Court Upholds Government's Failure to Move for Third-Point Reduction Under 3E1.1

US v. Chase: Chase pleaded guilty to distributing drugs within 1000 feet of a school, based on several controlled buys. When he was arrested on state charges, the name he gave to the officers was actually his brother's, which led to his brother's brief term of custody upon being arrested when the federal indictment came down in the brother's name. Chase entered into a plea agreement in which the Government agreed to move for the third point under USSG 3E1.1 if Chase (1) paid his $100 special assessment within 40 days of entering his plea, and (2) fully cooperated with the Government.

At sentencing, the Government refused to move for the third point because the special assessment was not paid and Chase was not completely forthcoming about his offense (for instance, he could only name his source as "a white guy named Steve"). Chase recognized that the district court could not sua sponte award the third point, but asked for a sentence which "nonetheless reflects the additional one level." The district court sentenced Chase to 210 months in prison, the bottom of the Guideline range.

On appeal, Chase argued that the Government breached the plea agreement by refusing to move for the third point. The Fourth rejected that argument, noting that Chase failed to pay the assessment (protestations of inability to pay notwithstanding) and that successful cooperation was determined by the Government, which concluded that Chase was not fully forthcoming about his dealings. The court also rejected Chase's contention that the district court could award the third point without a motion from the Government.

New Rules

There are several changes to the Rules of Criminal Procedure, Appellate Procedure, and Evidence. They will take effect on December 1, 2006, unless Congress intervenes.

Criminal Procedure

• Rules 5(c), 32.1, and 41 have been amended to allow for the filing of certain documents (warrants and orders related to out-of-district arrests) with a magistrate judge by "reliable electronic means"
• Rule 6 has been amended stylistically, only to conform with the conventions adopted during the recent overhaul of the Rules
• Rule 40 has been amended to allow a magistrate judge to set bond for a person arrested for violating bond conditions set in another district (the current rule precluded release except, oddly, if the violation was for failing to appear)
• Rule 41 has been amended, setting forth procedural guidance for the issuance of tracking device warrants
• Rule 58 has been amended to clarify that a defendant's right to a preliminary hearing is governed by Rule 5.1 and is not limited to those in custody
  

Appellate Procedure

• Rule 25 has been amended to allow the Circuits to allow filing by electronic means
• Rule 32.1 has been added dealing with citation to "unpublished" decisions. Prohibitions on citation to such opinions will no longer be valid for opinions handed down after January 1, 2007. However, the rule does not require the Circuits to give such opinions any precidential weight (or prohibit them from doing so).
  

Evidence

• Rule 404 has been amended to clarify the use of character evidence in civil cases
• Rule 408 has been amended to resolve several conflicts among the Circuits. Of relevance to criminal practice (perhaps), the amended rule prohibits statements made by a party during settlement negotiations from being used to impeach a witness as a prior inconsistent statement.
  
• Rule 606 has been amended to provide that testimony from jurors regarding their verdict is proper only when there is an allegation of "mistake in entering the verdict onto the verdict form."
• Rule 609 has been amended to provide that automatic impeachment of a witness via prior convictions is proper only "if it is readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."
  

All these rules (along with Bankruptcy and CivPro rules) can be found here in one big whopping PDF file.