                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-27-2004

USA v. Jones
Precedential or Non-Precedential: Precedential

Docket No. 03-1411




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"USA v. Jones" (2004). 2004 Decisions. Paper 347.
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                       PRECEDENTIAL              David L. McColgin (Argued)
                                                       Assistant Federal Defender
   UNITED STATES COURT OF                              Supervising Appellate Attorney
APPEALS FOR THE THIRD CIRCUIT                    Maureen Kearney Rowley
                                                       Chief Federal Defender
                                                 Robert Epstein
                                                 Federal Court Division
                No. 03-1411                      Defender Association of Philadelphia
                                                 Philadelphia, PA 19106

                                                        Attorneys for Appellant
   UNITED STATES OF AMERICA
                                                 Patrick L. Meehan
                     v.                                 United States Attorney
                                                 Laurie Magid
            GARY W. JONES,                              Deputy United States Attorney
                        Appellant                       for Policy and Appeals
                                                 Robert A. Zauzmer
                                                        Assistant United States Attorney
                                                        Senior Appellate Counsel
    On Appeal from the United States             Peter D. Hardy(Argued)
               District Court                    Catherine Votaw
 for the Eastern District of Pennsylvania               Assistant United States Attorneys
     (D.C. Criminal No. 02-cr-00575)             Philadelphia, PA 19106
     District Judge: Hon. Eduardo C.
                 Robreno                                Attorneys for Appellee


         Argued March 11, 2004                         OPINION OF THE COURT

 Before: SLOVITER and NYGAARD,
 Circuit Judges, and SHADUR, District            SLOVITER, Circuit Judge.
                 Judge*
                                                        Appellant states that the issue
         (Filed: August 27, 2004)                before us is “[w]hether the district court
                                                 had the authority under U.S.S.G. § 5K2.0
                                                 to grant a downward departure, in the
                                                 absence of a government motion, on the
   *
      H o n . M i l t o n I. Shad ur, U nite d   basis of Mr. Jones’s substantial assistance
States District Court Judge for the              in two civil matters.” We see the issue
Northern District of Illinois, sitting by        differently, albeit related. The answer to
designation.                                     the issue posed by appellant is clear – a
district court may depart under U.S.S.G.                    The Braids hired a new financial
Section 5K2.0 without a Government                  adviser who discovered the theft in
motion, and to the extent that the District         October 1999 and they informed the FBI
Court in this case said otherwise, it               and the SEC, which began investigating
misspoke. The more difficult question               Jones. Jones eventually admitted his
raised by this appeal is whether appellant’s        embezzlement and began cooperating with
assistance was a factor that falls within the       the authorities in investigating IRL. Jones
scope of Section 5K2.0.                             states that in the course of assisting the
                                                    authorities, he made 60-70 phone calls,
                     I.                             two of which were monitored; attended
                                                    15-20 meetings; and wore a body wire for
        From October 1998 to April 1999,            the FBI during a meeting. After the FBI
Jones embezzled $236,626 in retirement              decided not to pursue a criminal
funds from Arthur and Selma Braid, an               investigation of IRL in August 2000, Jones
elderly couple for whom Jones worked as             remained in contact with the SEC
an accountant and financial advisor. Jones          regarding IRL until November 2000.
accomplished this crime by forging Mr.              Jones alleges that he provided substantial
Braid’s signature on checks from Fidelity           assistance, even purchasing a copy
Investments, where the Braids maintained            machine from his own funds to copy
their retirement funds, and depositing the          thousands of pages of relevant documents
checks into his own account. Also, during           to present to the SEC, traveled to the
this period Jones advised the couple to             Philippines to investigate IRL abroad, and
invest $10,000 and Jones himself invested           provided three to four hours of testimony
his own funds and M r. Braid’s stolen               under oath “as part of the investigation of
retirement funds in International Recovery,         this company,” which he believed had
Limited (IRL) for what turned out to be a           “broken some laws and would be subject
fruitless venture. Mr. Braid later sued             to some kind of p[ro]secution for that.”
Fidelity, but recouped less than half of the        App. at 31a-32a, 45a-46a. Jones concedes,
embezzled funds. 1                                  however, that he undertook many of these
                                                    efforts without having been instructed to
                                                    do so by the Government. Jones contends
   1                                                that IRL stopped soliciting investors and
       Fidelity paid Mr. Braid $125,000,
                                                    went out of business, in part, because of
and was reimbursed by its insurance
                                                    his actions.      An SEC representative
company. The Braids’ losses exceeded the
                                                    informed the Government that it “never
amount of the embezzled funds as they
                                                    acted on the defendant’s statements
incurred legal expenses in seeking to
                                                    because they could not be corroborated.”
recoup the loss and were required to pay
                                                    Supp. App. at 3.
back taxes, penalties and interest, because
Jones failed to file their Pennsylvania tax
                                                           The Government indicted Jones for
returns for six or seven years.

                                                2
bank fraud pursuant to 18 U.S.C. § 1344              Section 5K2.0 motion for a downward
and he pled guilty on October 24, 2002.              departure, stating:
Jones moved for a downward departure
based on, inter alia,2 his cooperation with               [D]istrict courts have no
the SEC and FBI in reporting IRL’s                        authority to grant substantial
activities, unco vering its financial                     departures under 5K2.0 in
“inaccuracies and misappropriations,” and                 the absence of a
exposing “undercover embezzling” by                       Government motion under
officers of the corporation. App. at 102a-                5K1.1. And in this case,
04a. Jones also argued that Mr. Braid                     there has been no motion
received a settlement from Fidelity, based                under 5K1.1.
in part on his assistance and willingness to
testify, which provided additional grounds                Additionally, there is no
for a downward departure.                                 claim of unconstitutional
                                                          motive or discrimination or
       Critically, Jones moved for this                   bad faith on the part of the
downward departure pursuant to U.S.                       Government.
Sentencing Guideline Section 5K2.0.
Section 5K2.0 permits departures for                             I think to the extent
“mitigating circumstance[s] . . . not                     that the defendant has
adequately taken into consideration by the                cooperated, that should be
Sentencing Commission”; it does not                       taken care of and the
require a supporting motion from the                      defendant should be credited
Government, as is required for a motion                   with in the senten cin g
for substantial assistance under Section                  guid elines for his
5K1.1. The Government opposed Jones’                      cooperation with the SEC
motion, arguing that he was not eligible                  and all the other efforts that
for a Section 5K2.0 departure because he                  have been outlined here.
had not alleged unconstitutional motive or
bad faith acts by the Government.                                 And finally, I find
                                                          that the combination of all
       The District Court denied Jones’                   of those factors do not
                                                          warrant a departure under
                                                          Koon versus the United
   2                                                      States.     And, again, I
        Jones also argued that a departure
                                                          recognize that I have the
was warranted because of his post-offense
                                                          power to depart as a result
rehabilitation (alcoholism recovery) and
                                                          of a combination of these
his ability to make restitution to his victims
                                                          factors, but I find that this is
if he were not jailed. These grounds are
                                                          a case which does not
not at issue on appeal.

                                                 3
                 warrant or justify it                      States v. Dominguez, 296 F.3d 192, 195
                 and it’s not an                            (3d Cir. 2002) (holding that district court
                 appropriate case for                       had authority to grant Section 5K2.0
                 the exercise of that                       downward departure despite Government’s
                 discretion.                                opposition); see also United States v.
                                                            Vitale, 159 F.3d 810, 813 (3d Cir. 1998)
App. at 74a-75a.                                            (noting that district court granted
                                                            defendant’s § 5K2.0 departure, without
       The District Court sentenced Jones                   mention of Government support or
to imprisonment for 18 months and                           opposition thereto).
required him to make restitution to the
Braids. Jones timely appealed.3                                    The more difficult question raised
                                                            by this case is whether a defendant’s
                        II.                                 assistance in connection with a civil
                                                            investigation or case falls within the scope
        Jones’ primary contention on appeal                 of Section 5K2.0, as Jones contends, rather
is that the District Court improperly held                  than within the scope of Section 5K1.1.
that it did not have authority to grant a                   Jones contends that his assistance to the
downward departure under Section 5K2.0                      SEC took him outside the ambit of Section
without an accompanying motion by the                       5K1.1. Jones argues that we should
Government in support. Inasmuch as this                     confine the supporting motion requirement
presents a legal issue, we review the                       of Section 5K1.1 to substantial assistance
District Court’s conclusions of law de                      on criminal matters and that we should
novo. United States v. Abuhouran, 161                       hold that the district courts have the
F.3d 206, 209 (3d Cir. 1998).                               discretion to grant departures for
                                                            assistance in civil matters under Section
      Departures pursuant to Section                        5K2.0, which does not require a
5K2.0 do not hinge upon a Government’s                      supporting Government motion.
motion in support thereof.          U.S.                           Sentencing Guideline Section
Sentencing Guidelines Manual § 5K2.0.                       5K2.0, as it applied to Jones, provided in
There is no such requirement in the                         part:
Guideline, and courts that have granted                            § 5K2.0 Grounds for Departure
such departures have done so without any                           (Policy Statement)
Government motion. See, e.g., Koon v.
United States, 518 U.S. 81 (1996); United                          Under 18 U.S.C. § 3553(b)
                                                                   the sentencing court may
                                                                   impose a sentence outside
   3                                                               the range established by the
       W e h a v e j u r i sd i c t io n o v e r this
                                                                   applicable guideline, if the
matter pursuant to 28 U.S.C. § 1291 and
                                                                   court finds “that there exists
18 U.S.C. § 3742(a).

                                                        4
       an aggravating or                        range may be relevant to
       m i t i g a t i n g                      this determination if such
       circumstance of a                        characteristic             or
       kind, or to a degree,                    circumstance is present to
       not adequately taken                     an unusual degree and
       into consideration by                    distinguishes the case from
       the Sentencing                           t h e “ he a r tla nd” c as e s
       Com m i s s io n in                      covered by the guidelines.
       f o r m u l a t in g t h e
       g u i d e l in e s t h a t
       should result in a
       sentence different               U.S. Sentencing Guidelines Manual §
       from that described.”            5K2.0.4
       . . . [T]he court may
       depart from the                         In Koon, the Supreme Court, in a
       g u i d e l i n e, e v e n       thorough discussion of Section 5K2.0,
       though the reason for            stated that although Section 5K2.0 does
       departure is taken               not impose a “limit on the number of
       into consideration in            potential factors that may warrant
       the guideline range              departure,” 518 U.S. at 106 (quoting Burns
       (e.g., as a specific             v. United States, 501 U.S. 129, 136-37
       offense characteristic           (1991)), downward departure factors may
       or other adjustment),            be categorized as falling into four primary
       if      the        court         groups:     factors that are prohibited,
       determines that, in              encouraged, discouraged, or unmentioned.
       light of unusual                 Koon, 518 U.S. at 94-95. Consideration of
       circumstances, the
       weight attached to
       that factor under the               4
                                               A l t h o u g h S e c t io n 5 K 2 . 0 w a s
       guidelines             is
                                        amended in 2003 by the Prosecutorial
       inadequate             or
                                        Remedies and Tools Against the
       excessive....
                                        Exploitation of Children Today Act of
                                        2003 (PROTECT Act), Pub. L. No. 108-
[A]n offender characteristic
                                        21, § 401(m)(2)(A), 117 Stat. 650, 675
or other circumstance that is
                                        (Apr. 30, 2003), this amendment does not
in the Commission’s view,
                                        apply to Jones, whose criminal conduct
“not ordinarily relevant” in
                                        occurred and who was sentenced prior to
determining wh ether a
                                        the amendment. The amendments do not
sentence should be outside
                                        change the substance as applicable to
the applicable guideline
                                        Jones.

                                    5
substantial assistance in civil matters is not       become overly-involved in executive and
prohibited, encouraged, or discouraged.              investigative functions. Id. at 216. In both
Substantial assistance in civil matters is an        of those instances, the departure at issue
unmentioned factor and thus this court               was sought under Section 5K1.1.
“must, after considering the ‘structure and
theory of both relevant individual                          However, we acknowledged that
guidelines and the Guidelines taken as a             other courts have recognized a third
whole,’ decide whether it is sufficient to           category of cases in which a downward
take the case out of the Guideline’s                 departure for substantial assistance is
heartland.” Id. (quoting United States v.            possible under Section 5K2.0 in the
Rivera, 994 F.2d 942, 949 (1st Cir. 1993)).          absence of a Government motion. We
                                                     explained:
          This court has not yet addressed the
issue whether assistance in civil matters                   Some cases have found that
falls within Section 5K2.0. In United                       a departure is permitted
States v. Abuhouran, 161 F.3d 206 (3d Cir.                  under § 5K2.0 in the
1998), we considered a somewhat related                     absence of a government
issue: whether Section 5K2.0 gave the                       mo tion for subs tantial
district court the authority to depart                      assistance to branches of
downward in a criminal case on the ground                   government other than those
that defendant offered su bstan tial                        that engage in prosecutorial
assistance to the Government even though                    a c t iv it i e s w h e n t h e
the Government had not moved for the                        assistance does not involve
departure under Section 5K1.1.              In              “ t h e i n v e st i g a ti o n o r
rejecting the defendant’s claim, we noted                   prosecution of an other
we had recognized only two “extraordinary                   person who has committed
circumstances” in which a district court                    an offense.”           See, e.g.,
may depart from the Guidelines without                      United States v. Sanchez,
governmental acquiescence: where the                        927 F.2d 1092, 1093-94 (9th
Government refused to file a substantial                    Cir. 1991) (assistance in the
a ssi st a n ce mo tio n based on an                        prosecution of a civil
unconstitutional motive, id. at 212 (citing                 forfeiture case); United
Wade v. United States, 504 U.S. 181                         States v. Khan, 920 F.2d
(1992)); and where the Government acted                     1100, 1107 (2d Cir. 1990)
in bad faith with regard to a plea                          (assistance in rescuing an
agreement, id. (United States v. Isaac, 141                 informant kidnapped by
F.3d 477, 484 (3d Cir. 1998)). We                           foreign drug dealers);
reasoned that such a limited construction                   United States v. Stoffberg,
was necessary to ensure that the judiciary                  782 F.Supp. 17, 19
not be forced to police prosecutors or                      (E.D.N.Y. 1992) (assistance

                                                 6
              to a congressional                    assistance in connection with a civil
              committee).                           matter, which he contends is cognizable
                                                    only under Section 5K2.0.
Abuhouran, 161 F.3d at 212 n.5. Although
we acknowledged this line of cases, we                      Jones would have us limit Section
declined to address the merits of the cases         5K1.1 to assistance in criminal
because the defendant in the case before us         investigations.     Application Note 1
on appeal had provided assistance “to the           provides that “substantial assistance in the
executive branch in furtherance of its law          investigation or prosecution of another
enforcement responsibilities.” Id. (citation        person who has committed an offense may
omitted). Nonetheless, we declined to               justify a sentence below a statutorily
foreclose this third exception, stating that        required minimum sentence,” while
Section 5K2.0 departures are permissible            Application Note 2 explains that
where the Government has acted with an              “[s]ubstantial assistance is directed to the
unconstitutional motive, in bad faith with          investigation and prosecution of criminal
regard to a plea agreement, “and possibly           activities by persons other than the
those [cases] in which the assistance is not        defendant.” U.S. Sentencing Guidelines
of the sort covered by § 5K1.1.” Id. at             Manual § 5K1.1, cmt. nn. 1, 2. Also, the
214. Because the defendant in Abuhouran             Background note refers to assistance in
did not qualify for any of the exceptions           criminal investigations, stating that “[a]
and he conceded that his assistance                 defendant’s assistance to authorities in the
involved purely criminal investigations             investigation of criminal activities has
and prosecutions, we concluded that he              been recognized in practice and by statute
was not eligible for a departure under              as a mitigating sentencing factor.” Id. at
Section 5K2.0.                                      cmt. background.           None o f the
                                                    commentary is preclusive of assistance
        Section 5K1.1 provides that,                beyond that to the criminal investigators.
“[u]pon motion of the government stating            In fact, a portion of the Background note
that the defendant has provided substantial         suggests a broader scope, as it states that,
assistance in the investigation or                  “[t]he nature, extent, and significance of
prosecution of another person who has               assistance can involve a broad spectrum of
committed an offense, the court may                 conduct that must be evaluated by the
depart from the guidelines.”             U.S.       court on an individual basis.” Id. Jones’
Sentencing Guidelines Manual § 5K1.1.               argument that the only assistance that can
The bare text of Section 5K1.1 is thus              be considered under Section 5K1.1 is to
silent as to what type or types of assistance       investigation of a person’s criminal
it includes. In the instant case, Jones             activities is unpersuasive. After all, what
posits a sharp demarcation between                  is at issue are Sentencing Guidelines,
assistance in connection with a criminal            applicable only to sentencing for “criminal
matter, the realm of Section 5K1.1, and             activities.”

                                                7
          Jones calls our attention to case law         Khan, 920 F.2d at 1107. The court did not
from the Courts of Appeals for the Second,              actually decide the departure should have
Ninth, and Sixth Circuits supporting the                been granted because the defendant had
c o n c l u s i o n t h a t S e ct i o n 5 K 2 .0       waived this argument by failing to alert the
encompasses assistance that was not                     district court at sentencing of these
provided in the in vestigation or                       activities. Shortly thereafter, the same
prosecution of another person even though               court clarified its discussion in Khan by
it trenched on an underlying criminal                   stating that Khan limited this exception to
matter. In United States v. Khan, 920 F.2d              “assistance to the Government other than
1100 (2d Cir. 1990), cert. denied, 499 U.S.             the supplying of information relevant to
969 (1991), the court stated that a                     the prosecution of other individuals, e.g.,
departure under Section 5K2.0, without a                assistance by the defendant that allegedly
Government motion, might be appropriate                 saved the life of a Government agent.”
where the defendant saved the life of a                 United States v. Agu, 949 F.2d 63, 67 (2d
kidnapped confidential informant because                Cir. 1991).
the Sentencing Guidelines did not readily
provide a basis to account for such heroic                       In United States v. Sanchez, 927
efforts. Id. at 1107. The court stated that             F.2d 1092 (9th Cir. 1991) (per curiam), the
a Section 5K2.0 departure may be                        Court of Appeals for the Ninth Circuit
available:                                              held that assistance provided in a civil
                                                        forfeiture proceeding was not “substantial
        where the defendant offers                      assistance” within the meaning of Section
        i n f o r m a ti o n r e g a r d i n g          5K1.1. Although the defendant argued
        actions [the defendant] took,                   that the district court had declined to grant
        which could not be used by                      a Section 5K2.0 motion based on its belief
        the government to prosecute                     that it lacked the authority to do so without
        other individuals (rendering                    a Government motion in support thereof,
        § 5K1.1 inapplicable), but                      the court found no indication in the record
        which could be construed as                     that the sentencing judge believed a
        a “mitigating circumstance”                     downward departure under Section 5K2.0
        for purposes of § 5K2.0.                        was impermissible and thus affirmed the
        See Guidelines § 5K1.1,                         decision without clearly stating that
        Commentary, Application                         assistance in civil forfeitures actions could
        No te 2 (“Substa ntial                          be grounds for a Section 5K2.0 departure.
        assistance is directed to the                   Id. at 1093-94. We need not express our
        investigation                  and              view of the holdings in these cases because
        prosecution of criminal                         they do not discuss the situation in Jones’
        activities by persons other                     case, where the investigation in which he
        than the defendant”).                           provided assistance was both criminal and
                                                        civil.

                                                    8
       Jones relies heavily on United               defendant substan tially assisted in
States v. Truman, 304 F.3d 586 (6th Cir.            proceedings “other than [those] toward the
2002), which did not arise under the joint          prosecution of another person,” Section
or sequential investigation scenario. The           5K1.1 and its requirement of a
defendant in Truman, who had been                   Government motion do not apply. Id. The
caught attempting to sell drugs he stole            Sixth Circuit also stated that a Section
from the pharmaceutical laboratory where            5K2.0 departure may have been warranted,
he worked, assisted the Government in               apart from the acceptance of responsibility
exposing security lapses at the laboratory.         departure that he received, because the
Drug Enforcement Agency (DEA) agents                defendant’s cooperation in developing
shared this info rmatio n with the                  “prophylactic measures” to prevent future
laboratory, which then corrected and                lab thefts had “extend[ed] beyond the
upgraded its security procedures based on           garden variety acceptance of responsibility
the defendant’s identification of risk areas.       and thus was either not taken into account
The defendant highlighted his significant           by the Guidelines or was accounted for in
assistance to DEA investigators in their            the Guidelines but was present in this case
effort to upgrade the lab’s security                to an exceptional degree.” Id. at 592. The
procedures as grounds for departure.                court thus clarified that on remand, the
Critically, he moved for a departure under          district court was not bound by Section
Section 5K2.0, rather than Section 5K1.1,           5K1.1 and could determine if a Section
which would have required a Government              5K2.0 departure was, in fact, appropriate.
motion.                                             Id.

       The district court concluded that,                   Jones contends that his case is
absent a motion from the Government to              analogous to the Truman case where the
depart, it lacked the discretion to grant           defendant’s assistance did not lead to the
defendant a downward departure for                  investigation or prosecution of any party
“assistance offered by a defendant which            for criminal matters. In fact, Jones’ case is
did not result in the investigation or              distinguishable from Truman because it
prosecution of another individual.” Id. at          does not appear that the laboratory in
587. The Court of Appeals for the Sixth             Truman was the subject of a criminal
Circuit vacated and reversed the district           investigation. The DEA was interested in
court decision, reasoning that Section              preventing other potential wrongdoers
5K1.1 applies only to substantial                   from defeating the lab’s security systems
assistance for “the investigation and               in the future, and it was in that connection
prosecution of another individual who has           that Truman offered assistance.          By
committed a crime,” based on Section                contrast, here Jones alleges that IRL had
5K1.1’s commentary and description of               “broken some laws and would be subject
assistance in “criminal” matters. Id. at            to some kind of p[ro]secution for that.”
590. The court thus concluded that if a             App. at 45a. It is in that connection,

                                                9
clearly covered by Section 5K1.1, that             the criminal prosecution does not
Jones proffered his assistance.                    constitute the type of extraordinary factor
                                                   contemplated by Section 5K2.0 or Koon.
        At sentencing, the Assistant United        This is not a situation as presented in
States Attorney conceded that Jones                Truman where the assistance given by the
provided some assistance but stated that it        defendant was unrelated to any prospective
could not be corroborated and therefore            investigation into criminal actions by a
did not lead to any action by the                  person other than the defendant. In this
Government. App. at 80a. An FBI agent              case, although the assistance which Jones
testified at sentencing to the same effect.        relies on was to the SEC it was, in fact,
He stated that Jones wore a wire as                related to a criminal investigation.
requested, and that he did what he said he
would do but the information provided                     As the Government emphasizes,
was not helpful.                                   Jones assisted both the SEC and the FBI in
                                                   connection with a criminal investigation
       The District Court declined to              into fraud and securities violations. The
exercise its discretion to grant a downward        Government points out that Jones’ own
departure. The court stated:                       motion for a downward departure
                                                   described his assistance to the SEC as
              [T]here is no claim of               based on his belief that IRL had “broken
       unconstitutional motive or                  some laws” and committed “offenses”
       discrimination or bad faith                 based o n “ i n a c curacies and
       o n t h e pa r t o f t h e                  misappropriations” in financial statements
       Government.                                 and that a corporate officer had been
                                                   “embezzling” funds. App. at 45a, 103a.
              I think to the extent                The Government contends that these
       that the defendant has                      allegations could only be construed as
       cooperated, that should be                  “allegations of crimes.” Gov’t Br. at 39.
       taken care of and the
       defendant should be credited                       Lastly, the Government contends
       wit hin the sentencing                      that we have previously interpreted
       guidelines for his                          Section 5K1.1 to encompass assistance to
       cooperation with the SEC                    all “authorities.” Gov’t Br. at 49. The
       and all the other efforts that              Government relies upon United States v.
       have been outlined here.                    Love, 985 F.2d 732 (3d Cir. 1993), in
                                                   which we held that Section 5K1.1 applied
App. at 74a.                                       to both federal and state authorities
                                                   because nothing in “§ 5K1.1 or in the
       On appeal, the Government argues            accompanying commentary [suggests] that
that cooperation in a civil suit related to        the Commission meant to limit ‘assistance

                                              10
to authorities’ to assistance to federal             against this company [IRL].” App. at 31a.
authorities.” Id. at 734. In the same vein,          Again, he stated,
the Government highlights a district court
decision from Virginia in which that court                             And – and, in fact,
rejected a defendant’s motion for a                         Judge, as you read through
downward departure under Section 5K2.0                      t h e l i n e s h e r e , h is
based on his assistance to the SEC and                      cooperation with the FBI
foreign authorities. The court found that                   and later with the Securities
while those agencies were not involved in                   and Exchange Commission,
prosecuting offenses, the Sentencing                        a g a i n , t h o u s a nd s a n d
Commission likely assumed that Section                      thousands of boxes of
5K1.1 would encompass cooperation with                      documents, he copies for the
“a variety of government organizations,”                    SEC in their investigations.
including the SEC. United States v.
Dowdell, 272 F.Supp. 2d 583, 594                     App. at 31a. Jones himself stated similarly
(W.D.Va. 2003), reconsideration granted              at sentencing:
in part on other grounds, 2003 WL
22439643 (W.D.Va. Oct. 28, 2003).                           Following the work with
                                                            Special Agent Cosgraf and
       Jones does not dispute that the SEC                  the FBI, it was immediately
may qualify as an authority to which                        followed by the Securities
substantial assistance can be provided in                   and Exchange Commission
criminal investigations, nor that the list of               with a subpoena from them,
authorities may be expanded beyond the                      which required photocopies
federal government; instead, he argues that                 of an extreme amount of
he assisted the SEC in pursuing a civil                     documentation that was in –
investigation, a circumstance not                           in my files. There was –
contemplated by Love or Dowdell.                            there was probably well
                                                            over – you know – two
       Jones can hardly argue that the                      transfer files full, that was –
SEC’s investigation was unrelated to the                    that was photocopied.
potential criminal action. At sentencing,
Jones’ lawyer stated not once but twice              App. at 46a.
that Jones’ assistance to the two
government investigations was sequential.                   In light of Jones’ position in the
He stated that Jones bought the copy                 District Court, we need not remand for any
machine “so that he could copy the                   factual findings as to the relatedness of the
documents and get them to the FBI and                FBI and SEC investigations because the
later to the Securities and Exchange                 record of such relatedness is clear. The
Commission as part of the investigation              fact that the FBI discontinued its

                                                11
investigation while Jones continued his                within the heartland of a separate
assistance to the SEC does not negate the              Guideline provision cannot be the basis of
interconnection between the investigations             a departure under Section 5K2.0.
by both Government authorities. For                    Although substantial assistance in civil
example, had the SEC investigation                     matters may be recognized under Section
ultimately uncovered criminal acts by IRL,             5K2.0, we need not decide that issue under
there can be no doubt that those facts                 the facts of this case. Because Jones’
would have been transmitted to the FBI for             cooperation fell within Section 5K1.1 (had
its consideration for future prosecution.              the assistance been sufficiently substantial
                                                       to warrant the Government’s motion to
        The     p r e s e n te n c e r e p o rt        depart) and Section 3E1.1, it was not
recommended that Jones’ cooperation be                 appropriate for consideration under
taken into account under U.S. Sentencing               Section 5K2.0.        We reject Jones’
Guideline Section 3E1.1 providing that a               contention that the District Court erred as
district court may decrease a defendant’s              a matter of law in denying his motion for
offense level “[i]f the defendant clearly              departure under Section 5K2.0.
demonstrates acceptance of responsibility
for his [or her] offense,” which may be                                    III.
demonstrated by, inter alia, “voluntary
assistance to authorities in the recovery of                  For the reasons set forth above, we
the fruits and instrumentalities of the                will affirm the judgment of the District
offense.” U.S. Sentencing Guidelines                   Court.
Manual § 3E1.1 & cmt. n.1(e). The
District Court stated that it was doing so.
See App. at 74a (District Court stating, “I
think to the extent that the defendant has
cooperated, that should be taken care of
and the defendant should be credited
within the sentencing guidelines for his
cooperation with the SEC and all the other
efforts that have been outlined []”); App.
at 89a (District Court stating that Jones
“undertook efforts to cooperate with the
Government and provided reliable and
truthful information, however, it was not
significant enough to earn a 5K1[.1]
departure. Nevertheless, [] he should be
credited with that – with that effort”).

       Under Koon, a factor that fits

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