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U.S. v. COONAN

November 13, 1990

UNITED STATES OF AMERICA
v.
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).

BACKGROUND

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 McElroy. 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.

DISCUSSION

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. (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, 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
  time.

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. ...


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