Federal Judiciary

Eighth Circuit Notes Split Re Whether Assistance to State or Local Authorities Can Be a Basis for the Govt's Filing of a Motion for Downward Departure

By A. Benjamin Spencer

We have not previously ruled on whether assistance to state or local authorities can be a basis for the government filing a motion under § 3553(e) or § 5K1.1. Other circuits have addressed this issue, however, and the result has been a circuit split. Compare United States v. Love, 985 F.2d 732, 734-35 (3d Cir.1993) (concluding that the measure of assistance provided by the defendant should not be limited to assistance provided to federal authorities), and United States v. Emery, 34 F.3d 911, 913 (9th Cir.1994) (following Love ), with United States v. Kaye, 140 F.3d 86, 87-88 (2d Cir.1998) (a divided court declined to follow Love and concluded that assistance must be provided to federal authorities for purposes of a motion under § 3553(e) or § 5K1.1, but that such assistance may be considered by the district court under U . S.S.G. § 5K2.0). While we have not reached this issue directly, the government notes in its brief that assistance to state authorities can be the basis for filing a § 5K1.1 motion, and that in the past it has entered into agreements with defendants for the assistance of a third party in exchange for filing a motion for downward departure for the defendant.

Full post as published by Split Circuits on January 15, 2008 (boomark / email).