United States v. Timothy Threw

WILL, Senior District Judge,

dissenting.

While I agree with much of the majority opinion’s observations about the impropriety of the proffer letter and the use made of it here by the government, I do not agree that the government’s conduct did not result in an illegal and unconstitutional sentence.

*1052 There is no dispute that, if the defendant had been granted derivative use immunity, Kastigar v. United States, 406 U.S. 441 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972), would have precluded the government from using any of the evidence voluntarily given it by the defendant either at a trial or at sentencing.

The use of the so-called “proffer letter” in lieu of a grant of derivative use immunity makes it possible for the prosecution, as it did here, to create a “Catch-22” dilemma for a defendant. It also makes it possible for the prosecution to avoid the clear implications of Kastigar as well as to double-cross a defendant who accepts the proffer, bares his soul and then has his confessed sins brought forward at sentencing and made the basis for a more substantial sentence than he would otherwise have received on the offense to which he pled guilty. The United States government should be above such trickery.

Derivative use immunity provides the prosecution with all the tools it needs and, as the Court said in Kastigar, 406 U.S. at 458 , 92 S.Ct. at 1664 , it provides a defendant with all the protection the Constitution mandates. As this case demonstrates and the majority recognizes, “proffer letters” are subject to abuse and should not be utilized as a substitute for a grant of derivative use immunity.

The majority opinion holds that, while the government’s conduct and double-talk was a breach of contract and unfortunate, it was not error for the government to disclose and the sentencing judge to take into consideration information obtained from the defendant which would not have been obtained without the express representation that, as Kastigar mandates, it would not be used against him. The majority goes so far as to state that “not to have considered the information would have constituted a violation of the court’s statutory duty,” referring to 18 U.S.C. § 3661 .

The sentencing judge was obviously not aware that the information in aggravation presented by the government at the sentencing hearing had been obtained by false promises that it would not be used against the defendant. But the government’s conduct here not only was a breach of contract, it raises a serious Fifth Amendment question.

The government obtained a waiver by Threw of his Fifth Amendment privilege against self-incrimination without advising him, as Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) requires, that anything he said might be used against him. On the contrary, he was told that it would not be so used. While 18 U.S.C. § 3661 prohibits limitations being placed on the information to be received by a court in connection with sentencing, it does not compel that all information regardless of how obtained be given to the sentencing judge. It obviously could not and does not amend the Fifth Amendment to authorize tricking a defendant into waiving his constitutional privilege nor does it reverse Miranda or Kastigar . Nor does it impose a duty on the court, as the majority apparently believes, to consider information obtained unconstitutionally. Clearly, Section 3661 must be read to be consistent with the Constitution and the decided cases. It cannot be read to compel the presentation to a court or its use by a judge of information obtained unconstitutionally.

The sentence here was clearly based in large part on information obtained by the prosecution in violation of the Fifth Amendment and which should not have been considered by the sentencing judge. I would vacate the sentence and remand for resentencing consistent herewith rather than finding the sentence valid and suggesting that Threw resort to Rule 35 and hope for a reduction in what the majority apparently agrees is an excessive sentence in a one-count first offense marijuana case.