                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             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Precedential or Non-Precedential: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

Recommended Citation
"USA v. Idone" (1994). 1994 Decisions. Paper 164.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/164


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.
                 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 twenty-

five 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.
