Mr. McEWEN. Mr. Speaker, I rise to notify the House that at the beginning of tomorrow's session, I intend to call up a resolution raising a question of House privileges relating to a letter written by a House committee staff member to a Federal judge urging a reduced sentence for a convicted arms dealer.
I intend to offer this privileged resolution just prior to consideration of the rule pertaining to debate on House Resolution 258, otherwise known as the October Surprise task force.
For the benefit of my colleagues, I am now submitting a copy of my resolution along with certain background material so that all Members may review it prior to the calling up of the resolution tomorrow. The intent of the resolution is simply to have the House Bipartisan Legal Advisory Group look into this matter and report back to the House at the earliest practicable date. It is a straightforward resolution, and one which I would urge all of my colleagues to support.
Whereas on January 10, 1992, the chief counsel of the House Committee on Foreign Affairs wrote to the U.S. District Court of New York requesting leniency in the sentencing of Mr. Dirk Stoffberg, a convicted arms dealer, on grounds that he had provided the committee with evidence regarding the so-called `October Surprise;'
Whereas the chief counsel's letter was sent on committee letterhead purporting to be on behalf of the `House of Representatives Committee on Foreign Affairs * * * in an ongoing investigation;'
Whereas the U.S. District Court consequently granted the request for a reduced sentence on grounds that, `Comity between independent branches of government suggests the desirability of assisting Congress in its important work where there is no strong conflict with a court's other sentencing responsibilities;'
Whereas the Federal District judge further indicated in his sentencing `Memorandum and Order' that, `were it not for the intervention of Congress,' the defendant would have been sentenced to a longer term of imprisonment `because he threatened violence during the course of his criminal activity;'
Whereas neither the House, the Committee on Foreign Affairs nor any subcommittee thereof has ever authorized an investigation into the `October Surprise' allegations;
Whereas the House Bipartisan Legal Advisory Group has not authorized any intention in the sentencing proceeding on behalf of the House or any of its committees;
Whereas at the time the chief counsel's letter was submitted to the U.S. District Court a resolution authorizing a special task force investigation into the `October Surprise' allegations was still pending in the House and had not yet been acted upon;
Whereas the misrepresentation of the position of the House and its committees in a judicial proceeding by an employee affects the rights of the House collectively, its dignity, and the integrity of its proceedings, and thereby raises a question of the privileges of the House under Rule IX: Now, therefore, be it
Resolved, That the House Bipartisan Legal Advisory Group (consisting of the Speaker, the majority and minority leaders, and the majority and minority whips) is hereby authorized and directed to inquire fully into the facts and circumstances surrounding the intervention by the chief counsel of the House Committee on Foreign Affairs in the sentencing of Mr. Dirk Stoffberg by the U.S. District Court for the Eastern District of New York and to submit to the House at the earliest practicable date but not later than 45 legislative days after enactment, its findings thereon together with any action taken or recommendations made in response to such incident or to prevent the recurrence of such unauthorized interventions in judicial proceedings by House Members, officers, or employees.
House of Representatives,
Washington, DC, January 10, 1992.
Hon Jack B. Weinstein,
U.S. District Court Judge, U.S. District Court, Eastern District of New York, Brooklyn, NY.
Dear Judge Weinstein: Mr. Dirk Francois Stoffberg has to date provided the House of Representatives Committee on Foreign Affairs with substantial assistance in an on-going investigation. It is expected that this substantial assistance will continue into the future.
In addition, Mr. Stoffberg has offered to have his testimony preserved by deposition. He has also agreed to testify at any open or closed Congressional hearing if and when requested to do so. Our investigation pertains to the question whether the 52 Americans taken captive in Iran were held past the election of 1980 in violation of any U.S. laws. this issue is commonly referred to as the `October Surprise.'
Although Mr. Stoffberg's cooperation may not lead to any criminal action, the information which he has voluntarily provided to us has already been helpful and, to some extent, has been corroborated by other evidence. I would, therefore, request that Mr. Stoffberg's cooperation be taken into consideration by you in the determination of his sentence.
I would be pleased to discuss the matter of Mr. Stoffberg's cooperation with you or your law clerk at any time before Mr. Stoffberg's sentencing.
R. Spencer Oliver,
Defendant pled guilty to violation of munitions export laws. His sentencing guideline range is 8-14 months. Because he threatened violence during the course of his criminal activity, defendant would have been sentenced to 13 months, near the top of the guideline range, were it not for the intervention of Congress. He has already been in custody for 8 1/2 months. The case poses the question: can a request for clemency by Congress support a downward departure in the guideline offense level? As indicated below, the answer is yes.
The Chief Counsel of the Committee on Foreign Affairs of the House of representatives requests that the court consider defendant's cooperation with the Committee. The letter reads:
`ONE HUNDRED SECOND CONGRESS, CONGRESS OF THE UNITED STATES, COMMITTEE ON FOREIGN AFFAIRS, HOUSE OF REPRESENTATIVES,
Washington, DC, January 10, 1992.
Dear Judge Weinstein: Mr. Dirk Francois Stoffberg has to date provided the House of Representatives Committee on Foreign Affairs with substantial assistance in an on-going investigation. It is expected that this assistance will continue into the future.
`In addition, Mr. Stoffberg has offered to have his testimony preserved by deposition. He has also agreed to testify at any open or closed Congressional hearing if and when requested to do so. Our investigation pertains to the question whether the 52 Americans taken captive in Iran were held past the election of 1980 in violation of any U.S. laws. This issue is commonly referred to as the `October Surprise.'
`Although Mr. Stoffberg's cooperation may not lead to any criminal action, the information which he has voluntarily provided to us has already been helpful and, to some extent, has been corroborated by other evidence. I would, therefore, request that Mr. Stoffberg's cooperation be taken into consideration by you in the determination of his sentence.
`I would be pleased to discuss the matter of Mr. Stoffberg's cooperation with you and your law clerk at any time before Mr. Stoffberg's sentencing.
`R. Spencer Oliver, Chief Counsel.'
It is the government's view that the court can impose a
sentence of time served, within the guidelines, without considering whether a downward departure is permitted on request of a representative of Congress. Such an approach is generally appropriate. It is not, however, desirable to avoid the downward departure issue in this case; the matter may arise again and again without an opportunity for Congress to test the courts' authority to depart downward as a reward for a cooperating witness. Cf. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 546-48 (1976) (consideration not barred where the issue is likely to arise again and yet escape review); Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev. 603, 634-35 (1991) (shift from constitutional to prudential standards on mootness, standing, and ripeness); 644-45, 648 (not an advisory opinion to decide a case on the merits over objection of mootness, ripeness, lack of standing, or that the opinion is not necessary for the disposition).
The proper relationship among the three branches of government, legislative, executive, and judicial, in the field of sentencing continues to be perplexing and important. Sea, e.g., Mistretta v. United States, 488, U.S. 361 (1989) (composition of United States Sentencing Commission does not violate the separation of powers). One aspect of that relationship is now presented.
There are a variety of sequences possible in applying departure rules. One is to determine what the sentence would be without a departure, U.S. Sentencing Comm'n Guidelines Manual, at 1 (Nov. 1991), then to consider whether a departure is desirable, then to decide the amount of the departure (in terms of time or offense level), and, finally, to apply the departure to arrive at the actual sentence. See id.; cf, United States v. Kim, 896 F.2d 678, 685 (2d Cir. 1990) (upward departure); United States v. Coe, 891 F.2d 405, 412-13 & n.9 (2d Cir. 1989) (same). This explicit, step-by-step method is desirable in the instant case since the court is being asked by Congress to signal to the present defendant and to future defendants a capacity to treat a Congressional request as an application for an appropriate downward departure.
Section 5K1.1 of the guidelines does not permit a downward departure because, as the government properly argues, in the language of the section, the defendant has not `provided substantial assistance [to prosecutors] in the investigation or prosecution of another person who has committed an offense * * *.' Moreover, in the absence of a request from the United States Attorney, a downward departure under section 5K1.1 is generally not available. See, e.g., United States v. Agu, F.2d --, --, 1991 WL 237844 (2d Cir. 1991); United States v. Khan, 920 F.2d 1100, 1106 (2d Cir. 1990), cert. denied, 111 S. Ct. 1606 (1991).
By contrast, section 5K2.0 of the guidelines permits departure on the court's own motion or on request from the defendant or any other person or body. As the Sentencing Commission points out in its policy statement on section 5K2.0, `[some c]ircumstances [which] may warrant departure from the guidelines * * * cannot, by their very nature, be comprehensively listed and analyzed in advance.' Guidelines Manual, Policy Statement to 5K2.0, at 320.
The Court of Appeals for the Second Circuit has suggested that cooperation with a body other than the United States Attorney's Office might fall within section 5K2.0. In United States v. Agu, -- F.2d --, 1991 WL 237844 (2d Cir. 1991), for example, Judge Newman pointed out that the requirement of a prosecutor's motion for a section 5K1.1 departure was `settled' in this circuit, but he cited with approval United States v. Khan, 920 F.2d 1100, 1106-07 (2d Cir. 1990). See Agu, 1991 WL 237844, at --, Khan in dicta indicated that information offered `regarding actions [defendant] took, which could not be used by the government to prosecute other individuals' could be used for a downward departure. 920 F.2d at 1107 (defendant may have saved the life of a confidential DEA informant). Agu noted that `the cooperation covered by section 5K1.1 is cooperation with the prosecution, leaving cooperation with the courts available as a ground for departure in the absence of a government motion, presumably under section 5K2.0.' Agu, 1991 WL 237844, at -- (citing United States v. Garcia, 926 F.2d 125 (2d Cir. 1991)). In Garcia the Second Circuit approved a downward departure based on the defendant's `activities facilitating the proper administration of justice' in the courts. Id. at 128; cf. United States v. Sanchez, 927 F.2d 1092, 1094 (9th Cir. 1991) (based on
defendant's assistance in a civil forfeiture proceeding, the district court properly denied downward departure under section 5K1.1 and exercised discretion not to depart under section 5K2.0).
If cooperation with the courts is covered by section 5K2.0, so, too, is cooperation with Congress. Cf. United States v. Harrell, 936 F.2d 568 (4th Cir. 1991) (unpublished opinion available on WESTLAW) (Murnaghan, J., dissenting) (`I would remand to the district judge to permit him to reconsider [the effect of] Harrell's cooperation with congressional authorities [investigating fraud at HUD.]'). The courts have sentencing authority to reward cooperation of a defendant with an agency other than the prosecution when the United States Attorney has not requested a downward departure.
The Chief Counsel's letter of January 10, 1992 is, in effect, a request for a downward departure. Comity between independent branches of government suggests the desirability of assisting Congress in its important work where there is no strong conflict with a court's other sentencing responsibilities. Balancing congressional needs and the judicial sentencing responsibilities in this case requires a downward departure in the exercise of the court's discretion.
In view of the importance of defendant's cooperation with Congress, a downward departure of three offense levels is appropriate. Absent such a departure, his offense level would be 11, with a guideline range of 8-14 months in prison. With the downward adjustment, his offense level is 8, providing a range of 2 to 8 months. Since he has served 8 1/2 months, he is ordered released forthwith. The sentence is stayed for 7 days to permit the United States Attorney to appeal and to seek a further stay from the Court of Appeals.
Jack B. Weinstein,
United States District Judge.
Dated: Brooklyn, New York, January 21, 1992.
Two years ago, Thomas Dunn was scraping by as a court-appointed criminal defense lawyer in Brooklyn, taking the usual assortment of drug, robbery, and occasional murder cases. After 5 1/2 years of this routine, he was a little bored.
But on Thursday, Jan. 18, 1990--Dunn's day of the week for picking up cases in U.S. District Court--his luck changed dramatically.
That day, a U.S. magistrate assigned Dunn the case of Ari Ben-Menashe, an Israeli intelligence operative accused of making illegal arms sales to Iran. By taking the case, Dunn was thrust into a world of international conspiracy and cloak-and-dagger intrigue that has taken him from Brooklyn to a jail cell in provincial Germany to the corridors of power in Washington.
The Ben-Menashe defense was a watershed for Dunn because it provided him entree into an even more byzantine international intrigue--the so called October Surprise.
Dunn's Ben-Menashe connection led him to take the case of Dirk Francois Stoffberg, a former South African intelligence agent and private arms merchant--who, like Ben-Menashe, is another shadowy figure involved in the October Surprise. The story of the October Surprise posits that in the fall of 1980, to help elect Ronald Reagan as president, Reagan campaign officials attempted to stall the release of 52 Americans held hostage in Iran.
Now, some crafty layering by Dunn on behalf of Stoffberg has sparked a nasty partisan spat in Washington that centers on the role a powerful congressional staffer is playing in the House of Representatives' October Surprise investigation. Dunn managed to convince a federal judge to make the unprecedented decision to reduce his client's sentence based on congressional intervention.
Through all the politics and security matters, Dunn has deftly played off competing interests in Washington to his client's advantage.
`My client had the information, and Washington was hungry for it,' boasts the usually reserved 41-year-old solo practitioner.
While Dunn has good reason to crow, he got a lot of help from his client. Stoffberg claims that in the summer of 1980 he met with future Reagan administration officials William Casey and Richard Allen to discuss U.S. hostages held captive in Iran. He did not reveal this information until he was charged last April with violating the Arms Export Control Act for selling 1,000 9mm Smith & Wesson handguns to a U.S. Customs agent posing as a Chilean broker. In November, Stoffberg pleaded guilty to the charge.
Stoffberg's story of his 1980 activities lured R. Spencer Oliver, chief counsel to the House Foreign Affairs Committee, to Manhattan--and onto Stoffberg's defense team. The longtime Democratic staffer sent a letter praising the South African to U.S. District Judge Jack Weinstein, who later freed Stoffberg.
Oliver is probing the October Surprise for the House Foreign Affairs panel--although he apparently never made known to committee Republicans his actions concerning Stoffberg. His letter has proved a lightening rod for partisan anger over the October Surprise investigation. Republican lawmakers who are critical of the probe have lashed out at Oliver for intervening in a pending criminal case in pursuit of evidence to support the October Surprise hypothesis.
The members say that it was inappropriate for an unelected staffer under the auspices of Congress to lobby a judge to reduce a defendant's sentence.
`By what authority did Spencer Oliver intervene in this case, and why wasn't the minority notified?' asks Rep. Henry Hyde (R.-Ill.), a senior member of the House Foreign Affairs Committee.' The letter should have been signed by somebody in authority.
`Maybe Mr. Oliver is running the Foreign Affairs Committee, and I didn't know it,' adds Hyde.
Oliver declines comment. A spokesperson for his boss, Rep. Dante Fascell (D-Fla.), chairman of the House Foreign Affairs Committee, says that Fascell authorized the letter.
The spokesperson notes that the letter was also authorized by Rep. Lee Hamilton (D-Ind.), who heads the Democratic task force established to probe the October Surprise.
But a spokesman for Hamilton says the congressman `was not familiar with the letter that has been sent to the judge.'
This partisan squabbling is of little concern to Dunn, who has sprung his client from jail and in so doing helped to create case law that gives Congress power in sentencing at the expense of federal prosecutors.
`If you have a guy arrested out in Texas,' says Dunn, `and there's a congressional investigation totally unrelated to his particular case, now a judge has the power to make a downward departure in the sentencing guidelines based on U.S. v. Stoffberg.'
For Stoffberg, the case began last year in Konstanz, Germany, when the U.S. Customs Service stung him. Stoffberg was arrested while attempting to cross the Swiss-German border and held by German authorities pending his extradition to the United States.
A German journalist who knew Stoffberg's financee advised him to retain Dunn. The German had seen Dunn try the seven-week-long Ben-Menashe case, which ended in an acquittal.
On Sept. 22, Dunn, a former insurance claims adjuster with a self-acknowledged fear of flying, flew to Germany to meet with his client.
During his first interview with Stoffberg, held in a German jail cell, Dunn learned that the former agent possessed some startling information that the lawyer hoped might give him leverage with the U.S. government.
In the 1970s, Stoffberg, as an agent of South Africa, sold weapons to the Shah of Iran's government. A remarkably smooth player in the international arms trade, he was able to continue selling weapons to the Iranians after the 1979 revolution.
According to Dunn, Stoffberg's good relations with officials in the Ayatollah Khomeini's regime led `two American Reagan campaign officials' to meet with his client in London on two occasions in the summer of 1980 to discuss the 52 U.S. hostages seized by Iranian militants after the revolution.
Dunn would not confirm that Casey and Allen were the two officials, but two Hill sources assert that Stoffberg has named those men to congressional investigators.
The claims were indeed explosive, and Dunn knew there had to be a way to use the information to his client's advantage.
`We wanted to cooperate with any governmental entity that was interested in Mr. Stoffberg's story,' says Dunn.
But the 1980 graduate of the Western New England College of Law also realized that Stoffberg had been caught red-handed by U.S. agents and would almost certainly be convicted by a jury if the case went to trial.
Furthermore, Dunn surmised that revealing the conspiracy allegations to prosecutors in New York's Eastern District, where Stoffberg had been indicted, would be counterproductive.
`The prosecutors' Republican bosses in Washington were hardly going to allow a deal to be cut based on allegations about the October Surprise,' says Dunn.
To make matters worse, Stoffberg refused to cooperate with U.S. prosecutors in their cases against his co-defendants. According to Dunn, his client was wary of violating the South African Secrets Act and returning to his native land to face stiff criminal penalties.
`We had no defense, that was clear,' recalls Dunn.
Then Dunn remembered a conversation he had with Spencer Oliver, the House Foreign Affairs counsel who was interested in his other client, former Israeli spy Ari Ben-Menashe. Ben-Menashe also claimed knowledge of the October Surprise and was angling to provide testimony to congressional investigators.
In September, Dunn met with Oliver and asked to set up a meeting between Oliver and Stoffberg. To add credibility to his client's story, Dunn told Oliver that in 1981, Stoffberg had played a key role in freeing three Anglican clergymen who had been taken prisoner by the Iranians. The episode, he said, could be corroborated by Swedish diplomats.
According to Dunn, Oliver was interested but non-commital. He wanted to meet with Stoffberg before agreeing to intervene with the court on his behalf.
On Nov. 21, in the U.S. Courthouse in Brooklyn, Stoffberg pleaded guilty to one count of violating the Arms Export Control Act. He was detained in the Metropolitan Correctional Center in Manhattan.
Oliver tried to set up a meeting with Stoffberg at the Office of the U.S. Attorney for the Eastern District of New York. Although prosecutors denied the request, they became interested in Stoffberg's dealings with the congressional aide. Assistant U.S. Attorney Seth Marvin had several long conversations with Oliver in an attempt to learn what Stoffberg was telling the investigator, according to Dunn and others.
Oliver finally met with Stoffberg on Dec. 26 at the Metropolitan Correctional Center. The South African told Oliver about the two London meetings and provided documents, according to Dunn.
Shortly after Oliver returned to Washington, however, he told Dunn that he would not intervene for Stoffberg because Stoffberg had refused to reveal the name of a British intelligence officer who organized one of the London meetings.
The development came as a major blow to Dunn.
`All of the sudden it felt like my heart fell out of my chest,' Dunn remembers.
So the slightly diffident solo practitioner from Fairlawn, N.J., decided it was time to play hardball with Washington.
`The committee needed my client,' says Dunn. `I told Oliver `no letter to the judge, no cooperation from my client,' and he got the message.'
In Oliver's carefully crafted Jan. 10 letter to Judge Weinstein, he writes that Stoffberg has `provided the House of Representatives Committee on Foreign Affairs with substantial assistance in an on-going investigation.' The controversial letter goes on to `request that Mr. Stoffberg's cooperation be taken into consideration by you in the determination of his sentence.'
At a Jan. 14 sentencing hearing before Weinstein, a federal prosecutor argued that the Oliver letter was no different from any other character reference from a third party: `Congress, like any other party or private citizen, has a right to send a letter to the court, much like a family member would, a physician, a member of the clergy * * *'
The judge shot back rhetorically: `You're not putting Congress in the same position of influence as a family member in terms of its influence.'
Weinstein ruled that under federal sentencing guidelines, Stoffberg was eligible to serve eight to 14 months, but that based on `the importance of defendant's cooperation with Congress, a downward departure of three offense levels is appropriate.'
He sentenced Stoffberg to two-to-eight months' imprisonment; because Stoffberg had already served 8 1/2 months, the judge ordered his release. In his Jan. 16 opinion, Weinstein also indicated that he would have sentenced the South African to 13 months in prison had he not taken Oliver's request into consideration.
The U.S. attorney's office declined to appeal Weinstein's ruling.
Meanwhile, Rep. Hyde and other Republicans continue to cry foul over Oliver's role in reducing the sentence of a convicted arms merchant.
But such political infighting seems distant to Dunn, who was preoccupied last week with defending his client's interests before the U.S. Immigration and Naturalization Service, which is seeking to deport Stoffberg either to South Africa or to Germany.
Dunn says he has not seen the last of Stoffberg, and the work he hopes to do in the future will probably take him even further from his court-appointed criminal practice in Brooklyn.
Says Dunn: `I'll be Stoffberg's lawyer for his book deal.'