1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-25-1994

USA v. Idone

Precedential or Non-Precedential:

Docket 94-1427

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Idone" (1994). 1994 Decisions. Paper 164.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/164
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 94-1427 

 

 UNITED STATES OF AMERICA 

v. 

 SANTO IDONE, 

 a/k/a Sam, 

 a/k/a Sam from Chester, 

 a/k/a Papa, 

 a/k/a Big Santo 

 Santo Idone, 

 Appellant. 

 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Crim. Action No. 89-cr-00021-1) 

 

 

 Submitted Pursuant to Third Circuit LAR 34.1(a) 

 September 19, 1994 

 Before: GREENBERG, ROTH and ROSENN, Circuit Judges

 (Opinion Filed October 25, l994 ) 

 

Michael R. Stiles 

United States Attorney 

Eastern District of Pennsylvania 

Walter S. Batty, Jr. 

Assistant U.S. Attorney 

Chief of Appeals 

Joel M. Friedman 

Assistant U.S. Attorney 

Chief, Organized Crime Strike Force 

Albert J. Wicks 
Assistant U.S. Attorney 

Deputy Chief, Organized Crime Strike Force 

615 Chestnut Street 

Philadelphia, PA 19106 

 Attorneys for Appellee 

John R. Carroll, Esquire 

Carroll & Carroll 

400 Market Street, Suite 850 

Philadelphia, PA 19106 

 Attorney for Appellant 

 

 OPINION OF THE COURT 

 

ROTH, Circuit Judge: 

I.

 Santo Idone ("Idone") was a "capo" or "captain" in 

the Mafia family, headed by the infamous Nicodemo Scarfo. On 

January 26, 1990, Idone was convicted of racketeering conspiracy 

(involving murder, extortion, loansharking and illegal gambling), 

racketeering, extortion and operating an illegal gambling 

business. Idone was sentenced on April 6, 1990, to twenty years 

imprisonment and began serving his prison sentence on or about 

April 20, 1990. 

 On February 17, 1992, Idone filed a motion for 

reduction of his sentence pursuant to Federal Rule of Criminal 

Procedure 35(b).1 On March 8, 1994, the district court granted 

Idone's motion and reduced his sentence to five and one half 

 

 1 Because Idone was convicted for conduct that occurred 

before November 1, 1987, we must look at Rule 35(b) as it was 

prior to its most recent amendments. 
years imprisonment. The United States of America ("the 

Government") petitioned for rehearing, and a hearing was held on 

March 10, 1994. On April 5, 1994, the district court vacated its 

March 8, 1991, order because it found that it did not have 

jurisdiction over Idone's 35(b) motion. In so holding, the court 

reasoned that the passage of twenty-five months from the filing 

of the motion to the entry of the court's March 8, 1991, order 

was not a "reasonable time" under Rule 35(b) within which to act 

on Idone's motion. 

 For the reasons stated herein, we agree with the 

district court's finding that it lacked jurisdiction to rule on 

Idone's motion for a reduction of his sentence. 

II.

 On January 26, 1990, Idone was convicted of: 

racketeering conspiracy in violation of 18 U.S.C. § 1962(d) 

(Count One); racketeering in violation of 18 U.S.C. § 1962(c) 

(Count Two); extortion, in violation of 18 U.S.C. § 1951 (Count 

Three); and operating an illegal gambling business, in violation 

of 18 U.S.C. § 1955 (Count Four). Idone was sentenced on April 

6, 1990, to a total of twenty years imprisonment and a $30,000 

fine. Idone began serving his prison sentence on or about April 

20, 1990. 

 Idone's co-defendants, Mario Eufrasio and Gary 

Iacona, were convicted of similar offenses and sentenced to ten 

years and six years of imprisonment respectively. During the 
three year period following imposition of sentence, the district 

judge reduced the sentences of these co-defendants pursuant to 

Rule 35(b) motions. 
 On May 15, 1991, this Court affirmed Idone's 

convictions on direct appeal, and on October 21, 1991, the United 

States Supreme Court denied Idone's petition for writ of 

certiorari. See United States v. Eufrasio, 935 F.2d 553 (3d 

Cir.), cert. denied, 112 S. Ct. 340 (1991). 119 days after the 

Supreme Court denied his petition--only one day before the 

expiration of the 120-day filing deadline--Idone filed a motion 

for reduction of his sentence pursuant to Federal Rule of 

Criminal Procedure 35(b). Idone's motion requested a reduction 

in his sentence because of his failing health and the hardship to 

his family caused by his wife's failing health. In that motion, 

Idone also alleged that under existing United States Parole 

Commission Guidelines he would be likely to serve approximately 

thirteen years and four months of his twenty year sentence. 

Idone, however, had waived parole consideration shortly after 

entering prison, so his thirteen year estimate was never 

substantiated. 

 On February 21, 1992, three days after the filing 

of his reduction motion, Idone made his first attempt to subpoena 

his medical records from the Federal Correctional Institution at 

Jesup, Georgia, where he was incarcerated. The Bureau of Prisons 

did not produce Idone's medical records. Defense counsel finally 

sought assistance from Government counsel and obtained the 

requested records on June 24, 1992. Two months later, on August 
21, 1992, defendant forwarded the records along with some 

additional materials to the court. 

 In the meantime, Idone developed prostate cancer 

and was transferred from Jesup to Springfield, Missouri, for 

medical treatment. On March 25, 1993, defense counsel subpoenaed 

Idone's medical records from Springfield and additional records 

from Jesup. Defense counsel received the requested records on 

April 2, 1993, and, after a further delay, forwarded them to the 

Government attorney on June 2, 1993, and to the court, along with 

other materials, on July 2, 1993. The Government responded to 

Idone's motion on September 23, 1993. On February 14, 1994, 

defense counsel submitted a letter to the court requesting a 

decision on Idone's motion. 

 On March 8, 1994, approximately twenty-five months 

after Idone filed his Rule 35(b) motion, the district judge 

granted the motion and reduced Idone's sentence from twenty years 

to five and one half years. As a result of that order, Idone 

became eligible for immediate release from prison. 

 The following day, the Government filed a motion 

for reconsideration of the district court's order, arguing for 

the first time that the district court lacked jurisdiction to 

decide Idone's motion. On March 10, 1994, the district court 

held a hearing on the Government's motion for reconsideration. 

At that hearing, the district judge commented that he had waited 

a significant amount of time before granting motions for 
reduction of sentence for Idone's co-defendants Eufrasio and 

Iacona: 
 "because I wanted to see to it that they put 

in the length of time that I intended when I 

entered the sentences. Because at the time I 

didn't know what the Parole Board -- what 

release date would be set by the Parole 

Board. And I had always anticipated doing 

something on their behalf, and I sat and 

waited on those for a long time, too. And in 

this one [Idone's motion], I intended to do a 

similar act even on that basis, and didn't 

see the need to hurry, and didn't know there 

was a time limit." 

Appendix ("App.") 371.2

 Following the hearing, the court entered a stay of 

its prior order and directed the parties to submit briefs on the 

issue. On April 5, 1994, the district court vacated its prior 

order because it found that it did not have jurisdiction over 

Idone's Rule 35(b) motion. The court, citing United States v. 

Diggs, 740 F.2d 239, 245-46 (3d Cir. 1984), reasoned that the 

passage of twenty-five months from the filing of the motion to 

the entry of the court's reduction order was not a "reasonable 

time" under Rule 35(b), regardless of the reasons for that delay. 

Thus, Idone's original sentence was reinstated. Idone filed a 

timely appeal of the district court's decision. We have 

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. 

 

 

2 In the April 5, 1994, order, the court noted that the 

reduction in Idone's sentence was "consistent with and 

proportionate to reductions of sentence previously granted two of 

defendant's co-defendants in this case, and also consistent with 

the Court's judgment regarding the appropriate length of 

defendant's sentence, in light of defendant's actual involvement 

in the criminal activity which formed the basis of his 

conviction." App. 394. 
 We review the grant or denial of a motion for a 

reduction of sentence under Rule 35 for an abuse of discretion. 

See, e.g., Government of the Virgin Islands v. Gereau, 603 F.2d 

438, 443 (3d Cir. 1979). In this case, however, the district 

court held that it lacked jurisdiction to decide Idone's motion 

for a reduction of sentence because it concluded, as a matter of 

law, that a delay of twenty-five months between the filing of the 

motion and the court's decision could not constitute a 

"reasonable time" under Rule 35(b), regardless of the reasons for 

the delay. We must review this legal conclusion under the 

plenary standard of review. See, e.g., Johnson & Johnson-Merck 

Consumer Pharmaceuticals Co. v. Rhone-Poulenc Rorer 

Pharmaceuticals, Inc., 19 F.3d 125, 127 (3d Cir. 1994). 

III.

 The issue before us is whether the district court 

properly determined that it lacked jurisdiction over Idone's 

motion for reduction of sentence pursuant to Federal Rule of 

Criminal Procedure 35(b). Rule 35(b), as applicable to 

offenses committed prior to November 1, 1987, provides: 

 A motion to reduce a sentence may be made . . 

. within 120 days after the sentence is 

imposed or probation is revoked, or within 

120 days after receipt by the court of a 

mandate issued upon affirmance of the 

judgment or dismissal of the appeal, or 

within 120 days after entry of any order or 

judgment of the Supreme Court denying review 

of, or having the effect of upholding a 

judgment of conviction or probation 
revocation. The court shall determine the 

motion within a reasonable time. . . .3

The Advisory Committee on Criminal Rules defined a "reasonable 

time" as as long as a district court judge reasonably needs to 

consider and act upon the motion. It also explained that the 

reasonableness of the time taken by the district court to act on 

such motions must be appraised in light of the reasons for the 

delay and the policies supporting the time limitations. See also

United States v. Parrish, 796 F.2d 920, 923 (7th Cir. 1986). The 

two purposes of the policies supporting the time limitations are: 

protecting "the district court from continuing and successive 

importunities;" and assuring "that the district court's power to 

reduce a sentence will not be misused as a substitute for the 

consideration of the Parole Board." United States v. Taylor, 768 

F.2d 114, 118 (6th Cir. 1985) (quoting United States v. 

Stollings, 516 F.2d 1287, 1289 (4th Cir. 1975)). 

 In United States v. Diggs, 740 F.2d 239 (3d Cir. 

1984), we were faced with an issue similar to the one raised in 

the present case. Diggs filed a motion for reduction of sentence 

pursuant to Rule 35(b) on December 26, 1979. Diggs' motion was 

not served on the Government or docketed until July 22, 1982, 

approximately two and one half years after it was filed. On the 

day it was docketed, the district court granted Diggs' motion, 

 

 

3 Although Rule 35(b) was amended in 1987 as part of the 

Sentencing Reform Act of 1984, that amendment does not apply to 

the present case because Idone's offenses were committed prior to 

November 1, 1987. 
without notice to the government or a hearing, reducing his ten 

year sentence to three and one half years and making him eligible 

for immediate release. The government immediately moved to 

vacate the reduction order. In granting the Government's motion 

to vacate, the court concluded that the passage of almost two and 

one half years between the filing of Diggs' motion and the 

court's order granting the reduction rendered the action 

inappropriate. Although Diggs did not appeal the order, he filed 

a petition for habeas corpus questioning the court's vacatur of 

its prior order. The district court dismissed the petition and 

Diggs appealed. 

 After finding that Diggs' claims were properly 

before the district court in a petition for habeas corpus, we 

held that two and one half years is not a reasonable time within 

which to decide a motion under Rule 35(b), no matter what the 

reason for the delay. In so holding, we focused primarily on the 

dispersement of power between the judicial and executive branches 

with regard to determining the length and circumstances of an 

individual criminal's punishment. We explained that: 

 the 120-day time limit serves chiefly to 

ensure that the power to reconsider 

sentencing decisions sensibly conferred on 

the district court by Congress and the 

Supreme Court via rule 35(b) does not become 

a tool for overruling the Parole Commission 

after that body, in consonance with the 

Parole Commission and Reorganization Act, 
determines the likely release date of the 

criminal.4

Id. at 246. Moreover, we noted that the district court in Diggs

had been in a position to second-guess the Parole Commission and 

had in fact done so when it initially granted Diggs' motion for a 

reduction of sentence. We concluded that a reasonable time does 

not give courts "a license to wait and reevaluate the sentencing 

decision in the light of subsequent developments." Id. at 247. 

Thus, we held that Rule 35(b) does not countenance a two and one 

half year delay and found that the district court's vacatur of 

its prior order granting Diggs' Rule 35(b) motion gave proper 

regard to the "separation of powers" concerns underlying the 120-

day time limit on Rule 35(b) motions. 

 The present case is analogous to Diggs in that the 

twenty-five month delay between the filing of Idone's motion for 

reduction of sentence and the district court's original grant of 

that motion is not a reasonable time under Rule 35(b). Id. at 

245-47; see also Taylor, 768 F.2d at 118 ("[W]e do question 

 

 

4 Although at the time of the Diggs decision Rule 35(b) did 

not explicitly provide a reasonable time beyond 120-days for a 

district court to decide a motion for reduction of sentence, we 

followed our precedent on this issue, which held that district 

courts retained jurisdiction over motions for a reduction of 

sentence for a "reasonable time" after the 120-day period 

specified by Rule 35(b). Diggs, 740 F.2d at 245-46 (citing 

United States v. Janiec, 505 F.2d 983, 984-85 n.3 (3d Cir. 1974), 

cert. denied, 420 U.S. 948 (1975)). Rule 35(b) was subsequently 

amended in 1985 to clarify that district courts are permitted to 

take a reasonable time to decide motions for reduction of 

sentence. 
whether an 18-month delay . . . could be considered reasonable 

under any set of circumstances that we have been able to 

imagine."); United States v. Smith, 650 F.2d 206, 209 (9th Cir. 

1981) (delays in ruling on motions for reduction of sentence 

ranging from 12 months to 42 months were not reasonable). As 

explained in Diggs, the reasonable time limitation was intended 

to prevent courts from usurping the role of the Parole Board by 

sitting back and waiting to see what action the Parole Board 

would take before ruling on motions for reduction of sentence. 

However, that is exactly what the district court originally 

attempted to do in this case. At the March 10, 1994, hearing, 

the district judge declared that he waited a significant amount 

of time before granting the motions for reduction of sentence for 

Idone's co-defendants "because I wanted to see to it that they 

put in the length of time that I intended when I entered the 

sentences. Because at the time I didn't know what the Parole 

Board -- what release date would be set by the Parole Board. And 

I had always anticipated doing something on their behalf, and I 

sat and waited on those for a long time, too. And in this one 

[Idone's motion], I intended to do a similar act even on that 

basis . . .." App. 371. This wait and see approach is precisely 

the type of conduct that we condemned in Diggs. Diggs, 740 F.2d 

at 246-47 ("The 'reasonable time' contemplated by Janiec and 

Gereau is a reasonable time to decide the issue presented by the 
rule 35 motion, not a license to wait and reevaluate the 

sentencing decision in the light of subsequent developments."). 

 Idone argues that the district court could not 

have usurped the power of the Parole Board in this case because 

the Board never took action with respect to Idone. This argument 

is without merit. As the Sixth Circuit in Taylor recognized, "it 

is not necessary that a district judge deliberately override a 

decision of the Parole Commission to impermissibly usurp the 

Commission's role." Taylor, 768 F.2d at 118. In Taylor, the 

district court delayed acting on Taylor's motion for a reduction 

of sentence in order to consider developments that had occurred 

subsequent to sentencing, including Taylor's behavior in prison. 

In holding that the district court abused its discretion in 

granting Taylor's motion eighteen months after it was filed, the 

Sixth Circuit found that a district court does not retain 

jurisdiction over a Rule 35(b) motion where the delay is "allowed 

by the court for a purpose in contravention of the rule." Id. at 

118. As in Taylor, the action by the district court in this case 

of waiting to see what the Parole Board would do is in 

contravention of Rule 35(b), even if the court eventually decided 

the motion before the Board took any action. 

 Idone also argues that the 1985 amendment to Rule 

35(b) deleted the jurisdictional requirement of the rule as long 

as a motion for reduction is filed within the 120-day period. 

Idone, however, misses the point of the 1985 amendment. That 
amendment was adopted to resolve a split in the circuits over 

whether a court could retain jurisdiction over a Rule 35(b) 

motion beyond 120 days: the majority of circuits (including the 

Third Circuit) had held that a court's jurisdiction extended for 

a reasonable time beyond 120 days, see, e.g., United States v. 

DeMier, 671 F.2d 1200 (8th Cir. 1982); whereas the Seventh 

Circuit held that the district court's jurisdiction ended after 

the 120th day, see United States v. Kajevic, 711 F.2d 767 (7th 

Cir. 1983), cert. denied, 464 U.S. 1055 (1984). The 1985 

amendment adopted the position of the majority of circuits, 

specifying that district courts "shall determine the motion 

within a reasonable time." That position clearly holds that the 

failure of a district court to act on motions for reduction of 

sentence within a reasonable time is jurisdictional.5 Thus, this 

Court's jurisdictional treatment of the reasonable time 

limitation was embraced by the 1985 amendment, rather than 

deleted. 

 

 

5 Although the Diggs decision did not explicitly state that 

district courts lose their jurisdiction over Rule 35(b) motions 

after the passage of a reasonable time, it certainly implies as 

much. See also Smith, 650 F.2d at 209 ("To the extent that the 

delays were 'unreasonable,' therefore, the district court was 

deprived of jurisdiction to consider them."); United States v. 

Mendoza, 581 F.2d 89, 90 (5th Cir. 1978) (district court retains 

jurisdiction for reasonable time after expiration of 120 days); 

Stollings, 516 F.2d at 1288 ("We hold that jurisdiction is not 

lost . . . at least for so long as the judge reasonably needs 

time to consider and act upon the motion."). It is significant 

to note that the Smith and Stollings decisions were cited in the 

Advisory Committee's notes with respect to the 1985 amendment 

with approval. 
 In further support of his position, Idone cites 

United States v. House, 808 F.2d 508, 509 (7th Cir. 1986), in 

which the Seventh Circuit maintained that Rule 35(b), after the 

1985 amendment, "does not state a jurisdictional limit for the 

court's decision." That statement, however, is dictum because 

the government in House did not even assert that the district 

court lacked jurisdiction over House's motion for a reduction of 

sentence. Id. at 509 (recognizing that "[i]f the government is 

not concerned about the time the district court takes [to act on 

a motion for a reduction of sentence], an appellate court should 

not be concerned either"). Accordingly, Idone's argument that 

the 1985 amendment to Rule 35(b) deleted the jurisdictional 

requirement of the rule is without merit. 
 Accordingly, we hold that if a district court 

fails to decide a motion for a reduction of sentence under Rule 

35(b) within a reasonable time, the court loses jurisdiction. 

Because twenty-five months is not a reasonable time, the district 

court properly held that it was without jurisdiction to rule on 

Idone's motion for a reduction of sentence. 

IV.

 For the reasons stated above, the district court 

was correct in holding that it was without jurisdiction to decide 

Idone's motion for a reduction of sentence because the twentyfive month period which elapsed between the filing of the motion 

and the court's decision was not a "reasonable time" under 

Federal Rule of Criminal Procedure 35(b). The judgment of the 

district court will be affirmed.