Even when you, the offender, help the government by providing really important substantial assistance in the investigation or prosecution of another person, if the prosecutors and the case agents are pissed off at you because you played games with them, it is very hard to get a sentence-reduction motion. See, e.g., United States v. Scarpa, No. 16-303 (2^d Cir. June 22, 2017) (while it was undisputed that Scarpa, a “made member” of the Colombo crime family, had provided substantial assistance in locating Terry Nichols’[i] long-hidden cache of explosive components, because the defendant was otherwise a lying sleaze ball[ii], the district court lacked authority to compel the government to file a substantial-assistance motion and reduce the defendant’s sentence by 10 years; a district court “may not override the government’s refusal to make a [sentence-reduction] motion on the basis of the court’s own balancing of the costs and benefits of making such a motion.”)

Nonetheless, as I have learned over the last 25-plus years, sometimes a federal district judge must get down and dirty with intransigent prosecutors. The judge must slap the government upside the head.

Attribution (as requested): WorldArtsMe

This post is about Mary Ann Rounsavall. It is also a post about my long wrestling match with a line prosecutor over his refusal to file a motion to allow me to go below the statutory minimum because of Rounsavall’s substantial assistance in the prosecution of her brother.

You first need to know the background. It is complex, so bear with me as I bring you up to speed.

On November 9, 1995, Mary Ann Rounsavall entered into a plea agreement with the government. As part of her agreement, she pled guilty to drug and money-laundering charges. Absent such an agreement, she would have faced 360 months to life with a statutory minimum of 20 years. Her agreement with the government provided that if she cooperated in the prosecution of her brother, the government would consider filing a motion allowing her to receive a sentence at or below the statutory mandatory minimum.

According to an affidavit submitted by Rounsavall, the line prosecutor told Rounsavall that he did not want or believe that she should go to prison for the 20  years required by the statutory mandatory minimum sentence. If she complied with the terms of the plea agreement and gave completely truthful testimony, the line prosecutor indicated that Rounsavall might expect to receive somewhere between seven to ten years for her cooperation, although the decision as to the length of her sentence would be entirely up to the judge.

Rounsavall testified against her brother in two separate criminal proceedings. First, she testified against her brother at his drug and money-laundering trial. During his trial, she testified for four days. She also testified against her brother for an additional day at a forfeiture proceeding. All told, she testified for five days, longer than any other witness, in helping the government convict her brother and secure a life sentence against him.

Ultimately, the government filed a § 5K1.1[iii] motion under the United States Sentencing Guidelines, but not an 18 U.S.C. § 3553(e) motion. That meant I could not go below the statutory minimum sentence, although I was permitted to depart from the Guideline range. Based upon the government’s filing of the § 5K1.1 motion, I sentenced Rounsavall to 20 years, the lowest possible sentence I could impose under the statutory mandatory minimum. Because the government withheld filing a § 3553(e) motion, I could not further lower Rounsavall’s sentence.

Before sentencing, I demanded that the United States Attorney submit an affidavit explaining the decision of the line prosecutor not to file a § 3553(e) motion. According to the affidavit of United States Attorney Thomas Monaghan, the government considered, but decided against, filing a § 3553(e) motion for the following reasons:

(a) the failure of the defendant to cooperate with the government until the second trial[iv]; (b) the fact that a portion of her testimony regarding money laundering given during a trial against a codefendant was not accurate or complete; (c) the fact that no other persons can be prosecuted as a result of her cooperation; and (d) the fact that she violated her plea agreement by not giving reliable and complete testimony regarding money laundering.

He also stated that the government initially sought Rounsavall’s assistance because the government believed that once she helped in the prosecution, Rounsavall’s brother would also cooperate. My guess is that the government hoped he would roll over and give up his very significant connections in California. The brother did not cave, and I sentenced him to life in prison after a jury found him guilty.

I took Mr. Monaghan[v] at his word. I denied an evidentiary hearing, where witnesses could be called, because I feared probing any further into the deliberative processes of the Executive. Moreover, I was uncertain about how the Eighth Circuit viewed such matters. That said, I strongly disagreed with the government’s refusal and made a substantial record of my disagreement in anticipation of an appeal. The Eighth Circuit, quoting my statements at length about why the government was in error, reversed and remanded for an evidentiary hearing. United States v. Rounsavall, 128 F.3d 665 (8^th Cir. 1997). That made me happy and, far more importantly, greenlighted me to probe the inner processes of the government.

So a full-blown evidentiary hearing was scheduled. Monaghan personally appeared to handle the matter. He remained firm in his opposition to the motion to compel the government to file the reduction motion. The hearing was heated. It is fair to say that I was very aggressive in questioning and at oral argument.

At the conclusion of the hearing, I called Monaghan and defense counsel to the bench. I told the United States Attorney that I would make a ruling in ten days in a written opinion that the government would hate. The hearing and my statement to the lawyers took place on December 4, 1998.

On December 11, 1998, a joint motion was filed invoking the sentence-reduction provisions of 18 U.S.C. § 3553(e). United States v. Rounsavall, 29 F. Supp. 2d 592 (D. Neb. 1998). The government agreed to sign the motion “based upon the defendant’s cooperation with law enforcement, after December 4, 1998, in the investigation of others who have committed crimes.” (Italics added by Kopf.) Mary Ann Rounsavall agreed to withdraw her motion to compel. On January 8, 1999, I reduced Rounsavall’s sentence to 84 months, down from the statutory minimum sentence of 240 months.

As I said earlier, sometimes a federal district judge must slap the government upside the head. But it takes patience and a bit of guile to make the slap stick.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] You will remember that Nichols was a convicted coconspirator of the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City.

[ii] Although “lying sleaze ball” is my characterization, it is accurate enough for government work.

[iii] Hit “Read the Manual,” then select “Chapter 5,” then click on the PDF button. Once the PDF opens, scroll down to § 5K1.1.

[iv] There were actually three trials. The first trial ended in a mistrial shortly after it began when a witness against Rounsavall and her brother bleated out something improper. The second trial ended in a mistrial because her brother had to be hospitalized during trial. Prior to the third trial, Rounsavall saw the light, pleaded guilty, and agreed to testify against her brother.

[v] Tom and I were in the same 1972 law school class. He was appointed as the USA by President Clinton after serving as Chair of the Nebraska Democratic Party. Despite the fact he was and is a Democrat (being a realist, I relish the irrelevant), we were and are friends, although we don’t socialize in any meaningful sense. I knew then, and believe now, that Monaghan was and is tough as a boot, yet a straight shooter.

He sincerely believed what he said in his sworn affidavit when he backed up his line prosecutor and explained the decision not to file the motion. Nevertheless, I thought he was grievously in error. By the way, Tom later served the United Nations in Kosovo as the Director of the Department of Justice. He also was lead trial counsel with his partner, a former FBI agent and former prosecutor, representing sex offenders who successfully challenged Nebraska’s idiotic and blatantly unconstitutional restrictions on the use of the Internet by such offenders. See Doe v. Nebraska, 898 F. Supp. 2d 1086 (D. Neb. 2012) (“Mr. Stuart Dornan, a former FBI agent and a former County Attorney for Douglas County, Nebraska (Omaha), and Mr. Thomas Monaghan, a former United States Attorney for the District of Nebraska, took the plaintiffs’ case despite the fact the plaintiffs are viewed as lepers by many Nebraskans. By taking this case, both men were sure to displease and disappoint their former law-enforcement friends and colleagues. The decision to represent these unpopular plaintiffs took courage and is an example of the highest traditions of the bar of this court.”)