United States v. Idone , 38 F.3d 693 ( 1994 )

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Precedential or Non-Precedential: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
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Recommended Citation
"USA v. Idone" (1994). 1994 Decisions. Paper 164.
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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.