United States District Court, Southern District of New York
November 13, 1990
UNITED STATES OF AMERICA
EDNA COONAN, DEFENDANT.
The opinion of the court was delivered by: Whitman Knapp, District Judge.
MEMORANDUM & ORDER
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. Ellenbogen (2d Cir.) 390 F.2d 537, 543, cert.
denied, (1968) 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206).
Prior to its 1985 amendment, the Rule did not state whether
or not a district court could act upon a timely filed motion
after the 120-day period had expired. In dictum, the Supreme
Court had indicated that it could not, i.e. that the Rule only
"authorizes District Courts to reduce a sentence within 120
days" and that this time period "is jurisdictional, and may not
be extended." U.S. v. Addonizio (1979) 442 U.S. 178, 189, 99
S.Ct. 2235, 2243, 60 L.Ed.2d 805. It is in part upon this
dictum*fn2 that the government now relies.
However, as the Advisory Committee Notes make clear, the 1985
amendment was intended to conform the rule's "language to the
nonliteral interpretation which most courts have already placed
upon the rule, namely, that it suffices that the defendant's
motion was made within the 120 days and that the court
determines the motion within a reasonable time thereafter." The
Committee noted that the "change in the language [was] deemed
desirable to remove any doubt which might arise from dictum in
some cases, e.g., United States v. Addonizio . . ., that Rule
35 only `authorizes District Courts to reduce a sentence within
120 days' and that this time period `is jurisdictional, and may
not be extended.'" Advisory Comm. Notes to 1985 Amendment. It
would appear that the Committee Notes undermine the
government's reliance upon Addonizio.
Turning to the other cases upon which the government relies,
none of them required the court to consider the question here
presented: whether or not, once the 120-day period has expired,
a district court may entertain a prompt motion for
reconsideration of a denial of a timely Rule 35 motion.
In two of these cases, there simply was no application for
reconsideration before the court. Both instead addressed the
question of the district court's authority to act upon an
original Rule 35 motion that was not timely filed. Thus, in
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, the Ninth Circuit granted the
government's petition for a writ of mandamus
compelling the district court to vacate its orders reducing the
fines of two defendants; neither defendant's Rule 35 motion had
been filed within the 120-day period. Id. at 1355-56. In U.S.
v. Dansker (3d Cir. 1978) 581 F.2d 69, the defendant timely
moved for and was denied both a new trial and a reduction of
sentence. Within 120 days of his unsuccessful appeal of those
determinations but more than 120 days after the Supreme Court
had denied certiorari with respect to his direct appeal, the
defendant filed a second Rule 35 motion which the district
court denied as untimely. The Third Circuit affirmed, noting
that the 120-day period was triggered by the denial of
certiorari, and not by the completion of the proceedings on the
new trial motion. Id. at 74.
In the remaining four cases, unconscionable delay had elapsed
between the denial of the original Rule 35 motion and the
application for reconsideration. In U.S. v. Inendino (7th Cir.
1981) 655 F.2d 108, the Seventh Circuit affirmed the district
court's refusal to consider new evidence that had been
submitted with a motion for reconsideration filed some 42 days
after the initial Rule 35 motion had been denied. In U.S. v.
Hetrick (9th Cir. 1980) 644 F.2d 752, the district court had
reduced the defendant's sentence after granting a motion for
reconsideration of a motion for reconsideration that earlier
had been denied because it was filed after the 120-day period
had expired. The Ninth Circuit reversed, noting that the second
motion for reconsideration had not been filed until almost 9
months after the district court had issued its decision on the
original Rule 35 motion. In In re U.S. (5th Cir.) 900 F.2d 800,
cert. denied, sub nom. Tapp v. U.S. (1990) ___ U.S. ___, 111
S.Ct. 271, 112 L.Ed.2d 227, the Court of Appeals granted the
government's petition for a writ of mandamus compelling the
district court to vacate its orders reducing the sentences of
two defendants. With respect to the first defendant, the
district court, apparently acting upon a supplemental
submission received 11 months after its denial of a timely
filed Rule 35 motion, had reduced the defendant's sentence to
time served. With respect to the second, the district court,
"apparently acting sua sponte," had granted similar relief
twenty months after denying a timely filed Rule 35 motion. Id.
at 802. In U.S. v. Badr (E.D.N.Y. 1987) 666 F. Supp. 37, Judge
Glasser, in denying as untimely the defendant's motion for
reconsideration, expressly declined to answer the question here
presented because the motion had been filed more than a year
and one-half after the Rule 35 motion had been denied. Id. at
38 (noting Judge Haight's opinion in United States v.
Still, language in at least two of the aforementioned courts
of appeals opinions supports the government's general
contention that a district court is without jurisdiction to
entertain a motion for reconsideration filed after the 120-day
period has expired. Thus, in In re U.S., the Fifth Circuit
stated that "federal district courts have no jurisdiction to
entertain motions for reconsideration of a Rule 35 denial of
relief, unless the motion to reconsider is filed within 120
days from the date the conviction becomes final." 900 F.2d at
804. In Hetrick, the Ninth Circuit noted that:
the timely filing of a Rule 35 motion does not
give a district court jurisdiction to entertain
subsequent untimely Rule 35 motions. The second
motion will not be deemed to relate back to the
first motion. Nor is the jurisdictional defect
cured by styling the subsequent motion as a
`motion for reconsideration.'
644 F.2d at 756 (citations omitted).
The Ninth Circuit recently applied this same rule against the
government which sought reconsideration of a Rule 35 motion
that had been granted. In U.S. v. Stump (9th Cir. 1990)
914 F.2d 170, a decision rendered while the instant motion was sub
judice, the government filed a motion for reconsideration,
seeking reinstatement of the defendant's original sentence
which had been reduced one week earlier upon a timely-filed
Rule 35 motion. The government prevailed initially, but the
Court of Appeals reversed. It reasoned that, because of the
jurisdictional nature of the 120-day time limit, the district
court had had no authority to entertain the government's
motion which had been filed more than five months after the
120-day period was triggered. See id. at 172.
The government has not cited, nor has independent research
revealed, any Second Circuit decision which addresses this
issue or any considered opinion from our district that denies
as untimely a prompt motion for reconsideration solely because
it was filed after the 120-day period had expired.*fn3
On the other hand, defense counsel has cited an unreported
decision from our district which departs from the view
apparently shared by the Fifth and Ninth Circuits. In U.S. v.
Lichtman (S.D.N.Y. Nov. 21, 1983) Dkt. No. 81 Cr. 849, three
defendants sought — after the 120-day period had expired —
reconsideration of the denials of their timely-filed Rule 35
motions. They contended that the court had failed fully to
consider their post-conviction cooperation with the trustee who
was appointed to handle the financial complications that arose
from the frauds of which the defendants had been convicted.
After making specific inquiries of the trustee with respect to
the cooperation of each defendant, Judge Haight reduced the
sentences of all three defendants. The government asserted, as
it does here, that the court lacked jurisdiction to effect any
reduction of sentence because the 120-day period had expired.
Judge Haight rejected that challenge, reasoning that:
[i]f a court may decide a Rule 35 motion outside
the 120-day limitation, it follows that the court
may, in response to a prompt request, reconsider
its decision. The request must be made with
reasonable promptness, and the court must rule on
the request within a reasonable time, after
conducting such additional inquiry as seems
appropriate in the circumstances.
Id. at 2. The government took no appeal from the decision.
In assessing this apparent conflict, one must consider the
principles which underlie the Rule and the application of the
120-day limit in the above-discussed decisions. As was noted at
the outset, Rule 35 was intended to provide the sentencing
judge with an opportunity to reconsider the sentence imposed in
light of new evidence not available at the time of sentencing.
See Advisory Comm. Notes to 1983 Amendment; see also U.S. v.
Ellenbogen (2d Cir.) 390 F.2d 537, 543, cert. denied, (1968)
393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206; Inendino, supra,
655 F.2d at 110. As articulated by the Seventh Circuit, the
purpose of the 120-day limit is "to protect the district court
from recurrent requests from defendants to reconsider their
sentence and to prevent the courts from becoming an alternative
to the Parole Commission as a means of release from custody."
Inendino, 655 F.2d at 109. Thus, "[t]he time limit . . .
mediates between competing aims: the time must be long enough
to allow the judge to reduce a sentence if he is so disposed,
and it must be short enough that the judge's power does not
duplicate the discretion of the Parole Commission." U.S. v.
Kimberlin (7th Cir. 1985) 776 F.2d 1344, 1347, cert. denied,
(1986) 476 U.S. 1142, 106 S.Ct. 2251, 90 L.Ed.2d 697; see also
U.S. v. Counter (5th Cir. 1981) 661 F.2d 374, 376.
Bearing these principles in mind, in the particular
circumstances of this case the expiration of the 120-day period
did not divest the court of jurisdiction to entertain the
application for reconsideration. It is apparent that defendant
is not here seeking to evade a jurisdictional defect by styling
a subsequent Rule 35 motion as a motion for reconsideration.
See Hetrick, supra. In fact, by the instant application,
defendant asks us first and foremost to reconsider the very
issue upon which the original Rule 35 motion was based, i.e.
the reliability of Featherstone's inculpatory testimony in
light of new evidence which was not available at the time of
sentencing, namely, certain post-trial statements made by
co-defendant McElroy. Furthermore, in light of
the fifteen-year term of defendant's sentence and her
relatively recent commitment, the possibility at this time of
duplicating the discretion of the Parole Commission is indeed
slim. Finally, the expiration of the 120-day period was
occasioned in no small part by defendant's desire — which, in
the interests of fairness and judicial economy, I shared — to
have the motion decided on a full record.
Accordingly, the application for reconsideration is granted.
(A) The Request to Reduce the Fine
There are two prongs to the application to reduce the fine:
(i) that Edna Coonan has no resources with which to pay it; and
(ii) that its imposition is materially worsening the conditions
of her confinement. To prevail on this application, she must
establish both prongs. Without the second, there would be no
reason to sidetrack the usual procedure of letting any claim of
inability to pay be adjudicated pursuant to 18 U.S.C. § 3569
when her release is imminent.
Defendant's original papers set forth a variety of purported
hardships resulting from the fine. The government responded
with rather convincing arguments to the effect that the
existence of the fine had no material effect on the condition
of her confinement. This motion for reargument makes no
reference to this dispute. On the contrary, it notes that the
question whether or not "the fine imposed on Edna Coonan is
vacated . . . is . . . in fundamental respects the least of the
issues before the Court." Shevitz Rearg. Declar. at ¶ 7.
(B) The Application for a New Trial or in the Alternative to
Reconsider the Term of Imprisonment
The application for a new trial or in the alternative to
reconsider the term of imprisonment is based on the contention
that subsequent statements by co-defendant McElroy so
undermined the credibility of the witness Featherstone with
respect to Edna Coonan's involvement in the Vincent Leone
murder that justice requires a reconsideration of the verdict
against her and of the sentence imposed thereon. As the
government properly observes, to prevail upon such an
application defendant would have to establish that she would
have had at least some chance of acquittal had McElroy been
available to her at the time of trial. The short answer to any
such contention is that no rational defense attorney would have
put McElroy on the witness stand had he been available.
In the State action against Gotti, McElroy testified on cross
examination about Edna Coonan's involvement in the Vincent
Q: Well, you told us Edna Coonan gave you —
A: That was Jimmy's wife.
Q: She brought the tape to you before Lioni [sic]
was killed, right?
Q: And she told you to kill him, right?
As noted above, Edna Coonan's application for reconsideration
is granted. Upon such reconsideration, it is apparent that no
aspect of her motion has merit and it is denied. However, for
reasons that follow, her sentence is modified to provide that
it is imposed pursuant to 18 U.S.C. § 4205(b)(2), and, in
accordance therewith, I specify that she may be released on
parole at such time as the Parole Commission may determine.
It is obvious to me — as it must be to anyone familiar with
the trial record — that substantial sums of cash were
accumulated by James and Edna Coonan in the course of their
criminal enterprise. If those sums have not been dissipated,
they are still available. If they have been dissipated, the
Coonans would have no motive to conceal that fact. On the
contrary, they would have every motive to establish it.
Moreover, they could easily produce witnesses who could
explain, subject to appropriate cross examination, where the
money had originally been hidden and how it had been
dispersed. If, on the other hand, the funds are still
available, the Coonans would have every motive to conceal them
unless they were prepared to have them forfeited to the
At the time of sentence, presented with apparently sincere
statements by both Coonans that their primary concern was the
welfare of their children, I had hoped that they might realize
that such welfare would best be promoted by the soonest
possible reunion between the children and their mother, rather
than by preserving for the children the luxury — and guilt —
of living off the proceeds of their parents' crimes.
Accordingly, after imposing upon Edna Coonan the minimum prison
sentence I thought justified in light of her role in the
criminal enterprise, I made clear that I was prepared to reduce
that sentence should she (and necessarily her husband)
cooperate in revealing the whereabouts of the proceeds of her
My sentiments are still the same. However, my powers are
quite different. I now have no authority to reduce Edna
Coonan's sentence on the basis of anything she or her husband
may do in the future. I can only confer such power upon the
Parole Commission, which I now do by the above-noted
modification of her sentence.
After the preceding memorandum and order was drafted, it was
circulated among counsel for their views on my decision —
which they may not have anticipated — to modify Edna Coonan's
sentence by employing 18 U.S.C. § 4205(b)(2). It is apparent
from their responses that both sides have misinterpreted the
purpose of that decision, in that they seem to view it as an
offer of leniency to Edna Coonan. Thus, the government notes
that making the defendant immediately eligible for parole
confers upon her "a benefit that most federal prisoners do not
enjoy." The defendant, on the other hand, contends that it is
unjust to condition such "benefit" on the actions of her
The fact of the matter is that leniency to Edna Coonan was no
part of my purpose. As I tried to make clear both at the time
of sentence and in my present memorandum and order, I thought
and still think that the sentence imposed is the least possible
punishment appropriate for the crimes of which she was
convicted. She continually asserts — through her counsel —
that all her actions were performed at her husband's behest.
While this may be an explanation for her conduct, it is no
justification either legally or morally.
Simply stated, my purpose in employing 18 U.S.C. § 4205(b)(2)
is to further the objective of the RICO statute's forfeiture
provision, 18 U.S.C. § 1963, pursuant to which the proceeds of
the "Westies" enterprise are, as they have been since the
commission of that enterprise's offenses, the property
of the United States. In this connection, it would seem to me
too high a price to pay for the achievement of that objective
to offer defendant James Coonan a reduction in his sentence.
However, it seems to me — as it may or may not seem to the
Parole Commission — that in light of Edna Coonan's lesser
involvement it would not be inappropriate to offer defendant
James Coonan a reduction in his wife's sentence should he
decide to cooperate in this endeavor.
The government, apparently sharing my view that the
likelihood that James Coonan will accept this offer is small
indeed, objects to the conferral of any further discretion upon
the Parole Commission. I do not believe the government's
concern is warranted. I am advised that, under the Commission's
applicable guidelines, Edna Coonan would not be eligible for
release until after the expiration of the five-year minimum
established by the original sentence; and that invocation of
§ 4205(b)(2) would, under the Commission's practice and
procedures, have no effect on the application of those
guidelines. While the Commission has discretion to depart from
those guidelines (and, as the government observes, will now be
able "immediately" to reduce her sentence to time served), I
can perceive no reason for supposing that it would exercise its
discretion in any but an appropriate fashion.