Free Motion to Reduce Sentence - District Court of Colorado - Colorado

Case 1:01-cr-00319-WYD

Document 1173

Filed 08/10/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 01-CR-319-WYD-01 UNITED STATES OF AMERICA, Plaintiff, v. 1. JOHN D. SPOSIT, Defendant.

GOVERNMENT'S MOTION FOR SENTENCE REDUCTION PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 35(b)(2)(B)

The United States of America, by and through its undersigned Assistant United States Attorney, hereby moves the Court, pursuant to Federal Rule of Criminal Procedure (FRCP) 35(b)(2)(B)and (C)and(4), for a reduction in the defendant's sentence. In support thereof, the Government states: 1. Defendant Sposit is currently serving a 144-month sentence after being

sentenced by this Court on September 1, 2000 on a Continuing Criminal Enterprise charge. 2. The defendant assisted the government by providing substantial

assistance relative to another federal prosecution. 3. 4. The assistance precluded the necessity of a trial. The substantial assistance referred to in the foregoing paragraph could

not have occurred prior to May of 2006 because of circumstances attendant to the arrest and prosecution of another individual who is scheduled to be sentenced in this District. .

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5.

The Assistant United States Attorney (AUSA) filling this motion is not the

original AUSA who filed this action, but he has reviewed the correspondence of the AUSA who has since retired, and states to the court that the present action was contemplated and endorsed by that original AUSA prosecuting Mr. Sposit. The AUSA retired without fulfilling his commitment to the defendant. The undersigned AUSA had no knowledge of the negotiations between the prior AUSA and the defendant until very recently and upon being notified and verifying the information makes this motion to the Court. 6. Rule 35(b) of the Federal Rules of Criminal Procedure provides that if the

government so moves within one year after the imposition of a sentence, the Court may reduce a sentence (in accordance with the United States Sentencing Guidelines) to reflect a defendant's subsequent substantial assistance in the investigation or prosecution of another. The Court also may "reduce a sentence if the defendant's substantial assistance involved . . . information not known to the defendant until one year or more after sentencing." Fed. R. Crim. P. 35(b)(2)(A). Moreover, "a defendant cannot be said to `know' useful information" until he is asked for it or its value otherwise becomes apparent. United States v. Morales, 52 F.3d 7, 8 (1st Cir. 1995); United States v. Young, 192 F. Supp. 2d 1051, 1052 (D. Hawaii 2002); United States v. Dewes, 152 F. Supp. 2d 925, 927 (S.D. Ohio 2001). Accordingly, even where a defendant possesses information within a year of sentencing, the Court may reduce his sentence pursuant to Rule 35(b) more than a year after the imposition of that sentence where the defendant has not been asked for that information or its full value has not become apparent until more than a year after sentencing. Morales, 52 F.3d at 8. 2

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7.

Under § 5K1.1 of the Sentencing Guidelines, the appropriate reduction

shall be determined by the Court for reasons including, but not limited to, the following: a. The Court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered; The truthfulness, completeness, and reliability of any information or testimony provided by the defendant; The nature and extent of the defendant's assistance; Any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance; and The timeliness of the defendant's assistance.

b.

c. d.

e.

8.

That relative to the sealing of this motion and any attendant Order of this

honorable Court, the Government states that the public's interest in the contents of these documents is outweighed by the danger to the Defendant and the interest of the Government in maintaining the confidentiality of these documents. WHEREFORE, the government respectfully submits that the defendant has provided substantial, truthful and timely assistance in the prosecution of others. Accordingly, the government moves this Court pursuant to Rule 35(b) for an Order reducing the defendant's 144 month sentence by 12 months to a sentence of 132 months in this case. Government's counsel has conferred with Mr. Saint -Veltri and he has no objection to this motion or a hearing to support the motion.

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Respectfully submitted, TROY A. EID UNITED STATES ATTORNEY

By: s/Gregory H. Rhodes GREGORY H. RHODES Assistant United States Attorney United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0310 FAX: (303) 454-0401 E-mail: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 10th day of August, 2007, I electronically filed the foregoing GOVERNMENT'S MOTION FOR SENTENCE REDUCTION PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 35(b)(2)(B) with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Joseph Saint-Veltri [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the non Participant's name: None s/ Lisa Vargas LISA VARGAS Legal Assistant to GREGORY H. RHODES Assistant United States Attorney United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 FAX: (303) 454-0409 E-mail: [email protected]

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