35 relief

. I asked if they would proff er him for 18 his a dditional info, and[ ]t hey say they do not want to spend the money or the 19 eff ort. All this is based[ ]upon hi s pa[s] t track r ecor d. 20 (June 20, 2005 email from Neil Checkman to Ang ela Clemente; s ee a l s o Dec laration of Neil 21 Checkman dated Marc h 18, 2009 (" Checkman Dec l.") ¶ 4 (" The [Unit ed States Attorney ' s] office 22 based its position on Mr. Scarpa ' s cooper ation eff orts in the past which the office did not cre dit, and 23 the office ' s impression that Mr. Scarpa ' s information and source s wer e suspect in the prese nt instance 24 as we ll.").)

81 2. Scarpa's Subsequent Efforts T o Compel a Rule 35(

b) Motion 2 In Marc h 2006, Scarpa "supple ment[ed] " a still -pending motion he had filed pro se in 3 2002 (pursua

nt to 28 U.S.C. § 2255, seeking to vaca te his conviction on various constitutional 4 g rounds) to add, inter alia , a reque st--on the g r ound that he had provided substantial assistance leading 5 to the location of the Nichols explosives components--that the district c ourt require the g overnme nt 6 to move under Rule 35(b) for a re duction of his se ntence . ( SeeScarpa Supplement[ ] t o the Petition 7 fo r W ri t o f Habeas Corpus pursuant to 28 U.S.C. § 2255 (" Scarpa § 2255 Supplement") .) Scarp a 8 attache d a repor

t prepa red by Clemente and various documents conce rning the events surrounding the 9 rec overy of Nichols' s bomb components. The g overnme nt, by letter dated April 21, 2006, to by -then10 Circuit J udg e Rag g i, opposed Scarpa ' s Rule 35(b) motion reque st. I t incorporated by ref ere nce seale d 11 documents i t had subm itted in 2002 in response to Scarpa ' s § 2255 motion, and stated that it would 12 not file a substantial-assistance motion on Scarpa ' s behalf

. The 2006 letter stated that the g overnme nt 13 had informe d Checkman that there w as no fa ctual basis justifying the filing of such a motion. 14 In October 2006, the case was rea ssigne d to J udg e Korman, who appoint ed new 15 counsel to r epre sent Scarpa

. Scarpa ' s new counsel eventua lly made clea r that Scarpa was willing to 16 forg o his constitutional § 2255 claims if the court or the g overnme nt would agree to a reduc tion in his 17 sentenc e. Over the next sever al y ear s (studded with adjournments) the parties filed repor ts, aff idavits, 18 decla

rations, and memoranda in support of their respe ctive positions. Scarpa ' s position was ty pified 19 by his 2009 ar gu m en t t h at the value of his assistance with respe ct to the Nichols explos ives 20 components was indisputable, and that there fore his past history of false testimony and "whateve r the 21 g overnme nt believed about Mr. S car pa' s past cooper ation eff

orts" were an ins ufficie nt basis for the 91 g overnme nt's ref usal t o m o v e to reduc e his sentenc e. (Scar pa Memorandum in Support of Motion 2 Pursuant to 28 U.S.C. § 2255, March 26, 2009, at 29.) 3 The g overnme nt's response stated, for example, that Scarpa was fo u n d to have 4 "c ommitt ed perjury in testifying on his own be half" at t rial, "has continued to obstruct j ustice si nce 5 his incar cer ation on the second indictment by filing false aff idavits supporting motions by fellow 6 members of the Colombo family " in two other proce eding s, and had proff ere d "c ooperation" in " the 7 Yousef matter

. . . [t hat] was dece ptive and dishonest." (L etter from Assistant United States Attorney 8 Patricia E. Notopoulos t o J udg e Kor man dated A

pril 28, 2010, at 5-6 (citing findings i n the present 9 case by J udg e Rag g i in 1999, and in the o ther case s by J udg es Weinstein and Sifton in 2004, that 10 Scarpa ' s sworn statements wer e not cre dible).) The g overnme nt also stated that Scarpa had "f ailed a 11 polyg raph examination

. . . that was desig ned to test the vera city of his cooper ation as to the Nichols 12 cac he," and that the g overnme nt cho s e not to rew ard Scarpa "f or his above- descr ibed acts of fra ud 13 upon the Court." ( Id

. at 6; see also id

. at 7 (" wher e, as here , a def endant ha s continued to eng ag e in 14 criminal activity while purporting to be cooper ating with the g overnme nt and wher e the defe ndant has 15 been f

ound to have pr ovided fa lse information, a Rule 35( b) motion is not j ustified") .)

16 C. The District Court 's Decision 17 In an order dated J anuar y 4, 2016-- Scarpa , 155 F.Supp.3d at 247--the district court 18 g rante d Scarpa ' s mot i o n fo r a s en tence reduc tion. The court stated that under the proce dural rules 19 g overning the availability of a sentenc e reduc tion based on a defe ndant' s substantial cooper ation afte r 20 a s en t en ce has been imposed, "[a] motion by the g overnme nt is the threshold require ment for a 21 reduc tion. Fe d. R. Crim. P. 35( b)," and that the decision whether to f ile such a motion " is g ener ally 101 left to the discretion of the g overnme nt." Scarpa , 155 F.Supp.3d at 238 (interna l quotation marks 2 omitted). Howeve r, the c ourt noted that 3 that discretion is not entirely immune from judicial re view. Indeed, in W ade 4 v. United States , 504 U.S. 181, 112 S.Ct

. 1840, 118 L .E d

. 2 d 524 (1992), the 5 Supreme Court acc epted a conce ssion by the Solicitor Gene ral

. . . [ that a 6 defe ndant] would be entitl ed to re l ief if the prosecutor' s ref usal to move was 7 not rationally related to any leg itimate Gover nment end.

. . . An obvious 8 example of such a ref usal would be one based on an unconstitutional motive, 9 such as the defe ndant' s rac e or relig ion. W a de , 504 U.S. at 186, 112 S.Ct

. 10 1840. Ultimately , as the Su p re m e Court said in W ade , the decision not to 11 move for a sentenc e reduc tion should be based on a "r ational assessment of the 12 cost and benef it that would flow from moving" and n ot on "a failure to 13 acknow ledg e or appre ciate [t he defe ndant' s] help." Id

. at 187, 112 S.Ct

. 1840. 14 Scarpa , 155 F.Supp.3d at 238-39 ( internal quotation marks omitted). 15 The court "conclude[d] that a rational assessment of the cost and benef it that would 16 flow from moving for Rule 35(b) relief was not made here ." Id

. at 239. I t noted that the g overnme nt 17 did not dispute that the information provided by Scarpa had ultimately been of substantial assistance 18 in locating the Nichols cac he of explos ives components. See , e.g. , id

. at 239, 240. But it conclude d 19 that the g overnme nt's ref usal to move for a Rule 35(b) reduc tion wa s arb i t rary and irrational, 20 principally based on the court' s view that the g overnme nt had "g iven a series of conflicting rea sons" 21 that the court stated "d[id] not survive car eful analy sis," id

. at 239, and had relied on "a ssertions" that 22 the cour

t viewed a s materially

and " flatly

incorre ct," id . at 241. 23 As to the " series of conflictingrea sons," the c ourt stated as f ollows: 24 These rea sons, g iven at various times, may b e summarized as follows: (i) 25 wh i l e S ca rpa was t he source of the i nformation that led t o the uncovering o f 26 the explos ives, he somehow also took false cre dit for that information and his 27 alleg ed embellishment of it wasted a signific ant amount of g ov er nment 28 resour ces of an unspecifie d nature ; and (ii) he has repeate dly obstructed justice 29 in the past through committing perjury at his o w n t r i a l , throug h providing 30 testimony in su p p o r t of his former criminal associates, which at least one

111 judge found not to be credible , see , e.g. , United States v. Orena , 299 F.Supp.2d 2 83, 84 (E.D.N.Y .2004), and through his alleged " s ham" cooperation in the 3 Y ousef case

. 4 Scarpa , 155 F.Supp.3d at 239 (e mphases adde d). 5 As to g overnme nt "a ssertions" viewed by the court as "f latly incorre ct in m at er i al 6 respe cts," the court stated that "[i]ns tead" of making a rational cost-bene fit assessment of bring ing a 7 Rule 35(b) motion for Scarpa , "r eliance has been place d o n an af fidavit from the FB I ag ent who 8 responde d to Scarpa ' s initial reque st to supply information," id

. at 241, 239--r efe rring to a November 9 19, 2012 Affir

mation by J

. Andre w Stearns (" Stearns Affidavit"), wh ich was submitt ed by the 10 g overnme nt in response to the court' s reque st for such an aff idavit, see Scarpa , 155 F.Supp.3d at 241 11 (" Be cause o f m y skepticism about t he lack of any fac tual basis for the[ g overnme nt's] claims, most 12 of which wer e based on information rec eived from the FB I rathe r than on persona l knowledg e, I asked 13 to be provided with a n aff idavit f rom the F BI

ag ent .

. . who made the initial conta ct with Sca rpa on 14 Marc h 3, 2005.")

. As discussed in g reater detail in Part I I .C. below, the court viewed t h e S tear ns 15 Affida

vit as containing "a number of unsupported statements" --c alling some of them "de monstrably 16 inacc urate "- -including (1) that "F BI ag ents had obtained a sear ch war rant for Nichols' s home," (2) that 17 the information for the sear ch war rant application "w as not inf ormation that Scarpa had provided to 18 the FBI " b u t had come instead from "a private investigator to whom Scarpa had previously rela y ed 19 information re gar d i n g the hidden explos ives," (3) "that Scarpa implied that the explos ives wer e 20 in

te n d e d f o r a future bombing," and (4) that subsequent "[i]nt ervie ws of witnesses reve aled that Scar p a 21 had fabr icated portions of the information" he g ave the FB I

. Id

. (interna l quotation mar ks omitted). 22 Finally , while the court said it was "not sug g est[ing] that it would be irrational for the 23 U.S. Attorney to conclude that, notwithstanding the value of a defe n d an t 's cooper ation, his prior 121 history simply does not justify any sentenc ing c onsideration," the cour t found that the g overnme nt's 2 relianc e on Scarpa ' s prior his tory wa s " simply a post-hoc rat ionalizat ion rathe r t han the rea l rea son 3 for the ref

usal to file a motion to reduc e Scarpa ' s sentenc e." Scarpa , 155 F.Supp.3d at 245 (empha sis 4 added)

. The court based this conclusion on "the series" of rea sons proff ere d by the g overnme nt, which 5 the court considere d "la rg ely implausible, contra dictory , and fac tually unsupported," and on the "quite 6 signific ant[] " fac t that "the U.S. Attorney has been willing in the past to g rant cooper ation cre dit even 7 to defe ndants who have committed serious crimes and have lied repe atedly during the course of their 8 cooper ation," id . at 245, 240. 9 The c ourt conc luded: 10 T he United States has an indisputably compelling interest i n 11 discovering and neutra liz ing stores of bombs hidden by domestic terrorists on 12 Americ an soil. I t ha s an equally strong interest in e ncoura g ing the assistance 13 of those individuals who happen to have information about such wea pons. I t 14 d o es not, howeve r, have any interest in making use of such truthful an d 15 acc urate assistance , but arbitra rily failing to cre dit it based on unsubstantiated 16 alleg ations. 17 Id

. at 245 (empha sis in origi n al ). The court deter mined that it was appropriate to reduc e Scarpa ' s 18 sentenc e by

10 y ear s. See id . at 246-47.

19 I I . DI SCUS SI ON

20 On appeal, the g overnme nt contends principally that its decision not to move for a 21 sentenc e reduc tion for Scarpa was justified and explained from the outset by , inter alia , its conce rns 22 about hi s prior sham proff er of cooper ation, his other pre-2005 attempts to o bstruct j ustice, and his 23 2005 poly g raph examination indicating untruthfulness with respe ct to the Nichols matter, and that the 131 court misapplied applicable leg al standards in concluding that the reque sted sentenc e reduc tion could 2 be g rante d to Scarpa in the absenc e of a motion by the g overnme nt. We ag ree with the g overnme nt's 3 contentions.

4 A. Gove rnment Discre tion To Make a Substantial-Assistance M otion 5 Once a defen d an t has been sentenc ed, the circ umstances in which the court is 6 authorized to reduc e his sentenc e are limit ed. See generally 18 U.S.C. § 3582(c)

. Rul e 35 of the 7 Fe dera l Rules of Criminal P roce dure, a s pertinent her e, provide s as follows: 8 (b) Reducing a Sentence for Sub stantial Assistance. 9 (1) In Ge neral. Upon the governm ent's motion made within one y ear 10 of sentenc ing, the court may reduc e a sentenc e if the defe n dant, afte r 11 sentenc ing, provided substa n t i al assistance in investigating or prosec uting 12 another person. 13 (2) Later Motion. Upon the governm ent's motion made more than one 14 y ear afte r sentenc ing, the court m ay reduce a sentenc e if the defe ndant' s 15 substantial assistance involved: 16 (A) information not known to the defe ndant unti l o n e y ear or 17 more a fter se ntencing ; 18 (B) inf o rm ation provided by the defendant to the gover nment 19 within one y ear of sentenc ing, but which did not become useful to the 20 g overnme nt until m ore tha n one y ear

afte r sentenc ing; or 21 (C) information t he usef ulness of which could not rea sonably 22 have been a nticipated by

the def endant until more than one year afte r 23 sentenc ing and which was promptly provided to the g overnme nt a fter 24 its usefulness was r easona bly appar ent to the def

endant. 25 (3) Evalu ating Sub stantial Assistance. In evaluat i ng whether the 26 defe ndant has provided substant i al assistance , the court may consider the 27 defe ndant' s prese ntence assistance

. 28 Fe d. R. Crim. P . 35(b) ( emphase s added)

. 141 I f a defe ndant, prior to being sentenc ed, has rende red substantial assi s t an ce to the 2 g overnme nt in the investigation or prosec ution of another person who has committed an offe nse, two 3 provisions aff

ord the possibili ty of lenient sentenc ing "[u]pon motion of the Gover nment," 18 U.S.C. 4 § 3553(e) (allowing court to i m p o s e a s en tence below the applicable statutory minimum ); see 5 Guidelines § 5K1.1 (allowing court, "[u]pon motion of the g overnme nt," to impose a sentenc e below 6 the Guidelines-r ecommende d rang e of imprisonment). Given that these provisions in the statute, the 7 Guidelines, and th e Ru l es all ow for sentenc ing lenience rew arding "substantial assistance " upon a 8 motion by the g overnme nt, the require ments and obl iga tions of § 3553(e) , § 5K1.1, and Rule 35(b) 9 are construed simil arly

. See , e.g. , W ade v. United States , 504 U.S. 1 8 1 , 1 8 5 (1992) (dea ling with 10 § 3553(e) and § 5K1.1); United States v. Gangi , 45 F.3d 28, 30-31 (2d Cir. 1995) (" The only prac tical 11 d iffer ence betwee n Rule 35(b) and U.S.S.G. § 5K1.1 is a matter of timing: The latter is b as ed o n 12 substantial assistance befor e sentenc ing while the former is based on substantial assistance afte r 13 sentenc ing.

. . . [D] ue to simil arity of languag e and function, § 5K1.1 should inform our construction 14 of Rule 35(b)." ). 15 The "[u]pon the g overnm ent's motion" languag e in Rule 35(b) thus "imposes the 16 condition of a Gover nment motion upon the district court' s authority ," W ade , 504 U.S. at 185 17 (discussing § 3553(e) and § 5K1.1), to reduc e, as a result of the defe ndant' s substantial a ssistance, a 18 sentenc e that has been imposed. The g overnme nt, in deciding whether to make such a

motion, will 19 ordinarily make an assessment of "the cost and benef it that would flow from moving," W ade , 504 U.S. 20 at 187, taking into acc ount fac tors other than the assistance itself. Thus, in W ade , the Court held that 21 "al t h o u gh a s h owing of assistance is a nece ssary condition for relief , it is not a sufficie nt one," id

. , 22 beca

use the g overnme nt has "a power , not a duty ," to make a substantial- assistance motion, id

. at 185;

151 see also id

. at 186 (" a claim that a defe ndant mere ly provided substantial assistance will not entitle a 2 defe ndant to a re medy or eve n to discovery

or an e videntiary

hearing" ). 3 Howeve r, the g o v er n m en t ' s "disc retion when exercising that power is subject to 4 constitutional li mitations." Id . at 185. Thus, 5 fede ral di s t ri ct courts have authority to revie w a prosec utor' s ref usal to file a 6 substantial-assistance motion and to g rant a reme dy if they find that the ref usal 7 was ba sed on an unc onstitut ional motive. 8 Id

. at 185-86. In addition, a defe ndant "w ould be entitled to relief if the prosec utor' s ref usal to move 9 was not rationally related t o any leg itimate Gover

nment end." Id

. at 186; see , e.g. , United St ates v. 10 Roe , 445 F.3d 202, 207 (2d Cir. 2006) (" ' Thus, a defe ndant would be entitled to relief [under § 3553(e) 11 and § 5K1.1] if a prosec utor ref used to file a s u b s t an t i al -assistance motion, say , beca use of the 12 defe ndant' s rac e or relig ion' or for a rea son ' not rationally related to any leg itimate Gover nment end.' " 13 (quoting W

ade , 504 U.S. at 186)); United States v. Hernande z , 404 F. App' x 521, 522 (2d Cir. 2010) 14 (" We will g ener ally not revie w a prosec ution decision not to file a § 3553(e) motion except to ensure 15 ag ainst unconstitutional motivation, such as rac e, ethnicity , relig ion, or a rea son not rationally related 16 to any leg itimate g overnme nt end." ); see also id

. (" Our de novo revie w reve als that the g overnme nt's 17 proff

ere d rea son for not making a § 3553(e) motion--Her nandez' s comm i ssion of further crimes-

- 18 clea

rly bore a rational relationship to t h e go v er n ment' s leg itimate interests in deter ring crime both 19 g ener ally and specific ally as to persons expecting sentenc ing considera ti o n . " ) ; United States v. DeFe o , 20 327 F. App' x 257, 258 (2d Cir. 2009) (where the def endant "has not alleg ed . . . an unc onstitut ional 21 motive

. . . . he is entitled to r elief only if he can establish that the g overnme nt's rea sons for ref using 22 to file a Rule 35(b) motion wer e ' not rationally rela ted to any leg itimate Gover nment end.' " (quoting 23 W

ade , 504 U.S. at 186)).

161 Although the district court ac knowledg ed most of these pr inciples, we c onclude that 2 the scope and nature of its inquiry in the prese nt case exceede d its authority

. In addition, we conclude 3 that finding s relied on in the c ourt' s decision ar e not suffic iently supported by

the re cord.

4 B. The Scope of the Court's Inquiry 5 Given that the court' s authority under Rule 35(b) to reduc e a sentenc e is limit ed by the 6 g overnme nt's permissible exercise of discretion to ref use to move beca

use of leg itimate g overnme ntal 7 conce rns, the court may not overr ide the g overnme nt's ref usal to make a Rule 35(b) motion o n the 8 basis of the court' s own balanc ing of the costs and benef its of makin g s u ch a motion. Her e, these 9 leg itimate g overnme ntal conce rns i ncluded, inter alia , finding s of j udg es i n three fede ral cases that 10 Scarpa has g iven sworn testimony or statements that cannot be cre dited, along with the g overnme nt's 11 1999 (sea led) submissi ons descr ibing the prior "va riety of wild-g oose chase s," Scarpa , 155 F.Supp.3d 12 at 237 (interna l quotation marks omitted), induced by Scarpa in the g uise of proff ering substantial 13 assistance

. 14 Her e, the district court proce eded to conduct i t s o wn b alancing, and, in so doing, 15 imposed unwar

rante d constraints on the Ex ecutive Br anch. For example, the court was critica l of the 16 fa ct t h at , as to the view that Scarpa lied in his Marc h 2005 polyg raph examination, the only sw o rn 17 statement the g overnme nt submitt ed to the court was t h e o n e in the Stearns Affida vit, without an 18 aff

idavit from the poly g raph expert. See Scarpa , 155 F.Supp.3d at 237. But g overnme nt officia ls do 19 not commonly require their investigators or fac t-g ather ers to submit aff ida v it s to them for the purposes 20 of interna l decisionmaking

.

171 Simi larly , the court was appar ently critica l of the fac t that "most of" the g overnme nt's 2 fac tual positions about flaws in Scarpa ' s attempted cooper ation in the Nichols matter "w ere based on 3 information rec eived from t he FB I rathe r than on persona l knowledg e," id

. at 241. But there is no 4 require ment, nor would it be prac tical to require , that the U.S. Attorney have persona l knowledg e of 5 all of the events and fac ts related t o l egi timate g overnme nt conce rns, rathe r than relying on 6 information g ather ed by the spec ial ag ents of the F BI

. 7 Nor, in our view, should the g overnme nt normally be re quired to disc lose the details 8 of its investigations or proce d u res that informed its leg itimate-g overnme nt-conc ern- based decision 9 not to make a substantial-assistance motion. Her e, howeve r, the district court was critica l of the fac t 10 that while the Stearns Affida vit stated that the polyg raph expert "de termined that Scarpa had exhibi ted 11 dece ption when questioned about t he in fo rm ation that he was providing to the FBI , . . . Stearns .

. . 12 never explained" to the court "the b as i s for the conclusion that Scarpa was dece ptive, nor did he 13 provide the specific fac ts as to which Scarpa was less than truth fu l

. " Id

. at 237 (interna l quotation 14 marks omitted). Wil lfully making materia lly false statements to the g overnme nt is in itself a crime, 15 and Scarpa ' s history of false statements was of specia l conce rn to the g overnme nt in the circ umstances 16 at issue here

. Such conce rns cannot be deeme d irrational. I t was beyond the authority of the district 17 court to penalize the g overnme nt for ref using to disclose underly ing fac ts with reg ard to Scarpa 's 18 statements to the polyg raphe r. 19 In sum, when the U.S. Attorney has ref used to make a Rule 35(b) motion for rea sons 20 that are not invidious or unrelated to a leg itimate g overnme nt conce rn, it is not the office of the court 21 to weigh the equities or r easse ss the fac ts underlying the g overnme nt's e x erc ise of its discretion.

181 C. The Rec ord in the Present Case 2 Although it is unnece ssary to our holding, we pause to note that to the extent that the 3 district court conducte d its own inquiry into the fac tual bases for the g overnme nt's conce rns, its 4 assessment of the rec ord appea rs flawe d. As descr ibed in Part I .C. above, the court conclude d that the 5 g overnme nt a cted "a rbitrar ily " in ref

using to make a Rule 35(b) motion on behalf of Scarpa beca use 6 it v i ew ed t he g overnme nt as relying on alleg ations that the court found "unsubstantiate d" and as 7 "f

ailing to cre dit" information from Scarpa that the court found to be "tr uthful and acc urate ," Scarpa , 8 155 F.Supp.3d at 245; and it viewed the g overnme nt's relianc e o n S ca rpa' s past history of sham 9 cooper ation and attempts to obstruct justice as "simply a post-hoc rationalization" for the ref usal, id

. 10 Upon review of the record, we are l eft with the i mpression that some of t he dis trict court' s finding s 11 wer e in mater ial part unjustified. 12 Preliminarily , we note that to the extent that the dist ri ct co u rt--in stating that the 13 g overnme nt "r eli[ed] " on the Stearns Affidavit, id

. at 239--mea nt tha t the g overnme nt r elied on that 14 aff

idavit in refusingto make a Rule 35( b) motion, that chara cter ization i s clea rly wrong . Whatever 15 information was communicated to the decisionmake rs by Stearns, it was not b y me ans of that aff idavit. 16 The rec ord is clea r that the Stearns Affidavit was prepa re d in 2012 beca use the court "a sked to be 17 provided with an aff idavit from the FB I ag ent

. . . who made the initial contac t with Scarpa on Marc h 18 3, 2005," Scarpa , 155 F.Supp.3d at 241. Stearns was that ag ent, but when the g overnme nt rejec ted 19 Scarpa ' s reque st for a Rule 35(b) motion in 2005, it could n o t have been rely ing on the Stearns 20 Affida

vit that was prepa

red se ven y ear s later. 21 Fur ther, we see only one clea

r err or in the Stearns Affidavit, i.e. , that Nichols' s former 22 home was sear ched pursuant to a war rant-- an err or that we do not see was materia l. And our revie w

191 of the rec ord persua des us that other aspec ts of the Stearns Affidavit that the district c ourt said wer e 2 "de monstrably inacc urate ," Scarpa , 155 F.Supp.3d at 241-42, wer e in fac t consistent with the rec ord. 3 We identify

below some e x amples that have led us to this conclusion.

4 1. The Non-Material Misstatement that "FBI agents had obtained a search warrant for 5 Nichols' s home" 6 The first aspec t of the Stearns Affidavit impugne d by the district court-- that the Marc h 7 31, 2005 sear ch of the Nichols former home had been conducted pursuant to a search warr ant--w as 8 indeed e rrone ous. The g overnme nt later acknowle dg ed that, in fac t, there had bee n no war rant; the 9 home was unoccupie d, and the sear ch had been conducte d on the consent of a re al estate ag ent. 10 Although this aspe ct of the Stea rns Aff idavit--pre pare d seven year s after the eve nt by an age nt who 11 was stationed in Colorado and who was not involved in the sear ch in Kansa s--wa s thus err oneous, and 12 althoug h it wa s rea sonable to e x pect g reater acc urac y , we cannot see that the err or as to whether the 13 sear ch wa s pursuant to a wa rra nt or was c onsented to by the re altor wa s material.

14 2. The Statement that " Scarpa implied that the explosive s wer e i n t ended for a future 15 bombing" 16 The district court also included, as part of the g roup of "as s ertions [t hat] are flatly 17 incorre ct in material respe cts," Scarpa , 155 F.Supp.3d at 241, the statement in the Stearns Affidavit 18 that "Sca

rpa implied that the explos ives wer e intended for a fut u re bombing." Id

. Yet insufficient 19 evidenc e was provided for the district court' s decision to cre dit Sca r p a ' s d e s c ription of his conver sation 20 with Stearns instead of the acc ount provided by Stearns. This is espec ially true beca use Stearns could 21 rea sonably have deter mined, based on Scarpa ' s tone, phy sical movements, and demea nor, that Scarpa

201 had "implied" that the explos ives wer e intended for a future bombing even if Scarpa , in the words of 2 his own aff

idavit, had "not attempt[ ed ] " to imply that there would be a specific future bombing 3 (Scar

pa Dec l. ¶ 22). We further note that Scarpa himself submitt ed a document to the court titled 4 "L etter from Gregory Scarpa Jr. to Ang ela Clemente exp ressing his conce rn with a statement 5 repor

tedly made by Emilio Br avo Concerning Immine nt Attack for the 10th Anniversa ry of the OKC 6 Bombing

. (Postmarked Marc h 14, 2005)" (empha sis ours). Thus, the rec ord did not su p p o rt the 7 deter

mination that the Stearns Affidavit's statement was "f latly incorre ct in [t his] respe ct[] ." Scarpa , 8 155 F.Supp.3d at 241.

9 3. The Statement that subsequent " [i] nterviews of witnesses reve aled that Scarpa had 10 fabricated portions of t he information that he previously provided to the F BI" 11 Although the court sug g ested that the Stearns Affidavit's stateme nt th a t post-Marc h 31, 12 2005 "[i]nt ervie ws of witnesses reve aled that Sca rpa ha d fabr icated portions of the information that 13 he previou s l y provided to the FB I ," was "f latly incorre ct," Scarpa , 155 F.Supp.3d at 241, the court 14 offe red no explanation of why that was so. Indeed, it is clea r from the rec ord that two witnesses told 15 the FB I prec isely that. Scarpa ' s own 2013 decla ration states that in FB I interviews afte r the Marc h 31 16 discovery of the explos ives components, "B ravo . . . and Nichols said things about me to make it 17 appea

r t h at I h ad l i ed to the FB I " (Scar pa Dec l. ¶ 20), that Br avo and Nichols "a ccuse d me of 18 fabr icating information that I g ave to the FB I " ( id

. ¶ 27). And Br avo' s 2013 decla ration confirme d the 19 m ak i n g of those acc usations. Whil e Br avo stated in 2013 that Scarpa had told the FB I the truth as 20 Scarpa knew it, Br avo also stated that afte r the explos ives materia ls had been rec overe d on Marc h 31, 21 2005, both he and Nichols spoke to the FB I , and " told them that Mr. Scarpa lied when he said the

211 explos ives wer e g oing to be used in a future bombing." (B ravo Dec l. ¶ 8 (empha sis added) .) Whether 2 Br avo and Nichols wer e lying or being truthful when they made those statements to the FB I in 2005, 3 there is no dispute that those two witnesses in fac t told the FB Ithat Scarpa had lied. 4 In sum, of the aspects of the Stearns Affida vit that the district court viewed as 5 demonstrably false, only the statement that the sear ch of Nichols' s former home had been conducte d 6 pursuant to a warra nt, rathe r t han on the c onsent of the r eal e state ag ent, was e rrone ous, and we see 7 no basis for viewing that err or as materia l. Other aspec ts are supported by clea r evide n ce i n t he 8 rec ord.

9 4. The Finding of " post-hoc rationalizati on" 10 Finally , the rec o rd i n t h e prese nt case in no way justifies the district court' s 11 char acte rization of the g overnme nt's r eliance on Scarpa ' s past fra udulent history as a rea son to de ny 12 him a Rule 35(b) moti on as "post-hoc." The Nic hols ex plosives components wer e found on Ma rch 13 31, 2005; Checkman wrote to the go vernme nt in May to reque st a Rule 35(b) motion; and the 14 g overnme nt promptly ref used, based not only on the fac t that Scarpa ' s 2005 information had been 15 "suspe ct" but also--a s Checkman repor ted to Clemente-- "ba sed[ ]upon his pa[s] t trac k rec ord" (June 16 20, 2005 email from Neil Checkman to Ang ela Clemente). Checkman' s subsequent sworn decla ration 17 g ave a more formal but simil ar descr iption of that 2005 explanation by the g overnme nt: " The [United 18 States Attorney's] office based its position on Mr. Scarpa's cooperation efforts in the past which the 19 office did not credit , and the office ' s impression that Mr. Scarpa ' s information an d s o urce s wer e 20 suspect in the pre sent instance a s well." (Checkma n Dec l. ¶ 4 (empha sis added).)

221 CONCL USI ON

2 There is of course no question that the gover nment has an interest in locating illega l 3 stores of explos ive materia ls and preve nting them from causing harm to the public; and there is no 4 question that Scarpa ' s information eventua lly provided substantial assistance in locating the cac he of 5 explos ives components hidden in Nichols' s former home. But as indicated in W ade , the g overnme nt 6 does not have an obligation to make a Rule 35(b) motion, and a defe ndant' s furnishing substantial 7 assistance is not in itself sufficie nt to require such a mot i o n . Al t h o u gh the g overnme nt may not 8 proper ly withhold such a motion for a rea son that is constitutionally impermissible such as rac e or 9 relig ion, there is no semblance of any such motivation in this case . And althoug h the g overnme nt may 10 not withhold s u ch a m o t ion for a rea son that is not related to a leg itimate g overnme nt conce rn, the 11 rec ord i n the present case amply supports the govern ment' s contention t hat i ts ref usal to make such 12 a motion for Scarpa was based on leg itimate g overnme nt conce rns. Scarpa had committed perjury at 13 his tria l; in two other criminal case s he had submitt ed aff idavits that the respe ctive presiding judge s 14 found could not be cre dited; and, most rele vantly , he had purported to cooper ate with the g overnme nt 15 with reg ard to terror ism p l an s b y Yous ef while instead actively misleading the g overnme nt and 16 aff

irmatively

compromising the investigative eff orts he ca used it to undertake

. 17 Such fra udulent crie s of "Wolf" not only cause t h e m i sallocation of g overnme nt 18 resour ces, but they also make less li k el y an appropr iate g overnme nt response if the man who crie d 19 "Wolf" subsequently sounds an alar m that is g enuine. Plainly , it is a leg itimate g overnme nt objective 20 to deter such fra udulent proff

ers, rathe r than to encour ag e them by indicating that, so long as a g enuine 21 alar

m is sounded eventually , the forme r par ade of fra uds is forg iven.

231 We have considere d all of Scarpa ' s arg uments in support of the decision of the district 2 court and have found them to be without merit. For the rea sons stated above, we reve rse the district 3 court' s order and the second amende d judgme nt, and we rema nd for reinstateme nt of the first amende d 4 judgme nt.

24