The opinion of the court was delivered by: Whitman Knapp, District Judge.
Edna Coonan moves for reconsideration of her motion for a new
trial under Rule 33 or in the alternative for a reduction of
sentence under Rule 35, which I denied in its entirety in my
Memorandum & Order of August 3, 1990, 1990 WL 116758. The
government asserts that the court is without jurisdiction to
entertain the instant application in so far as it seeks
reconsideration of the denial of Rule 35 relief. For reasons
that follow, the application for reconsideration is granted,
and, upon such reconsideration, I adhere to my original
decision except that the sentence is modified so that it is
imposed pursuant to 18 § 4205(b)(2).
On May 12, 1988, Edna Coonan was sentenced to fifteen years
in prison and fined $200,000 upon a conviction arising from her
involvement in the racketeering activities of the "Westies," an
organized crime group that controlled criminal activities in
the mid-town Manhattan neighborhood commonly referred to as
"Hell's Kitchen." The Court of Appeals affirmed and reaffirmed
her conviction on, respectively, May 24 and July 5, 1989. On
November 27, 1989, the Supreme Court denied her petition for a
writ of certiorari, and, on December 1, 1989, the Court of
Appeals' mandate issued.
Four days later, on December 5, 1989, she filed — in a
single submission requesting oral argument — her motion for a
new trial pursuant to Rule 33 or in the alternative for a
reduction in sentence pursuant to Rule 35.*fn1 In seeking a
new trial, she primarily challenged the reliability of the
trial testimony of Francis "Mickey" Featherstone, which had
implicated her in the murder of Vincent Leone. The reliability
of that testimony was undermined, she asserted, by statements
recently made to state authorities by co-defendant James
The request for a reduction of sentence also was predicated on
these "new developments," which, she claimed, rendered suspect
"the basis on which the Court ordered [defendant] incarcerated
for a fifteen-year term." In the event that a new trial would
not be granted, she requested leave "to submit supplemental
papers, if necessary demonstrating why [she] is at least
entitled to a substantial reduction in sentence."
On December 13, 1989, the government submitted its initial
opposition. Soon thereafter I became aware of the possibility
that McElroy would be called by the State of New York to
testify in the upcoming trial of John Gotti, and that such
testimony might impact on the pending motions. In the interest
of resolving the motion on a more complete record, I deferred
ruling on it, adjourning without date the time for submission
of Edna Coonan's supplemental papers.
Chambers were closed for most of the month of January, during
which time the state trial — at which McElroy did indeed
testify — took place. In response to an inquiry from Chambers
in early March, defense counsel, because of both professional
and personal commitments, sought and was granted until May 18
to file supplemental submissions. By letter dated May 8,
counsel requested a three-week extension until June 8, which
was granted. On June 8, counsel filed a supplemental
declaration. That declaration iterated the request for oral
argument and sought to support the original contention — that
Featherstone's testimony was unreliable — in light of, inter
alia, McElroy's testimony at the Gotti trial. Annexed to the
declaration was a transcript of McElroy's testimony.
By letter dated July 26, Assistant United States Attorneys
David E. Brodsky and Mary Lee Warren responded to Edna Coonan's
supplemental submission as well as the motions for reduction of
sentence which had been filed by co-defendants McElroy, Richard
Ritter, and Thomas Collins. By letter dated August 2, defense
counsel re-asserted the position that "the Court's confidence
in what Mickey Featherstone had to say . . . may be shaken . .
. at least enough to suggest that leniency for this otherwise
rehabilitatable offender may be warranted."
On August 3, in conformity with my usual practice of taking
such motions on submission, I issued a decision denying the
motion in its entirety. I concluded that "the various
statements of James McElroy cast no doubt either on the
validity of the conviction or on the propriety of the
sentence." Memorandum & Order of August 3, at p. 1. With
respect to the application to reduce the fine, I noted the
absence in the moving papers of any "flat statement (on
information and belief or otherwise) that Edna Coonan could not
pay the fine tomorrow if she wanted to." Id.
One week later, on August 10, defendant filed an application
for reconsideration of the motion, reiterating her request for
oral argument. By letter of the same date, the government
opposed the application for reargument — in so far as it
sought a reduction of sentence — on the ground that it was
untimely and that the court was therefore without jurisdiction
to hear it. The parties have since submitted letter-briefs on
the question of whether or not the court has jurisdiction to
entertain the application for reconsideration of the request
for Rule 35 relief.
Jurisdiction to Entertain the Application for Reconsideration.
Citing U.S. v. Addonizio (1979) 442 U.S. 178, 99 S.Ct. 2235,
60 L.Ed.2d 805, U.S. v. U.S. District Court (9th Cir.)
509 F.2d 1352, cert. denied, sub nom. Roselli v. U.S. (1975)
421 U.S. 962, 95 S.Ct. 1949, 44 L.Ed.2d 448, U.S. v. Dansker (3d Cir.
1978) 581 F.2d 69, U.S. v. Inendino (7th Cir. 1981)
655 F.2d 108, U.S. v. Hetrick (9th Cir. 1980) 644 F.2d 752, In re U.S.
900 F.2d 800, cert. denied, sub nom. Tapp v. U.S. (1990) ___
U.S. ___, 111 S.Ct. 271, 112 L.Ed.2d 227, and U.S. v. Badr
(E.D.N.Y. 1987) 666 F. Supp. 37, the government contends that
this court is without jurisdiction to entertain the instant
application in so far as it seeks reconsideration of its denial
of the Rule 35 motion because the application was filed after
the 120-day time limit set forth in that Rule. Defendant's
response to the government's contention in this regard is
primarily based on Judge Haight's opinion in U.S. v. Lichtman
(S.D.N.Y. Nov. 21, 1983), 1983 WL 4615.
The Rule, as amended in 1985 and as here applicable, provides
in pertinent part:
A motion to reduce a sentence may be made, or the
court may reduce a sentence without motion, within
120 days after the sentence is imposed . . . or
within 120 days after receipt by the court of a
mandate issued upon affirmance of the judgment or
dismissal of the appeal, or within 120 days after
entry of any order or judgment of the Supreme
Court denying review of, or having the effect of
upholding, a judgment of conviction. The court
shall determine the motion within a reasonable
Fed.R.Crim.P. 35(b). The Rule's underlying objective "is to
`give every convicted defendant a second round before the
sentencing judge, and [afford] the judge an opportunity to
reconsider the sentence in the light of any further information
about the defendant or the case which may have been presented
to him in the interim.'" Advisory Comm. Notes to 1983 Amendment
(quoting U.S. v. ...