U.S. v. Saenz

Page 1109

429 F.Supp.2d 1109

UNITED STATES of America, Plaintiff, v. Kim Darby SAENZ, Defendant.

No. CR 03-4089-MWB.

United States District Court, N.D. Iowa, Western Division.

April 24, 2006.

Jamie D. Bowers, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.

Joseph J. Hrvol, Council Bluffs, IA, for Defendant.

MEMORANDUM OPINION AND ORDER REGARDING THE GOVERNMENT'S MOTION FOR CORRECTION OF SENTENCE

BENNETT, Chief Judge.

On March 23, 2006, the court entered its Memorandum Opinion And Order Regarding Resentencing (docket no. 55) following remand from the Eighth Circuit Court of Appeals. See United States v. Saenz, 429 F.Supp.2d 1081 (N.D.Iowa 2006). In that order, the court sentenced defendant Kim Darby Saenz, now known as Kimberly Edwards, to 20 months imprisonment on Count 1 of the Information, with credit for time served.¹ This sentence was precisely the same as the sentence originally imposed on the defendant, which the Eighth Circuit Court of Appeals had reversed and vacated on the government's appeal on the ground that this court's reduction in the sentence for the defendant's "substantial assistance" (from a Guidelines minimum sentence of 63 months) was "excessive" and "unreasonable" under the circumstances presented. United States v. Saenz, 428 F.3d 1159, 1164-65 (8th Cir. 2005). However, on remand, on the basis of recent data from the United States Sentencing Commission, this court found that the Eighth Circuit Court of Appeals was mistaken in the notion that a 50 percent reduction in sentence for substantial assistance was "extraordinary," and that the circumstances presented in this case, including evidence of threats and intimidation suffered by the defendant and her family members as the result of her cooperation with authorities, which had not been presented at her original sentencing, made a reduction of 68 percent, from 63 months to 20 months, entirely appropriate, where the record now firmly established that the defendant's assistance was "extraordinary." An Amended Judgment (docket no. 56) entered accordingly on March 27, 2006.

This matter comes before the court pursuant to the government's March 30, 2006, Motion For Correction Of Sentence (docket no. 57). In its motion, the government points out that Rule 43(a) of the Federal Rules of Criminal Procedure requires that the defendant be present at sentencing. Therefore, the government requests that the court impose sentence with the defendant present in open court. On April 18, 2006, finding that the defendant had made no timely response to the government's motion, the court ordered the defendant to respond by April 21, 2006. See Order of April 18, 2006 (docket no. 60). That same day, the defendant filed a resistance to the government's motion (docket no. 61), in which she asserts that her presence at the resentencing hearing on March 3, 2006, satisfied the requirements of Rule 43(a), and that she need not be present at the entry of the subsequent written order, citing United States v. Weir, 724 F.2d 94 (8th Cir.1984). Therefore, she requests that the government's motion be overruled, because it is without merit.

The unedited "real time" transcript (Transcript) of the March 3, 2006, resentencing hearing reveals that, shortly after the hearing began, the court stated its intention to take the sentencing under advisement and subsequently to enter a written ruling imposing sentence and, further, that the court offered the parties the opportunity to object to such a procedure, as follows:

THE COURT: Okay. Well, before we get to that, I do have a couple of questions for you, Mr. Fletcher. I didn't want to—there are a couple things I want to mention. I think you all know I've been quite ill, and I'm kind of behind the eight ball. I don't think I'm prepared to announce my sentence at the end of the sentencing today. And I'm going to take it under advisement. And I've looked at the rule, and I think I have a right to take it under advisement, and other judges have taken sentencings under advisement. It's just too complicated. I haven't been able to give it all the thought that it needs, and I'm just not going to rule off the top of my head, and I'm probably going to enter a pretty thorough written ruling that would actually impose a sentence. So I wanted to actually raise that, see if anybody had any objection to it. And then we can talk about how to do it at the end, if we should all come back or if I should just file it or we can talk about those issues later on.

Transcript at 6-7. Shortly thereafter, the government responded to the court's statement of its plan to take the resentencing under advisement and subsequently to enter a written ruling, as follows:

MR. FLETCHER: Yes, Your Honor. First of all, on the issue of you wanting to take this under advisement, as you recall, Monday with what was going on with your health and also trying your other commitments, we had attempted to move this, but I believe Mr. Hrvol's email address [I] recollect we'd had some problem getting ahold of him, and I appreciate you allowing me to file my brief late, but I called your office and then we—because of the witnesses coming here, it's probably better we get their evidence on today anyway.

THE COURT: Yes.

MR. FLETCHER: So I have no problem with that. I think that's the first issue you've raised.

THE COURT: Okay. I appreciate that.

Transcript at 8. Thus, assuming for the moment that the government had any right to demand imposition of sentence in open court, the Transcript clearly shows that the government waived that right during the resentencing hearing.

Unfortunately, there is no such express waiver by the defendant in the Transcript. There is, at best, an implicit waiver by the defendant: At the conclusion of the hearing, the court asked defense counsel if there was "[a]nything further," and defense counsel responded, "No, Your Honor. Thank you." Transcript at 74. At that point, the hearing was adjourned. Id. Even it was clear to the court at the time that the court raised the issue that the defendant concurred in the court's suggested procedure, and the defendant never raised any objection at any time to the court taking the resentencing under advisement and subsequently entering a written ruling actually imposing sentence.

Rule 43(a) of the Federal Rules of Criminal Procedure, upon which the government relies, provides for the "Defendant's Presence" during criminal proceedings, as follows:

(a) When Required. Unless this rule, Rule 5, or Rule 10 provides otherwise, the defendant must be present at:

(1) the initial appearance, the initial arraignment, and the plea;

(2) every trial stage, including jury impanelment and the return of the verdict; and

(3) sentencing.

(b) When Not Required. A defendant need not be present under any of the following circumstances:

(1) Organizational Defendant. The defendant is an organization represented by counsel who is present.

(2) Misdemeanor Offense. The offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant's written consent, the court permits arraignment, plea, trial, and sentencing to occur in the defendant's absence.

(3) Conference or Hearing on a Legal Question. The proceeding involves only a conference or hearing on a question of law.

(4) Sentence Correction. The proceeding involves the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c).

(c) Waiving Continued Presence.

(1) In General. A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present under the following circumstances:

(A) when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial;

(B) in a noncapital case, when the defendant is voluntarily absent during sentencing; or

(C) when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom.

(2) Waiver's Effect. If the defendant waives the right to be present, the trial may proceed to completion, including the verdict's return and sentencing, during the defendant's absence.

FED.R.CRIM.P. 43. A defendant likewise has a due process right to be present "`at any stage of the criminal proceeding that is critical to the outcome if his presence would contribute to the fairness of the procedure.'" United States v. Parrish, 427 F.3d 1345, 1347 (11th Cir.2005) (quoting United States v. Novaton, 271 F.3d 968, 998 (11th Cir.2001)); United States v. Jacques, 321 F.3d 255, 262 (2d Cir.2003) ("Both the Constitution and the Federal Rules of Criminal Procedure grant a criminal defendant the right to be present during sentencing."). However, this due process right has been held to be narrower than the right to be present under Rule 43. Id. (citing United States v. Boyd, 131 F.3d 951, 953 n. 3 (11th Cir.1997), which in turn cites United States v. Washington, 705 F.2d 489, 497 n. 5 (D.C.Cir.1983); United States v. Christopher, 700 F.2d 1253, 1262 (9th Cir.1983); United States v. Alessandrello, 637 F.2d 131, 138 (3d Cir.1980); United States v. Brown, 571 F.2d 980, 986-87 (6th Cir.1978)).

It is plain that the right at issue here belongs to the defendant. See, e.g., United States v. Arrous, 320 F.3d 355, 360 (2d Cir.2003) ("The current rule arises out of respect for a defendant's right to be present at a sentencing proceeding, to allocute, and to respond to the definitive decision of the sentencing judge.") (citing United States v. Behrens, 375 U.S. 162, 167-68, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963) (Harlan, J., concurring), and United States v. Johnson, 315 F.2d 714, 717 (2d Cir. 1963)); see also United States v. Alvarez-Pineda, 258 F.3d 1230, 1241 (10th Cir. 2001) ("`The imposition of punishment in a criminal case affects the most...