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July 31, 2023

FIRST STEP Act sentence reduction used to address "FBI invented" conspiracy in which feds were "the real lead conspirator"

The FIRST STEP Act's procedural changes to sentencing reduction motions pursuant to 18 USC § 3582(c)(1)(A) continue to provide not only a critical mechanism to address excessive federal prison sentences, but also a fascinating window on a wide array of problematic aspects of the federal criminal justice system.  Many so-called "compassionate release" motions are often efforts to reduce injustices as much they are efforts to increase compassion in our federal sentencing system.  The latest example of this dynamic story comes from New York federal courts as reported in this AP piece headlined "Judge orders release of 3 of ‘Newburgh Four’ and assails FBI’s role in a post-9/11 terror sting."  Here are the basics:

Three men convicted in a post-9/11 terrorism sting have been ordered freed from prison by a judge who deemed their lengthy sentences “unduly harsh and unjust” and decried the FBI’s role in radicalizing them in a plot to blow up New York synagogues and shoot down National Guard planes.

Onta Williams, David Williams and Laguerre Payen — three of the men known as the “Newburgh Four” — were “hapless, easily manipulated and penurious petty criminals” caught up more than a decade ago in a scheme driven by overzealous FBI agents and a dodgy informant, U.S. District Judge Colleen McMahon said in her ruling Thursday.

“The real lead conspirator was the United States,” McMahon wrote in granting the men’s request for compassionate release, effective in three months. She said that it was “heinous” of the men to agree to participate in what she called the government’s “made for TV movie.” But, the judge added, “the sentence was the product of a fictitious plot to do things that these men had never remotely contemplated, and that were never going to happen.”

She excoriated the government for sending “a villain” of an informant “to troll among the poorest and weakest of men for ‘terrorists’ who might prove susceptible to an offer of much-needed cash in exchange for committing a faux crime.” The U.S. attorney’s office declined to comment on the judge’s decision. A message seeking comment was sent to the FBI.

Citing concerns for the men’s health and her own qualms about the case, McMahon cut the 25-year mandatory minimum sentences she imposed on them in 2011 to time served plus 90 days. She said that would allow time for probation officials to prepare and for Payen’s lawyer to line up supportive housing for the man, who has a severe mental illness.

Judge McMahon's full opinion in US v. Williams, N. 09 CR 558 (CM) (SDNY July 27, 2023), is available at this link.  Here is just one notable passage in an opinion filled with notable passages:

For our purposes, suffice it to say the following: non-moving defendant Cromitie, the lead defendant in this case, was the object of a lengthy sting operation conducted by the FBI with the aid of a most unsavory “confidential informant,” Shaheed Hussain....  Over the course of the next few weeks, at Hussain's direction, he recruited David and Onta Williams and Laguerre Payen, to serve as “lookouts” while Cromitie planted “bombs” manufactured by the FBI at a synagogue and community center in Riverdale.  None of these three defendants had any history as terrorists; like Cromitie, they were impoverished small time grifters and drug users/street level dealers who could use some money. Payen in particular was of questionable mental acuity.  The three men were recruited so that Cromitie could conspire with someone; the real lead conspirator was the United States, but Cromitie could not conspire with the Government.

Nothing about the crimes of conviction was defendants' own doing.  The FBI invented the conspiracy; identified the targets; manufactured the ordnance; federalized what would otherwise have been a state crime (the Bronx “bomb” plot) by driving three of the four men (Onta Williams was not available) into Connecticut to view the “bombs” and “stinger missile launchers” that would be used in the operation; and picked the day for the “mission” (which was filmed in real time so it could be shown on television news the night the men were arrested). On May 20, Hussain drove the four men to Riverdale (they had no way to drive themselves); “armed” the “bomb” (because the hapless Cromitie, despite his “training,” could not figure out how to do it); and told Cromitie how to place the device while David Williams, Onta Williams and Payen performed lookout duty. As soon as the fake device was left by the community center door, law enforcement arrested the four men.

July 31, 2023 at 09:17 AM | Permalink


This is backdoor holding that these sting operations are illegal or quasi-illegal. DOJ should appeal to see if the Second Circuit agrees. It hasn't in the past and I doubt it will now.

"Compassion" is being used here as a (not very effective) cover for an ideological disagreement with law enforcement tactics. Of course a different judge could have a different view of the matter -- leading to exactly what the SRA of 1984 was enacted to avoid: sentencing as a reflection of the varying tastes of individual judges.

Posted by: Bill Otis | Jul 31, 2023 9:35:55 AM

Bill, the FIRST STEP Act, passed by a GOP-controlled Congress at the behest of then Prez Donald Trump, created a new front door for judicial sentence reductions whenever a prisoner presents "extraordinary and compelling" circumstances. Judge McMahon decided here, in the words of one of her opinion headings, that "The Extraordinary Length of the Defendants' Sentence, Which Was Entirely the Product of the Government's Conduct, Qualifies as An Extraordinary and Compelling Circumstance Warranting Compassionate Relief."

Judge McMahon did not declare the hinky FBI behavior to be illegal or quasi-illegal, she just took seriously the Second Circuit's repeated rulings that "district courts have discretion to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before [the court] in motions for compassionate release." And if that's not how Congress wants the system to work --- even though we're now nearly five years into thousands of prisoners getting sentence reductions under the FIRST STEP Act --- it is up to Congress to amend the Trump-era reforms.

More broadly, thanks in part to lots of high-profile ugliness in a lots of high-profile cases, it seems a growing number of individuals on both sides of the political aisle are getting less keen on blind deference to everything the DOJ and the FBI claim are sound practices. This ruling provides reason to hope that scrutiny of the suspect tactics and choices of law enforcement will happen in all cases, not just in those cases of persons with well-known political names.

Posted by: Doug B | Jul 31, 2023 10:59:28 AM

While serving time at FCI - Cumberland, Maryland in 2002 or 2003, I first saw a case where the Government's agents violated the law, which provides that for there to be a conspiracy, the defendant must conspire with someone who is not a Government agent or informant. The theory is that no Government agent or informant would actually carry out the crime being contemplated, because he or she works for law enforcement. Another inmate at the prison had owned a chemicals business on the street, in the Free World. Federal DEA agents approached him, and asked him to voluntarily provide them with a list of all of his customers who had purchased chemicals off a list viewed as precursors for making methamphetamine. The business owner declined to voluntarily cooperate, but stated that he would comply with their request only if they brought him a search warrant. Instead, the DEA sent a confidential informant to buy chemicals from the business, and then indicted the owner for conspiracy to sell and distribute precursor chemicals for making meth. He was convicted at trial, with the DEA's informant listed in the indictment as his co-conspirator. During discovery and trial, and thereafter, while the case was on appeal, the Government never complied with their discovery obligations under Brady v. Maryland and other law, to disclose that the defendant's sole alleged co-conspirator was a paid confidential informant. The incarcerated defendant filed his own Freedom of Information Act requests with the DEQA, concerning his alleged co-conspirator. I was with him in the prison law library when he opened the response envelope after mail call. Inside the envelope were ledger sheets and copies of cancelled checks, showing the DEA's payments to their confidential informant, his alleged co-conspirator. I helped this man do the legal research, write and type his Motion for Habeas Corpus (2255). His conviction was vacated and the indictment was dismissed. Law enforcement can sometimes engage in despicable conduct, and when they get caught, agents are rarely prosecuted for it.

Posted by: Jim Gormley | Jul 31, 2023 11:30:44 AM

Doug --

So a judge who very much dislikes this sort of (legal if in some precincts unpopular) sting operation could grant a fat sentencing reduction in a case like this, while a judge across the hall who is more accepting because he sees such operations as a necessary evil could, in an identical case, refuse any sentencing reduction at all.

The motto above the Supreme Court is, "Equal Justice Under Law." Such a result makes a mockery of that ideal. And a sentencing law that allows luck-of-the-draw outcomes brings the courts into disrepute.

Posted by: Bill Otis | Jul 31, 2023 11:39:20 AM

The problem, of course, is that “extraordinary and compelling,” can mean whatever a liberal judge wants it to mean.

Posted by: TarlsQtr | Jul 31, 2023 12:00:47 PM

TarlsQtr --

Exactly. When the statutory language has no very well-defined standard, you can get any result at all, depending on the lottery of whether you get a mushy or a hard-line judge. This may be many things, but equal justice under law is not one of them.

If a Jan. 6 defendant got a fat sentencing reduction because the judge thought the prosecution was excessively political, the liberals would be screaming. It's enough to give hypocrisy a bad name.

Posted by: Bill Otis | Jul 31, 2023 12:27:42 PM

Doug --

Suppose the defendant was born and raised in a foreign country where the blue-uniformed police were routinely violent and sadistic. He says (truthfully for once) that, because the police who arrested him here wore blue, he experienced a huge amount of terror and panic, much more than the typical arrestee, and that this is an "extraordinary and compelling" reason to give him a fat sentencing reduction.

In your view, should he prevail? Get a lower sentence than an identically situated domestically born defendant because of the color of the cop's uniform?

Posted by: Bill Otis | Jul 31, 2023 12:42:19 PM

Two basic responses:

1. Prosecutors in plea negotiations define the essential terms of sentencing in 98 out of every 100 cases (and the are so many pleas because every defense attorney knows of the need to play nice with the de facto sentencing authority, the oft-hidden federal prosecutor). The contrast is that there is no law defining if/when a prosecutor is to bring (or drop) certain charges AND there is no accounting of the decisions made behind closed doors. In the case of judicial sentencing (or sentencing reductions), all of the arguments are made on the record, based on statutory, guideline and case law, and are subject to appellate review. If someone is genuinely concerned about "equal justice under law," isn't the decision-making of unknown AUSAs a much bigger worry?

It is 100% true that different people will make all sorts of different sentencing judgments because there is really no sound metric for the "right" sentencing judgment. That is why I think there should be enforceable law to guide a sentencing decision-maker to consider relevant concerns and then make a judgment with an explanation on the record subject to review. That is how federal judicial sentencing functions, but not how prosecutorial sentencing functions (some of whom are mushy and some are hard-line; in the Hunter Biden case, a couple of hard-liners are suspected of becoming mushy). I think there are about 4000 AUSAs exercising sentencing discretion, but we do not know who they are because they hide back rooms, they do not explain the basis for their decisions, and except in rare cases (Hunter) judges do not demand much in the way of an explanation for whether they are being mushy or hard-line. Deep state gonna deep state, I suppose.

2. Given that most motions for sentence reductions are denied, I worry more that “extraordinary and compelling,” can mean whatever a conservative judge wants it to mean. Judges also have to decided that the sentencing purposes Congress wrote into 3553(a) are consistent with a sentence reduction (and that also can be subject to appellate review), so there is a double-check that reductions are only given when warranted by two standards. If there is genuine concern about "equal justice under law," should we worry about those judges who fail to grant any of these motions as much as we worry about those granting too many sentence reductions?

Posted by: Doug B | Jul 31, 2023 1:42:55 PM


Here's another problem. Doug, what sort of remedy are you calling for now?

Posted by: federalist | Jul 31, 2023 2:18:08 PM

I am always keen, federalist, on stripping prosecutors of made up immunities and subjecting them to civil and criminal remedies (like everyone else) for intentional misconduct and abusive use of government powers. Would you join me in supporting civil and criminal sanctions, and no immunities, for federal law enforcement official who engage in intentional misconduct?

I believe your remedy, federalist, was to allow all persons being federal prosecuted (and in prison?) for drug offenses to be free. Is that the remedy you have in mind? Is that still what you are advocating for in response to the Hunter ugliness?

Posted by: Doug B | Jul 31, 2023 2:50:12 PM

Hunter Biden, his attorneys and the DOJ attorneys/ AUSAs must realize by now that this District Judge will not go along with a deal that gives Hunter virtual blanket immunity against any further charges in the future, including failure to register as a foreign agent. While the DOJ may have tried to insulate the immunity guarantee by placing it in the separate diversion agreement, which does not require the Court's approval, the Judge can still reject the other part of the deal, the guilty plea for 2 misdemeanor tax charges, with probation recommended. She could reject the probation, and say that she thinks that the charges require prison time. Since this is a "wired plea", as I understand it, Biden would then have the right to withdraw his guilty plea and reject the deal. Another problem is the public perception of the immunity provisions set forth in the diversion agreement. The Judge exposed those in Court last week, and now the press, the public and hundreds of thousands of attorneys understand what the DOJ is trying to do here, and that it is UNPRECEDENTED. Given the public exposure, I don't see how the DOJ can go forward with teh promised blanket immunity from further charges. If Hunter failed to register as a foreign agent, one of the people he lobbied (or sought to lobby) was his father, the Vice President back in 2015-2016 and now POTUS. The appearance of impropriety would be overwhelming. Maybe Joe Biden can pardon Hunter and then resign from office; and Vice President Harris can pardon Joe Biden once she is sworn in as POTUS. Then California Gavin Newsome can step up to become the Democratic candidate for President.

Posted by: Jim Gormley | Jul 31, 2023 3:11:33 PM

Doug, what you're seeing here is the corruption of the DOJ--all in the service of the political interests of the Democrat party. This undercuts the status of of our nation as a free society. Let's review what has happened, as the lenience towards Hunter (and the outright lying to a federal judge in papers filed with the court) has context.

(1) The Steele Dossier--the DOJ manufactured a case against Trump out of thin air--recall that Strzok said that there was no there there. Recall also that Strzok and Page had it in for Trump and said that they'd prevent him from being President.

(2) Hillary. Her criminality is obvious to ANYONE who handled classified info, yet . . . .

(3) The Ashley Diary Prosecution.

(4) The Flynn Logan Act investigation.

And you want to deflect , , , , sorry no dice.

Posted by: federalist | Jul 31, 2023 5:36:29 PM

To say DOJ/FBI misconduct/bias --- as well as lots of other law enforcement misconduct/bias --- started many, many years before Trump came along is not deflection, it is a recognition that this is nothing new, just a variation on old statist problems with law enforcement ever inclined to apply state power with the various biases of the era. Who cares most about the latest variations on abuses/biases of state power is somewhat new, but you have yet to explain what remedy you are looking for. So I will ask again: Would you join me in supporting civil and criminal sanctions, and no immunities, for federal law enforcement officials who engage in misconduct? If not, what remedy are you looking for? Are you still saying the DOJ/FBI should not be able to prosecute any drug offenders? Anyone at all?

Posted by: Doug B | Jul 31, 2023 8:27:37 PM

Doug --

"I am always keen, federalist, on stripping prosecutors of made up immunities and subjecting them to civil and criminal remedies (like everyone else) for intentional misconduct and abusive use of government powers."

First, prosecutors are already subject to criminal remedies when their behavior is actually criminal; QI is a defense only to civil complaints. I'm sure you already know this.

Second, surely you don't propose to put AUSAs in jail merely for "abusive" use of government power, do you? Being a person who supports drug legalization, isn't it your view that an AUSA who brings a cocaine distribution case is guilty of "abusive" behavior? So he should be punished for doing his job under settled law? How about if he wants to use acquitted conduct in his sentencing memo? Jail for that "abuse," too?

Wanting to jail prosecutors for "abusive" (your chosen word) behavior rather than ILLEGAL behavior seems to me to show exactly the punitive turn of mind that, in other contexts, you decry. This is not to mention that everyone is going to have a different definition of what exactly is "abusive."

Third, should we also strip judges and jurors of QI? Why not? Suppose they're in on a case in which they convict a person who later turns out to be factually innocent.

Fourth, why does this immunity discussion go on and on without any citation to Imbler v. Pachtman, the Supreme Court case on the question? A discussion like that has all the intellectual bona fides of discussing acquitted conduct while never mentioning, much less coming to serious grips with, Watts. Or discussing the legitimacy of plea bargaining without mentioning Brady v. United States or Santobello v. New York.

Posted by: Bill Otis | Aug 1, 2023 8:30:16 AM

All reasonable questions, Bill, that help account for why I keep asking for federalist's views on this front. He has at least twice in recent comment threads (and dozens of times in others threads) complained of how the DOJ/FBI has handled Hunter and asked me about "what sort of remedy" should follow. My immunity comment comes in that context.

In other threads, federalist propounded the notion that federal judges should, based on the Equal Protection Clause, block other completely unrelated DOJ/FBI prosecutions. I am still waiting to hear exactly whose federal prosecutions federalist thinks should be constitutionally blocked due to how DOJ/FBI has handled Hunter, and I have noted that thousands of defendants being federal prosecuted/sentenced every week (not to mention tens of thousands imprisoned since Hunter began his crime spree) would certain welcome briefing on his theory of new Hunter-EPC constitutional remedy to limit DOJ/FBI prosecutions.

I have suggested another remedy for claimed prosecutorial (and broader law enforcement) corruption -- allowing the pursuit of more robust "civil and criminal remedies ... for intentional misconduct and abusive use of government powers." Power corrupts and absolute immunity shields and empowers corrupt use of power. I believe Judge Ho and others have recently develop claims that "the doctrine of prosecutorial immunity appears to be mistaken as an original matter." And I have long thought Imbler goes too far to insulate intentional misconduct and abusive government powers, ergo my hope that federalist and perhaps others on the right will be moved by recent examples of (rampant?) federal law enforcement misconduct to seek expanded remedies for such misconduct.

I certainly do not think prosecutors or other law enforcement actors should get in trouble for reasonable efforts to do their job under existing law (though federalist sometimes seems to suggest prison guards can sometimes be violently attacked by some prisoners for doing their job under existing law). I do think there ought to be more remedies for intentional misconduct and abusive use of government powers without too many ahistorical, made up immunities getting in the way. And I certainly think remedies should include lots more discovery of how prosecutors make decisions concerning the use of government power to harm citizens (or give some citizens special breaks) through the criminal process.

Posted by: Doug B | Aug 1, 2023 9:54:01 AM

I agree with Bill's initial post/comment: the SDNY should appeal the decision and argue, as other Circuits have held, that the length of a lawfully imposed sentence can NEVER be an extraordinary and compelling reason for a sentence reduction. I grant that the Court could have considered those things at step two of the analysis -- in deciding how much of a reduction to give to an otherwise-eligible defendant. But the Court could not use those reasons at step one of the 3582(c)(1)(A) process.

Posted by: Da Man | Aug 1, 2023 2:08:06 PM

Da Man --

Just so. I would appeal on two grounds: that the government's use of a legal and long-standing (if controversial) investigative tactic can never, as a matter of policy, count as an "extraordinary" grounds for a sentencing reduction; and that, even if otherwise, a sting is anything but extraordinary (they're used routinely) and therefore does not meet the FSA statutory requirement in any event.

Posted by: Bill Otis | Aug 1, 2023 3:39:04 PM

Da Man --

Just so. I would appeal on two grounds: that the government's use of a legal and long-standing (if controversial) investigative tactic can never, as a matter of policy, count as an "extraordinary" grounds for a sentencing reduction; and that, even if otherwise, a sting is anything but extraordinary (they're used routinely) and therefore does not meet the FSA statutory requirement in any event.

Posted by: Bill Otis | Aug 1, 2023 3:39:04 PM

No argument from me. I'm sure Doug would parachute in with an amicus brief extolling the District Judge's sticking a finger in the DOJ's eye.

Posted by: Da Man | Aug 1, 2023 6:02:31 PM

Doug, a partisan law enforcement agency (and it's plain DOJ is) presents problems on a scale far more than pushing the line regarding entrapment.

And a judge that goes along with it, looking at you Emmett Sullivan, is a disgrace. Will you join me, Doug, in criticizing Sullivan providing cover for the withholding of Brady material?

Posted by: federalist | Aug 2, 2023 11:49:23 AM

Da Man, the opinion states that the judge's E&C determination was based, in part, on the fact that the "sentences imposed in this case were entirely the product of government manipulation." That seems a reason distinct from the length of the sentence. In addition, the judge further explained "that each of the three defendants has identified factors independent of his overly long sentence that, taken together with the contrived overly long sentence, can and should be considered 'extraordinary and compelling' for purposes of his motion for compassionate release."

Of course, DOJ is at liberty to appeal all of the stated reasons -- and appeals are an important part of developing and improving sentencing laws. I respect DOJ's right to appeal, and I hope lots of friendly folks would submit briefs so that the appeals court could make a reasoned and informed decision if DOJ decides to appeal (though the 2d Cir might need to go en banc if it wanted to reconsider its prior rulings that "district courts have discretion to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before [the court] in motions for compassionate release").

I must note here that Bill, as seems to be his tendency, wants to make up stuff "as a matter of policy" that has no basis in statutory text. Neither DOJ nor circuit courts have authority to make "policy rules" to categorically limit E&C reasons for a sentencing reduction. Congress authorized only the US Sentencing Commission to make categorical rules here (and the opinion in this case also references the USSC's new rules that formally become effective Nov 1).

federalist: can you point me to the ruling by Judge Sullivan that you want me to criticize? When I searched for it on Google, the first item that came up was a news piece from 2009 that started: "Judge Emmet Sullivan said today that in his 25 years on the bench, he had never seen anything approaching the 'mishandling and misconduct' perpetrated by the government in the case of former Alaskan Sen. Ted Stevens, who was convicted on corruption charges in October." https://legaltimes.typepad.com/blt/2009/04/judge-sullivan-says-doj-needs-brady-training.html

Posted by: Doug B | Aug 2, 2023 3:38:48 PM

On the Emmett Sullivan thing, federalist is adopting a position urged by Sidney Powell, who apparently was once a competent federal appellate litigator but clearly now is not tethered to facts and appears to be deranged.

Posted by: Fat Bastard | Aug 2, 2023 6:24:14 PM

Fat Bastard, you are a moron. The FBI did not turn over the interviewers' assessment of Flynn's truthfulness--clear Brady material. And Sullivan said, in an opinion, that those materials were not exculpatory.

Posted by: federalist | Aug 3, 2023 1:19:41 PM

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